VEERBHADRA MAHDAVRAO SAKHARE AND OTHERSversusSHOBHABAI SURESH GADPE AND OTHERS

2026:BHC-AUG:33474
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                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT AURANGABAD

                             905 SECOND APPEAL NO. 370 OF 2026
                                           WITH
                     CIVIL APPLICATION NO. 6107 OF 2026 IN SA/370/2026

                          Veerbhadra Madhavrao Sakhare And Others
                                          VERSUS
                              Shobhbai Suresh Gadpe and Others
                                         ......
          Mr. N.D. Kendre, Advocate h/f Mr. D.Y. Nandedkar, Advocate for the
          Appellants
          Ms. S.G. Chinchokar, Advocate h/f Mr. G.N. Chincholkar, Advocate
          Respondent No.1
                                         ......

                                          CORAM : SIDDHESHWAR S. THOMBRE, J.
                                          DATE       : 31 JULY, 2026
          PER COURT :

          1.     Heard learned counsel Mr. Kendre holding for learned counsel Mr.

          Nandedkar for the appellants and learned counsel Ms. S.G. Chincholkar

          holding for learned counsel Mr. G.N. Chincholkar for respondent No.1.


          2      By this Second Appeal, the appellants (original defendants Nos.1 to

          4) have assailed the judgment and decree dated 02.05.2022 passed by the

          learned Joint Civil Judge, Junior Division, Biloli in Regular Civil Suit No.48

          of 2015 as well as the judgment and decree dated 14.02.2026 passed by the

          learned District Judge-1, Biloli in Regular Civil Appeal No.32 of 2022,

          whereby the judgment and decree passed by the Trial Court came to be

          confirmed.
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3.     Respondent No.1 (original plaintiff) instituted Regular Civil Suit

No.48 of 2015 seeking partition, separate possession and mesne profits in

respect of the suit properties. The present appellants, who are the original

defendants Nos.1 to 4, resisted the suit by filing their written statement. It

was their specific defence that the plaintiff had orally relinquished her share

in the suit properties after accepting an amount of Rs.5,00,000/- towards

the marriage of her daughter and, therefore, she was not entitled to claim

partition and separate possession. According to the appellants, the oral

relinquishment was acted upon and the mutation entries were accordingly

effected in the revenue record.


4.     Upon appreciation of the oral and documentary evidence, the

learned Trial Court decreed the suit in favour of the plaintiff. Being

aggrieved thereby, the appellants preferred Regular Civil Appeal No.32 of

2022. The learned First Appellate Court, after independently re-appreciating

the entire evidence on record, dismissed the appeal and confirmed the

judgment and decree passed by the Trial Court. Hence, the present Second

Appeal.


5.     Learned counsel Mr. Kendre holding for learned counsel Mr.

Nandedkar for the appellants submits that both the Courts below have

committed a serious error in rejecting the defence of the appellants solely on

the ground that there was no written deed of relinquishment. He submits

that the plaintiff had orally relinquished her share in the suit properties after
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accepting an amount of Rs.5,00,000/- towards the marriage expenses of her

daughter and, therefore, she ceased to have any right in the suit properties.

According to him, the mutation entries were also effected in the revenue

record pursuant to such oral relinquishment.


6.     Learned counsel further submits that both the Courts below have

failed to appreciate the provisions of Section 9 of the Transfer of Property

Act, 1882, which permits transfer of property otherwise than by a written

instrument unless a writing is specifically required by law. He submits that

the findings recorded by both the Courts below that, in the absence of a

written deed of relinquishment, the defence of the appellants cannot be

accepted, are contrary to the settled legal position. In support of his

submissions, he has placed reliance upon the decisions in Hirabai W/o Harji

Ingale Vs. Babu Manika Ingale, 1980 Mh.L.J. 494, Gangadhar Pandhari

Harde Vs. Uttam S/o. Pandhari Harde and Another, 2008 (2) Mh.L.J. , and

Ramdas Chimna Vs. Pralhad Deorao, 1964 Mh.L.J.


7.     Learned counsel further submits that Gat No.167 was the absolute

property of the mother and had become her absolute property by virtue of

Section 14 of the Hindu Succession Act, 1956. However, both the Courts

below failed to appreciate the said aspect while deciding the suit. He further

submits that partition had already taken place and the mutation entries

recording the same remained unchallenged. Therefore, according to him,

the suit itself was not maintainable. Learned counsel for the appellants,
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therefore, submits that the following substantial questions of law arise for

consideration:


I.      Whether the learned District Judge, Biloli, Dist. Nanded failed to
appreciate the provisions under Section 9 of Transfer of Property Act?

II.      Whether the learned First Appellate Court has committed a substantial
error of law in confirming the finding of the Trial Court that land Gat No.167 is a
joint family/ancestral property, when the admitted documentary evidence on
record establishes that it was purchased by Rukhminibai out of her own Stridhan
and was her absolute property under Section 14 of the Hindu Succession Act,
1956?

