Thursday, 24 September 2026

Bombay HC: Can deleting sister's name from the revenue records mean that she has given up your share in an ancestral property?

 The questions formulated while admitting the Appeal are

answered as under:

(i) It is permissible to orally relinquish share in the

ancestral property by a coparcener in favour of another

coparcener in absence of a written instrument and in absence

of registration.

(ii) Oral relinquishment cannot be presumed on the basis of

a document created for the purpose of deletion of name from

revenue records, especially when such document by itself does

not effect relinquishment nor refers to any oral

relinquishment.

(iii) Mere expression of consent for allotment of share in the

ancestral property in favour of one of the coparceners forming

part of different unit does not automatically amount to

expression of relinquishment of share in the joint family

property falling to the share of claimant’s own unit. {Para 32}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO.679 OF 2023

Shekhar Shankar Joshi Vs Anita Arun Bhave

CORAM: SANDEEP V. MARNE, J.

Dated:  20 AUGUST 2026.

Citation: 026:BHC-AS:1

1) By this Second Appeal, the Appellant-Defendant has challenged

judgment and decree dated 29 April 2023 passed by the District Judge-3,

Raigad-Alibag in Civil Appeal No.11 of 2020 thereby partly setting aside

the decree of the Trial Court dated 9 January 2020 in Special Civil Suit

No.131 of 2015. The Trial Court had partly decreed the Suit declaring

that the Plaintiff and the Defendant have one-half share in the suit

property and had made a preliminary decree for effecting partition of the suit property.

2) The Appellate Court has redetermined the shares of the Plaintiff

and the Defendant by partly allowing the Appeal and has held that the

Plaintiff has one-third share and Defendant has two-third share in the

suit property by accepting validity of Relinquishment Deed dated 25

March 2013 executed by mother-Shakuntala in favour of the Defendant.

Despite partly succeeding in the Appeal, the Defendant has filed the

present Second Appeal challenging grant of one-third share in the suit

property to the Plaintiff.

FACTS

3) The Plaintiff and the Defendant are siblings. Land bearing Gat

No.27 admeasuring 21.5 R and House No.201 located in Gat No.27 are

the ‘suit properties’. The two suit properties alongwith land bearing Gat

No.28 were ancestral properties of late Narayan Vinayak Joshi. Narayan

Joshi had two sons-Shankar and Waman. Shankar passed away on 27

January 1991 leaving behind him, his wife-Shakuntala, son-Shekhar

(Defendant) and daughter-Anita (Plaintiff). Waman has a son-Suhas.

After death of Narayan Joshi and Shankar Joshi, names of Shakuntala,

Shekhar and Anita alone were mutated in respect of the two suit

properties and property at Gat No.28 vide mutation entry No.306 dated

30 March 1991. Based on affidavit submitted by the Plaintiff-Anita, her

name was removed from revenue records in respect of the suit properties

as well as Gat No.28. Thereafter a partition was effected vide registered

Deed of Partition dated 25 June 1993 between Shakuntala and Shekhar

on one side and Suhas Waman Joshi on the other. Under the Partition


Deed, Shakuntala and Shekhar agreed for granting land bearing Gat

No.28 admeasuring 28.3 R in favour of Shekhar while retaining land at

Survey No.27 and house located thereon with themselves. The partition

recorded Plaintiff-Anita relinquishing her rights in respect of both the

properties bearing Gat Nos.27 and 28. This is how the land bearing Gat

No.28 went to the share of cousin-Suhas Waman Joshi, whereas

Defendant and his mother-Shakuntala started claiming right in respect

of Gat No.27 as well as house constructed thereon. On 25 March 2013,

mother-Shakuntala executed Relinquishment Deed in favour of

Defendant-Shekhar. This is how the Defendant started claiming

exclusive right in respect of Gat No.27 and the house constructed

thereon.

4) The Plaintiff is the sister of Shekhar and started demanding share

in the suit properties. She thereafter filed Special Civil Suit No.131 of

2015 in the Court of Civil Judge Senior Division, Alibag for declaration,

perpetual injunction, partition and separate possession of the suit

properties. The Plaintiff claimed one-half share in the suit properties

comprising of Gat No.27 and house constructed thereon. She also

challenged the Relinquishment Deed dated 25 March 2013 executed by

mother-Shakuntala in favour of Shekhar as not binding on her share. She

also sought mesne profits of Rs. 2,00,000/- per year from the date of

institution of the Suit. The Suit was resisted by the Defendant-Shekhar

by filing written statement claiming that the Plaintiff had relinquished

her rights orally, which was effected in the revenue records through an

affidavit. The Defendant-Shekhar thus claimed sole right to own and

possess both the suit properties. Based on the pleadings, the Trial Court

framed issues. The Plaintiff examined herself and relied on several

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documents. The Defendant also examined himself in addition to

examining Mr. Sarvesh Chintaman Joshi as DW2. He also relied on

several documents. After considering the pleadings, documentary and

oral evidence, the Trial Court proceeded to decree the Suit holding that

the suit properties are ancestral properties of the Plaintiff and the

Defendant. It held that Relinquishment Deed dated 25 March 2013 was

obtained by the Defendant by playing fraud on his mother-Shakuntala. It

was further held that the Plaintiff has one-half share in the suit

properties. It rejected the defence of the Defendant that the Plaintiff had

orally relinquished her right on 22 July 1991. The Trial Court accordingly

declared that the Plaintiff and the Defendant have one-half share in the

suit property being land at Gat No.27 and constructed house thereon.

