Whether the rule of Estoppel will prevent sons from claiming rights in the self acquired property of their grand father, if their father has relinquished his rights in that property?

What estoppel brings about, however, is preventing a party from setting up the right, which, but for the estoppel, he would have in the property. In this regard, we may notice the following discussion under the caption 'Death or disability of the representor' (pages 125-126) in the work Estoppel by Representation by Spencer Bower and Turner:

Death or disability of the representor

128. In case of the death, or the total or partial disability (whether by reason of insolvency, infancy, lunacy, coverture, or otherwise), of the representor at the time of the proceedings in which the question of estoppel is raised, the liability to the estoppel, speaking generally, devolves upon, or is transmitted to, the same persons, in accordance with the same rules, and subject to the same conditions, as the liability of such a representor to proceedings for the avoidance of a contract procured by the representation.

Where the representor has died between the date of the representation and the date of the raising of the estoppel, the executor or administrator, or (in case of title to, and estates in, land) the heir or devise, of the deceased representor is bound by the representation to the same extent as the representor would have been, and succeeds to all the burdens of estoppel in respect thereof to which, at the date of his decease, such representor was subject...

23. It will be noticed that the father of the Appellants, by his conduct, being estopped, as found by us, is the fountainhead or the source of the title declared in Section 8(a) of the Hindu Succession Act. It is, in other words, only based on the relationship between Shri Chandran and the Appellants, that the right Under Section 8(a) of the Hindus Succession Act, purports to vest the right in the Appellants. We would think, therefore, that Appellants would also not be in a position to claim immunity from the operation of the Principle of Estoppel on the basis of Section 8(a) of the Hindu Succession Act. If the principle in Gulam Abbas (supra) applies, then, despite the fact that what was purported to be released by Shri Chandran, was a mere spec successionis or expectation his conduct in transferring/releasing his rights for valuable consideration, would give rise to an estoppel. The effect of the estoppel cannot be warded off by persons claiming through the person whose conduct has generated the estoppel. We also find no merit at all in the attempt at drawing a distinction based on religion. The principle of estoppel applies without such distinction.

24.  Having received valuable consideration and allowed his father Shri Sengalani Chettair to proceed on the basis that he was free to deal with the property without the prospect of being haunted by any claim whatsoever as regards the property by Shri Chandran, a clear estoppel sprang into existence following the receipt of consideration by Shri Chandran. Estoppel would shut out in equity any claim otherwise either by Shri Chandran or his children, viz., the Appellants.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 521-522 of 2023.

Decided On: 25.01.2023

Elumalai and Ors. Vs. M. Kamala and Ors.

Hon'ble Judges/Coram:

K.M. Joseph and Hrishikesh Roy, JJ.

Author: K.M. Joseph, J.

Citation:  MANU/SC/0077/2023, 2023/INSC/83

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Whether gift/renunciation/relinquishment or alienation by one coparcener of his undivided coparcenary interest to another coparcener without consent of other coparceners void?

 Moreover, under Hindu Law, the gift/renunciation/relinquishment or alienation by one coparcener of his undivided coparcenary interest to another coparcener without consent of other coparceners is void.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2913-2915 of 2018

Prasanta Kumar Sahoo and Ors.  Vs.  Charulata Sahu and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Decided On: 29.03.2023

Citation: MANU/SC/0326/2023.

Read full Judgment here: Click here

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Supreme Court: When A Person Has Relinquished Rights In Father's Self Acquired Property, His Sons Are Estopped From Claiming Share

  In the facts of this case, the case of the appellants may be noted. It is their case, that Shri Chandran, their father, himself did not have any right in the plaint schedule property. This is for the reason that being the separate property of Shri Sengalani Chettair, Shri Chandran did not have any right by birth. He himself had only, what is described a spec successionis within the meaning of Section 6(a) of the Transfer of Property Act. It is not even the case of the appellants that they had any independent right in the plaint schedule property either at the time of their birth or at the time when their father died or even when their grandfather Shri Sengalani Chettair died in 1988. The right, which they claim, at the earliest point, can arise only by treating the property as the separate property of Shri Sengalani Chettair on his death within the meaning of Section 8 of the Hindu Succession Act. Therefore, we are unable to discard the deed of release executed by their father Shri Chandran in the year 1975 as a covenant within the meaning of Section 8 of the ‘1956 Act.’

