Bombay HC: Oral Relinquishment of Ancestral Property Share Is Valid, But Must Be Proved With Evidence, Not Presumed From Revenue Record Affidavit

The Bombay High Court dismissed a brother's second appeal, holding that while a coparcener may orally relinquish ancestral property rights, the burden of proving such relinquishment rests squarely on the party asserting it.

The Bombay High Court has settled three substantial questions of law arising from a sibling dispute over ancestral land at Gat No.27 and a house constructed thereon in Raigad district. Justice Sandeep V. Marne, sitting singly, dismissed Second Appeal No.679 of 2023 filed by the defendant-brother Shekhar Shankar Joshi, who had challenged a concurrent finding by both the Trial Court and the first Appellate Court that his sister Anita Arun Bhave retained a share in the suit properties. The judgment, pronounced on 20 August 2026, confirms that a coparcener can relinquish her share in ancestral property orally and without a registered instrument, but that the party asserting such relinquishment must prove it by concrete evidence — not by inference from an affidavit that merely consents to deletion of a name from revenue records.

The Ancestral Property and the Partition History

The ancestral properties originally belonged to late Narayan Vinayak Joshi, who had two sons, Shankar and Waman. Shankar died on 27 January 1991, leaving behind his wife Shakuntala, son Shekhar (the defendant), and daughter Anita (the plaintiff). After the deaths of Narayan and Shankar, the names of Shakuntala, Shekhar, and Anita were mutated in the revenue records in respect of two suit properties — land at Gat No.27 admeasuring 21.5 R and a house constructed thereon — as well as land at Gat No.28, vide mutation entry No.306 dated 30 March 1991.

Shortly thereafter, Anita's name was removed from the revenue records relating to both properties based on an affidavit she submitted. A registered Deed of Partition dated 25 June 1993 was subsequently executed between Shakuntala and Shekhar on one side and cousin Suhas Waman Joshi on the other. Under that partition, Suhas received land at Gat No.28 admeasuring 28.3 R, while Gat No.27 and the house remained with Shakuntala and Shekhar. The partition deed recorded that Anita had relinquished her rights in both Gat Nos.27 and 28.

On 25 March 2013, Shakuntala executed a Relinquishment Deed transferring her share in the suit properties to Shekhar. Anita filed Special Civil Suit No.131 of 2015 before the Civil Judge, Senior Division, Alibag, claiming a one-half share in Gat No.27 and the house, and seeking to have the 2013 Relinquishment Deed declared null and void. She also claimed mesne profits of Rs.2,00,000 per year from the date of filing the suit.

Decisions of the Trial Court and First Appellate Court

The Trial Court, by its decree dated 9 January 2020, declared Anita and Shekhar each entitled to a one-half share in the suit properties. It found that the 2013 Relinquishment Deed had been obtained by Shekhar by playing fraud on his mother Shakuntala, declared it null and void, and directed a preliminary decree for partition. It rejected Shekhar's defence that Anita had orally relinquished her share on 22 July 1991. It also directed an enquiry for mesne profits under Order XX Rule 12 of the Code of Civil Procedure, 1908.

On Shekhar's appeal, the District Judge-3, Raigad-Alibag, by judgment dated 29 April 2023, partly reversed the Trial Court. The Appellate Court upheld the 2013 Relinquishment Deed as valid and binding, and accordingly recalculated the shares: Anita was entitled to one-third and Shekhar to two-third of the suit properties. Even so, Shekhar filed the present Second Appeal challenging the grant of any share to Anita. Anita had also filed Second Appeal No.157 of 2024 challenging the upholding of the 2013 Relinquishment Deed and the reduction of her share to one-third; by order dated 12 August 2026, this Court dismissed her second appeal.

Three Substantial Questions of Law

The second appeal was admitted on three substantial questions of law:

1. Can a coparcener orally relinquish rights in ancestral property in favour of another coparcener, or is a written and registered document necessary?
2. Can oral relinquishment be presumed merely from a document signed for deletion of a coparcener's name from revenue records, when that document is silent about any relinquishment?
3. If a coparcener does not object to a grant of share in ancestral land to another coparcener from a different family unit, does that silence ipso facto create a presumption that she has also relinquished her share within her own family unit?

Question One: Oral Relinquishment of Ancestral Property Is Legally Valid

Shekhar's counsel, Mr. Drupad Patil, argued that a female coparcener can relinquish her share in joint family property by way of family arrangement without any written instrument, pointing to the 1991 affidavit and Anita's silence from 1991 until 2015 as evidence of acquiescence. He relied on this Court's judgments in Ramdas Chimna v. Pralhad Deorao, AIR 1965 Bom 74, and Uma Madhav Agaskar v. Manorama Motiram Dandekar and Ors., Second Appeal No.562 of 2003, decided on 30 November 2023.

