A recent case in the Bombay High Court highlighted that where ancestral property is concerned, oral relinquishment of one’s right in a property is valid, even if it is not registered. This means that if a sister has said that she does not need a share in the ancestral property and wishes to transfer her share to her brother, this oral relinquishment is valid.
Usually oral agreements are very difficult to enforce because it is very difficult to prove that such an agreement happened.
In the Bombay High Court case as discussed in this article, the oral relinquishment ultimately failed as the sister disputed having said anything like that.
The Bombay High Court recently granted relief to a sister by protecting her share in the family ancestral property despite her brother objecting to it. The Bombay High Court upheld the partition of the property, under which she got 1/3rd share while the remaining 2/3rd went to her brother.
Shrusti Shah, Associate Partner at King Stubb and Kasiva, says that from this judgement, one aspect is clear that for ancestral properties, oral relinquishment deed can be valid but it needs to be proved if there are any objections.
Shah says that Indian courts continue to recognize oral relinquishment as legally valid in coparcenary property, but they will not presume it.
Shah says: “Anyone relying on an oral relinquishment whether as a shield or a sword must be prepared to prove it with specifics: when it was said, to whom, in whose presence, and under what circumstances.”
According to Shah, a revenue-record affidavit, a mutation entry, or a family member’s quiet acquiescence in an unrelated transaction cannot be a substitute for that proof.
Shah says that for families structuring succession, and for advisors drafting relinquishment or release deeds, the safer and far less litigation-prone course remains what it has always been “reduce the relinquishment to a clear, contemporaneous writing even if the law does not always insist on one.”
The Bombay High Court ruled:
(i) It is permissible to orally relinquish share in the ancestral property by a coparcener in favour of another coparcener in absence of a written instrument and in absence of registration.
(ii) Oral relinquishment cannot be presumed on the basis of a document created for the purpose of deletion of name from revenue records, especially when such document by itself does not effect relinquishment nor refers to any oral relinquishment.
(iii) Mere expression of consent for allotment of share in the ancestral property in favour of one of the coparceners forming part of a different unit does not automatically amount to expression of relinquishment of share in the joint family property falling to the share of claimant’s own unit.
What does this mean?
Shah explained to ET Wealth Online that the Bombay High Court has reaffirmed a settled but often misunderstood the principle of Hindu law: a coparcener can give up his or her share in ancestral (joint family) property purely by an oral act by clearly expressing an intention to renounce the share in favour of another coparcener. No writing is required, and even if a writing exists, it does not need to be registered.
Shah says: “The practical takeaway for families: an oral give-up of a coparcenary share is legally valid, but validity is only half the battle. It still has to be proved.”
What about self-acquired property?
The Bombay High Court case involved ancestral property, but what happens for self-acquired properties?
According to Shah, when a person gets a share following an intestate succession (without Will) to self-acquired property (i.e., the share is a specific, ascertained, and vested right of inheritance rather than a fluctuating coparcenary interest), its relinquishment or transfer is treated differently; here Section 17(1) of the Registration Act, 1908 comes into play.
So for intestate succession of self-acquired property, a registered instrument may be required, as the Bombay High Court itself had earlier held in the case of Gangaram Sakharam Dhuri.
By contrast, in the present case, the dispute concerned a coparcener’s right to claim a share in ancestral joint family property. In this case, oral relinquishment without any instrument in writing, is legally permissible.
Does silence or failure to object to a family partition automatically establish relinquishment of a coparcener’s share in ancestral property?
No, and this is where the Bombay High Court drew an important line.
According to Shah, consent recorded for a limited, administrative purpose such as an affidavit executed only to delete a family member’s name from revenue or mutation records cannot, by itself, be read as evidence of relinquishment.
The Bombay High Court held that oral relinquishment “cannot be presumed merely on the basis of a document signed for deletion of name of coparcener from revenue records,” particularly where that document is silent about any such relinquishment and does not itself operate to relinquish anything.
Shah says: “Similarly, participating in a partition of one asset, or expressing no objection to how another parcel of family land was distributed, does not by itself prove that the person intended to give up their claim over a different property.”