{Para 21}

22. As far as the argument of the appellants that the appellants would have an independent right, when succession open to the estate of Shri Sengalani Chettair, when he died in 1988, in view of the fact that the appellants are the children of the predeceased son, viz., Shri Chandran, who died on 09.12.1978, we are of the view that there is no merit in the said contention. It is true that under Section 8(a) of the Hindu Succession Act, 1956, property of a male Hindu, dying intestate, will devolve, firstly, upon the heirs, being the relatives specified in Class I of the Schedule. The son of a predeceased son, it is true, is a Class I heir. Therefore, it could be argued that since Shri Sengalani Chettair died intestate, a right was created in the property in favour of the appellants, being the children of the predeceased son. What estoppel brings about, however, is preventing a party from setting up the right, which, but for the estoppel, he would have in the property. In this regard, we may notice the following discussion under the caption ‘Death or disability of the representor’ (pages 125-126) in the work Estoppel by Representation by Spencer Bower and Turner:

“Death or disability of the representor

128. In case of the death, or the total or partial disability (whether by reason of insolvency, infancy, lunacy, coverture, or otherwise), of the representor at the time of the proceedings in which the question of estoppel is raised, the liability to the estoppel, speaking generally, devolves upon, or is transmitted to, the same persons, in accordance with the same rules, and subject to the same conditions, as the liability of such a representor to proceedings for the avoidance of a contract procured by the representation.

Where the representor has died between the date of the representation and the date of the raising of the estoppel, the executor or administrator, or (in case of title to, and estates in, land) the heir or devise, of the deceased representor is bound by the representation to the same extent as the representor would have been, and succeeds to all the burdens of estoppel in respect thereof to which, at the date of his decease, such representor was subject…”

23. It will be noticed that the father of the appellants, by his conduct, being estopped, as found by us, is the fountainhead or the source of the title declared in Section 8(a) of the Hindu Succession Act. It is, in other words, only based on the relationship between Shri Chandran and the appellants, that the right under Section 8(a) of the Hindus Succession Act, purports to vest the right in the appellants. We would think, therefore, that appellants would also not be in a position to claim immunity from the operation of the Principle of Estoppel on the basis of Section 8(a) of the Hindu Succession Act. If the principle in Gulam Abbas (supra) applies, then, despite the fact that what

was purported to be released by Shri Chandran, was a mere spec successonis or expectation his conduct in transferring/releasing his rights for valuable consideration, would give rise to an estoppel. The effect of the estoppel cannot be warded off by persons claiming through the person whose conduct has generated the estoppel. We also find no merit at all in the attempt at drawing a distinction based on religion. The principle of estoppel applies without such distinction.

24.  Having received valuable consideration and allowed his father Shri Sengalani Chettair to proceed on the basis that he was free to deal with the property without the prospect of being haunted by any claim whatsoever as regards the property by Shri Chandran, a clear estoppel sprang into existence following the receipt of consideration by Shri Chandran. Estoppel would shut out in equity any claim otherwise either by Shri Chandran or his children, viz., the appellants.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.521-522 OF 2023

ELUMALAI @ VENKATESAN & ANR  Vs M. KAMALA AND ORS. & ETC

Author: K.M. JOSEPH, J.

DATED: JANUARY 25, 2023.

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Whether the daughter can get a partition of ancestral property by disowning relinquishment deed?

