The Bombay High Court recently came to the rescue of a sister by safeguarding her portion of the family ancestral property, even though her brother opposed it. The Bombay High Court upheld the property division, granting her a 1/3rd share while brother received the remaining 2/3rd.
The brother’s argument against granting her a share in the family ancestral property was based on an affidavit she had given for removing her name from mutation records, along with a relinquishment deed their mother had signed, transferring her share to him. He used this to assert that he owed the entire property and denied his sister any access to it.
However, in court, he failed to substantiate his claims. The affidavit he relied on, did not mention that she had given up her share of the property. The affidavit stated that she wished to remove her name from the mutation records without giving any explanation.
Additionally, she argued that she was misled into signing the affidavit. He had told her that she needed to sign an affidavit for their fruit business dealings with the government. In court, she clarified that she never signed the affidavit with the intention to give up her share of their family ancestral property.
Keep reading to know more about the ancestral property feud between brother and sister and learn how the sister won the case in the Bombay High Court.
Details of the ancestral land property
Late Mr Narayan Vinayak Joshi owned two ancestral lands (Gat no. 27 and 28) and had built his house in one of them (Gat no. 27)
Joshi had two sons, Shankar and Waman. Shankar passed away on January 27, 1991 leaving behind his wife, Shakuntala, along with a son, Shekhar and a daughter, Anita.
Waman has a son named Suhas.
Following the death of Narayan Vinayak Joshi and Shankar Joshi, the mutation records of both the properties (Gat 27 and 28) were updated and names of Shakuntala, Shekhar (brother) and Anita were mutated on March 30, 1991. However, Anita (the sister) signed an affidavit and her name was removed from the mutation records of both the properties (Gat 27 and 28).
On June 25, 1993, Suhas (Narayan Vinayak Joshi’s brother’s son), got the Gat no. 28 property as he too was a part of the family. Shakuntala and Shekhar signed the registered partition deed on June 25, 1993 and since then, Suhas has owned the Gat no. 28 property. The Gat no. 27 property with the house still remained with Shakuntala (mother), Shekar (brother) and Anita (sister).
Remember, Anita’s name was removed from mutation records and now after partition of the ancestral properties, Gat no. 27 was the only property which remained with their side of the family since Suhas took the other one (Gat no. 28). With this arrangement, Anita continued to live in the house, but a development in 2013 changed the entire dynamics.
On March 25, 2013, the mother, Shakuntala, executed a Relinquishment Deed in favour of her son, Shekhar, which meant Shakuntala’s share of the property now belonged to Shekhar, leaving Anita (the sister) with nothing. On the strength of this Relinquishment Deed, Shekhar claimed exclusive ownership of Gat no. 27 property and Anita realized what had happened. She felt aggrieved and was afraid that she was going to lose her share of the ancestral property. So she filed a court case.
On August 20, 2026 Anita (sister) won the case in Bombay High Court and got 1/3rd share of the Gat no 27 property. Advocate Rohit Joshi represented her before the Bombay High Court.
Why did Anita win this case?
Jahnavi Kohli, Head Private Client Practice of ANB Legal, said to ET Wealth Online: Anita won because her brother Shekhar could not prove his only defence, that she had orally given up her share in the ancestral property. Anita succeeded because the Hon’ble Bombay High Court held that the appellant (Shekhar) failed to prove his defence of oral relinquishment and upheld the Appellate Court’s division of one-third for Anita and two-thirds for Shekhar.
Kohli explains the reason provided by Bombay High Court:
- Shekhar argued that Anita had orally relinquished her share in the ancestral property. He also argued that her acceptance of the partition of Gat No. 28 and her silence from 1991 to 2015 showed she had given up her share in Gat No. 27 as well.
- The court first settled the law in Shekhar’s favour that relinquishment of the right to claim a share in joint family or ancestral property can be made orally, without a written or registered document. However, the onus of proving the oral relinquishment is on the person asserting it, and the court also held that recognising its legal effect is different from proving that it happened.
- Shekhar’s written statement was vague and gave no date, time or place of the alleged relinquishment. He led no evidence beyond his own words and examined no witness who was present.
- The 1991 affidavit did not prove relinquishment. It only asked for deletion of Anita’s name from the revenue records of Gat Nos. 27 and 28, and it contained no reference to any oral relinquishment. Consent to deletion from revenue records does not show an intention to relinquish her share.
