1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.110 OF 2007 Smt.Rangubai Sopan Redekar .... Appellant represented thru’her power of attorney Shri Sopan Ananta Redekar Vs. Shri Bapu Shripati Sid & Ors. .... Respondents Mr.P.B. Shah, Advocate for appellant. Mr.V.B. Rajure, Advocate for respondents no.1 & 2. Coram : SMT.R.P. SONDURBALDOTA, J. Date : 14th July, 2009 P.C. 1. This Second Appeal arises out of judgment and order dated 14th January 2006 passed by the learned Ad-hoc District Judge-1, Baramati, Dist. Pune by confirming the judgment and order dated 21st November 2003 passed by the trial Court. The appellant is the original plaintiff and respondents are original defendants. The appellant filed the suit for partition and separate possession of joint family properties i.e ancestral properties of one Shripati Sid, father of the appellant and the respondents. Shripati died on 13th September 1993. Respondent no.1 is the brother and respondent no.2 is the step sister of the appellant. Respondent no.1 opposed the suit claiming exclusive title to the suit properties based on will dated 12th July 1991 allegedly executed by Shripati. 2 2. On the rival pleadings, trial court framed issues, one of them was Whether the plaintiff proves that will-deed executed by Shripati was bogus and illegal. The will bears signatures of Mr.Popat Mahadev Kare, Madan Jagtap, Pandurang Raut and Popat Chandanshive. Out of these four persons, the appellant examined the attesting witness Popat and Madan. Both supported the appellant stating that their signatures were obtained by respondent No.1 on the document and will deed fraudulently. Respondent no.1 examined the third witness i.e. Popat Kare who after filing his affidavit of examination-in- chief did not present himself for cross examination despite service of summons upon him. Respondent no.1 then resorted to Section 71 of The Indian Evidence Act and brought other evidence of surrounding circumstances to establish execution of the document. The trial court appreciated the evidence and held that out of the four witnesses available to respondent no.1 to prove the will, the appellant hijacked two by examining them as his own witnesses. They actively supported him and the third indirectly supported by making himself unavailable for cross- examination. This rendered respondent no.1 helpless. The trial Court, therefore held that resort to Section 71 by respondent no.1 was correct. Under the said provision, respondent no.1 examined the writer, one Prakash Gaikwad, who 3 had taken down the will and then read over the same to Shripati and the witnesses. He deposed that he put his thumb impression on the will deed, the witnesses Popat Kare and Jagtap also put their signatures on it and in his presence Shripati Sid put his thumb impression. Thereafter Shripati had gone to the Registrar’s office for registration of the document of will. Respondent no.1 also examined one Dnyandev Pandurang Gade who deposed that prior to executing the will deed, Shripati told him about will and as per his evidence he also come to the Registrar’s office, Indapur. He was the witness to all the circumstances i.e. purchase of the stamp paper, writing down of will deed, signature of witnesses thereon and thumb impression of Shripati Sid. On the above evidence, the trial Court held that respondent No.1 had proved the will. These findings of the trial court were confirmed by the appellate court which came to the same conclusion that the witnesses to the will had been won over by appellant, so as to make them unavailable to respondent no.1 for being examined in the court. The appellate court also justified application of Section 71 of Indian Evidence Act. 3. Mr.Shah, the learned counsel for the appellant submits that the finding given by both the courts below on the question of proof of the will is perverse. According to him, 4 it was incumbent upon respondent No.1 to examine atleast one attesting witness. He submits that respondent no.1 could have issued a warrant against witness who failed to remain present in the court. I have perused the observations of both the courts below and evidence of witnesses examined by the appellant. Both the courts below in their exhaustive orders disbelieved two witnesses examined by the appellant. The view taken by the courts cannot be said to be perverse. The trial court observed that witness Chandanshive examined by the appellant though he stated in chief that he had put his signature on the documents at the instance of respondent no.1, he admitted in his cross-examination that he was not acquainted with respondent no.1. It would be a matter of surprise then that the witness would sign the document of will as an attesting witness simply at the instance of a total stranger. Similar is the evidence of the other witness. He stated in his chief that he knew the contents of the will. He was acquainted with Shripati and that he has alienated the property in favour of respondent no.1, but still claimed that he had singed the document only at the instance of respondent no. 1. 4. I have perused judgments of both the court below. The Courts have correctly appreciated the evidence to arrive at the conclusions drawn. There is no need to interfere with 5 the concurrent findings given. There is also no substantial question of law in the matter. Hence, the Second Appeal is dismissed in limine. 5. In view of dismissal of the second appeal, the civil application No.345 of 2007 does not survive, the same is accordingly disposed off. (Smt.R.P.SondurBaldota,J)