(Judgment) ...1... R.C.S.No.

841/2017
(CNR No.:MHPU02­002272­2017)

Presented On : 24.04.2017

Registered On : 24.04.2017
Decided On : 15.06.2018
Duration : 01 Y : 01 M : 22 D

IN THE COURT OF 16th JOINT CIVIL JUDGE, SENIOR DIVISION,

PUNE.

(Presided over by Ku. Samta K. Choudhary)

REG. CIVIL SUIT NO.841/2017

Exh. No. 63

1) Sou. Malan @ Malati Kisan Gole

Age : 55 years, Occu. Housewife,
R/at: Sutarwadi, Tal. Haveli, Dist. Pune 411021
2) Sou. Alaka @ Shashikala Anil Marathe
Age: 45 years, Occu.: Housewife
R/at : Bhukum, Tal. Mulashi, Dist. Pune ­­­ Plaintiffs

- VERSUS -

1) Vilas Namdeo Kokate @ through legal heirs

a) Smt. Bharati Vilas Kokate
Age: 45, Occu.: Housewife
b) Miss. Neha Vilas Kokate
Age : 22 years, Occu. : Education,
c) Shri. Bipin Vilas Kokate
Age: 20 years, Occu. : Education
2) Shri. Ganesh Namdeo Kokate
Age: 45 years, Occu.: Business
3) Kailas Namdeo Kokate deceased through legal heirs
(Judgment) ...2... R.C.S.No.841/2017
(CNR No.:MHPU02­002272­2017)

a) Kavita Kailas Kokate

Age: 45 years, Occu.: Housewife,
b) Rutuja Kailas Kokate
Age: 22 years, Occu.: Education,
c) Priyanka Kailas Kokate
Age: 20 years, Occu.: Education,
d) Akshay Kailas Kokate
Age: 18 years, Occu.: Education,
All R/at: S.No. 116/15, near Balaji Temple,
Pashan, Sus Road, Pune­ 411021.
4) Smt. Lakshmibai Namdeo Kokate
Age: 70 years, Occu.: Housewife
R/at: Near Shivanjali Hotel, Chapajibuvanagar,
S.No. 120/1, Susroad, Pashan, Pune­ 21. ­­­ Defendants

SUIT FOR PARTITION, CANCELLATION OF RELEASE DEED AND

POWER OF ATTORNEY AND PERPETUAL INJUNCTION
______________________________________________________________
: APPEARANCE :
Advocate for Plaintiffs Shri. V.V.Sonaval.
Exparty against Defendants.

:: J U D G M E N T ::
(Delivered on this 15th June, 2018)

Release Deed and power of attorney dated 23/09/2004 was

obtained by plaint fraud upon them and hence, it be cancelled and the
suit property be partition between them, is the present suit.
(Judgment) ...3... R.C.S.No.841/2017
(CNR No.:MHPU02­002272­2017)

2. Facts in brief necessary to decide the suit are as under :­

Facts brought by plaintiff ; (Plaint)

Following are the properties which are the subject matter of

the suit.

a) Survey No. 120/1 area 5.34HR.

b) Survey No. 116/15 area 10R.

c) Survey No. 116/20 area 35R

d) Survey No. 117/1 area 47R, (all the properties are situated at mouje
Pashan, Tal. Haveli, Dist. Pune)

e) House property situated at Kokate ali and Pashan, area 15x 30.

(herein after same will be referred as “Suit Properties”).

3. Plaintiffs submitted that they are daughters of late Namdeo

Kokate who was also blessed with three sons namely Vilas, Ganesh and
Kailas and defendant no. 1 a to 1c and defendant no. 3a to 3d are legal
heirs of Vilas and Kailas respectively. They submitted that their father
died on 27/01/2011, Vilas died on 15/02/2017 and Kailas died on
4/10/2015. Defendant no. 4 Lakshmibai is their mother.