The Trial Court directed effecting of partition of undivided estate of

agricultural land bearing Gat No.27 by sending the decree to the

collector. The Trial Court also directed that the Plaintiff and the

Defendant have one-half share in the house property constructed on

land bearing Gat No.27. The Trial Court further directed that

Relinquishment Deed dated 25 March 2013 is null and void and not

binding on the Plaintiff. The Plaintiff’s prayer for perpetual injunction

was however rejected. The Trial Court also directed for holding of

enquiry for mesne profit under Order XX Rule 12 of the Code of Civil

Procedure, 1908 (the Code).

5) The Defendant-Shekhar filed Regular Civil Appeal No.11 of 2020

challenging Trial Court’s decree dated 9 January 2020. The Appeal has

been partly allowed by the Appellate Court. The Appellate Court has

reversed the finding of the Trial Court with regard to the validity of

Relinquishment Deed dated 25 March 2013 and held the same to be legal

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and binding on the Plaintiff. Since mother-Shakuntala’s share in the suit

properties is held to have been validly transferred on Defendant-

Shekhar, the Appellate Court altered the share of the Plaintiff and the

Defendant in the suit properties by holding that the Plaintiff is entitled

to only one-third share whereas the Defendant is entitled to two-third

share in the suit properties. Accordingly, the Appellate Court has

directed issuance of decree for effecting partition in respect of the suit

properties at Gat No.27.

6) The Appellant is aggrieved by the concurrent findings recorded by

the Trial and the first Appellate Court about existence of some right of

the Plaintiff in the suit properties and has accordingly filed the present

Appeal. The Plaintiff had also filed Second Appeal No.157 of 2024

challenging denial of half share in the suit properties and upholding

validity of Relinquishment Deed dated 25 March 2013. However, by order

dated 12 August 2026, this Court has dismissed the Second Appeal

preferred by the Plaintiff.

QUESTIONS OF LAW FORMULATED

7) The present Second Appeal has been admitted by formulating

following substantial questions of law:

i) Can a coparcener orally relinquish his/her rights in the

ancestral property in favour of another coparcener or

whether it is necessary to execute a written and/or

registered document to evidence such relinquishment ?

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ii) Whether oral relinquishment can be presumed merely

on the basis of a document signed for deletion of name of

coparcener from revenue records, when, the document is

silent about any relinquishment?

iii) If a coparcener does not object to grant of share in an

ancestral land to another coparcener forming part of

different family unit, whether such act ipso facto leads to

a presumption that he/she has also relinquished his/her

share in the land qua member of his/her family unit ?

SUBMISSIONS

8) Mr. Drupad Patil, the learned counsel appearing for the Appellant-

Defendant submits that the Trial and the Appellate Courts have grossly

erred in recognising rights of the Plaintiff in the suit properties. He

submits that the Plaintiff has expressly relinquished her rights in the

suit properties. That the relinquishment was oral, which is confirmed by

way of an affidavit dated 22 July 1991. That by the said affidavit, the

Plaintiff had relinquished her right in respect of both the lands at Gat

Nos.27 and 28. That the Plaintiff had ultimately accepted and

acknowledged relinquishment qua Plot No.28 and therefore she cannot

conveniently question the relinquishment qua Plot No. 27. That in the

1994 partition, it was specifically reflected that the Plaintiff had

relinquished her right qua the suit property. That in cross-examination,

Plaintiff had specifically admitted that she had no objection to the

partition effected in the year 1994. That the case involves

relinquishment by Plaintiff in respect of the suit properties orally which

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is followed by affidavit. That oral relinquishment is by way of family

arrangement where the Plaintiff was married and residing separately.

That the affidavit was executed only to give shape to the oral partition

already effected. That conduct of the Plaintiff in maintaining silence

from 1991 till filing of the Suit in the year 2015 speaks volumes about

acquiesce in relinquishment made by her. In law, it is permissible to

relinquish /release interest in the joint family property by a female

coparcener without a written instrument. In support, he relies on

judgments of this Court in Ramdas Chimna V/s. Pralhad Deorao 1 and

Uma Madhav Agaskar V/s. Manorama Motiram Dandekar and Ors. 2 He

therefore submits that the Trial and the Appellate Courts have grossly

erred in holding contrary to the settled position that relinquishment can

never be by way of oral arrangement. On above broad submissions, Mr.

Patil would pray for setting aside the orders passed by the Trial and the

Appellate Courts.

