Coparcener Can Orally Relinquish Rights In Ancestral Property Without Written Registered Document: Bombay High Court
The Bombay High Court has held that a coparcener can orally relinquish his or her share in ancestral property in favour of another coparcener, without executing a written instrument or getting it registered. The Court, however, clarified that such relinquishment has to be proved by the person asserting it and cannot be presumed merely from a document executed for deletion of the coparcener's name from revenue records.
Justice Sandeep V. Marne was hearing a second appeal filed by a man challenging the grant of a one-third share in ancestral properties to his sister. The Appellate Court had held that a Relinquishment Deed executed by their mother in favour of the appellant was valid and accordingly awarded the appellant two-thirds share and the respondent one-third share in the suit properties. The appellant contended that his sister had orally relinquished her rights in the properties, which was followed by an affidavit. The Court framed three substantial questions of law.
On the first substantial question of law concerning oral relinquishment of interest in joint family property, the Court referred to various precedents and held that it is not always necessary to execute a written document or register the same for evidencing relinquishment of interest in 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,” the Court remarked.
On the second question of whether the affidavit executed for deletion of the respondent's name from revenue records could lead to a presumption of oral relinquishment, the Court noted that the affidavit contained no reference to any oral relinquishment. It merely recorded her consent for deletion of her name from the revenue records.
“… 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… does not mean that she intended to effect relinquishment,” the Court observed.
On the third question, the Court held that the respondent's consent to allotment of Gat No.28 to their cousin did not amount to relinquishment of her own share in the ancestral property. Admitting the share of another coparcener was held to be a concept distinct from abandoning one's own share in the joint family property. Thus, the Court answered the third question:
“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.”
The Court therefore found no reason to interfere with the impugned order, and the second appeal was dismissed.
Case Title: Shekhar Shankar Joshi v. Anita Arun Bhave [Second Appeal No.679 of 2023]