4. Plaintiffs specifically pleaded that suit properties are

ancestral properties. They stated that in the year 2004, brother Vilas and
Ganesh approached them and said them they are in need of some money

and hence want to mortgage the suit properties, to which they consented
and accordingly in the month of September 2004 they were called for
the signing on the mortgage deed at Pashan. They specifically pleaded
(Judgment) ...4... R.C.S.No.841/2017
(CNR No.:MHPU02­002272­2017)

that their signatures were obtained on paper written down in English

and as they are not well educated they could not know as to on which
document their signatures were obtained. They also submitted that they
told Vilas and Ganesh to give them knowledge of the averments
mentioned in the document to which Vilas said that the document is
prepared as per the say of the bank officers and documents is to be
deposited as early as possible and sign on it and your queries will be
resolved later on. Plaintiffs specifically pleacded that relying on the
assurance given by the brothers, they signed on the document.

5. They further stated that property no. 1b was given to

Chandrakant Kokate and others for development by their father and
brothers and at the time of agreement their consent was not obtained
and when they question father and brothers about their share in that
property they were assured that their share will be given from the other
properties.

6. Plaintiffs stated that after death of father in the year 2011

their name alongwith name of all the three brothers and mother was
mutated as per mutation entry no. 6028. They further pleaded that after
death of Vilas they went on to obtained 7x12 extract of the suit property
and after perusing the same they received a set back as property no. 1 d
does not bear their name and in the revenue record of property no. 1 a
to 1c their name was removed as per mutation entry no. 6081. They
immediately obtained certified copy of release deed no. 4086 of 2004
mentioned in mutation entry no. 6081 on 16/03/2017 and came to
know that it was obtained by them from Vilas and Ganesh by defrauding
(Judgment) ...5... R.C.S.No.841/2017
(CNR No.:MHPU02­002272­2017)

them. They specifically pleaded that they have not consented for
execution of release deed and it was executed by playing fraud upon
them and taking disadvantage of their trust and illiteracy.

7. As per plaintiffs thereafter they demanded partition from

defendants but they give evasive replies, hence, on 21/03/2017 legal
notice was issued to them which was served upon defendant no. 1 and 2
and not acknowledged by defendant no. 3 and 4, but it was not acted
upon it. Plaintiffs specifically submitted that after sending of notice they
made detail enquiry and came to know that on 23/09/2004 three
documents (two power of attorney and one release deed) were executed
in the name of execution of mortgage deed. Plaintiffs specifically stated
that within few second the document came to be executed without hint
of knowledge to them. As per plaintiffs in spite of having release deed,
defendant no. 1 obtained power of attorney for same properties for no
reason and it appears that name of defendant no. 2 was mentioned in all
of a sudden as his name is written by hand.

8. Plaintiff further stated that if any other documents are

executed by defendant on the basis of power of attorney and release
deed, those documents are not binding upon them and the area
mentioned in those documents be adjusted in the share of defendant no.
1. They specifically said that survey no. 120/3/1 was given for
development in the year 1998 by their late father and hence, power of
attorney bearing no. 4085/2004 which is in accordance with that which
is not objected by them. They also stated that property no. 1b is given
for development and as consideration defendants have received some
(Judgment) ...6... R.C.S.No.841/2017
(CNR No.:MHPU02­002272­2017)

flats, hence, they want their share of property no. 1b of other properties.
They said that documents are executed by playing fraud upon them and
hence, is not binding upon them, so the suit for cancellation of release
deed and power of attorney and for partition.

9. Defendant no. 1 a to 1c, 2, 3a and 4 were duly served with

suit summons but they remained absent. Hence as per order dated
25/09/2017 suit proceeded exparte agianst them. Defendant no. 3b to
3d were deemed served with paper notice but they also were remained
absent, hence, as per order 25/09/2017 suit proceeded exparte against
them.

POINTS FOR DETERMINATION

10. On basis of plaint, evidence and legal provisions following

points arose for my determination. I am reproducing same with findings
and reasons to follow :­

S. N. POINTS FINDINGS

1. Whether the plaintiffs prove that release … Negative

deed and power of attorney dated
23/09/2004 were executed by playing
fraud upon them?