9) Mr. Joshi, the learned counsel appearing for the Respondent-

Plaintiff opposes the Appeal. He submits that no interference is

warranted in the concurrent findings recorded by both the Courts about

absence of relinquishment by the Plaintiff. He submits that there is

absolutely no evidence on record for interfering in concurrent findings

on absence of oral relinquishment. That for relinquishment in respect of

the immovable property, execution and registration of a formal

document is mandatory as held by this Court in Gangaram Sakharam

Dhuri since deceased through LR Vishnu and Others V/s. Gangubai

Raghunath Ayare and others3. That the affidavit does not speak of or

1 AIR 1965 BOM 74

2 Second Appeal No.562 of 2003 decided on 30 November 2023.

3 2007 SCC OnLine BOM 144

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refer to oral relinquishment in any manner. That the affidavit executed

merely for deletion of names from revenue records cannot lead to

presumption of relinquishment of share by the Plaintiff. That the

affidavit is executed merely for effecting mutation entry for fiscal

purposes. That the Plaintiff was deliberately kept out of partition

effected in the year 1994 and agreement between the parties to the

Partition Deed about the Plaintiff relinquishing her share would not bind

the Plaintiff in any manner. He submits that the affidavit is secured by

the Defendant from his sister/Plaintiff by misrepresentation. That in any

case, there is no reference to relinquishment in the said affidavit. He

takes me through the findings recorded by the Trial and Appellate Courts

in support of his contention that absence of relinquishment by the

Plaintiff is well supported by evidence on record. He prays for dismissal

of the Appeal.

CONSIDERATION OF SUBMISSIONS

10) The dispute between siblings is in respect of the right of

inheritance in respect of the land bearing Gat No.27 and house

constructed thereon. As a matter of fact, one more land bearing Gat

No.28 was also a part of ancestral property. The Plaintiff and Defendant

are children of Shankar Narayan Joshi, who also had a brother by name-

Waman Narayan Joshi. While Shankar has two children (Plaintiff-Anita

and Defendant-Shekhar), Waman Narayan Joshi has only one son -Suhas

Waman Joshi. Being joint family property, Suhas Waman Joshi was also

entitled to inherit a share in the same. By way of registered partition

effected on 25 June 1993, Suhas Waman Joshi has accepted land bearing

Gat No.28 admeasuring 28.3 R as his share in the ancestral properties.

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Thus, the share of Suhas Waman Joshi was carved out by registered

partition deed. What remained is land at Gat No.27 admeasuring 21.5 R

and a house constructed thereon, which are the suit properties in Special

Civil Suit No.131 of 2015 instituted by Plaintiff-Anita Bhave. In her Suit,

she claimed one-half share in both the suit properties. By the time the

Suit was filed, a Relinquishment Deed dated 25 March 2013 was executed

by mother-Shakuntala in favour of the Defendant. The Plaintiff believed

that the Defendant got the Relinquishment Deed dated 25 March 2013

executed by the mother by misrepresenting her. She accordingly sought a

declaration in the Suit for cancellation for Relinquishment Deed dated 25

March 2013.

11) The Trial Court proceeded to declare the Relinquishment Deed

dated 25 March 2013 as null and void and not binding on the Plaintiff.

The Appellate Court has however, reversed the said finding. Reversal of

the said finding by the Appellate Court was subject matter of challenge

in the Second Appeal No.157 of 2024 filed by Plaintiff-Anita, which has

been dismissed by this Court. Thus, the position that now stands is that

the Relinquishment Deed dated 25 March 2013 is valid and binding on

the Plaintiff.

12) Both, the Trial and Appellate Courts have recognised right of the

Plaintiff to inherit a share in both the suit properties in capacity as

daughter of Shankar Narayan Joshi. The Defendant-Shekhar does not

really dispute right of the Plaintiff-Anita to inherit a share in the

ancestral property. However, he took a defence that the Plaintiff had

relinquished her share. Both the Courts have concurrently rejected the

defence of the Defendant.

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13) Before me, Appellant-Defendant contends that both the Courts

have erroneously rejected the case put forth by him of oral

relinquishment of right to claim share by Plaintiff in the joint family

property. It is also contended that the Affidavit buttresses the case of

oral relinquishment. I accordingly proceed to answer the three

substantial questions of law formulated while admitting the Appeal.

QUESTION NO. 1

14) Faced with a situation that there is no written document recording

relinquishment of share of the Plaintiff, Mr. Patil has contended that

share in ancestral land can always be abandoned without executing the

written instrument. He has relied on judgment of this Court in Ramdas

Chimna (supra). The case involved the question as to whether it was

open to the mother to relinquish her interest in the joint family property

orally when the joint family property consisted of immovable property

and when value of her share therein was more than Rs.100. Referring to

various provisions of the Transfer of Property Act, 1882, this Court held

that when law requires that there should be instrument in writing and

that the instrument must be registered, the transfer can only be effected

in that manner. However, it is held that where no writing is required by

the Transfer of Property Act or by other law, the transfer may be made

orally. By referring to judgment of Calcutta High Court in Imperial Bank

of India v. Bengal National Bank, Limited 4 this Court held that a right to

recover a share in the immovable property may be relinquished orally

and without an instrument in writing. This Court thereafter referred to

4 (1930) I.L.R. 58 Cal.136

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provisions under Section 17 of the Registration Act, 1908 and held that

there was nothing in the Registration Act, which required any particular

transaction to be recorded in writing. This Court further held that there

is nothing in the Transfer of Property Act or any other law that requires a

mere relinquishment of interest of the immovable property must be in

writing. This Court therefore held that oral relinquishment by mother of

her interest in joint family properties in favour of her two sons was valid

and effective in law. This Court held in paragraphs 5 to 9 as under:-

5.The question then arises whether it is open to the mother to

relinquish her interest in the joint family properties orally when the

joint family properties consist of immoveable properties like the

suit fields and the value of her share therein is more than Rs.100/-.

