SMT. SHOBHA MADHUKAR GAIKWADversusSHRI. BALARAM YASHWANT MORE and ORS.

2026:BHC-AS:18923

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                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CIVIL APPELLATE JURISDICTION
                                 SECOND APPEAL NO.67 OF 2023

            Shobha Madhukar Gaikwad                              ...   Appellant
                  versus
            Balaram Yashwant More and Ors.              …    Respondents
                                              WITH
                               INTERIM APPLICATION NO.3488 OF 2019

            Mr. Avinash D. Kango, for Appellant.
            Mr. Rohit D. Joshi (through VC) for Respondents.

                                 CORAM:     N.J.JAMADAR, J.

                                 DATE :     18 APRIL 2026

            ORDER :

            1.      Heard the learned Counsel for the parties.

            2.      This Appeal is directed against the judgment and decree dated 19 July

            2019 passed by the learned District Judge, whereby, inter alia, the appeal

            preferred by the Appellant – Original Defendant against the decree passed in

            RCS No.157 of 2001, thereby directing the Defendant to deliver vacant

            possession of the suit property described in paragraph No.1A of the plaint,

            came to be dismissed by affirming the said order.

            3.      The Respondents – original Plaintiffs instituted the said suit seeking a

            declaration that, late Balu Vithu More, predecessor in title, was the owner of

            the suit property.    Balu passed away on 25 December 2020.                  His wife

            Chandrabhaga had predeceased Balu, on 15 December 2000.                      Balu and



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Chandrabhaga had only one son Madhukar, who was a bachelor, and had

also predeceased Balu and Chandrabhaga.

4.    The Plaintiffs were the legal heirs of late Balu. The Defendant had no

concern with late Balu. The Defendant had, however, propounded a false and

fabricated Will, purportedly executed by Balu, on 16 December 2000. On the

basis of the said forged and fabricated Will, the Defendant was asserting title

over the suit property. The Defendant had fraudulently obtained the Probate

of the Will in Misc. Application No.39 of 2001. However, in Misc. Application

No.122 of 2001, the learned District Judge had revoked the Probate.

5.    By a judgment and decree dated 28 March 2008, the learned Civil

Judge was persuaded to make a declaration that the Plaintiffs were the

owners of the suit property described in paragraph No.1A; direct the Plaintiffs

to file an independent application for succession certificate for their claims in

respect of the movables as described in para 1B; direct the Defendant –

Appellant to deliver vacant possession of the suit property described in para

1A; and also direct an inquiry for determination of mesne profit, under Order

XX Rule 12 of the Code of Civil Procedure, 1908.

6.    Mr. Kango, learned Counsel for the Appellant, submitted that the

proceedings instituted by the Appellant – Defendant for grant of Probate has

yet not attained finality. Second Appeal preferred by the Appellant against the

order passed by the District Court in Misc. Application No.122 of 2001


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revoking the grant of Probate in respect of the said Will, is subjudice. It was

submitted that the legality and validity of the said Will could not have been

determined by the learned District Judge in the impugned judgment.

7.       To buttress a submission that the Probate granted by the Court

operates in rem, Mr. Kango placed reliance on the judgments of the Supreme

Court in the cases of Dharmrao Sharanappa Shabadi and Ors. V/s. Syeda

Arifa Parveen1; Chowdamma (D) by LR and Anr. V/s. Venkatappa (D) by

LRs and Anr.2; Basanti Devi V/s. RaviPrakash Ramprasad Jaiswal3;

Surinder Kumar and Ors. V/s. Gian Chand and Ors. 4 Dolgobinda Paricha

V/s. Nimai Charan Misra and Ors.5 and a judgment of a learned Single

Judge of this court in the case of Chandrakala Krishna Dhole V/s. Bhimrao

Dattu Kadam (deceased) through legal heirs and Ors.6.

8.       In opposition to this, Mr. Joshi, learned Counsel for the Respondents –

Plaintiffs submitted that, no question of law, much less a substantial question

of law, arises for determination in this appeal. On the own showing of the

Defendant, it becomes explicitly clear that, the Defendant was in no way

related to late Balu. Yet to obtain an undue advantage of the situation, the

Defendant has asserted a false relationship with late Balu and propounded a


1    2025 INSC 1187
2    2025 INSC 1038
3    AIR 2008 SC 295
4    AIR 1957 sc 875
5    AIR 1959 SC 914
6    2019(4) Mh.L.J. 949

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false and fabricated Will. Since the Probate has been revoked by the learned

District Judge, the Appellant has no semblance of right and interest in the suit

properties.

9.    At the outset, it is necessary to note that the claim of the Appellant –

Defendant in the Written Statement was completely demolished by the

admissions elicited from the Appellant during the course of her cross-

examination. In the written statement, it was categorically contended that,

late Balu and Chandrabhaga had a son Madhukar. It was denied that he was

a bachelor. The Defendant claimed that, her marriage was solemnized with

the said Madhukar and she was the legally wedded wife of Madhukar. In

contrast, during the course of cross-examination, the Defendant conceded in

unequivocal terms that, her husband Madhukar H. Gaikwad was not related

to late Balu More. Madhukar, the son of Balu and Chandrabhaga had passed

away as a Bachelor. These admissions completely dismantle the very

substratum of the defence of the Defendant.

10.   This Court is not inclined to accede to the submission of Mr. Kango to

delve into the legality and validity of the Will. Suffice to note that the Probate

in respect of the said Will granted in favour of the Appellant – Defendant has

been revoked by the learned District Judge. At any rate, the question of

legality and validity of the Will would be examined in the Second Appeal,

which the Appellant had preferred against the said order of revocation of


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                      Probate passed by the learned District Judge.

                      11.      The admissions elicited in the cross-examination of the Appellant –

                      Defendant clearly indicate that there was no relationship between the

                      Appellant – Defendant and late Balu More and it was falsely contended in the

                      written statement that she was the wife of Madhukar, the predeceased son of

                      Balu and Chandrabhaga. Thus, the Courts below have not committed any

                      error in recording the findings that the Appellant – Defendant had no

                      semblance of right, title and interest in the suit property and was not entitled

                      to hold the same. Such findings of facts are not open for interference in the

                      Second Appeal.

                      12.      I find substance in the submission of Mr. Joshi that no question of law

                      much less a substantial question of law arises for consideration in this Appeal.

                      13.       Resultantly, the Second Appeal stands dismissed.

                      14.      In view of the dismissal of the Second Appeal, Interim Application

                      No.3488 of 2019 also stands disposed.




                                                                         ( N.J.JAMADAR, J. )




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Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 22/04/2026 11:46:37