2. Whether the suit is within limitation? No

3. Whether plaintiffs are entitled for relief …Negative

as prayed?

4. What order and decree ? ….As per final order,

suit is dismissed.
(Judgment) ...7... R.C.S.No.841/2017
(CNR No.:MHPU02­002272­2017)

AVAILABLE EVIDENCE :

11. Plaintiff No. 1 filed her evidence affidavit at Exh.30. They

relied upon revenue record, notice and certified copies etc. They closed
their side as per Exh.62. Defendants neither cross examined plaintiff nor
brought any evidence.

12. Heard Ld. advocate for plaintiffs at length. He said that

there is no challenge to their evidence and it clearly infers that
truthfulness of their facts. He submitted that from the date of the
knowledge from the documents till the registration of the suit the period
is on less than three years and hence, suit is within limitation he prayed
for decree.

REASONS

AS TO POINT NO. 1 & 2:­

13. There is registered document in favour of defendants who

opted for not contesting the suit and hence, the entire evidence of
plaintiffs went unchallenged but as registered document is in existence,
the burden of proof on plaintiff is on higher side.

14. Plaintiff no. 1 who is one of the executant of the document

entered into the witness box and reproduced the plaint. She reproduced
what is there in the plaint. She deposed that the document executed on
23/09/2004 are bogus documents as were executed by playing fraud
upon them as they were told that mortgage deed will be registered. She
further testified that the document was in English language and hence,
(Judgment) ...8... R.C.S.No.841/2017
(CNR No.:MHPU02­002272­2017)

they could not read and even the defendants have not given them of
understanding of what is written on them.

15. Plaintiff No. 1 stated about her relations with plaintiff No.2
so also with defendants, she is daughter of the late Namdeo Kokate and
sister of plaintiff No. 2 and defendant No. 2 and late Vilas and late
Kailas. Further she states about the nature of suit properties and as per
her suit properties are joint ancestral properties.

16. Her oral evidence is duly corroborated by lots of revenue

record. Exh. 39 is the 7/12 extract of Gat No. 121/1, Exh. 40 is 7/12
extract Gat No. 117/1. All these revenue documents bears name of late
Namdeo alongwith others co­owners. Further Mutation Entry No. 6028
which is at Exh. 42 clearly shows that after death of Namdeo in the year
2011, his wife and children were shown as owner of S.No. 116/2015
and 116/20 which establishes that both properties were owned by late
Namdeo and he died intestate.

17. Further another important document is Exh. 46 which is the

disputed release deed also speaks that the properties are joint property
in which plaintiff had their undivided interest. Now there remain no
question on the fact the suit properties are joint family properties.

18. Apart from that another fact which goes in favour of

plaintiff is absence of defendant. Even after service of pre suit notice and
service of suit summons, defendants have not appeared and put forth
(Judgment) ...9... R.C.S.No.841/2017
(CNR No.:MHPU02­002272­2017)

fourth their say. It is sufficient to conclude that they accept the fact
brought by plaintiff.

19. The main relief sought in the suit is cancellation of Released

Deed and Power of Attorney. As stated above plaintiffs claim that those
documents are executed by playing fraud upon them. As per Order 6
Rule 4 of C.P.C., the plaintiff should bring the particulars of fraud. That
needs to be proved too. As per plaintiffs the instrument was in English
language and name of defendant No.2 was written by hand. Apart from
this there is no other reason brought forward by plaintiffs.

20. It is matter of record that the instrument are in English

language and in the Released Deed No. 4086/2004 name of defendant
No.2 is written by hand. This is not a fact which can be said to fall under
the inclusive definition of fraud. The contention that they went on to
register mortgage deed is unacceptable because on that day not one not
two, in all three documents are executed which means plaintiffs ought to
have signed more than six times. Further the document in English
language is also not a ground because all the three documents are
registered before public servant which carries sanctity and also heavy
presumption.