Mr. Deshpande drew my attention to the case reported in Dattatraya

Govind v. Narayan Gangaram, AIR 1936 Nag 186. It was held by

Vivian Bose J. in that case that

"except in the case of partition among the members of a joint

Hindu family, where the unities of possession, interest, title

and time are complete and except in the case of entrance to a

religious order involving complete renunciation of the world,

no person can divest himself of interests which have once

vested in him by a mere disclaimer. A title once vested can be

divested only by a recognized conveyance or one of the other

means allowed by law. It cannot pass by admission,

relinquishment, or disclaimer when the law requires a deed."

6. This case does not lay down that relinquishment cannot be made

orally. All that it says is that the title once vested can be divested

only by a recognized conveyance or by one of the other means

allowed by law. It further says that the title once vested cannot pass

by relinquishment when the law requires that relinquishment can

only be made by a deed or by an instrument. Transfer of Property

Act clearly recognizes oral transfers. Section 9 of the Act provides

that "a transfer of property may be made without writing in every

case in which a writing is not expressly required by law." It follows,

therefore, that an oral transfer of property is rule unless there is law

which expressly requires that it should be made in writing. Transfer

of Property Act contains various transfers where writing is

necessary. Under S. 54, a sale of tangible immoveable property of the

value of Rs.100/- or upwards, or of a reversion or other intangible

thing is required to be made only by a registered instrument. Under

Section 59, a writing is necessary in the case of a simple mortgage

by deposit of title-deeds where the principal sum secured in

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Rs.100/- or upwards. Under Sec. 107, a lease of immoveable property

from year to year, or for any term exceeding one year, or reserving a

yearly rent, is required to be made in writing. Under Section 123, a

gift of immoveable property can only be made by a writing. Under

Sec. 130, all transfers of actionable claims have to be made by

writing and, under Sec. 118, all exchanges are subject to the same

rules as are applicable to sales. Thus, when the law requires that

there should be an instrument in writing and that instrument must

be registered, the transfer can only be effected in that manner. But

where no writing is required by the Transfer of Property Act or any

other law, the transfer may be made orally. Mr. Deshpande is unable

to point out any statute which requires that the relinquishment by

the mother of her interest in the joint family property, when the

property consists of immoveable property and the value of the share

therein exceeds Rs. 100/- can only be made in writing or by an

instrument registered.

(7) In Imperial Bank of India, v. Bengal National Bank, Ltd. Rankin

C.J. said that partition, release and surrender are all forms of

transfer but that so far as the Transfer of Property Act is concerned,

they come under no restrictions. A right to recover a share of

immoveable property may be relinquished orally and without an

instrument in writing.

(8) Mr. Deshpande, however, drew my attention to the provisions of

Section 17 of the Registration Act. There is nothing in the

Registration Act or the provisions of Section 17 thereof, which

requires any particular transaction to be recorded in writing. That

Act requires only that when certain transactions are so recorded,

the writing shall be registered. There is nothing in the Transfer of

Property Act or any other law that I am so far aware which requires

that a mere extinguishment of an interest in the immoveable

property shall be in writing. The relinquishment by Bainabai of her

interest in the joint family property was merely abandonment of

here interest in the joint family property in favour of her two sons.

Such a relinquishment or abandonment of interest in the joint

family property, even though it consists of immoveable properties

and is of the value of Rs.100/- and upwards, can be effected without

a written instrument, though if one is executed, it would

undoubtedly require registration under Section 17 of the

Registration Act, Gauri Bai v. Gaya Bai, AIR 1927 Nag. 44.

(9) Thus, the oral relinquishment by Bainabai of her interest in the

joint family properties in favour of her two sons after the death of

Ramji was valid and effective in law. Since the time of that

relinquishment she ceased to have any interest in the joint family

properties. The learned Additional District Judge was in error in

taking the view that an oral relinquishment, even if proved, would

not divest Bainabai of her interest in the joint family properties.

(emphasis and underlining added)

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15) Ratio of the judgment in Ramdas Chimna (supra) has been

followed by this Court in Uma Madhav Agaskar V/s. Manorama Motiram

Dandekar and Ors. 5 (supra) in which it is held in paragraph 7 as under:

7. In so far as the submission of the learned advocate for the

appellant that such oral relinquishment is not permission as such

relinquishment requires registered document is concerned, the issue

is no longer res integra in view of the judgment of the Apex Court in

Ramdas Chimna v. Pralhad Deorao & Ors. reported in AIR 1965

Bombay 74. This Court held that relinquishment by a female of her

interest in the joint family property was merely abandonment of her

interest in the joint family property, even though it consists of

immovable properties and is of value of Rs.100/- onward can be

effected without written instrument. It is only if such

relinquishment is evidenced by a written document, such document

would require registration.

