Shekhar Shankar Joshi v. V/s.Anita Arun Bhave

Judgment

-1) By this Second Appeal, the Appellant-Defendant has challengedjudgment and decree dated 29 April 2023 passed by the District Judge-3,Raigad-Alibag in Civil Appeal No.11 of 2020 thereby partly setting asidethe decree of the Trial Court dated 9 January 2020 in Special Civil SuitNo.131 of 2015. The Trial Court had partly decreed the Suit declaringthat the Plaintiff and the Defendant have one-half share in the suitPage No. 1 of 24 20 August 2026

Megha 31_sa_679_2023_fc.odtproperty and had made a preliminary decree for effecting partition of thesuit property.2)The Appellate Court has redetermined the shares of the Plaintiffand the Defendant by partly allowing the Appeal and has held that thePlaintiff has one-third share and Defendant has two-third share in thesuit property by accepting validity of Relinquishment Deed dated 25March 2013 executed by mother-Shakuntala in favour of the Defendant.Despite partly succeeding in the Appeal, the Defendant has filed thepresent Second Appeal challenging grant of one-third share in the suitproperty to the Plaintiff.FACTS 3)The Plaintiff and the Defendant are siblings. Land bearing GatNo.27 admeasuring 21.5 R and House No.201 located in Gat No.27 arethe ‘suit properties’. The two suit properties alongwith land bearing GatNo.28 were ancestral properties of late Narayan Vinayak Joshi. NarayanJoshi had two sons-Shankar and Waman. Shankar passed away on 27January 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 suitproperties and property at Gat No.28 vide mutation entry No.306 dated30 March 1991. Based on affidavit submitted by the Plaintiff-Anita, hername was removed from revenue records in respect of the suit propertiesas well as Gat No.28. Thereafter a partition was effected vide registeredDeed of Partition dated 25 June 1993 between Shakuntala and Shekharon one side and Suhas Waman Joshi on the other. Under the PartitionPage No. 2 of 24 20 August 2026 Megha 31_sa_679_2023_fc.odtDeed, Shakuntala and Shekhar agreed for granting land bearing GatNo.28 admeasuring 28.3 R in favour of Shekhar while retaining land atSurvey No.27 and house located thereon with themselves. The partitionrecorded Plaintiff-Anita relinquishing her rights in respect of both theproperties bearing Gat Nos.27 and 28. This is how the land bearing GatNo.28 went to the share of cousin-Suhas Waman Joshi, whereasDefendant and his mother-Shakuntala started claiming right in respectof Gat No.27 as well as house constructed thereon. On 25 March 2013,mother-Shakuntala executed Relinquishment Deed in favour ofDefendant-Shekhar. This is how the Defendant started claimingexclusive right in respect of Gat No.27 and the house constructedthereon.4)The Plaintiff is the sister of Shekhar and started demanding sharein the suit properties. She thereafter filed Special Civil Suit No.131 of2015 in the Court of Civil Judge Senior Division, Alibag for declaration,perpetual injunction, partition and separate possession of the suitproperties. The Plaintiff claimed one-half share in the suit propertiescomprising of Gat No.27 and house constructed thereon. She alsochallenged the Relinquishment Deed dated 25 March 2013 executed bymother-Shakuntala in favour of Shekhar as not binding on her share. Shealso sought mesne profits of Rs. 2,00,000/- per year from the date ofinstitution of the Suit. The Suit was resisted by the Defendant-Shekharby filing written statement claiming that the Plaintiff had relinquishedher rights orally, which was effected in the revenue records through anaffidavit. The Defendant-Shekhar thus claimed sole right to own andpossess both the suit properties. Based on the pleadings, the Trial Courtframed issues. The Plaintiff examined herself and relied on severalPage No. 3 of 24 20 August 2026 Megha 31_sa_679_2023_fc.odtdocuments. The Defendant also examined himself in addition toexamining Mr. Sarvesh Chintaman Joshi as DW2. He also relied onseveral documents. After considering the pleadings, documentary andoral evidence, the Trial Court proceeded to decree the Suit holding thatthe suit properties are ancestral properties of the Plaintiff and theDefendant. It held that Relinquishment Deed dated 25 March 2013 wasobtained by the Defendant by playing fraud on his mother-Shakuntala. Itwas further held that the Plaintiff has one-half share in the suitproperties. It rejected the defence of the Defendant that the Plaintiff hadorally relinquished her right on 22 July 1991. The Trial Court accordinglydeclared that the Plaintiff and the Defendant have one-half share in thesuit property being land at Gat No.27 and constructed house thereon.The Trial Court directed effecting of partition of undivided estate ofagricultural land bearing Gat No.27 by sending the decree to thecollector. The Trial Court also directed that the Plaintiff and theDefendant have one-half share in the house property constructed onland bearing Gat No.27. The Trial Court further directed thatRelinquishment Deed dated 25 March 2013 is null and void and notbinding on the Plaintiff. The Plaintiff’s prayer for perpetual injunctionwas however rejected. The Trial Court also directed for holding ofenquiry for mesne profit under Order XX Rule 12 of the Code of CivilProcedure, 1908 (the Code).5)The Defendant-Shekhar filed Regular