III. Whether Section 9 of the Transfer of Property Act, 1882, which permits transfer
of immovable property by oral agreement in the absence of a statutory
requirement of writing, applies to an oral relinquishment of a share in
coparcenary/joint family property, and if so, whether the oral relinquishment by
Respondent No.1 accompanied by acceptance of Rs.5,00,000/- in cash before
Panchas on 01.05.2013 constitutes a legally valid and binding relinquishment?

IV.      Whether the learned First Appellate Court has committed a legal error in
not independently re-appreciating the evidence on record as required under
Section 96 read with Order XLI Rule 31 of the Code of Civil Procedure, and
whether such failure to record independent findings on each issue amounts to a
jurisdictional error justifying interference by this Hon'ble Court in Second Appeal?

V.       When the partition of joint family property was already effected during the
lifetime of the father and mutation entries are also sanctioned, which were not
challenged by the plaintiff during the lifetime of the father, whether the suit for
partition itself is maintainable in view of the recent judgments of the Hon'ble
Supreme Court and this Court?

8.      Per contra, learned counsel Ms. S.G. Chincholkar holding for learned

counsel Mr. G.N. Chincholkar for respondent No.1 supports the impugned

judgments. She submits that both the Courts below have, upon proper

appreciation of the oral as well as documentary evidence, concurrently held

that the appellants have failed to establish the alleged oral relinquishment.
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She further submits that the plaintiff has consistently denied having

relinquished her share in the suit properties and both the Courts below have

rightly rejected the defence raised by the appellants. According to her, the

impugned judgments are based on concurrent findings of fact and no

substantial question of law arises for consideration in the present Second

Appeal.


9.       I have considered the submissions advanced by the learned counsel

for the respective parties. I have also gone through the pleadings, the oral

and documentary evidence on record and the judgments passed by both the

Courts below.


10.      There is no dispute regarding the relationship between the parties.

The principal defence of the appellants is that the plaintiff had orally

relinquished her share in the suit properties after accepting an amount of

Rs.5,00,000/- towards the marriage expenses of her daughter.


11.      The plaintiff has, however, specifically pleaded that there was no oral

relinquishment and that, being a coparcener, she is entitled to claim her

share in the suit properties. It is not in dispute that, by virtue of the

amendment to Section 6 of the Hindu Succession Act, 1956 brought into

force in the year 2005, the plaintiff acquired the status of a coparcener

with rights equal to that of a son. The plaintiff has consistently

denied     having     executed    oral   relinquishment.    Both     the Courts
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below, upon appreciation of the oral as well as documentary evidence, have

concurrently recorded a finding that the appellants have failed to establish

the alleged oral relinquishment. I do not find any perversity or legal

infirmity in the said concurrent finding.


12.    In my considered view, the contention advanced on behalf of the

appellants cannot be accepted. Even assuming that an oral relinquishment is

legally permissible under Section 9 of the Transfer of Property Act, 1882, as

canvassed by the learned counsel for the appellants, the appellants were still

required to establish, by cogent and convincing evidence, that the plaintiff

had, in fact, relinquished her share in the suit properties. The judgments

relied upon by the learned counsel for the appellants lay down the legal

position regarding oral relinquishment; however, they do not advance the

case of the appellants in the facts of the present case, as both the Courts

below have concurrently held that the appellants failed to prove the alleged

oral relinquishment. Consequently, the defence based upon the alleged oral

relinquishment has been rightly rejected.


13.    The contention regarding Gat No.167 being the absolute property of

the mother also does not merit acceptance. Both the Courts below have

considered the oral as well as documentary evidence while recording their

findings. Likewise, the contention that the learned First Appellate Court

failed to independently appreciate the evidence also cannot be accepted. A

perusal of the impugned judgment demonstrates that the learned First
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Appellate Court has independently re-appreciated the entire evidence on

record and assigned cogent reasons while affirming the judgment and

decree passed by the Trial Court. Thus, the requirements of Order XLI Rule

31 of the Code of Civil Procedure stand duly complied with.



14.        For the reasons recorded hereinabove, I am of the considered

opinion that the findings recorded by both the Courts below are based upon

proper appreciation of the evidence on record and do not suffer from any

perversity or legal infirmity warranting interference in exercise of

jurisdiction under Section 100 of the Code of Civil Procedure. The

appellants have failed to demonstrate that any substantial question of law

arises for consideration in the present Second Appeal. Hence, the Second

Appeal deserves to be dismissed at the admission stage. Hence the following

order.

                                      ORDER


(i)        The Second Appeal stands dismissed. No order as to costs.


(ii)       Pending Civil Application, if any, also stands disposed of.




                                                [ SIDDHESHWAR S. THOMBRE ]
                                                          JUDGE
S P Rane