(Emphasis added)

16) On the other hand, Mr. Joshi has relied upon judgment of this

Court in Gangaram Sakharam Dhuri (supra) in support of his contention

that execution of written document and registration thereof is

mandatory for relinquishment. However, closer scrutiny of ratio of the

judgment in Gangaram Sakharram Dhuri (supra) would indicate that the

judgment actually militates against the contention of Mr. Joshi. This

Court has held in paragraphs 22 and 23 as under:

22. Perusal of the evidence, both oral and documentary, shows that

the existence of intention on the part of the Plaintiff and the second

to fifth Respondents of relinquishing their share in the property of

their father has not been established. The Plaintiff and fourth

Defendant have admitted their thumb impression and signature

respectively on the document. Howver, they have denied the

contents and the fact that they attended City Survey Office. The

other two sisters have not even admitted the execution of document.

The witness Kunte has at highest proved that the writing is prepared

by him. However, he has not proved that the document is executed

5 Second Appeal No.562 of 2022, decided on 30 November 2023

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by the sisters. Hence, the alleged writing is not at all proved in

accordance with law of evidence.

23.The submission of the learned counsel appearing for the original

Plaintiff was that the alleged relinquishment was in respect of an

immovable property which was certainly worth more than Rs.100/-

and therefore, in view of section 17 of the Indian Registration Act,

1908, the document was a compulsorily registerable document. The

submission of the learned counsel for the second Defendant was

based on the decision of the Division Bench of this Court reported in

A.I.R (30) 1943 Bombay 397A.I.R (30) 1943 Bombay 397A.I.R (30)

1943 Bombay 397 in the case of Mahalingayya Basappayya

Ullagaddimath Vs. Sangayya Chennayya Ullagadiimath. Relying upon

the said decision, he submitted that there was no necessity of

executing any writing recording the surrender or relinquishment and

even registration was not mandatory. The Division Bench in the said

decision has held that the renunciation of interest in the family

property can be effected by coparceners by an expression of

intention to that effect and no formality is necessary. The Division

Bench was dealing with a case where renunciation was by a

coparcener. In case of a hindu coparcenery, the shares of coparceners

are always fluctuating and they take shares by survivorship. In the

present case we are dealing with share acquired by the daughters in

the self acquired property of their father by intestate succession.

Therefore, the said decision will have no application to the facts of

the case and section 17(1) of the said Act of 1988 will certainly apply.

I have already held that there is nothing on record to prove that the

Plaintiff and third to fifth Defendants intended to relinquish or

surrender their shares in the father’s property in favour of Vishnu.

As pointed out earlier, even in the recitals in the Sale Deed executed

by the said Vishnu, there is no reference to any such relinquishment.

Reliance is placed on the entries made in the City Survey Record in

which the relinquishment is recorded. The city survey record is

nothing but a record of rights and therefore entries in the city survey

record will not by itself effect the relinquishment. Therefore, the

Plaintiff and third to fifth Defendants had one sixth undivided share

each in the property after the demise of their father and one fifth

share each on the demise of their mother. Similarly, Vishnu had one

sixth share in the property after demise of the father. One more

aspect of the case is very important. The alleged relinquishment

even according to the case of the 2nd Defendant was made in 1967

when Sunderabai was alive. Therefore, even assuming that there was

a valid relinquishment by the sisters, Vishnu did not acquire share of

his mother and therefore after demise of the mother, the sisters

acquired a share in the undivided share of the mother. Therefore,

Vishnu never became full owner of the suit property. On the date of

execution of the Sale Deed in favour of the second Defendant,

Vishnu was not the full owner as his mother was alive at that time

who was holding 1/6th share.

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(emphasis and underlining added)

17) Thus, in Gangaram Sakharam Dhuri (supra) this Court made

reference to Division Bench judgment in Mahalingayya Bassappayya

Ullagaddimath V/s. Sangayya Chennayya Ullagadiimath 6 in which it is

held that there is no necessity of executing a writing recording the

surrender or relinquishment and even registration is not mandatory. The

Division Bench held renunciation of interest in the family property can

be effected by coparceners by an expression of intention to that effect

and no formality is necessary. However, in Gangaram Sakharam Dhuri

(supra) the learned Single Judge of this Court distinguished the

judgment of the Division Bench of this Court in Mahalingayya (supra)

and held that in case of a Hindu coparcenary, the shares of coparceners

are always fluctuating and they take shares by survivorship. However, in

the case before the learned Single Judge, the issue involved shares

acquired by the daughters in the self-acquired property of their father by

intestate succession. In the facts of that case which involved

relinquishment of share by daughters in the self acquired property, this

Court held in Gangaram Sakharam Dhuri (supra) that provisions of

Section 17(1) of Registration Act, 1908 would apply. In the present case,

however, the issue is about relinquishment of right to claim share in

ancestral property by the Plaintiff and such relinquishment can be done

orally without an instrument in writing as held in Ramdas Chimna

(supra), Mahalingayya (supra) and Uma Madhav Agaskar (supra).