Civil Appeal No.11 of 2020challenging Trial Court’s decree dated 9 January 2020. The Appeal hasbeen partly allowed by the Appellate Court. The Appellate Court hasreversed the finding of the Trial Court with regard to the validity ofRelinquishment Deed dated 25 March 2013 and held the same to be legalPage No. 4 of 24 20 August 2026 Megha 31_sa_679_2023_fc.odtand binding on the Plaintiff. Since mother-Shakuntala’s share in the suitproperties is held to have been validly transferred on Defendant-Shekhar, the Appellate Court altered the share of the Plaintiff and theDefendant in the suit properties by holding that the Plaintiff is entitledto only one-third share whereas the Defendant is entitled to two-thirdshare in the suit properties. Accordingly, the Appellate Court hasdirected issuance of decree for effecting partition in respect of the suitproperties at Gat No.27.6)The Appellant is aggrieved by the concurrent findings recorded bythe Trial and the first Appellate Court about existence of some right ofthe Plaintiff in the suit properties and has accordingly filed the presentAppeal. The Plaintiff had also filed Second Appeal No.157 of 2024challenging denial of half share in the suit properties and upholdingvalidity of Relinquishment Deed dated 25 March 2013. However, by orderdated 12 August 2026, this Court has dismissed the Second Appealpreferred by the Plaintiff.QUESTIONS OF LAW FORMULATED 7)The present Second Appeal has been admitted by formulatingfollowing substantial questions of law:i) Can a coparcener orally relinquish his/her rights in theancestral property in favour of another coparcener orwhether it is necessary to execute a written and/orregistered document to evidence such relinquishment ?Page No. 5 of 24 20 August 2026 Megha 31_sa_679_2023_fc.odtii) Whether oral relinquishment can be presumed merelyon the basis of a document signed for deletion of name ofcoparcener from revenue records, when, the document issilent about any relinquishment?iii) If a coparcener does not object to grant of share in anancestral land to another coparcener forming part ofdifferent family unit, whether such act ipso facto leads toa presumption that he/she has also relinquished his/hershare 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 grosslyerred in recognising rights of the Plaintiff in the suit properties. Hesubmits that the Plaintiff has expressly relinquished her rights in thesuit properties. That the relinquishment was oral, which is confirmed byway of an affidavit dated 22 July 1991. That by the said affidavit, thePlaintiff had relinquished her right in respect of both the lands at GatNos.27 and 28. That the Plaintiff had ultimately accepted andacknowledged relinquishment qua Plot No.28 and therefore she cannotconveniently question the relinquishment qua Plot No. 27. That in the1994 partition, it was specifically reflected that the Plaintiff hadrelinquished her right qua the suit property. That in cross-examination,Plaintiff had specifically admitted that she had no objection to thepartition effected in the year 1994. That the case involvesrelinquishment by Plaintiff in respect of the suit properties orally whichPage No. 6 of 24 20 August 2026 Megha 31_sa_679_2023_fc.odtis followed by affidavit. That oral relinquishment is by way of familyarrangement where the Plaintiff was married and residing separately.That the affidavit was executed only to give shape to the oral partitionalready effected. That conduct of the Plaintiff in maintaining silencefrom 1991 till filing of the Suit in the year 2015 speaks volumes aboutacquiesce in relinquishment made by her. In law, it is permissible torelinquish /release interest in the joint family property by a femalecoparcener without a written instrument. In support, he relies onjudgments of this Court in Ramdas Chimna V/s. Pralhad Deorao 1 andUma Madhav Agaskar V/s. Manorama Motiram Dandekar and Ors. 2 Hetherefore submits that the Trial and the Appellate Courts have grosslyerred in holding contrary to the settled position that relinquishment cannever be by way of oral arrangement. On above broad submissions, Mr.Patil would pray for setting aside the orders passed by the Trial and theAppellate Courts.9)Mr. Joshi, the learned counsel appearing for the Respondent-Plaintiff opposes the Appeal. He submits that no interference iswarranted in the concurrent findings recorded by both the Courts aboutabsence of relinquishment by the Plaintiff. He submits that there isabsolutely no evidence on record for interfering in concurrent findingson absence of oral relinquishment. That for relinquishment in respect ofthe immovable property, execution and registration of a formaldocument is mandatory as held by this Court in Gangaram SakharamDhuri since deceased through LR Vishnu and Others V/s. GangubaiRaghunath Ayare and others3. That the affidavit does not speak of or1AIR 1965 BOM 742Second Appeal No.562 of 2003 decided on 30 November 2023.32007 SCC OnLine BOM 144Page No. 7 of 24 20 August 2026 Megha 31_sa_679_2023_fc.odtrefer to oral relinquishment in any manner. That the affidavit executedmerely for deletion of names from revenue records cannot lead topresumption of relinquishment of share by the Plaintiff. That theaffidavit is executed merely for effecting mutation entry for fiscalpurposes. That the