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Bombay High Court
Shankar Laxmanrao Dhamdhere vs Ajinkya Anil Dhamdhere And Ors. on 9 December, 2025
SA 331/22
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
43 SECOND APPEAL NO. 331 OF 2022
WITH
CIVIL APPLICATION NO. 8492 OF 2022 IN SA/331/2022
SHANKAR LAXMANRAO DHAMDHERE
VERSUS
AJINKYA ANIL DHAMDHERE AND ORS.
...
Advocate for Appellant : Mr. V.D. Sapkal, Sr. Adv. a/w. Mr. Vishwambhar
Bhosale Advocate i/b. Mr. P.P. Uttarwar
Advocate for Respondents 1 & 2 : Mr. P.N. Kalani
...
CORAM : ARUN R. PEDNEKER, J.
Dated : December 09, 2025
PER COURT :-
1. Heard Mr. V.D. Sapkal, learned Senior Advocate for appellant and Mr.
P.N. Kalani, learned advocate appearing for respondent Nos. 1 and 2.
2. The learned Senior Counsel for the appellant submits that following
substantial questions of law arise in the present second appeal.
(a) Whether, both the courts below erred to consider the
documents as Exh. 85 memorandum of partition deed and Exh.
86 supplement and failed to construct the document ?
(b) If Laxmanrao is alone owner of the property in view of the
Exh. 86 whether he can make will in absence of proof that he
alone is owner of property ?
(c) Whether, the Laxmanrao was competent to execute will
deed by considering the fact that, the suit property was
partitioned in favour of Laxmanrao and Gangabai and he was not
alone owner of the suit properties as per reference in his own will
deed ?
(d) Whether, the lower appellate court erred to address
supplement of memorandum of partition as first will in spite of
fact that, Gangabai accepted the claim of the plaintiff in her
written statement and also admitted the execution of supplement
and memorandum of partition ?
(e) Whether the court below erred by acknowledging the
memorandum of partition and supplement on one hand and
holding it as not proved on the other hand ?
3. Brief facts, leading to filing of the second appeal are as under :-
In 2006 the plaintiff filed Special Civil Suit No. 12/2006, seeking
cancellation of will deed dated 30.12.1997 and seeking partition of the
properties in terms of earlier partition memorandum drawn between the
parties. On 23.11.2011 the suit was dismissed by the learned Civil Judge,
Senior Division, Gangakhed. It is the case of the plaintiff/appellant that
plaintiff and defendant No. 6 are the real brothers. Defendant No. 5 is their
sister and deceased defendant No. 7 is their mother. Defendant Nos. 3 and
4 are the sons of defendant No. 6 while defendant Nos. 1 and 2 are the
sons of defendant Nos. 3 and 4, respectively. Defendant Nos. 7A to 7C are
the remaining sisters of plaintiff and defendant No. 6 and they were brought
on record as legal heirs of defendant defendant No. 7.
4. It is the case of the plaintiff that one deceased Lakshmanrao
Damdhare was the father of plaintiff and defendant Nos. 5 and 6, 7A to 7C
and husband of defendant No. 7. The plaintiff filed suit for declaration and
permanent injunction. The plaintiff claimed that in the year 1995 an oral
partition took place between plaintiff and defendant No. 6 and their father
deceased Lakshmanrao and the facts were reduced in writing by way of
memorandum of partition (Exh. 85) and the same was executed in presence
of witnesses. It is also stated that there was corrigendum/explanation (Exh.
86) to this memorandum of partition. It is stated that father of the plaintiff
expired on 12.5.2006 at his ancestral house. In terms of Exh. 85 and 86, it
is claimed by the plaintiff that the there was partition of the properties
between the plaintiff, their father and respondent No. 6 and it was clarified
that the properties which came to the share of father of plaintiff could be
enjoyed by the father and mother and on demise of earlier spouse, the
other spouse would enjoy the properties till their lifetime and thereafter,
whatever remains from the share of father would be distributed between
the plaintiff and defendant No. 6. It is alleged that after demise of the
father, defendant No. 6 with the aid of others got prepared a forged and
fraudulent will deed dated 30.12.1997 (Exh. 48). The plaintiff came to know
about the same on 21.5.2006 as there was publication in newspaper in
respect of transfer of the house property. Thereafter, the plaintiff got
certified copy of the same and has filed the suit for declaration that the sale
deed dated 30.12.1997 is bad, forged and fabricated document and the
plaintiff claimed 50% share in the property left behind by his father.
5. The trial court has framed following issues :-
ISSUES FINDINGS
1. Does the plaintiff proves that there was a .. In the negative.
memorandum of partition of the suit
properties in the year 1995 ?
2. Whether the plaintiff has 1/2 share in the suit .. In the negative.
properties ?
3. Whether the defendants are intending to .. In the negative.
alienate the suit properties without any
rights ?
