24 April 2023 4:35 AM GMT
The Bombay High Court recently held that a deed for relinquishment of inherited property is not admissible in evidence unless it is registered.Justice MS Jawalkar of the Nagpur bench set aside an order dismissing a sister’s partition suit on the ground that she signed a relinquishment deed observing that the brother never produced the deed. “As such, relinquishment deed requires to...
The Bombay High Court recently held that a deed for relinquishment of inherited property is not admissible in evidence unless it is registered.
Justice MS Jawalkar of the Nagpur bench set aside an order dismissing a sister’s partition suit on the ground that she signed a relinquishment deed observing that the brother never produced the deed.
“As such, relinquishment deed requires to be registered otherwise it is not admissible in evidence. In the present matter, the relinquishment deed itself is not produced at all nor it is the case of defendant that it was the registered one. As such, appeal is liable to be allowed”, the court held.
The appellant is the sister of the respondent. Their father died in 1977 leaving the appellant and respondent living as legal heir. The brother and sister have equal share in the suit property. The appellant sought partition, but the respondent never replied.
The brother obtained the appellant's signatures on a stamp paper claiming that it was related to a partition deed between them. In 1990, he applied for mutation on the basis of a relinquishment deed signed by his sister. The sister received the notice and came to know about the relinquishment deed.
Hence, she filed a suit for partition and separate possession.
The sister’s partition suit was dismissed by the trial court, and the appellate court dismissed her appeal with costs. Hence, the present appeal by the sister.
The lower courts recorded a finding that since she did not file for partition for more than 14 years after their father's death, it amounted to waiving of right of partition.
The lower courts also recorded a finding that since the relinquishment deed was not produced, the sister failed to prove that it was fraudulent.
The appellant claimed that in 1990, her brother obtained her sign on the pretext of execution of partition deed, but no partition was affected.
The brother claimed that his father executed a will making him the exclusive owner of the suit properties which are self-acquired properties of their father.
The court noted that if any will existed, then there was no reason to execute any relinquishment deed from the sister in 1990. The brother’s conduct shows that he wanted to deceive his sister, the court said.
The court said that the relinquishment deed should have been registered as per section 17(1)(b) of the Registration Act and the lower courts failed to appreciate this fact.
The court further noted that neither the relinquishment deed nor the will has been produced or proved before the court.
The court said that relinquishment has to be registered or it is not admissible in evidence. However, in the present case, the relinquishment deed was not produced, and the brother did not claim that it is a registered deed.
In the absence any valid relinquishment deed placed on record and proved, the lower court should not have rejected the partition as names of both brother and sister appear in the land records, the court held.
Case no. – Second Appeal No. 236/2014
Case Title – Chandrabhaga Kolhe v. Suryabhan S/o Champatra Shende
Citation: 2023 LiveLaw (Bom) 213
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