Plaintiff was deliberately kept out of partitioneffected in the year 1994 and agreement between the parties to thePartition Deed about the Plaintiff relinquishing her share would not bindthe Plaintiff in any manner. He submits that the affidavit is secured bythe Defendant from his sister/Plaintiff by misrepresentation. That in anycase, there is no reference to relinquishment in the said affidavit. Hetakes me through the findings recorded by the Trial and Appellate Courtsin support of his contention that absence of relinquishment by thePlaintiff is well supported by evidence on record. He prays for dismissalof the Appeal.CONSIDERATION OF SUBMISSIONS 10)The dispute between siblings is in respect of the right ofinheritance in respect of the land bearing Gat No.27 and houseconstructed thereon. As a matter of fact, one more land bearing GatNo.28 was also a part of ancestral property. The Plaintiff and Defendantare children of Shankar Narayan Joshi, who also had a brother by name-Waman Narayan Joshi. While Shankar has two children (Plaintiff-Anitaand Defendant-Shekhar), Waman Narayan Joshi has only one son -SuhasWaman Joshi. Being joint family property, Suhas Waman Joshi was alsoentitled to inherit a share in the same. By way of registered partitioneffected on 25 June 1993, Suhas Waman Joshi has accepted land bearingGat No.28 admeasuring 28.3 R as his share in the ancestral properties.Page No. 8 of 24 20 August 2026 Megha 31_sa_679_2023_fc.odtThus, the share of Suhas Waman Joshi was carved out by registeredpartition deed. What remained is land at Gat No.27 admeasuring 21.5 Rand a house constructed thereon, which are the suit properties in SpecialCivil 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 theSuit was filed, a Relinquishment Deed dated 25 March 2013 was executedby mother-Shakuntala in favour of the Defendant. The Plaintiff believedthat the Defendant got the Relinquishment Deed dated 25 March 2013executed by the mother by misrepresenting her. She accordingly sought adeclaration in the Suit for cancellation for Relinquishment Deed dated 25March 2013.11)The Trial Court proceeded to declare the Relinquishment Deeddated 25 March 2013 as null and void and not binding on the Plaintiff.The Appellate Court has however, reversed the said finding. Reversal ofthe said finding by the Appellate Court was subject matter of challengein the Second Appeal No.157 of 2024 filed by Plaintiff-Anita, which hasbeen dismissed by this Court. Thus, the position that now stands is thatthe Relinquishment Deed dated 25 March 2013 is valid and binding onthe Plaintiff.12)Both, the Trial and Appellate Courts have recognised right of thePlaintiff to inherit a share in both the suit properties in capacity asdaughter of Shankar Narayan Joshi. The Defendant-Shekhar does notreally dispute right of the Plaintiff-Anita to inherit a share in theancestral property. However, he took a defence that the Plaintiff hadrelinquished her share. Both the Courts have concurrently rejected thedefence of the Defendant. Page No. 9 of 24 20 August 2026 Megha 31_sa_679_2023_fc.odt13)Before me, Appellant-Defendant contends that both the Courtshave erroneously rejected the case put forth by him of oralrelinquishment of right to claim share by Plaintiff in the joint familyproperty. It is also contended that the Affidavit buttresses the case oforal relinquishment. I accordingly proceed to answer the threesubstantial questions of law formulated while admitting the Appeal. QUESTION NO. 1 14)Faced with a situation that there is no written document recordingrelinquishment of share of the Plaintiff, Mr. Patil has contended thatshare in ancestral land can always be abandoned without executing thewritten instrument. He has relied on judgment of this Court in RamdasChimna (supra). The case involved the question as to whether it wasopen to the mother to relinquish her interest in the joint family propertyorally when the joint family property consisted of immovable propertyand when value of her share therein was more than Rs.100. Referring tovarious provisions of the Transfer of Property Act, 1882, this Court heldthat when law requires that there should be instrument in writing andthat the instrument must be registered, the transfer can only be effectedin that manner. However, it is held that where no writing is required bythe Transfer of Property Act or by other law, the transfer may be madeorally. By referring to judgment of Calcutta High Court in Imperial Bankof India v. Bengal National Bank, Limited 4 this Court held that a right torecover a share in the immovable property may be relinquished orallyand without an instrument in writing. This Court thereafter referred to4 (1930) I.L.R. 58 Cal.136Page No. 10 of 24 20 August 2026 Megha 31_sa_679_2023_fc.odtprovisions under Section 17 of the Registration Act, 1908 and held thatthere was nothing in the Registration Act, which required any particulartransaction to be recorded in writing. This Court further held that thereis nothing in the Transfer of Property Act or any other law that requires amere relinquishment of interest of the immovable property must be inwriting. This Court therefore held that oral relinquishment by mother ofher interest in joint family properties in favour of her two sons was validand 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 