21. Plaintiffs said that they have not understood the contents
however the documents speaks that after accepting the contents before
the witness plaintiff signed over it. There should be some strong
evidence to rebut this, however that is not at all provided. No any
evidence of the attesting witness or the scriber is brought.
(Judgment) ...10... R.C.S.No.841/2017
(CNR No.:MHPU02­002272­2017)

22. Further the plaintiff is speaking and choosing as per the

convenience. For document No. 4085/2004, the plaintiffs are not
uttering a word. Therein one of the beneficiary is their father who was
alive till 2011 and the property involved therein is one of joint ancestral
property.

23. Further it is only in Gat No. 116/15 and 116/20 plaintiff

name was mutated after death of their father. There is no explanation as
to S. No. 117/1 and 120/1. Plaintiffs themselves says that after death of
father their name was mutated as per Entry No. 6028 but as stated
above the name is mutated only on two properties. Plaintiffs have not
filed the mutation entry of Gat No.117/1 and 120/1. Exh. 41 that is
7/12 extract for Gat No. 117/1 even no where shows the effect of death
of Namdeo. Though the Release Deed Exh. 46 says that plaintiffs have
undivided share, but its effect on revenue record is not shown.

24. Further in the plaint, plaintiff says that they want partition
in the share of father Namdeo which speaks that there is no partition
between Namdeo and other legal heirs of his father. In such
circumstances firstly this suit is bad for non­joinder of necessary parties
because all the other co­parcenar of late Mahadeo i.e. father of Namdeo
are not brought in and it is clear from bare perusal of 7/12 extract of the
suit properties. There is no explanation coming forward for this from
plaintiffs. Very interestingly property No. 116/15 is developed and might
be transferred to various others, however no any details of that
transaction is brought by plaintiffs infact this suit not tenable as all the
(Judgment) ...11... R.C.S.No.841/2017
(CNR No.:MHPU02­002272­2017)

relief are not sought.

25. Another important aspect is that unless and until there is

partition between legal heirs of Mahadeo, present plaintiff does not get
any right to claim/enforce partition.

26. Present is the suit for partition wherein the shares of the
parties is to be decided, but unless and until share of the person through
whom the parties are claiming right is decided, share of others can not
be concluded. Further for not reason plaintiffs have not even provided
the genealogy of Kokate family. How the share of Namdeo is decided by
them is not explained. This suit can be said to be pre­mature suit.

27. As regards to limitation the self contradictory pleadings

goes against the plaintiff. Of the three documents executed on same day
they are challenging only two of them. Though they say that this is only
confirmation documents but to decide the allegation of fraud that
document carries its own importance. It infact infers that the plaintiff
were knowing about the document since inception. Even the rule of
constructive notice goes against plaintiffs. The document of the year
2004 are challenge in the year 2017 i.e. beyond limitation.

28. Plaintiff miserably failed to prove that the documents are

executed by playing fraud upon them and their claim is also bared by
limitation and not tenable. Accordingly, I answer Point No. 1 and 2 in
Negative.
(Judgment) ...12... R.C.S.No.841/2017
(CNR No.:MHPU02­002272­2017)

AS TO POINT NO. 3 & 4:­

29. In view of the above findings plaintiffs are not entitled for
partition, cancellation of sale deed and injunction and hence, I answer
Point No. 3 in Negative. Cost follows the event. I have no reason to go
against the rule. In sequel following order is passed:­

ORDER

1. Suit is dismissed with cost.

2. Decree be drawn accordingly.

PLACE : PUNE Sd/­

DATED:15/06/2018. (Kum.S.K.Choudhary)
16th Joint Civil Judge,senior Division,Pune.

C E R T I F I C A T E

“I affirm that the contents of this P.D.F. file orders are

same word for word as per original order.

Name of Steno : S.T.Jagtap, Stenographer (L.G.)

Court Name : Ku. S. K. Choudhary, 16th Jt. C.J.J.D., Pune.

Date : 15.06.2018
Order typed on : 15.06.2018

Order corrected and signed by

presiding officer on : 19.06.2018

Order uploaded on : 19.06.2018

(Judgment) ...13... R.C.S.No.841/2017
(CNR No.:MHPU02­002272­2017)