 The plaintiffs, while admitting the execution of sale deed Ex.A-2, refute the release deed. The recital in the release deed refers the execution of sale deed Ex.A-2 in respect of 0.91 cents and about the receipt of Rs. 2,32,060/- each by the plaintiffs 1 and 2, as consideration for relinquishing their right in the remaining property, left by their father.{Para 11}

12. Two reasons are mentioned in Ex.A-4 for the cancellation of the release deed Ex.A-3. First, it was obtained by fraud and misrepresentation. They came to know about it, when they applied for encumbrance certificate. Second, the plaintiffs were not paid the full amount agreed by the defendants 1 to 5. These two reasons found in the deed of cancellation conspicuously not mentioned in the plaint. Further, for the first reason, the plaintiffs have not mentioned the date of their application for E.C (encumbrance certificate) or evidence to show they applied for E.C (encumbrance certificate). For the second reason (i.e.,) short payment of the money agreed, the amount paid and the exact amount unpaid neither pleaded nor proved.

13. By filing the partition suit, the plaintiffs disown their own document namely the release deed Ex.A-4 duly registered and presumed to be an official act performed regularly. If the terms of contract reduced into writing and duly registered is sought to be excluded by oral evidence, the burden is on the plaintiffs to adduce evidence sufficient to exclude the written evidence, as per section 92 of the Evidence Act.

16. Section 91 and section 92 proviso (i) of Indian Evidence Act, clearly lay down the rule when a written evidence could be excluded by oral evidence is permissible. In this case, the due execution of release deed Ex.A-3 is proved through the document and through the attesting witness D.W-2. To disprove it, the plaintiffs have not placed sufficient evidence to establish same was executed by misleading them and the consideration mentioned in the release deed not paid to them.

19. After executing a release deed (Ex.A-3) on 12.07.2006, the plaintiffs had cancelled the said release deed (Ex.A.4) on 17.08.2006 without any notice to the beneficiary of the release deed. Later, without any further relief of declaration in respect of those deeds, the suit for partition filed. When Section 34 of the Specific Relief Act, restrains the Courts from entertaining suits filed for mere declaration as to right when the plaintiffs are able to seek further relief, and same omitted to do so. Therefore, for the reasons stated above, this Court confirms the decree and judgment of the Additional District Court, Fast Track Court No. V, Coimbatore and dismissed the Appeal with costs.

 In the High Court of Madras

(Before G. Jayachandran, J.)

Tmt. Karuppathal  Vs P. Ponnusamy, (deceased) 

A.S. No. 809 of 2009

Decided on February 17, 2021,

Citation: 2021 SCC OnLine Mad 677

The Judgment of the Court was delivered by

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Whether relinquishment of self-acquired properties of a deceased by legal heirs will enure to benefit of all other legal heirs?

This Court in case of Kishore Tulshiram Mantrim (supra)

after adverting to the judgment of Supreme Court in case of Thamma

Venkata Subbamma (supra) has held that if the properties are self- acquired and not the ancestral coparcenary properties, would acquire on the death of such person in self-acquired property, they will devolve equally on all his legal heirs and therefore some of the legal heirs can definitely relinquish their share in favour of another legal heir and it should not be necessarily in favour of whole body. In my view, the

principles of law laid down by the Supreme Court in the said judgment would squarely apply to the facts of this case. Since, the suit properties were self-acquired properties of the deceased Shripad Pandit, all the legal heirs of the said deceased were entitled to equal share including the four daughters of the said deceased who were sisters of the appellants. The

daughters of the said deceased thus were free to relinquish their

undivided share in the suit property in favour of the other legal heirs of the said deceased exclusively.