4. Does the plaintiff proves that will deed .. In the negative.
bearing No. 2505 dated 20.12.1997 executed
by deceased Laxmanrao in favour of
defendant Nos. 1 and 2 is illegal, null & void
and not binding on him ?
5. Is the plaintiff entitled for declaration and .. In the negative
separate possession of his share in the suit
properties ?
6. Is the plaintiff entitled for injunction sought ? .. In the negative
7. What order and decree ? .. As per final order.
6. On consideration of material on record, the trial court has dismissed
the suit. In an appeal filed by the plaintiff, the appellate court has
formulated following points for consideration :-
POINTS FINDINGS
1. Do plaintiff prove that a memorandum of .. In the negative.
partition of the suit properties was prepared,
in the year 1995 ?
2. Whether plaintiff has half share in the suit .. In the negative.
property ?
3. Whether defendants are intending to alienate .. In the negative.
the suit property without any right ?
4. Do plaintiff prove that Will-deed bearing No. .. In the negative.
2505 dt. 30/12/1997 executed by deceased
and 2, is illegal, null, void and not binding on
him ?
5. Is plaintiff entitled for declaration and .. In the negative.
separate possession of his share in the suit
property ?
6. Is plaintiff entitled for injunction sought ? .. In the negative.
7. Whether impugned judgment and decree so .. In the affirmative.
passed is just, proper and legal ?
8. Whether interference by this Court, is called .. In the negative
for ?
9. What order and decree ? .. As per final order.
7. The appellate court held that the plaintiff failed to prove that the will
deed dated 30.12.1997 executed by deceased Laxmanrao in favour of
defendant Nos. 1 and 2 is illegal, null, void and not binding on him and also
answers other points against the plaintiff.
8. The learned Senior Counsel for the appellant has taken me through
the judgment of the appellate court and submits that findings of facts is
rendered by the appellate court that plaintiff has proved Exhs. 85 and 86
and has held that the memorandum of partition and supplement was
executed in the year 1995 and the documents at Exhs. 85 and 86 stood
proved. However, the appellate court has casted burden upon the
defendants to disprove the will. He submits that the will under section 68 of
the Evidence Act clearly stipulates that the propounder of the will must
prove the will by examining atleast one attesting witness. He submits that
the court has casted burden upon the plaintiff to disprove the will as he was
challenging the same. He also submits that the legal interpretation of
documents at Exhs. 85 and 86 would indicate that father of the plaintiff and
defendant No. 6 would receive the property after demise of the last spouse
in equal proportion. Father had received the properties in partition for
himself and as a trustee for his spouse if she is to survive him and
properties could stand transferred after his demise to his to wife and on her
demise, properties could have been equally distributed between the sons as
was agreed in the memorandum of partition. He submits that when the
mother of the plaintiff was alive, it was not available for his father to make
a will deed to the exclusion of his mother as it was beyond his competence
to do. He submits that the appellate court having accepted the documents,
Exhs. 85 and 86, as being proved, ought to have interpreted them in terms
of it's plain meaning and hold the will to be void as beyond the competence
of the testator. The learned Senior Counsel also submits that the will is
prima faice fraudulent and no burden should have been casted upon the
plaintiff to disprove the will notwithstanding that it is a registered will deed.
9. Per contra, Mr. P.N. Kalani, learned advocate appearing for original
defendant No. 6 and others submits that the courts below have rightly
concluded that it is a registered will deed and remained on the paper for
nearly 9 years and there was no challenge to the same and that the
defendants examined attesting witness and as such, the questions raised
would not arise. He submits that the plaintiff has opposed the will deed and
therefore, it was upon him to show that how the document was fraudulent.
10. Having considered the above submissions of the petitioner, this court
is of the prima facie view that following substantial questions arise for
consideration in the present second appeal which relates to the
interpretation of the documents at Exhs. 85 and 86 noted below :-
(i) Whether the courts below have correctly interpreted the
documents at Exhs. 85 and 86 wherein it is stated at Exh. 86 that
properties to the share of father would be used for benefit of
father and after his demise to the benefit of mother, if she survive
and thereafter the properties would be received by both the sons
equally ?
(ii) Whether the courts below interpreted the documents at
Exhs. 85 and 86 by presuming that the testator of the will has
absolute authority to transfer the properties during the lifetime of
his spouse as he was bound by memorandum of partition ?
(iii) Whether the courts below erred in casting burden upon the
plaintiff to disprove the will and not on the propounder of the will
i.e. defendants, who has received the benefits under the will ?
11. Considering the submissions made by the parties this court is of the
prima facie view that the above substantial questions of law arise for
consideration in the present second appeal.
12. As such, issue notice to the respondents, returnable on 29.01.2026 to
explain this court whether the above questions of law arise in the second
appeal and respond to the same.
13. In view of the above prima facie substantial questions of law framed,
respondents are directed not to create any third party interest on the
properties received under the will dated 30.12.1997.
( ARUN R. PEDNEKER, J. )
ssc/