18) In the light of the above discussion, the first substantial question

of law can be answered in the negative and by holding that it is not

6 AIR(30) 1943 BOM 397

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always necessary to execute a written document or to register the same

for evidencing the relinquishment of interest in the joint family

properties in favour of other coparceners. Such relinquishment or

abandonment can be done even orally by expressing an intention of

doing so. This however would be restricted only to relinquishment or

abandonment of right to claim a share in the joint family properties and

would have no application in respect of share in self-acquired property

through intestate succession.

QUESTION NO. 2

19) Coming to the second question of presumption of relinquishment

on the basis of the affidavit, it is the defence of the Defendant that

affidavit was effected to buttress or support oral relinquishment by

Plaintiff-Anita. In the written statement, the Defendant contended that

after death of the father, share inherited by the Plaintiff was orally

relinquished by her in favour of the Defendant and that in support of

such oral relinquishment, she executed an affidavit. The Plaintiff did not

dispute execution of the affidavit. However, she pleaded in paragraph 6

of the Plaint that she was made to execute the affidavit by the Defendant

for the purpose of procuring fruit trees from Government. It was averred

by the Plaintiff in paragraph 6 of the Plaint as under:

सदर फे . फा . नोंद ३०६ ने वादीचे नाव लागले नंतर प्रति वादीने शेतकी खात्याकडून

फळझाडे मि ळण्यासाठी वादीचे प्रति ज्ञापत्रात सामायि क मालक म्हणून आवश्यकता आहे

असे वादीला सांगि तले व वादीला अलि बागला बोलावून तहसीलदार अलि बाग यांचे

कार्यालयात नेवून प्रति ज्ञापत्र फळझाडे मि ळण्यासाठी तयार केले आहे असे सांगून वादींची

त्यावर सही घेतली. वादीने हि प्रति वादी हा सख्खा भाऊ आहे तो फसवणार नाही असा

वि श्वास प्रति वादीवर ठेवून प्रति ज्ञापत्रावर सही केली. महत्वाचे म्हणजे प्रति वादीने वडील ते

प्रति ज्ञापत्र वाचून दाखवलेले नाही व वाचण्यास दि ले नाही.

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20) On the other hand, the Defendant pleaded the defence of oral

relinquishment by the Plaintiff in the written statement in paragraphs 13

and 14 as under:

१३. दावा परि च्छेद ६ मधील मजकुर वि पर्यस्त स्वरूपाचा आहे. बादी हि ने स्वखुशीने दावा

मि ळकतींमधील तीला वडीलांचे नि धनानंतर प्राप्त झालेला अवि भक्त हि स्सा या प्रति वादीचे

लाभात तोंडी सोडुन दि लेला होता आणि अशा तोडी सोडलेल्या हि श्श्याच्या हकीगतीच्या

पुष्टीकरीता वादी हि ने स्वखुशीने प्रति ज्ञापत्र केले सदर प्रति ज्ञापत्र महसुल वि भागाकडे सादर

झालेनंतर वादी हीचे नाव कमी करण्याकरीता मौजे आक्षी हक्क नोंद ३२९ दि नांक

२७/०९/१९९१ करण्यात आली. आक्षी हक्क नोंद ३२९ मध्ये आक्षी गट क्रमांक २७

आणि गट क्रमांक २८ या दोनही मि ळकती समावि ष्ट आहेत. आक्षी गट क्रमांक २८ मधुन

सोडलेल्या हक्काकरीता प्रति ज्ञापत्र योग्य आणि कायदेशीर आणि आक्षी गट कमाक २७

करीता प्रति ज्ञापत्र फसवुन घेतले म्हणुन बेकायदेशीर हे अनाकलनीय आहे. वादी ही उच्च

शि क्षीत आणि पंचायत समि ती आणि जि ल्हा परि षदेमध्ये नोकरी करून नि वृत्त झालेली

आहे. वादी हीला शासकीय कामकाजाच्या पध्दतीची आणि कागदपत्रांची उत्तम जाण आहे.

अशा परि स्थीतीत वादी हीने प्रति ज्ञापत्र न वाचता सहि केली अथवा तीची प्रति वादी याने

फसवणुक केली हे वि धान खोटे आणि आपमतलबी आहे.

१४. दावा परि च्छेद ७ मधील मजकुर वि पर्यस्त स्वरूपाचा आहे. वादी प्रति वादींची आई

शकंु तला हि ने दावा मि ळकतीमधील तीचा हक्क या प्रति वादीचे लाभात नोंदणीकृ त

हक्कसोडपत्राने सोडुन दि लेला आहे ही बाब वादीला या प्रति वादी समक्ष सांगि तलेली होती.

त्यामुळे शकंु तला हि चा नि धनाचे वेळी कोणताही हक्कहि तसंबंध दात्रा मि ळकतीमध्ये

राहि लेला नव्हता याची पूर्ण माहि ती वादीला होनी सबब दावा परि च्छेद ७ मधील कथने

काल्पनीक आणि रचनात्मक अशी ओहत. आईचे हयातीमध्ये आणि मृत्युनंतरही

वादी दावा घरामध्ये येत असे. या प्रति वादीने वादीची कधि ही फसवणुक केलेली

नाही.

21) Thus, there is serious dispute between the parties about oral

relinquishment by the Plaintiff in favour of the Defendant. However,

execution of affidavit is admitted by her though she contended that she

was made to execute the affidavit upon a misrepresentation.