27. In my view, such relinquishment of properties inherited by

the legal heirs of the person whose properties were self-acquired

properties would not enure for the benefit of all the legal heirs of the said deceased but would enure only for those persons in whose favour such deed of relinquishment/release was executed. The principles applicable to the relinquishment of undivided share by coparceners in favour of another coparcener in respect of ancestral property which relinquishment would

enure for the benefit of all the coparceners would not apply in case of the

properties inherited by legal heirs which were self-acquired properties of

the deceased. In my view, the learned Trial Judge erroneously applied the

principles applicable to relinquishment of undivided share by a

coparcener in favour of another coparcener to the properties inherited by

the legal heirs of a deceased whose properties were self-acquired.

28. In my view, since the suit properties were not inherited by

the four generations of male lineage from father, father’s father or father’s

father’s father i.e. father, grand father, the properties even otherwise

could not have been termed as ancestral property. The finding of the Trial

Court that though deed of relinquishment was executed by the four

daughters of the said deceased though in favour of the appellants, same

would act for the benefit of all the coparceners is ex-facie perverse and

contrary to the principles of law laid down by the Supreme Court and this

Court. Supreme Court in case of Arshnoor Singh (supra) has quoted a

passage from Mulla in his commentary on Hindu Law (22nd Edition) at

page 129 with approval stating the position with respect to succession

under Mitakshara and has held that after the Hindu Succession Act, 1956

came into force, if a person inherits a self-acquired property from his

paternal ancestral, the said property becomes self-acquired property and

does not remain coparcenary property. Principles laid down by the

Supreme Court in the said judgment would apply to the facts of this case.

Bombay High Court

Shri. Shashikant Shripad Pandit ... vs Shri. Kaustubh Subhash Pandit And ... on 25 February, 2020

FIRST APPEAL NO.1773 OF 2019
      ALONG WITH
INTERIM APPLICATION NO.1 OF 2019

CORAM : R.D. DHANUKA, J.

2020 SCC OnLine Bom 309 : (2020) 3 Mah LJ 302 : (2020) 2 Bom CR 678 : AIR 2020 (NOC 668) 225 : (2020) 3 AIR Bom R 384

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To what extent unregistered family settlement can be relied on?

 Under Section 17 of the Registration Act, the documents which purport or operate to create, declare, assign, limit or extinguish any right, title or interest of the value of one hundred rupees and upwards, are to be registered. Under Section 49 of the Registration Act no document required by Section 17 or by any provision of the Transfer of Property Act to be registered shall be received as evidence of any transaction affecting an immovable property. As provided by Section 49 of the Registration Act, any document, which is not registered as required under the law would be inadmissible in evidence and cannot therefore be produced and proved Under Section 91 of the Evidence Act.

17. Even though recitals in the Ex. D22 is to the effect of relinquishment of right in items No. 1 and 2, Ex. D22 could be taken as family arrangements/settlements. There is no provision of law requiring family settlements to be reduced to writing and registered, though when reduced to writing the question of registration may arise. Binding family arrangements dealing with immovable property worth more than rupees hundred can be made orally and when so made, no question of registration arises. If, however, it is reduced to the form of writing with the purpose that the terms should be evidenced by it, it required registration and without registration it is inadmissible; but the said family arrangement can be used as corroborative piece of evidence for showing or explaining the conduct of the parties. In the present case, Ex. D22 panchayat resolution reduced into writing, though not registered can be used as a piece of evidence explaining the settlement arrived at and the conduct of the parties in receiving the money from the Defendant in lieu of relinquishing their interest in items No. 1 and 2.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5805 of 2016 (Arising out of SLP (C) No. 27268 of 2008)

Decided On: 05.07.2016

Subraya M.N. Vs. Vittala M.N. and Ors.

Hon'ble Judges/Coram:

Kurian Joseph and R. Banumathi, JJ.

Citation: 2017(5) BomCR160

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Whether mutation entries in absence of registered relinquishment deed can be relied on?

Since this Court has already come to the conclusion, on the basis of aforesaid provision of law as well as material available on record, that no immovable property could be relinquished without there being registered document, mutation, if any, conducted on the basis of oral relinquishment/'Azadinama' as reflected in Ex. P-1 and Ex. DX has no bearing on the rights of plaintiff, who is absolute owner of the suit land.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Regular Second Appeal No. 23 of 2006

Decided On: 05.05.2017

 Piar Chand and Ors. Vs. Sant Ram and Ors.

