Natesa Udayar vs Murugappa Udayar and Others

Swamikkannu, J.—The only point that arises for consideration in this second appeal is, whether the relinquishment that is pleaded, can be held to be substantiated by oral evidence alone or the same should be in a written document, so as to take the said allegation regarding the relinquishment as the basis for a plea that had been actually put forward by the Defendants in the suit.

In this regard, the contention of the learned Counsel for the Appellant before me is that the principle imbedded in the ratio decided of the decision of the Supreme Court in S.S. Gulam Ghouse v. S.S.A. Kamisul1 has been completely overlooked by the lower Appellant Court in reversing the judgment of the trial Court. The learned Counsel for the Appellant points out that the lower appellate Court has not given any convincing reasons for reversing the judgment of the trial Court and the observation of the lower appellate Court that the learned District Munsif declined to give proper weight to the evidence put forward by the Plaintiff while disbelieving the relinquishment, is unsustainable without proper, adequate, sufficient and convincing reasons and it makes the judgment emanating from him as the subject matter of issue under the provisions of section 100 CPC by this Court. The substantial question of law, as a matter of fact, that was framed at the time of admission of this Second Appeal reads as follows:

Whether on the facts and circumstances of the case, the finding of the lower appellate Court that there was a relinquishment of the Plaintiff''s interest in the suit properties is sustainable ?

The learned Counsel for the Respondents on the other hand contends that a reading of section 54 of the Transfer of Property Act together with Section 17(l)(c) of the Registration Act, 1908, will show that there can also an oral relinquishment, in spite of the fact that section 17(1) is to the effect that the document, which contains a clause regarding extinction of any right title or interest should be registered, if the property to which they relate situate in a District in which, and if they have been executed on or after the date on which, Act XVI of 1964 or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came, or comes into force. As a matter of fact, Mr. Sarvabhauman in his interesting and thought provoking argument, referred to two decisions, in which the celebrity judgment of the Privy Council in Varada Pillay v. Jeevarathammal1 had been dealt with and that is the decision in Kandaswamy Pillay v. Chinnabha 2. It is relevant in this connection to note that this decision relied on by Mr. Sarvabauman as well as the decision of the Privy Council in Varada Pillai v. Jeevarathnammal1 relate to mortgages. In the instant case, it is the transaction of a sale, which is evidenced by exhibit A1. It is the contention of the learned Counsel for the

Appellant herein that there has been nothing available on any one of the documents that is relied on by the Defendants to show that there has been an oral relinquishment with regard to the right, title or interest, the Plaintiff now seeking to enforce.

It is common ground that the property in question was purchased subsequent to a partition that had taken place in the joint family consisting of the Plaintiff and the Defendants. The said partition took place about 40 years prior to the coming into existence of this document, exhibit A.l. It is also common ground that the property in question is in possession of the son of the first Defendant, namely the second Defendant, who figures as D.W. 4 in the suit. As already stated, at one point of time, this D.W.4 states in his evidence in cross examination that there has been no oral relinquishment. Relying on the above said portion in his evidence, emanating from D.W.4, the learned Counsel for the Appellant states that there has been no point made out with respect to an oral relinquishment and what is more he submits is that as per the provisions u/s 17(1)(c) of the Registration Act, any relinquishment as a matter of fact with respect to an immovable property, whose value is more than Rs. 100 must be necessarily by a written document and the same should also be a registered one.

In this regard, the learned Counsel for the Appellant points out that relinquishment means the release of a claim or a portion of it and that there has been no relinquishment of any claim made by the Plaintiff at any point of time with respect to the property that he had purchased along with the Defendants in the instant case. The relinquishment, according to Stroud''s Judicial Dictionary of Words an Phrases fourth edition (volume IV, page 2318) is:

Relinquish:

(1) ''Relinquish'' is not a word of art, and may be satisfied by an abandonment, or non-claim (Home v. Booth 1.

(2) Property which a successor ''shall be bound to relinquish, or be deprived of (s.38 of the Succession Duty Act 1853 (c.51); See Le Merchant v. Inland Revenue Commissioners 2.