22) Perusal of the affidavit would indicate that the same contains no

reference to any oral relinquishment. In her affidavit, the Plaintiff has

stated that “तरी (१) सुहास वामन जोशी (२) शकंु तला शंकर जोशी (३) शेखर शंकर

जोशी (४) अनि ता अरुण भावे अशी गावचे रेकॉर्डला नावे लावली आहेत व तरी त्या

प्रॉपर्टी ला लावलेले माझे नाव कमी व्हावे त्याबद्दल माझी हरकत नाही.” Thus, by the

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affidavit, all that the Plaintiff requested was deletion of her name from

revenue records pertaining to land bearing Gat Nos.27 and 28. The

affidavit makes no reference to any oral relinquishment. It does not state

that deletion of name of the Plaintiff be effected in pursuance of any oral

relinquishment. The Affidavit was executed only for the purpose of

deletion of name of Plaintiff from the revenue records. The issue for

consideration is whether oral relinquishment can be presumed merely on

the basis of a document signed for deletion of name of coparcener from

revenue records, when the document is silent about any such

relinquishment?

23) As observed above, affidavit by itself does not effect

relinquishment of share by the Plaintiff. The Affidavit also does not state

that in the past the Plaintiff had relinquished her share in the ancestral

property. The affidavit is silent about alleged relinquishment. The

affidavit merely records consent of the Plaintiff for deletion of her name

from ancestral property bearing Gat Nos.27 and 28.

24) The background, in which affidavit was executed by the Plaintiff-

Anita on 22 July 1991, also needs to be appreciated. At that time, there

was claim of cousin-Suhas Waman Joshi in respect of one-half share in

the ancestral property bearing Gat Nos.27 and 28. She apparently has no

qualms about granting a share to Suhas Joshi. In the Plaint, she pleaded

the case of misrepresentation while executing the affidavit. In my view,

however, it is not necessary to go into the issue of misrepresentation as

both the Courts have not accepted the theory of the Plaintiff. It would

therefore be appropriate to take contents of the affidavit as they stand. If

there is no reference to any oral relinquishment in the affidavit, the same

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would have the effect only of granting of permission for deletion of name

of the Plaintiff from revenue records. Beyond this, the affidavit is not of

much significance for presuming oral relinquishment by the Plaintiff.

25) While answering the first substantial question, I have held that

relinquishment of share by the coparcener in a joint family property can

be effected orally and in absence of an instrument in writing. However, in

such a case, effecting of oral relinquishment must be proved by person

asserting the same. In the present case, the Defendant took the defence

of oral relinquishment and therefore the burden was on the Defendant to

prove effecting of such oral relinquishment by the Plaintiff. Beyond his

bear words, he did not lead any evidence to prove any such

relinquishment. I have already reproduced above averments in the

written statement relating to oral relinquishment. The averments are

totally vague. The written statement does not contain any particulars of

date, place and time, etc., when such relinquishment was allegedly made

by the Plaintiff. The Defendant did not examine any witness in whose

presence the relinquishment was allegedly made by the Plaintiff. Apart

from examining himself, the Defendant also examined Shri Sarvesh C.

Joshi as DW2, who is a distant cousin of the Plaintiff and the Defendant

and possibly occupant of neighbouring land bearing Gat No.29/1. He was

examined only to prove that mother-Shakuntala was in perfect health

one month before her death. His evidence was thus relevant only for

proving genuineness of mother’s relinquishment deed. Thus, the

Defendant did not examine any witness to prove oral relinquishment by

the Plaintiff.

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26) Recognizing legal effect of oral relinquishment is a concept

different than proving the factum of oral relinquishment. Beyond

pleading vaguely that after death of father of the Plaintiff, the Plaintiff

had orally relinquished her share for Defendant’s benefit, there is

absolutely no iota of evidence to establish such oral relinquishment.

Affidavit of evidence of the Defendant is reproduction of written

statement, which again is bereft of any details about date, time and place

of effecting or expressing oral relinquishment.

27) In my view, therefore, oral relinquishment cannot be presumed

merely on the basis of affidavit effected for the purpose of deletion of

name of the Plaintiff from the revenue records. Mere consent granted for

deletion of name of the Plaintiff from revenue records by way of affidavit

(without referring to any relinquishment) does not mean that she

intended to effect relinquishment. Intention on the part of the Plaintiff

to consciously relinquish her share in favour of the Defendant has not

been established in any manner. The second question can therefore be

answered by holding that oral relinquishment cannot be presumed

merely on the basis of a document signed for deletion of name of

coparcener from revenue records, when the document is silent about any

relinquishment.