Hon'ble Judges/Coram:

Sandeep Sharma, J.

Citation:AIR 2017(NOC) 918 HP

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Whether father has relinquished his share in name of his son if he has agreed for mutation of property in name of son?

We considered the rival contentions. There is no dispute in the factual matrix. Guramma was the first wife of 1st defendant and the plaintiff was their only son and suit property was purchased by Guramma by Exh. P-1 sale deed dated 14.11.1959 and the property stood in her name in revenue record. The plaintiff was born on 1.10.1965 and Guramma died on 20.1.1966. As perSection 15 of the Hindu Succession Act, the husband and the son of deceased Guramma, namely 1st defendant and the plaintiff, being class-I heirs succeeded to the suit property. As per Exh. P-8, Katha of suit property was changed to the name of plaintiff from his mother on 9.1.1990 and the endorsement therein made by the Tahsildar reveals that the 1st defendant accepted the mutation of entry in the name of the plaintiff, being their only son and on the basis of the said declaration, the mutation was effected and it was not challenged. Exh. D-10 is the RTC extract covering the period from 1989 to 1992 and the plaintiff was shown as the owner of the suit property.

9. As rightly contended by the learned senior counsel apearing for the appellants, 1st defendant did not relinquish or release his right in respect of the half share in the suit property at any point of time and that is also not the case pleaded by the plaintiff. The assumption on the part of the High Court that as a result of the mututation, 1st defendant divested himself of the title and possession of half share in suit property is wrong. The mutation entries do not convey or extinguish any title and those entries are relevant only for the purpose of collection of land revenue. 

Reportable

Supreme Court of India

H. Lakshmaiah Reddy & Ors vs L. Venkatesh Reddy on 17 April, 2015

Bench: V. Gopala Gowda, C. Nagappan

Citation:2015 SAR (Civil)611

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Whether wife can be denied maintenance on ground that she has relinquished her right to maintenance under divorce deed?

 In another decision of the very coordinate bench in case
of Narendrabhai Chandubhai Shah V/s. State of Gujarat,
reported in 2013 (O) GLHEL-HC-231390 wherein, the Court
has construed the expression of ‘wife’ in the context of Section
125 of Cr.P.C. Here also, a compromise between the parties
took place and the proceedings came to be withdrawn by both
the sides and the decree in terms of compromise took place
and the application filed by the wife seeking maintenance
came to be partly allowed and the Revisional Court confirmed
the order of maintenance. It is in that context it has been held
that a woman who is a wife as per the explanation of Section
125 continues to be the wife even if divorced and not
remarried and she cannot be denied the maintenance under
Section 125. A right of a wife who is in destitute condition to
get the maintenance from her husband is always available to
her. Any compromise or a condition contained in the
agreement held to be against the public policy and not valid
and thereby, after referring the same, the Court has dismissed
the plea of the husband. While passing the judgment, the
Hon’ble Court has also taken into consideration the case of
the Apex Court as referred to above and therefore, in the
opinion of this Court, these two decisions cited learned
counsel for the respondents can come to the rescue and in the
background of these facts and circumstances, the petition
being devoid of merits, deserves to be dismissed.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO. 2267 of 2011

RAJENDRABHAI VIRJIBHAI MAVADIA
V
STATE OF GUJARAT & 3.

CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date :5/08/2016
Citation:2016 CRLJ4487 Guj

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Whether there can be renunciation by one member of joint family in favour of one of several other members of family?

