1 sa447.11.sxw IN THE HIGH COURT OF JDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 447 OF 2011 WITH CIVIL APPLICATION NO. 1093 OF 2011 Smt. Akkatai Shamrao Kadam & Ors. ...Appellants. Vs. Smt. Sulochana Manohar Kadam & Ors. ..Respondents. Mr.A. M. Kulkarni for the Appellants. CORAM : A.S. OKA, J. DATE : 9TH NOVEMBER, 2011. P.C. 1. Heard learned Counsel appearing for the appellants. On the application made by the respondents, the trial Court issued Letters of Administration with the will annexed in respect of the will dated 21st February, 1975 executed by deceased testator Baburao Kadam. The said order has been confirmed in appeal by the District Court. 2. The submission of the learned Counsel appearing for the appellants is that on the alleged will the signature of the testator and one of the attesting witnesses appears in Modi script and no witness has been examined by the 2 sa447.11.sxw respondents to prove the said signatures. He pointed out that the witness Kisan Yadav was a friend of the deceased who was well conversant with the modi script. He pointed out that in his evidence he deposed that the signature appearing on the alleged will in the modi script is not the signature of the deceased Baburao. He submitted that the evidence of the said witness has been discarded only on the ground that there is no pleading. He submitted that this finding is totally illegal. He submitted that the witness examined by the appellants stated that he was very well conversant with the modi script as well as the signature of the deceased Baburao who had occasion to sign in the presence of this witness on several occasions. He therefore, submitted that the finding on this aspect is perverse. 3. I have considered the submissions. The evidence of witness Kisan has not been discarded only on the ground of want of pleading. After considering the evidence, the finding of fact of the appellate Court is that his evidence does not inspire confidence. 4. The deceased Baburao died on 13th August, 1975, who had made alleged will on 21st February, 1975, which was admittedly registered in the office of the Sub-Registrar of Assurances. In this case, what is brought on record is that the attesting witnesses of the will, scribe of the will and the 3 sa447.11.sxw Sub-Registrar who registered the will have already expired. I have perused the evidence of the witness examined by the appellants. He claimed that he was a friend of deceased Baburao. He was knowing deceased Baburao for 50 years. In cross-examination he stated that he was not acquainted with Baburao before he started residing in the lane in which the witness was residing. The witness admitted that he was unable to tell all the events happened during the period of one year next before the death of Baburao, except that Baburao was ill. He admitted that he had no idea of education of Baburao's son. He admitted that there was no occasion to come in contact with Baburao except for the reason that both of them were residing in the same lane. He admitted that his age was 70 years and he was taught Modi script in the school. He stated that he left the school at the age of 15 or 16 years. His evidence shows that there were very few occasions when he was required to read or write in Modi script. He admitted that everybody has a different style of making signature in Modi script. The answers given by the witness in paragraph 3 of the cross-examination show that witness has hardly any knowledge about the members of the family of the deceased though in cross-examination he claims that the deceased was known to him for 50 years and he was his friend. Considering the answers in the cross- examination, the finding of fact recorded by both the Courts below and especially the appellate Court is that, the evidence of this witness does not 4 sa447.11.sxw inspire confidence. This finding cannot be faulted with. There are concurrent findings recorded by the Courts below on the issue of proof of the execution of the will. 5. No substantial question arises. It is obvious that the while deciding the application for grant of letters of administration, the issue regarding the title of the deceased to the property allegedly held by the him cannot be decided. 6. Subject to what is observed above, no case for interference is made out. The second appeal is dismissed. 7. Civil Application No. 1093 of 2011 does not survive and is disposed of accordingly. 8. At this stage the learned Counsel appearing for the appellants submitted that the applicants have filed a suit for partition. As clarified earlier, the issue of title remains open. ( A.S. OKA, J. )