In a recent decision, the Bombay High Court has reaffirmed the legal position that a coparcener may orally relinquish his or her share in ancestral or joint family property in favour of another coparcener, without executing a written or registered document. At the same time, the Court drew a clear line on what does not constitute relinquishment, particularly where the only evidence is an affidavit consenting to deletion of name from revenue records.

The judgment in Shekhar Shankar Joshi v. Anita Arun Bhave addresses a dispute between siblings over ancestral land at Alibag, Raigad. The Plaintiff claimed one-half share in the suit properties, while the Defendant contended that she had orally relinquished her share. The Trial Court decreed the suit in the Plaintiff's favour, granting her one-half share. The Appellate Court modified this to one-third share for the Plaintiff and two-third share for the Defendant, by upholding a separate Relinquishment Deed executed by the mother in favour of the Defendant.

The Three Questions Before the Court

The High Court admitted the Second Appeal on three substantial questions of law:

(a) whether a coparcener can orally relinquish ancestral property rights without a written or registered document;

(b) whether oral relinquishment can be presumed from an affidavit seeking deletion of name from revenue records; and

(c) whether consenting to a cousin's share in one parcel of ancestral property amounts to relinquishment of one's own share in another parcel.

Oral Relinquishment: Permissible, But Must Be Proved

On the first question, the Court followed its earlier decisions in Ramdas Chimna v. Pralhad Deorao (AIR 1965 Bom 74) and Uma Madhav Agaskar v. Manorama Motiram Dandekar (Second Appeal No. 562 of 2003, decided 30 November 2023). The Court reiterated that under Section 9 of the Transfer of Property Act, 1882, a transfer of property may be made without writing in every case where writing is not expressly required by law. Since neither the Transfer of Property Act nor the Registration Act, 1908 mandates a written instrument for mere relinquishment of interest in joint family property, such relinquishment can validly be effected orally.

However, the Court was careful to limit this principle. It clarified that the rule permitting oral relinquishment applies only to shares in joint family or ancestral property and not to shares in self-acquired property acquired through intestate succession. In the latter case, Section 17(1) of the Registration Act would apply, and a written and registered document would be necessary.

Affidavit for Name Deletion Is Not Relinquishment

On the second question, the Court drew a sharp distinction between consenting to deletion of one's name from revenue records and relinquishing one's share in the property. The affidavit dated 22 July 1991 produced by the Defendant merely recorded the Plaintiff's consent for removal of her name from the revenue records and made no reference whatsoever to any relinquishment. The Court held that such an affidavit, being silent on relinquishment, cannot give rise to a presumption of oral relinquishment.

The Court further observed that even where oral relinquishment is legally permissible, the burden of proving the factum of such relinquishment lies on the person asserting it. In the present case, the Defendant's pleadings were vague, lacking particulars of date, time, place or witnesses. The Defendant examined only himself and a distant cousin, neither of whom could prove the alleged oral relinquishment. The Court held that vague pleadings and self-serving evidence are insufficient to discharge this burden.

Consenting to One Co-Sharer's Share Is Not Abandonment of One's Own

On the third question, the Court rejected the Defendant's attempt to argue that the Plaintiff's acceptance of her cousin's share in Gat No. 28 implied relinquishment of her own share in Gat No. 27. The Court held that admitting the share of another coparcener is conceptually distinct from abandoning one's own share. The Plaintiff's cross-examination statements merely reflected consent to the cousin's entitlement to Gat No. 28 and could not be stretched to mean relinquishment of her share in Gat No. 27. The Court also noted that the Defendant's written statement did not even plead relinquishment qua Gat No. 28, making the argument legally untenable.

Significance

The judgment is significant for two reasons. First, it reaffirms the long-standing position that oral relinquishment of coparcenary shares is legally valid, provided the factum of such relinquishment is established by clear evidence. Second, it sends a clear message that revenue record corrections, affidavits for name deletion, and consent to a co-sharer's entitlement cannot be twisted into evidence of relinquishment. For practitioners advising on family property disputes, the decision underscores the importance of pleading and proving relinquishment with specificity, including date, time, place, and witnesses, rather than relying on inferences from collateral documents.

The Second Appeal was accordingly dismissed, with the Plaintiff retaining her one-third share and the Defendant retaining his two-third share in the suit properties.

Oral Relinquishment in Ancestral Property: What the Bombay High Court Just Clarified"