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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