IMPORTANT POINT
Relinquishment of one’s right in a family partition, does not require any registration under Section 17 of Registration Act, 1908.

JUDGMENT (ORAL)

The present Second Appeal is filed under Section 100 of the Code of Civil Procedure by the appellant original plaintiff against the judgment and decree dated 14.08.2019 passed by the learned 8th Additional District Judge, Vadodara in Regular Civil Appeal No.173 of 2018, dismissing the Civil Appeal and confirming the judgment and decree passed by the learned 11th Additional Senior Civil Judge, Vadodara in Regular Civil Suit No.3852 of 2015 (Old Special Civil Suit No.251 of 2007) on 18.04.2018.

2. The appellant is the original plaintiff and the respondents are the original defendants before the trial Court. For the brevity and convenience, the parties are referred to in this judgment as per the character assigned to them before the Trial Court i.e. as “Plaintiff” and “Defendants”.

3. The brief facts of the case of the plaintiff is that the father of the defendant No.1 - deceased Bhagvanbhat Mathurbhai Patel was the owner of agricultural land bearing Revenue Survey No.113/1 ad-measuring 0-91-05 H.R.A.Sq. Mtr. of old tenure land situated at Village Atladara. That the deceased was cultivating the said land by and it was in the ownership and possession of the defendant Nos.1 to 4 after the death of the father of the defendant No.1. That out of this land, the defendant No.1 decided to sell her share of undivided land ad-measuring H.R.A. 0- 22-76 (Sq. Mtr) to the plaintiff on 17.05.2007 by an Agreement to Sell. That the plaintiff had paid a sum of Rs.2 lacs to the defendant No.1 by installments and also given a cheque bearing No.412422 dated 12.05.2007 for Rs.25,000/- drawn on Bank of Baroda, Raopura Branch and has also given another cheque No. 412423 dated 16.05.2007 for Rs.25,000/- drawn on the same Bank at the time of executing the Agreement to Sell.

3.1. It is the case of the plaintiff that thereafter, the plaintiff had inquired at the office of Sub Registrar about this land and he came to know that one Sanjay Chimanbhai Patel, who is the power of attorney holder of defendant Nos.2 to 4, had executed a sale deed on 10.09.2004 in favour of the defendant No.5 - Shri Bharatbhai Parsottambhai Patel and therefore the plaintiff had applied for copy of the said sale deed. That thereafter, the plaintiff also made inquiry to the Talati and he came to know that the defendant No.2 to 4 had prepared the Pedigree after the death of deceased Bhagvanbhai Mathurbhai Patel and inserted their names but the name of the defendant No.1 was not been shown in the said Pedigree. Though the defendant No.1 got some portion of the said land by hereditary. That the defendant Nos.2 to 4 and defendant No.5 joined together and completed the procedure of selling the disputed land.

3.2. It is the case of the plaintiff that the defendant Nos.2 to 4 have no right to sell the disputed land as the defendant No.1 has share in the disputed land and her share has been sold to the plaintiff by the defendant no.1. Therefore, the plaintiff has filed a suit to separate the share of the defendant No.1 from the shares of defendant No.2 to 4 and for execution of Agreement to Sell which was entered into between the plaintiff and defendant No.1 and for possession of the peace of land thereof to the plaintiff. He has also prayed to direct the office of the Sub Registrar to take a note of the Agreement to Sell executed between him and defendant No.1 with regard to the disputed land and also for permanent injunction. The plaintiff has also prayed to pass an order directing the defendants to accept the remaining amount of sell consideration of the disputed land from the plaintiff and to separate the disputed land between defendant no.1 and defendant nos.2 to 4 and to execute the sale deed in his favour and to handover the possession of a separate land to him. The plaintiff has also prayed to appoint a Commissioner for the said purpose. The plaintiff has also sought for declaration that the defendant nos.2 to 4 have no right or to do anything to deal with the said land