Bombay High Court Upholds Sister’s One-Third Ancestral Share; Holds Revenue Record Deletion Cannot Establish Oral Relinquishment Without Clear Evidence of Intent to Abandon Rights
Bombay High Court Clarifies Oral Relinquishment of Ancestral Property Needs No Registered Instrument but Cannot Be Inferred Merely From Mutation or Family Conduct
Facts
The dispute arose between siblings Shekhar Shankar Joshi, the appellant-defendant, and Anita Arun Bhave, the respondent-plaintiff, concerning ancestral land bearing Gat No. 27 admeasuring 21.5 R and House No. 201 constructed thereon.
The properties originally belonged to their ancestor Narayan Vinayak Joshi. His son Shankar died in 1991 leaving behind his wife Shakuntala, son Shekhar and daughter Anita. Their names were thereafter entered in the revenue records.
Anita subsequently executed an affidavit dated 22 July 1991, pursuant to which her name was deleted from the revenue records relating to Gat Nos. 27 and 28.
A registered Partition Deed dated 25 June 1993 was subsequently executed between Shakuntala and Shekhar on one side and their relative Suhas Waman Joshi on the other. The document recorded that Anita had relinquished her rights.
On 25 March 2013, Shakuntala executed a registered Relinquishment Deed transferring her interest in Gat No. 27 and the house to Shekhar. Shekhar consequently claimed exclusive ownership.
Anita instituted Special Civil Suit No. 131 of 2015 seeking declaration, partition and separate possession, claiming one-half share and challenging her mother’s 2013 Relinquishment Deed. Shekhar defended the suit principally by asserting that Anita had already orally relinquished her rights, as allegedly evidenced by the 1991 affidavit.
The Trial Court rejected Shekhar’s oral-relinquishment defence, declared Anita entitled to one-half share and held the mother’s Relinquishment Deed invalid.
The First Appellate Court reversed the finding concerning the mother’s Relinquishment Deed and held it valid. Consequently, since Shakuntala’s one-third share validly passed to Shekhar, the shares were redetermined as:
Anita – 1/3 share
Shekhar – 2/3 share.
Shekhar nevertheless filed the present Second Appeal contending that Anita had orally relinquished her entire share and therefore was not entitled even to one-third.
Issues
The High Court formulated three substantial questions of law:
- Can a coparcener orally relinquish his or her rights in ancestral property in favour of another coparcener, or is a written and registered instrument mandatory?
- Can oral relinquishment be presumed merely because a coparcener signed a document permitting deletion of his or her name from revenue records, when that document itself says nothing about relinquishment?
- Does a coparcener’s consent to allotment of one ancestral property to another coparcener automatically imply relinquishment of rights in a different ancestral property falling to his or her own family unit?
Petitioner/Appellant’s Arguments
Shekhar argued that Anita had expressly orally relinquished her rights in the ancestral properties and that the affidavit dated 22 July 1991 subsequently confirmed that relinquishment.
He contended that the affidavit covered both Gat Nos. 27 and 28. Since Anita accepted the arrangement concerning Gat No. 28, she could not selectively deny relinquishment concerning Gat No. 27.
He further argued that:
- the arrangement constituted a family arrangement;
- Anita was married and living separately;
- her affidavit merely gave formal shape to an earlier oral arrangement;
- her silence from 1991 until filing the suit in 2015 demonstrated acquiescence; and
- in law, a female coparcener could relinquish her interest in joint family property orally without executing a registered instrument.
He relied principally upon Ramdas Chimna v. Pralhad Deorao and Uma Madhav Agaskar v. Manorama Motiram Dandekar.
Respondent’s Arguments
Anita contended that both the Trial Court and First Appellate Court had concurrently found that no oral relinquishment was proved, and there was no evidentiary basis for interference in second appeal.
She argued that the 1991 affidavit did not mention any oral relinquishment whatsoever. It merely permitted deletion of her name from the revenue records, which are maintained primarily for fiscal purposes.