torelinquish her interest in the joint family properties orally when thejoint family properties consist of immoveable properties like thesuit fields and the value of her share therein is more than Rs.100/-.Mr. Deshpande drew my attention to the case reported in DattatrayaGovind v. Narayan Gangaram, AIR 1936 Nag 186. It was held byVivian Bose J. in that case that"except in the case of partition among the members of a jointHindu family, where the unities of possession, interest, titleand time are complete and except in the case of entrance to areligious order involving complete renunciation of the world,no person can divest himself of interests which have oncevested in him by a mere disclaimer. A title once vested can bedivested only by a recognized conveyance or one of the othermeans 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 madeorally. All that it says is that the title once vested can be divestedonly by a recognized conveyance or by one of the other meansallowed by law. It further says that the title once vested cannot passby relinquishment when the law requires that relinquishment canonly be made by a deed or by an instrument. Transfer of PropertyAct clearly recognizes oral transfers. Section 9 of the Act providesthat "a transfer of property may be made without writing in everycase in which a writing is not expressly required by law." It follows,therefore, that an oral transfer of property is rule unless there is lawwhich expressly requires that it should be made in writing. Transferof Property Act contains various transfers where writing isnecessary. Under S. 54, a sale of tangible immoveable property of thevalue of Rs.100/- or upwards, or of a reversion or other intangiblething is required to be made only by a registered instrument. UnderSection 59, a writing is necessary in the case of a simple mortgageby deposit of title-deeds where the principal sum secured inPage No. 11 of 24 20 August 2026 Megha 31_sa_679_2023_fc.odtRs.100/- or upwards. Under Sec. 107, a lease of immoveable propertyfrom year to year, or for any term exceeding one year, or reserving ayearly rent, is required to be made in writing. Under Section 123, agift of immoveable property can only be made by a writing. UnderSec. 130, all transfers of actionable claims have to be made bywriting and, under Sec. 118, all exchanges are subject to the samerules as are applicable to sales. Thus, when the law requires thatthere should be an instrument in writing and that instrument mustbe registered, the transfer can only be effected in that manner. Butwhere no writing is required by the Transfer of Property Act or anyother law, the transfer may be made orally. Mr. Deshpande is unableto point out any statute which requires that the relinquishment bythe mother of her interest in the joint family property, when theproperty consists of immoveable property and the value of the sharetherein exceeds Rs. 100/- can only be made in writing or by aninstrument registered.(7) In Imperial Bank of India, v. Bengal National Bank, Ltd. RankinC.J. said that partition, release and surrender are all forms oftransfer but that so far as the Transfer of Property Act is concerned,they come under no restrictions. A right to recover a share ofimmoveable property may be relinquished orally and without aninstrument in writing.(8) Mr. Deshpande, however, drew my attention to the provisions ofSection 17 of the Registration Act. There is nothing in theRegistration Act or the provisions of Section 17 thereof, whichrequires any particular transaction to be recorded in writing. ThatAct requires only that when certain transactions are so recorded,the writing shall be registered. There is nothing in the Transfer ofProperty Act or any other law that I am so far aware which requiresthat a mere extinguishment of an interest in the immoveableproperty shall be in writing. The relinquishment by Bainabai of herinterest in the joint family property was merely abandonment ofhere interest in the joint family property in favour of her two sons.Such a relinquishment or abandonment of interest in the jointfamily property, even though it consists of immoveable propertiesand is of the value of Rs.100/- and upwards, can be effected withouta written instrument, though if one is executed, it wouldundoubtedly require registration under Section 17 of theRegistration Act, Gauri Bai v. Gaya Bai, AIR 1927 Nag. 44.(9) Thus, the oral relinquishment by Bainabai of her interest in thejoint family properties in favour of her two sons after the death ofRamji was valid and effective in law. Since the time of thatrelinquishment she ceased to have any interest in the joint familyproperties. The learned Additional District Judge was in error intaking the view that an oral relinquishment, even if proved, wouldnot divest Bainabai of her interest in the joint family properties.