SURESH BHALCHANDRA SHETYE Vs. ANIL VASANT PEDNEKAR

JUDGEMENT

(1.) The above Revision challenges the Order dated 1st August, 2009, passed by learned Civil Judge, Senior Division, Panaji, in Special Civil Suit No. 104/08/B, whereby the application under Order 7, Rule 11 of Civil Procedure Code filed by the Petitioner came to be rejected.

(2.) The parties shall be referred to as in the manner as they appear in the cause title of the impugned Judgment.

(3.) It is the case of the plaintiffs that the plaintiff No. 1 is the son of late Vassant Sada Pednekar while the plaintiff No. 2 is his daughter-in-law of the said Vassant Pednekar. It is their contention that the said Vassant Pednekar expired on 19-2-1985 leaving behind the defendant No. 2 as moiety sharer and as his sole and universal heirs, his five children namely the late Audhut Vassant Pednekar, who was married to plaintiff No. 2, Shri Uday Pednekar, married to Lalita Uday Pednekar, Shri Anand Vasant Pednekar, married to Usha Anand Pednekar and Shri Anil Vassant Pednekar, the plaintiff No. 1 herein married to Anita Anil Pednekar. It is further their case that the said Savita along with her husband Shri Ramakant had relinquished their right to the estate of the said deceased Vasant Pednekar, by Deed of Relinquishment of Right dated 17-9-1987. It is further their case that there was a Partnership entered into by him with the defendant No. 1 and one Shri Harishchandra Kandolkar under the name and style of 'Shridutta Enterprises" and that the partnership firm had purchased two properties at Calapur Village. It is further their case that the second property which was purchased by the said partnership firm was admeasuring 41325 square metres and is surveyed under No. 193 of Village Calapur, while the first property admeasuring an area of 38,308 square metres is surveyed under No. 197 of Village Calapur while another part of the said property admeasuring 23,852 square metres is surveyed under No. 198 of Village Calapur. It is further their contention that upon the death of the said Vasant Pednekar, his right devolved upon his widow defendant No. 2 and their four sons and their respective spouses which included the plaintiff Nos. 1 and 2. It is further their contention that in utter defiance of their right and share over the said properties, the defendants along with said Harischandra Kandolkar, executed among themselves a Deed of Reconstitution of Partnership dated 18-9-1987 whereby the said Harishchandra Kandolkar retired from the Partnership while the defendant No. 2 was admitted as a new partner and as such the partnership firm was continued by defendant Nos. 1 and 2. It is further their case that on 10-3-1989, a Deed of Dissolution was executed whereby the defendant No. 1 retained the 50 percent share and the remaining 50% share of the said property was allotted to defendant No. 2. It is further their case that the plaintiff and the legal heirs of the said Vassant were not informed about the aforesaid arrangements and the said documents were executed at the instance of defendant No. 1 as defendant No. 2 was illiterate lady and except that she could sign her name in Marathi language, she did not know to read and write. Thereafter, the defendant Nos. 1 and 2 execute a Deed of Sale dated 19-1-2006, registered before the Sub-Registrar, whereby the defendant No. 2 sold her 50% undivided rights in the said property to defendant No. 1. It is further their case that defendant No. 1 had mala fidely valued the 50% share at Rs. 14.00,000/- in the said Deed and the same was grossly undervalued. It is further their case that the market value of the land at the time of execution of the said Sale Deed was Rs.24,00,00,000/- and the value of the undivided share was Rs. 12,00,00,000/- approximately. It is further their case that prior to the execution of the Deed, the defendant No. 1 had obtained the signatures of plaintiff Nos. 1 and 2 on some Agreements which were executed with M/s Kamat Real Estates and M/s Kamat Constructions Pvt. Ltd., in or around the year 1992 and 1997. It is further their case that at the execution of the said Agreements, the defendant No. 1 had represented to the plaintiffs that the said properties would be developed through M/s Kamat Real Estate and M/s Kamat Constructions Pvt. Ltd., and the plaintiffs along with the heirs of the late Vassant Pednekar, would be paid requisite consideration amount as per their shares in the said properties but, however, the said amounts were not paid. It was further the case of the plaintiffs that by Deed dated 19-1-2006 and 16-5-2006, they have not been made parties nor any consideration amount has been paid to them. It is further their case that the said Deeds have been executed in a collusive manner and that the said properties have been grossly undervalued and have been executed illegally and mala fidely by the defendant No. 1. It is further their case that on the basis of the said Sale Deed dated 19-1-2006 and 16-5-2006, the defendant No. 1 had acquired rights of ownership over the said properties. It is further their case that all the documents executed are in possession and custody of defendant Nos. 1 and 2 but, however, the reference thereof has been mentioned in the Deed of Sale dated 19-1-2006 and 16-5-2006. Consequently, it is their contention that they are entitled for a declaration that the Sale Deeds dated 19-1-2006 as well as the Deed dated 16-5-2006 are null and void and liable to be cancelled and also for permanent injunction as prayed for therein.