She further contended that:
- she was not a party to the subsequent Partition Deed;
- statements made by others in that deed could not extinguish her proprietary rights;
- the affidavit itself contained no declaration abandoning her ownership;
- mutation of revenue records could not establish relinquishment of title; and
- the brother had failed to produce evidence proving any alleged oral arrangement.
Analysis of the Law
Oral Relinquishment of Ancestral Property Is Legally Possible
The High Court drew an important distinction between the legal validity of oral relinquishment and the proof that such relinquishment actually occurred.
After analysing Section 9 of the Transfer of Property Act, 1882 and Section 17 of the Registration Act, 1908, the Court held that where the law does not expressly require a transaction to be reduced into writing, it can be effected orally.
Accordingly, a coparcener’s relinquishment or abandonment of an interest in joint family/ancestral property can legally take place orally.
The Court ultimately answered the first substantial question by holding that:
it is not invariably necessary to execute or register a written document to relinquish an interest in joint family property.
Such relinquishment may occur orally through a clear expression of intention.
However, the Court expressly confined this principle to relinquishment of a right to claim a share in joint family property.
It distinguished such cases from rights acquired in self-acquired property through intestate succession, where the legal position concerning registration is different.
Legal Permissibility Does Not Dispense With Proof
The decisive distinction drawn by the Court was:
Recognising that oral relinquishment is legally permissible is different from proving that oral relinquishment actually occurred.
Where a defendant relies upon oral relinquishment, the burden lies upon that defendant to prove it.
Shekhar failed to discharge this burden.
His written statement contained no particulars concerning:
- the date of alleged relinquishment;
- its place;
- its time;
- the circumstances in which it occurred; or
- persons in whose presence Anita allegedly abandoned her rights.
No independent witness was examined to establish the alleged oral relinquishment.
The Court therefore observed that there was “absolutely no iota of evidence” establishing the alleged oral relinquishment.
Revenue Record Deletion Does Not Prove Relinquishment
The Court closely examined Anita’s affidavit.
It found that the document merely recorded her consent for deletion of her name from the revenue records relating to Gat Nos. 27 and 28.
Crucially, the affidavit:
- did not state that Anita relinquished her ownership rights;
- did not mention any earlier oral relinquishment; and
- did not state that the mutation was being effected pursuant to such relinquishment.
Therefore, the document could not be transformed into evidence of relinquishment merely because it resulted in deletion of Anita’s name from the revenue records.
The Court held that:
oral relinquishment cannot be presumed merely from an affidavit consenting to deletion of a coparcener’s name from revenue records where the affidavit itself is silent about relinquishment.
Consent to Another Coparcener’s Share Is Not Relinquishment of One’s Own Share
Shekhar additionally relied upon Anita’s acceptance of the partition arrangement under which Gat No. 28 went to their cousin Suhas.
The High Court rejected this argument.
Anita had accepted Suhas’s entitlement to Gat No. 28, but she expressly denied abandoning her rights in Gat No. 27.
The Court drew a fundamental distinction:
recognising another coparcener’s entitlement is not equivalent to abandoning one’s own proprietary rights.
Accordingly, Anita’s consent to Gat No. 28 being allotted to Suhas could not create a presumption that she had surrendered her share in Gat No. 27 and the family house.
Precedent Analysis
1. Ramdas Chimna v. Pralhad Deorao, AIR 1965 Bom 74
This judgment supported Shekhar on the pure question of law.
It held that a right in joint family immovable property may be relinquished orally where no statute specifically requires a written instrument.
The Court in the present case accepted and applied this principle.
Thus, Shekhar was correct that oral relinquishment was legally possible.
His appeal nevertheless failed because he could not prove that Anita had actually made such a relinquishment.
2. Uma Madhav Agaskar v. Manorama Motiram Dandekar
The Court noted that Uma Madhav Agaskar followed Ramdas Chimna and reiterated that relinquishment by a female of her interest in joint family property can be effected without a written instrument.