(emphasis and underlining added)Page No. 12 of 24 20 August 2026 Megha 31_sa_679_2023_fc.odt15)Ratio of the judgment in Ramdas Chimna (supra) has beenfollowed by this Court in Uma Madhav Agaskar V/s. Manorama MotiramDandekar 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 theappellant that such oral relinquishment is not permission as suchrelinquishment requires registered document is concerned, the issueis no longer res integra in view of the judgment of the Apex Court inRamdas Chimna v. Pralhad Deorao & Ors. reported in AIR 1965Bombay 74. This Court held that relinquishment by a female of herinterest in the joint family property was merely abandonment of herinterest in the joint family property, even though it consists ofimmovable properties and is of value of Rs.100/- onward can beeffected without written instrument. It is only if suchrelinquishment is evidenced by a written document, such documentwould require registration.(Emphasis added)16)On the other hand, Mr. Joshi has relied upon judgment of thisCourt in Gangaram Sakharam Dhuri (supra) in support of his contentionthat execution of written document and registration thereof ismandatory for relinquishment. However, closer scrutiny of ratio of thejudgment in Gangaram Sakharram Dhuri (supra) would indicate that thejudgment actually militates against the contention of Mr. Joshi. ThisCourt has held in paragraphs 22 and 23 as under:22. Perusal of the evidence, both oral and documentary, shows thatthe existence of intention on the part of the Plaintiff and the secondto fifth Respondents of relinquishing their share in the property oftheir father has not been established. The Plaintiff and fourthDefendant have admitted their thumb impression and signaturerespectively on the document. Howver, they have denied thecontents and the fact that they attended City Survey Office. Theother two sisters have not even admitted the execution of document.The witness Kunte has at highest proved that the writing is preparedby him. However, he has not proved that the document is executed5Second Appeal No.562 of 2022, decided on 30 November 2023Page No. 13 of 24 20 August 2026 Megha 31_sa_679_2023_fc.odtby the sisters. Hence, the alleged writing is not at all proved inaccordance with law of evidence.23.The submission of the learned counsel appearing for the originalPlaintiff was that the alleged relinquishment was in respect of animmovable 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. Thesubmission of the learned counsel for the second Defendant wasbased on the decision of the Division Bench of this Court reported inA.I.R (30) 1943 Bombay 397A.I.R (30) 1943 Bombay 397A.I.R (30)1943 Bombay 397 in the case of Mahalingayya BasappayyaUllagaddimath Vs. Sangayya Chennayya Ullagadiimath. Relying uponthe said decision, he submitted that there was no necessity ofexecuting any writing recording the surrender or relinquishment andeven registration was not mandatory. The Division Bench in the saiddecision has held that the renunciation of interest in the familyproperty can be effected by coparceners by an expression ofintention to that effect and no formality is necessary. The DivisionBench was dealing with a case where renunciation was by acoparcener. In case of a hindu coparcenery, the shares of coparcenersare always fluctuating and they take shares by survivorship. In thepresent case we are dealing with share acquired by the daughters inthe self acquired property of their father by intestate succession. Therefore, the said decision will have no application to the facts ofthe 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 thePlaintiff and third to fifth Defendants intended to relinquish orsurrender their shares in the father’s property in favour of Vishnu.As pointed out earlier, even in the recitals in the Sale Deed executedby the said Vishnu, there is no reference to any such relinquishment.Reliance is placed on the entries made in the City Survey Record inwhich the relinquishment is recorded. The city survey record isnothing but a record of rights and therefore entries in the city surveyrecord will not by itself effect the relinquishment. Therefore, thePlaintiff and third to fifth Defendants had one sixth undivided shareeach in the property after the demise of their father and one fifthshare each on the demise of their mother. Similarly, Vishnu had onesixth share in the property after demise of the father. One moreaspect of the case is very important. The alleged relinquishmenteven according to the case of the 2nd Defendant was made in 1967when Sunderabai was alive. Therefore, even assuming that there wasa valid relinquishment by the sisters, Vishnu did not acquire share ofhis mother and therefore after demise of the mother, the sistersacquired a share in the undivided share of the mother. Therefore,Vishnu never became full owner of the suit property. On the date ofexecution of the Sale Deed in favour of the second Defendant,Vishnu was not the full owner as his mother was alive at that timewho was holding 1/6th share.Page No. 14 of 24 20 August 2026 Megha 31_sa_679_2023_fc.odt(emphasis and underlining added)17)Thus, in Gangaram Sakharam Dhuri (supra) this Court madereference to Division Bench judgment in Mahalingayya BassappayyaUllagaddimath V/s. Sangayya Chennayya Ullagadiimath 6 in which it isheld that there is no necessity of executing a writing recording thesurrender or relinquishment and even registration is not mandatory. TheDivision Bench held renunciation of interest in the family property canbe effected by coparceners by an expression of intention to that effectand no formality is necessary. However, in Gangaram Sakharam Dhuri(supra) the learned Single Judge of this Court distinguished thejudgment of the Division Bench