There is another Privy Council judgment which supports the proposition that there cannot be a renunciation by one member of a joint family in favour of one of several other members of the family while the family remains joint. In Vasantrao v. Anandrao (1914) 37 M.L.J. 872, one Madhawrao executed a release of his interest in the family property in favour of his father. The Bombay High Court held that the release must be treated, as being, not for the benefit of the father alone, but of the coparcenary and the shares were to be determined as though Madhawrao had died. This case went to the Privy Council as Anandrao v. Vasantraa (1936) 71 M.L.J. 558: L.R. 63 I.A. 397. Their Lordships held that the governing principles had been rightly applied by the High Court and dismissed the appeal.

Madras High Court

Chella Subbanna And Anr. vs Chella Balasubbareddi And Ors. on 12 December, 1944

Equivalent citations: (1945) 1 MLJ 140

JUDGMENT Alfred Henry Lionel Leach, C.J.

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Whether one member of joint Hindu family can relinquish his share in favour of only one coparcener?

In a Full Bench decision of this Court reported in Chella Subbanna v. Chella Balasubbareddi MANU/TN/0035/1944 : AIR 1945 Mad 142 , it was held as follows:

...The relinquishment by one coparcener of his interest in the family estate in favour of the members of the coparcenary does not amount to an alienation; it merely amounts to an extinction of his interest in favour of the others. The gift of his interest to one of several other coparceners would not mean the extinction of that interest. It would mean an alienation of it. It is well-settled law that there cannot be such a gift to a stranger and it is now clear that there cannot be a gift to a fellow coparcener if the family is to remain undivided.

There is another Privy Council judgment which supports the proposition that there cannot be a renunciation by one member of a joint family in favour of one of several other members of the family while the family remains joint. In Vasantrao v. Anandrao 6 B.L.R. 925 one Madhawaro executed a release of his interest in the family property in favour of his father. The Bombay High Court held that the release must be treated, as being, not for the benefit of the father alone, but of the coparcenary and the shares were to be determined as though Madhawrao had died. This case went to the Privy Council as Anandrao v. Vasantrao 9 B.L.R. 595their Lordships held that the governing principles had been rightly applied by the High Court and dismissed the appeal. At p. 497, 10th Edn. of Mayne the learned editor expresses the opinion that dicta in Pedayya v. Ramalingam I.L.R. 11 Mad. 406 and Thangavelu Pillai v. Doraiswami Pillai 27 M.L.J. 272 cannot be considered good law especially after the decision of the Privy Council in Venkatapathi Raju v. Venkatanarasimha Raju MANU/PR/0126/1936 : (1936) 71 M.L.J. 558 : I.L.R. 69 IndAp 307 :I.L.R. 1937 Mad. 1. It follows from what we have said that we are in full agreement with this opinion and that additional support for it is to be found in the judgment of their Lordships in Anandrao v. Vasantrao 9 B.L.R. 595. The answer which we give to the question referred is this : A member of a joint Hindu family governed by the Mitakshara law cannot give his interest in the family estate to one of several coparceners if they remain joint in estate. In such circumstances he can relinquish his interest but the relinquishment operates for the benefit of all the other members. 

IN THE HIGH COURT OF MADRAS

Decided On: 13.02.1997

P.R. Munuswamy Naidu Vs. V. Venkatesan and Ors.

Hon'ble Judges/Coram:
S.S. Subramani, J.

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Whether mother can relinquish her interest in property without written instrument?

Transfer of Property Act (IX of 1882), Section 9 - Indian Registration Act (XVI of 1908), Section 17--Extinguishment of interest in Immovable property whether can be made orally--Oral relinquishment by mother of her interest in Hindu joint family property exceeding Rs. 100 in value whether valid and effective.

A mere extinguishment of an interest in Immovable property is not required to be in writing and may be made orally.

The relinquishment, therefore, by the mother of her interest in Hindu joint family property, when the property consists of immovable property and the value of her share therein exceeds Rs. 100, can be effected without a written instrument, though if one is executed, it would require registration under Section 17 of the Registration Act, 1908.

