JUDGMENT - P.C.:---The petitioner has moved this petition against the Sub-Registrar of Assurances and Joint District Registrar Controller of Stamp Duty of Documents, against the order of impounding the instrument of release presented by the petitioner for registration on the ground that those documents amounted to deed of conveyance and not the deed of release under the Bombay Stamp Act, 1958.

2. We have heard the learned Counsel for both sides. Perused the record. The facts giving rise to the dispute, in brief, are thus:---

The husband of the petitioner was owner of flat No. 53 bearing City Survey No. 3727 admeasuring 511 sq. yards situated in Kansai section, Ambernath (E), Dist. Thane, together with house constructed thereon. The husband of the petitioner died intestate leaving behind the petitioner, a son and a married daughter. The son and the married daughter are well established in life and, therefore, were not interested in the property and thus wanted release of their respective 1/3 share in favour of the petitioner in the aforesaid property.

The petitioner's son as well as daughter executed a deed of release on Rs. 100/- stamp paper as required by Art. 52 of Schedule-I of the Bombay Stamp Act, 1958 and those were lodged for registration in the office of the respondent No. 1. However, the respondent No. 1, instead of registering the document, endorsed a remark thereon that the said document is impounded. The petitioner's brother sent legal notice to the respondents calling upon them to register the document, however, respondents have not acted upon the said notice and hence the writ petition is filed seeking appropriate reliefs against the respondents.

3. The short question for our consideration is, whether the impugned documents involved in this case of which copies are annexed to this petition at Exhs. A C which are identical, amount to deed of conveyance or the deed of release. In his affidavit in reply, the respondent No. 2 has stated that the said documents are impounded by the Sub-Registrar under section 33 of the Bombay Stamp Act and the son and the daughter have relinquished their shares in favour of their mother which comes under Explanation below section 2(g) of the Bombay Stamp Act. Now, the explanation to section 2(g) of the Bombay Stamp Act reads thus-

"Explanation:---An instrument whereby a co-owner of any property transfers his, interest to another co-owner of the property and which is not an instrument of partition, shall, for the purpose of this clause, be deemed to be an instrument by which property is transferred inter vivos".

Therefore, for a transaction to assume a character of conveyance, what is necessary is, transfer of interest from one co-owner to another co-owner. As against this, the provision of Art. 52 of Schedule I of the Bombay Stamp Act stipulates that the release is that whereby person renounce a claim upon another person or against any specified property.

It is well settled law in this regard that essential ingredients of release are that from the party by a legal right in the property vested in the releasee and the release should operate to enlarge that right into a absolute title for the entire property as far as the parties are concerned. There can be no release by one person in favour of another who is not already entitled in the property as co-owner. A release deed is valid not only when it is gratuitous, as release deed can be validly executed also for some benefit accuring to the releasor simultaneously.

In this regard, the learned Counsel for the petitioner invited our attention to the ruling of Madras High Court in the case of (Chief Controlling Revenue Authority v. Rustorn Nusserwanji Patel)1, A.I.R. 1968 Mad. 159, wherein it is observed that, in order to determine whether a document is a release or conveyance, the nomenclature or the language used is not decisive. What is decisive is the actual character of the transaction and the precise nature of the rights created by me

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