12 SA 67 OF 2023.doc 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 SSP 1/5 2026:BHC-AS:18923 12 SA 67 OF 2023.doc 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 SSP 2/5 12 SA 67 OF 2023.doc 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 SSP 3/5 12 SA 67 OF 2023.doc 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 SSP 4/5 12 SA 67 OF 2023.doc 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. ) SSP 5/5 Signed by: S.S.Phadke Designation: PS To Honourable Judge Date: 22/04/2026 11:46:37