Bombay High Court

Ramdas Chimna vs Pralhad Deorao And Ors. on 13 March, 1964

Equivalent citations: AIR 1965 Bom 74, (1964) 66 BOMLR 499, ILR 1964 Bom 702

Bench: Kantawala

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Whether oral relinquishment of self acquired property is valid?

There is plaintiff's own admission that the suit property was self-acquired property of Pithuji. Since it was self-acquired property of Pithuji it was certainly not a joint family property. If it was not a joint family property, Pithuji could not relinquish/surrender the property in favour of the plaintiff and defendant No. 2 without registered instrument at all. The law is well settled that a co-parcener or a sharer in joint family property can surrender his share orally at the time of partition. In a decision cited by the leaned counsel for the appellant, reported in 1964 Mh.L.J.736 (Ramdas Chimna v. Pralhadj Deorao), it is held that oral relinquishment of share in a joint family property is valid. As; said earlier, the plaintiff's case is of oral surrender and that too of self-acquired property. Such alleged surrender, if any, of self acquired property was therefore invalid and Pithuji continued to be the owner and no title under the alleged surrender ever vested in the plaintiff or defendant No. 2.

“If an immovable property is the self acquired property then it can be transferred only by way of registered instrument and cannot be transferred by oral agreement but if it is a joint family property then the co-sharer can surrender/relinquish his share orally at the time of partition.”

Bombay High Court

Shri Gangadhar Pandhari Harde vs Uttam S/O Pandhari Harde And ... on 14 January, 2008

Equivalent citations: 2008 (2) BomCR 1, 2008 (110) Bom L R 489, 2008 (2) MhLj 334

Bench: C Pangarkar

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Whether wife who obtains divorce by mutual consent can be denied maintenance?

It is well settled, as held by Hon'ble Supreme Court in Vanamala v. H.M. Ranganatha Bhatta,(1995) 5 SCC 299 that a wife who obtains divorce by mutual consent cannot be denied maintenance by virtue of Section 125(4) of the Code. If the marriage between the parties is terminated by a decree of consent divorce, that would not amount to live separately by mutual con-sent.
Now the question which remains to be answered is whether the respondent-former wife is debarred or estopped from claiming the said maintenance on the plea that at the time of granting of decree of divorce by mutual consent, she had agreed not to claim the maintenance from the petitioner in future. In my opinion, the aforesaid contention of the petitioner cannot be accepted. The right to claim maintenance by the wife, children and the old parents, who are not capable to maintain themselves, has been provided under Section 125 of the Code as a public policy by the State. The definition of "wife" has also been given extended meaning by the statute in order to provide security in life to a wife whose marriage has been dissolved by a decree of divorce and who being a destitute is unable to maintain herself. This is a matter of public policy and not of an individual. In such circumstances, the statutory right which has been conferred on a person under a public policy, cannot be waived by the said person by mutual agreement. It is also well settled that any contract which is opposed to public policy is void under Section 23 of the Indian Contract Act, 1872, and the same cannot be enforced in a Court of law. If the object or consideration of an agreement would defeat the provisions of any law, and if it is against the public policy, the agreement will be treated as unlawful and void. In a similar situation, the Kerala High Court in Sadasivan Pilial v. Vijayalakshmi, (1987) 2 Hindu LR 334 : (1987 Cri LJ 765), has held that merely the wife in the joint application filed by both the parties under Section 13-B of the Hindu Marriage Act, relinquished her right on each other person or property, is not a bar for claiming maintenance under Section 125 of the Code.

Punjab-Haryana High Court

Sushil Kumar vs Neelam on 18 March, 2004

Equivalent citations: 2004 CriLJ 3690, I (2005) DMC 619

Bench: S K Mittal

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Whether gift of joint family property can be treated as relinquishment of property?

