Bombay High Court
Spectrum Realty Thr Its Partners And Ors vs Smt. Shakubai Baban Tapkir Dec And Anr on 7 March, 2026
2026:BHC-AS:11752
k 1/2 52 wp 7385.23 as.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7385 OF 2023
Spectrum Realty
through its Partners & Ors. ....Petitioners
V/S
Shakubai Baban Tapkir
deceased and
Yogesh Balasaheb Kakade ....Respondents
_________
Mr. Suresh Sabrad with Mr. Amey Sawant, Mr. Pratik Sabrad and
Ms. Eshwaree Kudalkarfor the Petitioners.
Mr. Virendrasinh V. Tapkir for Respondents.
__________
CORAM : SANDEEP V. MARNE, J.
DATE : 07 MARCH 2026.
P.C.:
1. The Petition challenges order dated 13 April 2022 passed by the learned 10th Joint Civil Judge Senior Division, Pune, allowing the Application filed by Respondent No.1-Yogesh Balasaheb Kakade for substituting him as Plaintiff.
2. I have heard Mr. Sabrad, the learned counsel appearing for Petitioner and Mr. Tapkir, the learned counsel appearing for the Respondent.
3. The Suit is filed by the Plaintiff interalia for partition and for separate possession. Plaintiff had executed Will on 17 January 2014 and katkam Page No. 1 of 2 ::: Uploaded on - 10/03/2026 ::: Downloaded on - 13/03/2026 22:04:14 ::: k 2/2 52 wp 7385.23 as.doc has apparently bequeathed suit properties in favour of the Respondent.
Plaintiff has passed away on 1 September 2020. Accordingly, Respondent applied for his substitution in place of Plaintiff.
4. Mr. Sabrad submits that the Application was preferred by Respondent under Order I, Rule 2 of the Code of Civil Procedure, 1908 (the Code) which was clearly not maintainable which has no application for bringing on record legal representatives of the deceased Plaintiff. Even if the contention of Mr. Sabrad is upheld, I do not find any valid reason to interfere in the impugned order. Respondent could have invoked powers of the Court under Order XXII, Rule 3 of the Code for the purpose of his substitution as legal representative of the deceased Plaintiff. Respondent is a beneficiary under the Will. His substitution is not questioned by legal heirs of the deceased Plaintiff. It is only Petitioner/Defendant, who is questioning his substitution. Apparently, there is no dispute between the legal heirs of deceased Plaintiff and the Respondent. Since Respondent is the beneficiary in respect of the suit properties, he is entitled to prosecute the suit instituted by the Plaintiff. The Application preferred by the Petitioner has rightly been rejected. No interference is warranted in the impugned order. Writ Petition is accordingly rejected.
(SANDEEP V. MARNE, J.) Digitally signed by SUDARSHAN SUDARSHAN RAJALINGAM RAJALINGAM KATKAM KATKAM Date:
2026.03.10 19:43:40 +0530 katkam Page No. 2 of 2 ::: Uploaded on - 10/03/2026 ::: Downloaded on - 13/03/2026 22:04:14 :::