QUESTION NO. 3

28) Coming to the third question formulated above, it is sought to be

contended by Mr. Patil that since the Plaintiff has accepted

relinquishment qua land bearing Gat No.28, it needs to be presumed that

there is relinquishment by her qua land bearing Gat No.27 as well. This

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contention is raised essentially to get over the position that there is no

evidence to establish oral relinquishment by the Plaintiff. Therefore, it is

contended on behalf of the Defendant that since the Plaintiff has

accepted oral relinquishment qua share of Suhas Joshi (Gat No.28) she

cannot deny oral relinquishment in respect of remaining land falling in

the share of mother-Shakuntala and brother-Shekhar. Mr. Patil has taken

me through cross-examination by the Plaintiff in which her attention

was drawn to registered partition deed dated 5 May 1994 and she stated

that ‘मी सदर वाटणीपत्र दावा दाखल करणेपूर्वी वाचलेले आह.े या

वाटणीपत्रातील मजकुराबाबत माझा आक्षेप नाही.’ Based on the above

deposition, Mr. Patil has contended that the Plaintiff cannot admit

relinquishment qua part of ancestral property while selectively denying

relinquishment qua the other property. In my view, contention sought to

be raised on behalf of the Defendant flows out of misreading of

statements made by the Plaintiff in her cross-examination. After the

above quoted statement, Plaintiff immediately clarified that ‘सदर

वाटणीपत्रातील परिच्छेद क्र. ३ मधील "लिहून देणार पैकी १ याना एक मुलगी

असून ती विवाहित आहे व तिने सदर मिळकतीवरील हक्क सोडून दिलेला आहे

त्यामुळे तिचा आता या मिळकतीशी काहीही संबंध राहिलेला नाही” हा मजकू र

मान्य नाही’. Thus, Plaintiff expressly denied the suggestion of

abandonment of right to claim share in the suit property. She has

undoubtedly expressed her consent for grant /allotment of land bearing

Gat No.28 to Suhas Waman Joshi. This is repeatedly stated by her in her

cross-examination, and the statements are consistent with the stand of

the Defendant as well. However, from those statements in the cross

examination, one cannot draw a presumption that Plaintiff had any

intention for giving away the right to claim share in land bearing Gat No.

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27. The arrangement in the partition envisaged balance land bearing Gat

No.27 as well as house constructed thereon falling to the share of heirs

of Shankar Narayan Joshi i.e. mother-Shakuntala, Son-Shekhar and

daughter-Anita. To this limited extent, the Plaintiff has admitted

correctness of the Partition Deed and consented for not claiming any

share in Gat No.28.

29) Statements made in the cross-examination by the Plaintiff cannot

constitute any oral relinquishment of share in the ancestral properties by

the Plaintiff either in respect of Gat No.28 or in respect of Gat No.27.

Statements merely admit consent qua Suhas Joshi’s entitlement to land

bearing Gat No.28. Here the issue is not about relinquishment effected

by the Plaintiff in favour of cousin-Suhas. It is not the pleaded case of

Defendant that the so-called oral relinquishment applied in respect of

entire ancestral property comprising of Gat Nos. 27 and 28. Averments in

paragraph 13 of the written statement have already been reproduced

above. The said averments only claim alleged oral relinquishment in

respect of suit properties comprising of land at Gat No.27 and house

property thereon. Contrary to what is pleaded in the written statement,

Mr. Patil now attempts to canvas before me that there is relinquishment

by the Plaintiff in respect of the land at Gat No.28. Since there is no

pleading to this effect, there is no question of accepting oral

relinquishment qua Gat No.28.

30) Admitting share of cousin in joint family property is a concept

distinct from the concept of abandoning her own share by the Plaintiff in

such properties. Admitting share of another coparcener cannot be

confused with the concept of relinquishment of share in the joint family

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property. Thus, the oral relinquishment by the Plaintiff qua land bearing

Gat No.28 has not been established and therefore, there is no question of

presuming any such oral relinquishment qua the suit properties. Third

substantial question therefore deserves to be answered in the negative.

CONCLUSION

31) Conspectus of the above discussion is that the Defendant-

Appellant has thoroughly failed to prove oral relinquishment in respect

of Plaintiff’s share in the suit properties. The Trial and the Appellate

courts have rightly upheld rights of the Plaintiff in the suit properties.

The Trial Court had committed an error of declaring one-half share of

the Plaintiff in the suit properties by holding mother’s Relinquishment

Deed dated 25 March 2013 as illegal. The Appellate Court has corrected

that error by holding that mother has validly relinquished her one-third

share in favour of the Defendant. The Defendant thus has two-third

share in the suit properties and accordingly Plaintiff’s one-third share

has rightly been upheld.

32) The questions formulated while admitting the Appeal are

answered as under:

(i) It is permissible to orally relinquish share in the

ancestral property by a coparcener in favour of another

coparcener in absence of a written instrument and in absence

of registration.

(ii) Oral relinquishment cannot be presumed on the basis of

a document created for the purpose of deletion of name from

revenue records, especially when such document by itself does

not effect relinquishment nor refers to any oral

relinquishment.

(iii) Mere expression of consent for allotment of share in the

ancestral property in favour of one of the coparceners forming

part of different unit does not automatically amount to

expression of relinquishment of share in the joint family

property falling to the share of claimant’s own unit.

ORDER

33) I therefore find no reason to interfere in the impugned order

passed by Appellate Court, which appears, to my mind, to be

unexceptional. Second Appeal is accordingly dismissed. Considering the

facts and circumstances of the case, the parties shall bear their own costs

in the appeal.

34) In view of disposal of the Second Appeal, nothing survives in the

Interim Application and the same is disposed of.

[SANDEEP V. MARNE, J.]


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