of this Court in Mahalingayya (supra)and held that in case of a Hindu coparcenary, the shares of coparcenersare always fluctuating and they take shares by survivorship. However, inthe case before the learned Single Judge, the issue involved sharesacquired by the daughters in the self-acquired property of their father byintestate succession. In the facts of that case which involvedrelinquishment of share by daughters in the self acquired property, thisCourt held in Gangaram Sakharam Dhuri (supra) that provisions ofSection 17(1) of Registration Act, 1908 would apply. In the present case,however, the issue is about relinquishment of right to claim share inancestral property by the Plaintiff and such relinquishment can be doneorally 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 questionof law can be answered in the negative and by holding that it is not6AIR(30) 1943 BOM 397Page No. 15 of 24 20 August 2026 Megha 31_sa_679_2023_fc.odtalways necessary to execute a written document or to register the samefor evidencing the relinquishment of interest in the joint familyproperties in favour of other coparceners. Such relinquishment orabandonment can be done even orally by expressing an intention ofdoing so. This however would be restricted only to relinquishment orabandonment of right to claim a share in the joint family properties andwould have no application in respect of share in self-acquired propertythrough intestate succession.QUESTION NO. 2 19)Coming to the second question of presumption of relinquishmenton the basis of the affidavit, it is the defence of the Defendant thataffidavit was effected to buttress or support oral relinquishment byPlaintiff-Anita. In the written statement, the Defendant contended thatafter death of the father, share inherited by the Plaintiff was orallyrelinquished by her in favour of the Defendant and that in support ofsuch oral relinquishment, she executed an affidavit. The Plaintiff did notdispute execution of the affidavit. However, she pleaded in paragraph 6of the Plaint that she was made to execute the affidavit by the Defendantfor the purpose of procuring fruit trees from Government. It was averredby the Plaintiff in paragraph 6 of the Plaint as under:सदर फे . फा . नोंद ३०६ ने वादीचे नाव लागले नंतर प्रतितवादीने शेतकी खात्याकडूनफळझाडे मि ळण्यासाठी वादीचे प्रतितज्ञापत्रात सा ातियक ालक म्हणून आवश्यकता आहेअसे वादीला सांमिगतले व वादीला अलिलबागला बोलावून तहसीलदार अलिलबाग यांचेकाया/लयात नेवून प्रतितज्ञापत्र फळझाडे मि ळण्यासाठी तयार केले आहे असे सांगून वादींचीत्यावर सही घेतली. वादीने मिह प्रतितवादी हा सख्खा भाऊ आहे तो फसवणार नाही असामिवश्वास प्रतितवादीवर ठेवून प्रतितज्ञापत्रावर सही केली. हत्वाचे म्हणजे प्रतितवादीने वडील तेप्रतितज्ञापत्र वाचून दाखवलेले नाही व वाचण्यास मिदले नाही.Page No. 16 of 24 20 August 2026 Megha 31_sa_679_2023_fc.odt20)On the other hand, the Defendant pleaded the defence of oralrelinquishment by the Plaintiff in the written statement in paragraphs 13and 14 as under:१३. दावा परिरच्छेद ६ धील जकुर मिवपय/स्त स्वरूपाचा आहे. बादी मिहने स्वखुशीने दावामि ळकतीं धील तीला वडीलांचे मिनधनानंतर प्राप्त झालेला अमिवभक्त मिहस्सा या प्रतितवादीचेलाभात तोंडी सोडुन मिदलेला होता आणिण अशा तोडी सोडलेल्या मिहश्श्याच्या हकीगतीच्यापुष्टीकरीता वादी मिहने स्वखुशीने प्रतितज्ञापत्र केले सदर प्रतितज्ञापत्र हसुल मिवभागाकडे सादरझालेनंतर वादी हीचे नाव क ी करण्याकरीता ौजे आक्षी हक्क नोंद ३२९ मिदनांक२७/०९/१९९१ करण्यात आली. आक्षी हक्क नोंद ३२९ ध्ये आक्षी गट क्र ांक २७आणिण गट क्र ांक २८ या दोनही मि ळकती स ामिवष्ट आहेत. आक्षी गट क्र ांक २८ धुनसोडलेल्या हक्काकरीता प्रतितज्ञापत्र योग्य आणिण कायदेशीर आणिण आक्षी गट क ाक २७करीता प्रतितज्ञापत्र फसवुन घेतले म्हणुन बेकायदेशीर हे अनाकलनीय आहे. वादी ही उच्चणिशक्षीत आणिण पंचायत समि ती आणिण जिजल्हा परिरषदे ध्ये नोकरी करून मिनवृत्त झालेलीआहे. वादी हीला शासकीय का काजाच्या पध्दतीची आणिण कागदपत्रांची उत्त जाण आहे.अशा परिरस्थीतीत वादी हीने प्रतितज्ञापत्र न वाचता समिह केली अथवा तीची प्रतितवादी यानेफसवणुक केली हे मिवधान खोटे आणिण आप तलबी आहे.१४. दावा परिरच्छेद ७ धील जकुर मिवपय/स्त स्वरूपाचा आहे. वादी प्रतितवादींची आईशकुंतला मिहने दावा मि ळकती धील तीचा हक्क या प्रतितवादीचे लाभात नोंदणीकृतहक्कसोडपत्राने सोडुन मिदलेला आहे ही बाब वादीला या प्रतितवादी स क्ष सांमिगतलेली होती.त्या ुळे शकुंतला मिहचा मिनधनाचे वेळी कोणताही हक्कमिहतसंबंध दात्रा मि ळकती ध्येरामिहलेला नव्हता याची पूण/ ामिहती वादीला होनी सबब दावा परिरच्छेद ७ धील कथनेकाल्पनीक आणिण रचनात् क अशी ओहत. आईचे हयाती ध्ये आणिण ृत्युनंतरहीवादी दावा घरा ध्ये येत असे. या प्रतितवादीने वादीची कतिधही फसवणुक केलेलीनाही.21)Thus, there is serious dispute between the parties about oralrelinquishment by the Plaintiff in favour of the Defendant. However,execution of affidavit is admitted by her though she contended that shewas made to execute the affidavit upon a misrepresentation.22)Perusal of the affidavit would indicate that the same contains noreference to any oral relinquishment. In her affidavit, the Plaintiff hasstated that “तरी (१) सुहास वा न जोशी (२) शकुंतला शंकर जोशी (३) शेखर शंकरजोशी (४) अमिनता अरुण भावे अशी गावचे रेकॉड/ला नावे लावली आहेत व तरी त्याप्रॉपट‘ला लावलेले ाझे नाव क ी व्हावे त्याबद्दल ाझी हरकत नाही.” Thus, by thePage No. 17 of 24 20 August 2026 Megha 31_sa_679_2023_fc.odtaffidavit, all that the Plaintiff requested was deletion of her name fromrevenue records pertaining to land bearing Gat Nos.27 and 28. Theaffidavit makes no reference