Venku Bai vs Raji Bai alias Rajeswaramma and Others

Pandu Ranga Rao, J.—The appellant herein filed the suit for partition and separate possession of her 1/4th share in the plaint schedule house situated in Nizamabad town (hereinafter referred to as (the suit property). The suit was decreed by the learned Additional District Munsif, Nizamabad. But on an appeal preferred by defendants 3 and 4, the learned District Judge, Nizamabad allowed the appeal and set aside the decree. Aggrieved by the said decision the plaintiff preferred the above second appeal.

Admittedly the suit property belongs to one Samba Shastry. He had four sons by name Narasimha Sastry, Ram Shastry, Vittal Shastry and Rajeshwar Shastry, all the four sons died leaving their respective heirs. The plaintiff is the widow of Rajeshwar Shastry and the defendants are the heirs of the other three brothers of whom defendants 3 and 4 are the wife and son respectively of Vittal Shastry.

The Learned Counsel for the appellant argued that the trial court has found that the suit property constitutes the joint family property of the plaintiff and defendants; that the husband of the plaintiff and the husband of the 5th defendant have not relinquished their right during their life time over the suit property; that the plaintiff''s husband and the husband of the 3rd defendant did not go in illatom adoption 50 years ago; that the defendants have failed to establish the construction of the suit house by them or that the joint family funds were utilized for the construction and that the plaintiff has a share in the suit property; that the lower appellate court has taken all irrelevant considerations in reversing the findings of the trial court that the lower appellate court placed reliance on the shares claimed in the notices and the delay in issuing the notices; that so long as the suit is filed within the period of limitation, that cannot be taken as a ground to non-suit the plaintiff, that the plaintiff''s husband has contributed to the tune of Rs. 10,000/ - or Rs. 15,000/ - for effecting repairs of the suit property; that even otherwise he does not forego his share in the joint family property; that the burden is on the defendants to prove the relinquishment and that in the absence of relinquishment deed, the learned appellate Judge has committed an error in inferring relinquishment from the circumstances.

The Learned Counsel for the respondents, on the other hand, argued that after the death of Samba Shastry the husband of the 3rd defendant and the father of defendants 1 and 2 alone were residing in the suit premises; that DWs.5 and 7 deposed to the relinquishment; that the lower appellate court found as a fact that there was a relinquishment; that when one of the sharers relinquishes his share in favour of other coparceners, no need is necessary: that each coparcener has only joint interest in the property and that the relinquishment of share of one of the coparceners does not involve transfer of property.

The substantial question of law on which the second appeal was admitted is whether a relinquishment can be inferred from the circumstances and whether without registration it is valid and binding. The Learned Counsel for the appellant did not press the second part stating that there are decisions on either side. The only question therefore, that arises for consideration in the second appeal is whether relinquishment of the share of a coparcener in the joint family property must be evidenced by a document in writing or whether it can be inferred from circumstances.

Section 5 of the Transfer of Property Act defines "transfer of property" as an act by which a living person "conveys" property, in present or in future, to one or more other living persons or to himself. Therefore the performance of an act by a person will operate as a transfer of property only if by such an act he "conveys" property to another. It implies that the person conveying the property is entitled to the property sought to be conveyed and is conveying it to a person who has no title to such property otherwise. The crucial test therefore that determines whether a transaction amounts to conveyance of property is whether the same is in favour of a person who has no title to the property which is the subject matter of the transaction.

In Ramman Singh v. Dilla Singh AIR 1929 Oudh 334 it is held that a "transfer" in law must be deemed to imply a transfer by a person entitled to that property in favour of a person having no title otherwise. It is held in Sayahman v. Sayahla AIR 1935 Ran 449 that the appropriate form of conveyance whereby one joint tenant relinquishes his interest in favour of another joint tenant is a release, and not a sale or a gift and that it operates rather as an extinguishment of a right than as a conveyance. His Lordship held that under the Transfer of Property Act, a release by parole is a perfectly valid transaction. In coming to that conclusion the decision of a Division Bench of Madras High Court in Munuswami Mudaliar and Others Vs. Govindaraja Chettiar and Another, is followed wherein it is held that where the contract to release is not between the mortgagor and a mortgagee, but between a mortgagee and a stranger the Transfer of Property Act does not apply and that there may be an oral release of the property purchased from the mortgagee.

A Division Bench of Patna High Court in Jatru Pahan and Another Vs. Mahathma Ambikajit Prasad and Another, held that a transfer of property clearly contemplates that the transferor has interest in the property, which is sought to be conveyed but the transferee has no such interest in such property. Their Lordships further held that a partition converts joint enjoyment into enjoyment into in severalty and as such it is neither a conveyance nor a gift. The essence of coparcenary under the Mitakshara Law is unity of ownership and the ownership of the coparcenary property is in the whole body of coparceners. No coparcener is entitled to any special interest in the coparcenary property nor is he entitled to exclusive possession of any part of the property. There is community of interest and unity of possession between all the members of the family.

That being the concept of a coparcener under Mitakshara Law, it cannot be said that the plaintiff''s husband and an exclusive title to be conveyed and that the persons in whose favour he had relinquished his rights had no title to such property otherwise. Following the decisions referred to above, I hold that as the plaintiff''s husband had no exclusive right and title to the suit property, there is no conveyance in favour of the other sharers by the act of his relinquishment. It does not amount to be a transfer of property requiring the execution of a document and registration thereof.

The learned appellate Judge after discussing the evidence and on a consideration of the discrepancies in the evidence of PWs.1 to 3 enumerated the various circumstances in paragraph 11 of his judgment and arrived at the conclusion that there is an oral release by the plaintiff''s husband. In addition, DWs.5 and 7 have deposed to the relinquishment and the learned appellate Judge found'' as a fact that there was relinquishment.

It is a pure question of fact based upon the evidence and cannot be interfered with by this Court in the Second appeal.

From the above discussion I hold that the relinquishment of the share of a coparcener in the joint family property need not be evidenced by a document in writing and that it can be inferred even from the circumstances as such an act does not amount to a conveyance of property. The second appeal is, therefore, dismissed with costs confirming the judgment and decree of the learned District Judge, Nizamabad in, A.S. No. 47/79.