If, however, the relinquishment is reduced into writing, the document would require registration.
3. Gangaram Sakharam Dhuri v. Gangubai Raghunath Ayare
Anita relied upon this judgment to argue that a written and registered document was mandatory.
The High Court held that a closer examination of Gangaram did not support such an absolute proposition.
That case concerned daughters who had acquired shares in their father’s self-acquired property by intestate succession, rather than relinquishment by coparceners in ancestral/joint family property.
The Court therefore distinguished the two situations:
- Joint family/ancestral property: oral relinquishment by a coparcener is legally permissible.
- Share in self-acquired property obtained through intestate succession: the registration requirements considered in Gangaram apply.
4. Mahalingayya Basappayya Ullagaddimath v. Sangayya Chennayya Ullagaddimath, AIR 1943 Bom 397
The Division Bench had held that renunciation of a coparcener’s interest in family property could occur through an expression of intention, without any prescribed formality.
The present Court treated this authority, together with Ramdas Chimna and Uma Madhav Agaskar, as supporting the proposition that oral relinquishment of coparcenary rights in ancestral property is legally permissible.
Court’s Reasoning
The Court held that Shekhar’s case failed not because oral relinquishment was legally impossible, but because the alleged relinquishment was not proved on facts.
The Court identified three decisive deficiencies.
First, the 1991 affidavit merely permitted deletion of Anita’s name from the revenue records. It contained no statement relinquishing ownership or acknowledging any previous oral relinquishment.
Second, Shekhar’s pleadings regarding oral relinquishment were vague. There were no particulars regarding when, where, how or before whom Anita supposedly relinquished her share.
Third, no witness or other evidence was produced to prove the alleged oral arrangement.
The Court accordingly laid down an important evidentiary distinction:
An oral relinquishment may be valid in law, but the party asserting it must affirmatively establish the factum and conscious intention of relinquishment. Mutation entries, deletion of names from revenue records, silence or ambiguous family conduct cannot substitute for such proof.
The Court also rejected the attempt to infer relinquishment of Gat No. 27 from Anita’s acceptance of Suhas’s share in Gat No. 28, holding that acknowledging another coparcener’s entitlement and abandoning one’s own entitlement are legally distinct concepts.
Conclusion
The Bombay High Court held that oral relinquishment of a coparcener’s share in ancestral property is legally permissible without a written or registered instrument, but the person asserting such relinquishment must prove that it actually occurred.
Shekhar completely failed to prove Anita’s alleged oral relinquishment.
The affidavit used for deletion of her name from revenue records could not establish relinquishment because it contained no reference whatsoever to relinquishment or abandonment of proprietary rights.
The Court therefore upheld the First Appellate Court’s determination that:
Shekhar – 2/3 share
Anita – 1/3 share
The mother’s registered Relinquishment Deed dated 25 March 2013 remained valid, thereby transferring her one-third share to Shekhar, but Anita’s independent one-third ancestral share remained intact.
The High Court consequently dismissed Shekhar’s Second Appeal, directed the parties to bear their own costs, and disposed of the connected Interim Application.
Key Legal Principle
A coparcener may orally relinquish a share in ancestral property without executing a registered instrument, but relinquishment cannot be presumed merely from deletion of the coparcener’s name from revenue records. The party asserting oral relinquishment must prove a clear and conscious intention to abandon the share.
Case Details
Case: Shekhar Shankar Joshi v. Anita Arun Bhave
Court: High Court of Judicature at Bombay, Civil Appellate Jurisdiction
Case Number: Second Appeal No. 679 of 2023 with Interim Application No. 17404 of 2023
Judge: Justice Sandeep V. Marne
Date: 20 August 2026 (Reserved on 12 August 2026)
Result: Second Appeal dismissed. Sister’s one-third share upheld; brother retained two-third share arising from his own share plus their mother’s validly relinquished one-third share. Alleged oral relinquishment by sister was not proved