to any oral relinquishment. It does not statethat deletion of name of the Plaintiff be effected in pursuance of any oralrelinquishment. The Affidavit was executed only for the purpose ofdeletion of name of Plaintiff from the revenue records. The issue forconsideration is whether oral relinquishment can be presumed merely onthe basis of a document signed for deletion of name of coparcener fromrevenue records, when the document is silent about any suchrelinquishment?23)As observed above, affidavit by itself does not effectrelinquishment of share by the Plaintiff. The Affidavit also does not statethat in the past the Plaintiff had relinquished her share in the ancestralproperty. The affidavit is silent about alleged relinquishment. Theaffidavit merely records consent of the Plaintiff for deletion of her namefrom 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, therewas claim of cousin-Suhas Waman Joshi in respect of one-half share inthe ancestral property bearing Gat Nos.27 and 28. She apparently has noqualms about granting a share to Suhas Joshi. In the Plaint, she pleadedthe case of misrepresentation while executing the affidavit. In my view,however, it is not necessary to go into the issue of misrepresentation asboth the Courts have not accepted the theory of the Plaintiff. It wouldtherefore be appropriate to take contents of the affidavit as they stand. Ifthere is no reference to any oral relinquishment in the affidavit, the samePage No. 18 of 24 20 August 2026 Megha 31_sa_679_2023_fc.odtwould have the effect only of granting of permission for deletion of nameof the Plaintiff from revenue records. Beyond this, the affidavit is not ofmuch significance for presuming oral relinquishment by the Plaintiff.25)While answering the first substantial question, I have held thatrelinquishment of share by the coparcener in a joint family property canbe effected orally and in absence of an instrument in writing. However, insuch a case, effecting of oral relinquishment must be proved by personasserting the same. In the present case, the Defendant took the defenceof oral relinquishment and therefore the burden was on the Defendant toprove effecting of such oral relinquishment by the Plaintiff. Beyond hisbear words, he did not lead any evidence to prove any suchrelinquishment. I have already reproduced above averments in thewritten statement relating to oral relinquishment. The averments aretotally vague. The written statement does not contain any particulars ofdate, place and time, etc., when such relinquishment was allegedly madeby the Plaintiff. The Defendant did not examine any witness in whosepresence the relinquishment was allegedly made by the Plaintiff. Apartfrom examining himself, the Defendant also examined Shri Sarvesh C.Joshi as DW2, who is a distant cousin of the Plaintiff and the Defendantand possibly occupant of neighbouring land bearing Gat No.29/1. He wasexamined only to prove that mother-Shakuntala was in perfect healthone month before her death. His evidence was thus relevant only forproving genuineness of mother’s relinquishment deed. Thus, theDefendant did not examine any witness to prove oral relinquishment bythe Plaintiff.Page No. 19 of 24 20 August 2026 Megha 31_sa_679_2023_fc.odt26)Recognizing legal effect of oral relinquishment is a conceptdifferent than proving the factum of oral relinquishment. Beyondpleading vaguely that after death of father of the Plaintiff, the Plaintiffhad orally relinquished her share for Defendant’s benefit, there isabsolutely no iota of evidence to establish such oral relinquishment.Affidavit of evidence of the Defendant is reproduction of writtenstatement, which again is bereft of any details about date, time and placeof effecting or expressing oral relinquishment.27)In my view, therefore, oral relinquishment cannot be presumedmerely on the basis of affidavit effected for the purpose of deletion ofname of the Plaintiff from the revenue records. Mere consent granted fordeletion of name of the Plaintiff from revenue records by way of affidavit(without referring to any relinquishment) does not mean that sheintended to effect relinquishment. Intention on the part of the Plaintiffto consciously relinquish her share in favour of the Defendant has notbeen established in any manner. The second question can therefore beanswered by holding that oral relinquishment cannot be presumedmerely on the basis of a document signed for deletion of name ofcoparcener from revenue records, when the document is silent about anyrelinquishment.QUESTION NO. 3 28)Coming to the third question formulated above, it is sought to becontended by Mr. Patil that since the Plaintiff has acceptedrelinquishment qua land bearing Gat No.28, it needs to be presumed thatthere is relinquishment by her qua land bearing Gat No.27 as well. ThisPage No. 20 of 24 20 August 2026 Megha 31_sa_679_2023_fc.odtcontention is raised essentially to get over the position that there is noevidence to establish oral relinquishment by the Plaintiff. Therefore, it iscontended on behalf of the Defendant that since the Plaintiff hasaccepted oral relinquishment qua share of Suhas Joshi (Gat No.28) shecannot deny oral relinquishment in respect of remaining land falling inthe share of mother-Shakuntala and brother-Shekhar. Mr. Patil has takenme through cross-examination by the Plaintiff in which her attentionwas drawn to registered partition deed dated 5 May 1994 and she statedthat ‘ ी सदर वाटणीपत्र दावा दाखल करणेपूव‘ वाचलेले आहे. यावाटणीपत्रातील जकुराबाबत ाझा आक्षेप नाही.’ Based on the abovedeposition, Mr. Patil has contended that the Plaintiff cannot admitrelinquishment qua part of ancestral property while selectively denyingrelinquishment qua the other property. In my view, contention sought tobe raised on behalf of the Defendant flows out of misreading ofstatements made by the Plaintiff in her cross-examination. After theabove quoted statement, Plaintiff immediately clarified that ‘सदरवाटणीपत्रातील परिरच्छेद क्र. ३ धील "लिलहून देणार पैकी १ याना एक ुलगीअसून ती मिववामिहत आहे व तितने सदर मि ळकतीवरील हक्क सोडून मिदलेला आहेत्या ुळे तितचा आता या मि ळकतीशी काहीही संबंध रामिहलेला नाही” हा जकूर ान्य नाही’. Thus, Plaintiff expressly denied the suggestion ofabandonment of right to claim share in the suit property. She hasundoubtedly expressed her consent for grant /allotment of land bearingGat No.28 to Suhas Waman Joshi. This is repeatedly stated by her in hercross-examination, and the statements are consistent with the stand ofthe Defendant as well. However, from those statements in the crossexamination, one cannot draw a presumption that Plaintiff had anyintention for giving away the right to claim share in land bearing Gat No.Page No. 21 of 24 20 August 2026 Megha 31_sa_679_2023_fc.odt27. The arrangement in the partition envisaged balance land bearing GatNo.27 as well as house constructed thereon falling to the share of heirsof Shankar Narayan Joshi i.e. mother-Shakuntala, Son-Shekhar anddaughter-Anita. To this limited extent, the Plaintiff has admittedcorrectness of the Partition Deed and consented for not claiming anyshare in Gat No.28.29)Statements made in the cross-examination by the Plaintiff cannotconstitute any oral relinquishment of share in the ancestral properties bythe 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 landbearing Gat No.28. Here the issue is not about relinquishment effectedby the Plaintiff in favour of cousin-Suhas. It is not the pleaded case ofDefendant that the so-called oral relinquishment applied in respect ofentire ancestral property comprising of Gat Nos. 27 and 28. Averments inparagraph 13 of the written statement have already been reproducedabove. The said averments only claim alleged oral relinquishment inrespect of suit properties comprising of land at Gat No.27 and houseproperty thereon. Contrary to what is pleaded in the written statement,Mr. Patil now attempts to canvas before me that there is relinquishmentby the Plaintiff in respect of the land at Gat No.28. Since there is nopleading to this effect, there is no question of accepting oralrelinquishment qua Gat No.28.30)Admitting share of cousin in joint family property is a conceptdistinct from the concept of abandoning her own share by the Plaintiff insuch properties. Admitting share of another coparcener cannot beconfused with the concept of relinquishment of share in the joint familyPage No. 22 of 24 20 August 2026 Megha 31_sa_679_2023_fc.odtproperty. Thus, the oral relinquishment by the Plaintiff qua land bearingGat No.28 has not been established and therefore, there is no question ofpresuming any such oral relinquishment qua the suit properties. Thirdsubstantial 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 respectof Plaintiff’s share in the suit properties. The Trial and the Appellatecourts have rightly upheld rights of the Plaintiff in the suit properties.The Trial Court had committed an error of declaring one-half share ofthe Plaintiff in the suit properties by holding mother’s RelinquishmentDeed dated 25 March 2013 as illegal. The Appellate Court has correctedthat error by holding that mother has validly relinquished her one-thirdshare in favour of the Defendant. The Defendant thus has two-thirdshare in the suit properties and accordingly Plaintiff’s one-third sharehas rightly been upheld. 32)The questions formulated while admitting the Appeal areanswered as under:(i)It is permissible to orally relinquish share in theancestral property by a coparcener in favour of anothercoparcener in absence of a written instrument and in absenceof registration.(ii)Oral relinquishment cannot be presumed on the basis ofa document created for the purpose of deletion of name fromPage No. 23 of 24 20 August 2026 Megha 31_sa_679_2023_fc.odtrevenue records, especially when such document by itself doesnot effect relinquishment nor refers to any oralrelinquishment.(iii)Mere expression of consent for allotment of share in theancestral property in favour of one of the coparceners formingpart of different unit does not automatically amount toexpression of relinquishment of share in the joint familyproperty falling to the share of claimant’s own unit.ORDER 33) I therefore find no reason to interfere in the impugned orderpassed by Appellate Court, which appears, to my mind, to beunexceptional. Second Appeal is accordingly dismissed. Considering thefacts and circumstances of the case, the parties shall bear their own costsin the appeal.34) In view of disposal of the Second Appeal, nothing survives in theInterim Application and the same is disposed of.[SANDEEP V. MARNE, J.]Page No. 24 of 24 20 August 2026