Although the gift is ostensibly in favour of
Veera Reddy, but really the donor meant to relinquish his
interest in the coparcenary in favour of Veera Reddy and
his sons. In this connection, we may refer to the following
passage from Mulla's Hindu Law, Fifteenth Edition, Article
264 at page 357:-

"Article 264. (1) Renunciation or relinquishment of
his share.---A coparcener may renounce his
interest in the coparcenary property in favour of
the other coparceners as a body but not in favour
of one or more of them. If he renounces in favour
of one or more of them the renunciation enures for
the benefit of all other coparceners and not for the
sole benefit of the coparcener or coparceners in
whose favour the renunciation is made. Such
renunciation is not invalid even if the renouncing
coparcener makes it a condition that he would be
paid something towards maintenance. The
renunciation or relinquishment must, of course, be
genuine. If fictitious and not acted upon it would
not be operative as between the parties and
partition can be claimed."
21. Assuming that it is a renunciation in favour of one
of the coparceners, namely, Veera Reddy, such
renunciation enures for the benefit of all other
coparceners and. not for the sole benefit of the
coparcener in whose favour the renunciation was made.
In our view, the gift made by Rami Reddy to Veera Reddy
should be construed as renunciation of his undivided
interest in the coparcenary in favour of Veera Reddy and
his sons who were the remaining coparceners. The gift
was, therefore, valid construing the same as renunciation
or relinquishment by Rani Reddy of his interest in the
coparcenary and, accordingly, the consent of other
coparceners was immaterial.

SECOND APPEAL NO. 208
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

Sou. Parvatibai @ Laxmibai w/o Annaji Patil. V Baburao Ganu Kanade

Coram : Ravi K. Deshpande, J.
Date : June 19, 2014.
Citation; 2014(6) ALLMR 845

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Whether the relinquishment deed is required to be registered and adequately stamped?

 I   have   considered   the   rival   submissions   made 
by learned counsel for the parties.   I have also 
perused the material on record and in particular, 
document dated 24th  June, 1980.   By that document, 
Vishwanath   and   Raosaheb   had   relinquished   their 
share in survey no.63.  In so far as the submission 
of Mr.Tungar that in the past,   an agreement was 
entered   into   among   the   brothers   is   concerned, 
perusal   of   document   does   not   indicate   the   said 
fact.     In   my   view,   by   that   document   itself, 
Vishwanath   and   Raosaheb   had   relinquished   their 
share   in   survey   no.63.     If   that   be   so,   as   per 
Section 17 of the Act, said document is required to 
be compulsorily registered and proper stamp duty is 
required   to   be   paid   thereon.     The   learned   trial 
Judge,   therefore,   declined   to   exhibit   the   said 
document.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1302 OF 2013

Santosh Motiram Solanke Vs Arjun Asaram Solanke

CORAM   : R.G.KETKAR, J.
DATE    : JULY 4, 2013 
Citation; 2014(2) ALL MR 273

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Whether Absence of coparcener from village or non-enjoyment by him of joint family property would indicate his ouster from joint family ?

The Apex Court in "Annasaheb Bapusaheb Annasaheb Patil

(19)

and others v. Balwant alias Balasaheb Babusaheb Patil (dead) by LRs. & heirs etc." (AIR 1995 S.C. 895), 895)

held that absence of a coparcener from the village or non-enjoyment by him by itself would not indicate ouster. The fact that a coparcener temporarily resides separately from the family and did not ask to be maintained by it would not amount to an exclusion from the joint family property. Unless there is a voluntary abandonment or there is explicit exclusion, no inference can be made from mere absence of a member of the joint family that he has been excluded from the joint estate. The burden to prove ouster of deceased Vishwanath was surely on the defendants. Once it is found that the defence of his relinquishment is without substance, then it follows that the ouster of Vishwanath cannot be accepted. 

Bombay High Court

Govind Vishwanath Bansode vs Manika Gangaram Bansode on 24 July, 2008

Bench: Shri V.R. Kingaonkar

Citation; 2008 (6) MHLJ715

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