- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. APPEAL NO.565 OF 2004 IN SUIT NO.20 OF 1988 ... Pandurang H. Koli & Ors. ...Appellants v/s. Baburao Harischandra Koli ...Respondent ... Mr.L.K.Tripathi for the Appellants. Ms.R.C.Nichani with Ms.S.R.Kumbhat for the Respondent. ... CORAM: D.K.DESHMUKH & A.A.SAYED, JJ. DATED: 5TH FEBRUARY, 2009 - 2 - P.C.: 1. By this appeal the Appellants challenge the judgment and decree passed by the learned single Judge of this court in Suit No.20 of 1988. 2. The relevant facts are that the present Respondent Baburao Harischandra Koli filed a petition for letters of administration with Will attached of the properties and credits of Mr.Harischandra Damaji Koli, who was his father. Mr.Pandurang Koli was cited in that petition as he was also the son of the deceased. On citation being served, Mr.Pandurang Koli filed a caveat. Therefore, petition for letters of administration which was registered as Petition No.666 of 1997 was converted into Suit No.20 of 1998. On the basis of the rival pleading the learned single Judge framed following issues: 1. Whether the alleged Will dated 14-5-1976 was duly executed by the deceased Harischandra Damaji Koli? 2. Whether the said Will was duly attested by the witnesses as required by law? - 3 - 3. Whether the deceased Harischandra Damaji Koli was of a sound and disposing state of mind at the time when the said will was executed? 4. Whether the said document was obtained by Baburao the Petitioner by misrepresentation and by playing fraud on the Testator as alleged in paragraphs 5, 9 and 10 of the affidavit of the Defendant in support of his caveat? 5. What relief, if any is the Plaintiff entitled to? 3. In support of his case the Petitioner-Plaintiff examined himself. He also examined attesting witness Gajanan Nakhwa and Dr.Modkar who had issued a certificate about the mental and testamentary capacity of the deceased testator at the time of making of the Will. The Defendant also examined the widow of the caveator who died during the pendency of the suit. The learned single Judge after appreciating the evidence on record held that the genuineness and validity of the will has been proved by the Petitioner-Plaintiff and therefore decreed the suit by granting letters of administration in favour of the Plaintiff. 4. The present Appeal challenges that judgment and decree. The learned Counsel appearing for the - 4 - Appellants urged only one point before us. According to him the attestation of the will has not been proved. The learned Counsel submitted that two persons had signed as attesting witnesses. Out of them only one by name Gajanan Nakhwa was examined as a witness. In his cross-examination he has stated that when the testator put his thumb-impression on his will he was not present because he had gone to answer the call of the nature. According to the learned Counsel, therefore, the learned Judge could not have held that the attestation of the will has been proved. 5. We have heard the learned Counsel appearing for the original Plaintiff. We have also gone through the record. We find that in his examination-in-chief the attesting witness has stated that the thumb-impression was put by the testator in his presence. In his cross-examination he stated that when the thumb-impression was put he had gone out of the room. In re-examination he, however, clarified the position saying that he returned to the room when the testator was putting his thumb-impression on the will. The deposition of the witness has been discussed by the learned single Judge and has - 5 - believed the testimony of the witness. We further find that the document of the will is a registered document. There is endorsement made by the sub-registrar on the document that she asked the executant of the document as to what is the nature of the document and he informed that it is his will and he also stated that he has put his thumb-impression on the will. This endorsement on the document is made by the sub-registrar in usual course of business and therefore it has a presumptive value. There is nothing on record creating doubt about the validity and genuineness of this document. 6. Taking overall view of the matter, therefore, in our opinion there is no reason to find any fault with the judgment and decree of the learned single Judge impugned in the appeal. Appeal, therefore, fails and is dismissed. No order as to costs. (D.K.DESHMUKH, J.) (A.A.SAYED, J.)