-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.863 OF 2001 APPEAL NO.863 OF 2001 APPEAL NO.863 OF 2001 Ramchandra Dattoba Shinde & Ors. ...Appellants vs. Govind Balkrishna Kulkarni & Ors. ...Respondents Mr.A.A.Kumbhakoni for the Appellants Mr.N.R.Bubana for Respondent Nos.1,3A and 4. CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : FEBRUARY 13, 2008. : FEBRUARY 13, 2008. : FEBRUARY 13, 2008. P.C.: P.C.: P.C.: 1. Heard learned counsel for the parties. The Appellants are the original opponents in a petition filed by the Respondents for grant of Letters of Administration. The said application praying for grant of Letters of Administration in respect of the Will dated 16th August 1974 of one Pandurang Shinde was allowed by the trial court and the order of trial court has been confirmed in an Appeal. 2. The submission of the learned counsel for the Appellants is that there were several suspicious circumstances relating to the execution of the alleged Will. He pointed out that considering the very old age of the testator, the fact that his medical certificate is not produced by the Respondents goes to the root of the matter. He submitted that the courts below and especially the Appellate court have purported to decide the issue of title relating to the lands which are subject matter of the Will. He invited my attention to the paragraph 28 of the Judgment of the Appellate court. -2- 3. I have carefully considered the submissions. In so far as proof of Will executed by the deceased Pandurang is concerned, there are concurrent findings of fact based on appreciation of evidence of attesting witness as well as other witnesses. The Appellate Court found that after execution of the Will, the deceased survived for 354 days. That is the reason why the courts below and especially the Appellate Court held that omission to produce the medical certificate was not fatal. 4. It is well settled position of law that the issue regarding title in respect of the properties which are subject matter of the Will cannot be decided by the court dealing with the application for grant of probate or Letters of Administration. The said court can decide the issue regarding execution and validity of the Will. The finding recorded on the issue of title by a court deciding an application for probate is never conclusive. The issue of title has to be independently decided by the Civil Court. 5. There is no error in the findings recorded by the courts below as regards proof of Will. It is, however, clarified that the issue of title has not been decided by the courts below and the said issue is obviously kept open be decided in the appropriate proceedings filed by the parties. 6. Subject to what is observed above, there is no merit in the Appeal and the same is dismissed with no order as to costs. -3- JUDGE JUDGE JUDGE