- Anita’s consent to allotting Gat No. 28 to her cousin Suhas was not relinquishment of her own share. The court distinguished admitting another coparcener’s share from abandoning one’s own, and noted that the partition left Gat No. 27 and the house to the heirs of Shankar, namely Shakuntala, Shekhar and Anita. Shekhar also never pleaded relinquishment of Gat No. 28, so that argument could not be accepted.
- The court concluded that Shekhar had “thoroughly failed” to prove oral relinquishment, and that the Trial and Appellate Courts rightly upheld Anita’s rights in the suit properties.
- Anita did not get the half share the Trial Court gave her. The mother’s Relinquishment Deed dated 25 March 2013 in Shekhar’s favour was held valid and binding, and Anita’s separate Second Appeal against that finding was dismissed. The court therefore upheld the Appellate Court’s division of one-third for Anita and two-thirds for Shekhar.
What should joint property owners do?
Kohli says that there are certain things that joint family property owners should keep in mind:
- Oral relinquishment is legally permissible but only by expressing an intention to do so, the court held that it is not always necessary to execute a written document or to register it to evidence relinquishment of interest in joint family property in favour of other coparceners however physical possession must pass.
- The judgment shows that oral relinquishment of a share in joint family property is legally valid, but it succeeds only if the person claiming it proves it with specific evidence. The court held that oral relinquishment “must be proved by person asserting the same”. Since Shekhar took the defence, the burden of proof was on him.
- The court also held that recognising the legal effect of oral relinquishment is “a concept different than proving the factum of oral relinquishment”.
- The affidavit only recorded consent for deletion of her name from the revenue records and did not mention relinquishment, therefore oral relinquishment cannot be presumed from it.
- Mere consent to allotting a share to a coparcener from a different family unit does not amount to relinquishing the share falling to the claimant’s own unit.
Bombay High Court discussion
Justice of Bombay High Court heard this case
Relinquishment or abandonment of right in joint family property can be done orally
The Bombay High Court discussed at length and came to the conclusion that it is not always necessary to execute a written document or to register it as an evidence of the relinquishment of interest in the joint family properties in favour of other coparceners. Such relinquishment or abandonment can be done even orally by expressing an intention of doing so.
The Bombay High Court said: “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.”
Even though relinquishment can be made orally, that has to be proved or else relinquishment fails
As mentioned above, the Bombay High Court ruled that relinquishment or abandonment of one’s share in the property can be done orally but the fact that this relinquishment was done orally needs to be proved.
Justice Sandeep V. Marne of Bombay High Court said: “While answering the first substantial question, I have held that relinquishment of share by the coparcener in a joint family property can be effected orally and in absence of an instrument in writing. However, in such a case, effecting of oral relinquishment must be proved by a person asserting the same.”
In this case, beyond words, Shekhar could not give any proof of Anita orally relinquishing her share in the family property. So, Shekhar’s claim was rejected by the high court.
The high court said: “The written statement does not contain any particulars of date, place and time, etc., when such relinquishment was allegedly made by the Plaintiff (Anita).”
Moreover, Anita’s affidavit also did not state that she has relinquished her share in the property. Rather Anita claimed that she signed the affidavit due to Shekhar’s misrepresentation.
Justice Sandeep V. Marne of Bombay High Court said: “In my view, therefore, 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.”
Mother’s 2013 relinquishment deed is proved by witness
Even though Shekar could not prove his sister’s oral relinquishment, he examined a witness and proved his mother’s 2013 Relinquishment Deed by which he had gained his mother’s share of the property.
The witness was a distant cousin of Anita’s who owned the neighbouring land (Gat no. 29/1). This witness said that Shekhar’s mother Shakuntala was in perfect health one month before her death when the said Relinquishment Deed was signed.
Agreeing to Suhas’s (cousin) right to take Gat no. 28 land does not mean giving up rights to Gat no. 27
Shekhar (brother) argued that since Anita (sister) did not protest and willingly let go of Gat no. 28 land in Suhas’s (cousin) favour, it can be established that Anita has let go of Gat no. 27 land also.
The Bombay High Court said: “Admitting the share of a cousin in joint family property is a concept distinct from the concept of abandoning her own share by the Plaintiff (Anita) in such properties. Admitting the share of another coparcener cannot be confused with the concept of relinquishment of share in the joint family property.”
So the high court rejected Shekhar’s this challenge also and ruled in Anita’s favour.