Anita's counsel, Mr. Rohit Joshi, contended that registration of a formal document was mandatory, relying on Gangaram Sakharam Dhuri (since deceased) through LR Vishnu and Others v. Gangubai Raghunath Ayare and Others, 2007 SCC OnLine Bom 144.

Justice Marne sided with the appellant on the legal point, but not on the facts. Extracting the analysis from Ramdas Chimna at length, the Court affirmed that Section 9 of the Transfer of Property Act, 1882 makes oral transfer the rule, with writing required only where law expressly demands it. Since no provision of the Transfer of Property Act or Section 17 of the Registration Act, 1908 expressly requires relinquishment of a share in joint family property to be in writing, an oral relinquishment or abandonment of such a share is legally effective. The Court noted that Gangaram Sakharam Dhuri was distinguishable: that case concerned shares acquired by daughters in their father's self-acquired property through intestate succession, where Section 17(1) of the Registration Act did apply. The present case concerned ancestral property, placing it squarely within the Ramdas Chimna line.

The first question was answered by holding that written or registered documentation is not always necessary to evidence relinquishment of interest in joint family property; such relinquishment can be expressed orally. This principle, however, applies only to relinquishment of a share in ancestral or joint family property, and has no application to a share in self-acquired property devolving through intestate succession.

Question Two: An Affidavit Consenting to Revenue Deletion Cannot Be Read as Relinquishment

The Court then examined the affidavit dated 22 July 1991 that lies at the centre of the dispute. Anita had pleaded in her plaint that she was made to sign the affidavit by Shekhar on a misrepresentation that it was needed to procure fruit trees from the government. Shekhar denied this, arguing that the affidavit confirmed an oral relinquishment already made.

On reading the affidavit itself, Justice Marne found that it contained no reference whatsoever to any relinquishment, oral or otherwise. The affidavit only stated that Anita had no objection to her name being deleted from the revenue records in respect of Gat Nos.27 and 28. It did not say that her name was being deleted because she had relinquished her share, nor did it refer to any past or contemporaneous act of relinquishment.

The Court observed that even if the misrepresentation plea was set aside and the affidavit was taken at face value, it could only be read as granting consent for a revenue mutation, nothing more. The Court drew a sharp distinction: recognising the legal validity of oral relinquishment is conceptually different from proving that an oral relinquishment actually occurred. The burden of proof lay on Shekhar, who asserted it. Beyond a vague averment in the written statement — which specified no date, place, or time at which the alleged oral relinquishment took place — he led no witness in whose presence the relinquishment was allegedly expressed. DW2, Sarvesh Chintaman Joshi, was examined only to establish that mother Shakuntala was in good health before signing the 2013 Relinquishment Deed; his evidence had no relevance to the alleged 1991 oral relinquishment by Anita.

The second question was answered in the negative: “oral relinquishment cannot be presumed merely on the basis of a document signed for deletion of name of coparcener from revenue records, when the document is silent about any relinquishment.”

Question Three: Admitting a Cousin's Share Is Not the Same as Surrendering One's Own

The third argument advanced by Mr. Patil sought to build on Anita's cross-examination. Anita had admitted, when shown the registered partition deed dated 5 May 1994, that she had read it before filing the suit and had no objection to its contents. Mr. Patil argued that since she had accepted the partition granting Gat No.28 to cousin Suhas Waman Joshi, she could not selectively deny relinquishment of her share in Gat No.27.

Justice Marne rejected this reading of the cross-examination. Immediately after the statement relied upon by Mr. Patil, Anita had expressly denied the recital in paragraph 3 of the partition deed that stated she had relinquished her rights in the property. Her acceptance of Suhas Joshi's entitlement to Gat No.28 was consistent with the partition arrangement, under which Gat No.27 and the house were to remain with the heirs of Shankar Narayan Joshi — that is, Shakuntala, Shekhar, and Anita herself. Consenting to a cousin's allotment of a portion of ancestral property and surrendering one's own share in the remaining portion are two entirely distinct legal acts. Additionally, the written statement itself only alleged oral relinquishment in respect of Gat No.27; there was no pleading that Anita had orally relinquished her share in Gat No.28. Mr. Patil's attempt to press the relinquishment argument in respect of Gat No.28 therefore had no pleading to support it.

The third question was answered in the negative: a coparcener's silence about, or consent to, the allotment of ancestral land to a coparcener of a different family unit does not automatically amount to relinquishment of the claimant's own share within her family unit.

Outcome

Having answered all three questions, Justice Marne concluded that Shekhar had thoroughly failed to prove oral relinquishment of Anita's share in the suit properties. Both courts below had rightly recognised Anita's right. The Trial Court's error of granting her a one-half share — by incorrectly setting aside the 2013 Relinquishment Deed — had already been corrected by the first Appellate Court, which reduced her share to one-third. That correction now stands final, given the dismissal of Anita's own second appeal on 12 August 2026. The Second Appeal filed by Shekhar was dismissed. The Interim Application No.17404 of 2023 was disposed of as having nothing surviving. Parties were directed to bear their own costs.