It is needless to say that relinquishment is a declaration made by a party, who is entitled to any property that he is in no way makes himself eligible for any right in the property and release in favour of another person. Admittedly here in the instant case, it is joint ownership that can be pleaded, because subsequent to a partition in a joint family, even if the brothers purchased a property out of their own, it is only (SIC) ownership that can be claimed with respect to that property and in that any right to which any one of them is entitled to that arises out of the concept of joint Hindu family property. Therefore, in the instant case, the decisions referred to by Mr. Sarvabhauman, namely, Kandaswamy Pillai v. Chinnabhal as well as the decision referred in Usman Khan v. (SIC) are applicable. As a matter of fact, the latter decision in Usman Khan v. Dasannah yet another decision in that it is held that (SIC) provided that in default of payment of the (SIC) should take possession of the mortgaged property and enjoy the (SIC) is absolute owner, and accordingly the mortgage or (SIC) the said period, and an consideration of a further payment of Rs. 250 by the mortgage, relinquished the mortgaged property to be held by the mortgagee as absolute owner said had the patta transferred to his name; and it was held there in that the possession of the mortgagee under the circumstances for over 12 years, was adverse to the mortgage or, whose right to redeem consequently became barred by limitation. In the instant case, it is relevant to state that the property in question was purchased from out of their own self-acquisitions and that it is not anybody''s case at any point of time that the suit property had been purchased from out of the joint family funds, nor can they claim it, because it is common ground that there had been partition much earlier, as already stated about 40 years prior to the transaction embedded in the document exhibit A.l. Therefore a reading of the copy of the sale deed dated 27th August 1958, executed by Parvathammal in. favour of the Plaintiff and another who is none other than the 1st Defendant for Rs. 500 clearly shows, that it is only in the capacity of co-owners that both the Plaintiff and the 1st Defendant have purchased the property in question. Therefore the relinquishment that is pleaded by the Defendants herein should necessarily be proved beyond all the reason able doubt because it is a right that is sought to be relinquished by the Plaintiff hat is sought as a ground for non-suiting the Plaintiff by, the de 3fendants in the suit. As already indicated, the evidence available on record so far as that plea put forward by the Defendants (SIC)the evidence of D.W.4 is not convincing and trust worthy. Under these circumstances, the trial Court is perfectly correct in coming to the conclusion after having analyzed the evidence in its proper perspective under the issues that it had framed. But, on the other hand, it is really not quite in consonance with the provisions of Section 17(l)c) of the Registration Act as well as Section 54 of the Transfer of Property Act, that the. lower appellate Court had come to a different conclusion which is altogether different from the concept underlying the very definition of relinquishment. In this regard, it is necessary to point out the argument of Mr. Sarvabhauman which is interested, that in the decision in Varada Pillay v. Jeevarathnammal the Privy Council has held that Where a gift is invalid as not being by a registered instrument, nevertheless the instrument might be referred to as explaining the nature and character of the possession of the alleged done and that, though the latter may have, acquired no legal title under the transactions referred to, she in fact took possession of the property when it was transferred to her name and retained such possession till her death after which date it passed to Defendant as per successor and accordingly, Plaintiff''s claim was barred by upwards of 12 years'' adverse possession.

It was also observed in Kandasamy Pillai v. Chinnabha2 by Oders j. as follows:

It seems to me that this case together with the ruling in Ariyaputhira .v. Muthukomaraswami3 lays down the correct principle to be followed, and that where it is found (as here) that the Defendant has been in possession for over 12 years as owner and that that title can be ascribed to an arrangement come to between the parties in 1885-whether it be by invalid sale or otherwise-it is now too late to disturb it and the Defendant must be taken to have acquired a good title by prescription. I should add that in my opinion the case reported in Muthukaruvpan Samlan v. Muthusambanl has now been overruled by the Privy Council in the decision reported in Varadha Pillay v. Jeevarathnammal2.

In the instant case, none of these decisions referred to by the learned Counsel for the Respondents can be taken as supporting the argument advanced by him that the oral relinquishment has to be accepted. There is absolutely no evidence both oral and documentary to substantiate the oral relinquishment pleaded by the Defendant in this Case. What is more a co-owner cannot plead adverse possession at all; but even that plea has been actually inducted in at the instance of the Defendants, which was dealt with property by the trial Court and it has held that there cannot be any adverse possession against the interested claim by a co-owner, which is the correct position of law. The point of law has bean properly appreciated by the trial court, but the same has not been properly approached by the lower appellate Court.

Under these circumstances, the decision of the trial Court is confirmed and that of the lower appellate Court is set aside. In the result, the appeal is allowed, the judgment and decree of the lower appellate Court are set aside and the suit is decreed and a preliminary decree for partition is granted as prayed for. In the circumstances, there will be no order as to costs.