SURESH SHIVAJIRAO KALE AND ANRversusMAHESH SHIVAJIRAO KALE AND ORS

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                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          CIVIL APPELLATE JURISDICTION
                                        WRIT PETITION NO. 12518 OF 2026


                      Suresh Shivajirao Kale and Anr                             ...Petitioners
                            Versus
                      Mahesh Shivajirao Kale and Ors                           ...Respondents

                      Mr. Shailendra Kanetkar, (through VC), with Pranay Kothari, for the
                      Petitioners.

                                                   CORAM:         N. J. JAMADAR, J.
                                                   DATE :         1st OCTOBER 2026


                      ORDER:

                      1.      Heard Mr. Shailendra Kanetkar, the learned Counsel for the

                      Petitioners.

                      2.    The challenge in this Petition is to an order dated 22 nd April 2026,
ARUN
RAMCHANDRA
SANKPAL               whereby the learned Civil Judge, Pune, was persuaded to allow an
Digitally signed by
ARUN
RAMCHANDRA
SANKPAL
Date: 2026.10.05      Application (Exhibit”150”) filed in Special Civil Suit No. 577 of 2021, to
10:14:12 +0530




                      bring Abhiraj Mahesh Kale on record as the legal representative of

                      deceased-Plaintiff No.2-Shashikala Shivajirao Kale. Plaintiff No.1

                      Mahesh Kale and Defendant No.1-Suresh Kale are the sons of late Smt.

                      Shashikala-Plaintiff No.2.

                      3.    The suit was instituted by the Plaintiffs seeking a declaration that

                      the purported Gift Deeds in respect of the suit properties described in


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the Plaint paragraphs 1A, 1C dated 18 th February 2020, and the Gift

Deed dated 24th December 2020 in respect of the suit property

described in paragraph 1D and the Lease Deed dated 18 th February

2020 in respect of the property described in paragraph 1B, executed by

Defendant No.1, in the capacity of Power of Attorney of Plaintiff No.2,

in his own favour and in favour of Defendant No.2 are illegal, null and

void.

4.      Plaintiff No.2 passed away on 2nd October 2025. The Plaintiffs

filed an application to bring Abhiraj Kale on record as the legal

representative of deceased-Plaintiff No.2 qua the suit properties

described in paragraphs 1B and 1C as late Plaintiff No.2 had executed a

registered Will in favour of the said Abhiraj on 14th February 2018.

5.      By the impugned order, the learned Civil Judge was persuaded to

allow the Application opining that the said legatee under the registered

Will dated 14th February 2018 deserved to be impleaded as a legal

representative of the deceased-Plaintiff No.2 and the legality and

validity of the said Will was a matter for adjudication at the trial.

6.      Mr Kanetkar, the learned Counsel for the Petitioners would

submit that Plaintiff No.1 and Defendant No.1, being the sons of late

Plaintiff No.2, represented her estate, and thus, it was not necessary to

bring on record the purported legatee under the Will of the year 2018,

which was never disclosed by Plaintiff No.2 during her lifetime. It was


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further submitted that the purported attesting witnesses to the said

Will have filed Affidavits disowning the execution and attestation

thereof. Thus, the learned Civil Judge committed an error in allowing

the impleadment of the purported legatee, who is the son of Plaintiff

No.1.

7.      I find it difficult to accede to the submissions of Mr. Kanetkar. I

have perused the copy of the Will. Prima facie, there is a bequest of the

suit properties in favour of Mr. Abhiraj. The learned Civil Judge was

fully justified in holding that the enquiry under Order 22 Rule 5 of the

Code of Civil Procedure, 1908 (“the Code”) is of summary nature, and

whether the Will has been validly executed and attested was not

required to be determined to the hilt, at that stage.

8.      If there is a bequest in respect of the suit properties, described in

paragraphs 1B an 1C in favour of Abhiraj, in view of the expansive

definition of “legal representative” under Section 2(11) of the Code,

Abhiraj is entitled to represent the estate of the deceased qua those

properties. Moreover, if Abhiraj is construed to be be an Executor of the

Will, which a fair reading of the Will indicates, only Abhiraj can

represent the estate of the late Plaintiff No.2 under the provisions of

Section 211 of the Indian Succession Act, 1925.

9.      As the interest of the rest of the Plaintiffs does not appear to be

adverse to that of the person sought to be brought on record as the legal


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representative of late Plaintiff No.2, qua the properties described in

paragraphs 1B and 1C, there is no impediment in impleading Plaintiff

No.2A as the legal representative of late Plaintiff No.2.

10.   Mr. Kanetkar, further submitted that, Mrs. Sandhya Bhosale, the

daughter of late Plaintiff No.2, is also entitled to be impleaded as a

party to the suit.

11.   In this Petition, this Court need not delve into that aspect of the

matter. In the event impleadment is sought by Mrs. Sandhya Bhosale,

the trial Court may decide such a prayer in accordance with law.

12.   Petition stands dismissed.



                                       [N. J. JAMADAR, J.]




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