JUDGMENT

A suit for partition was dismissed by the trial court against which the plaintiff came up.

2. The suit was dismissed mainly on the ground that she failed to prove her paternity and also waived her right over the property left out by her brother Vasudevan in view of Ext.B6 agreement and deed of transfer, the deed No.315/1995 dated 24/1/1995 (Ext.B5). Originally, the property was belonged to their father Krishnan. He was having one daughter and two sons. One of the brothers, Vasudevan passed away in the year 1999 and another brother Sivanandi passed away in the year 1984. The father and mother - Krishnan and Kunji passed away in the year 1940, hence plaintiff claims 2/3rd right over the property on the reason that 1/3rd right held by Vasudevan on his death devolved upon her being the only sister and legal heir alive at that time. The defendants 1 to 4 are the wife and children of the abovesaid Sivanandi.

3. Ext.A4 extract of birth certificate of plaintiff was produced to show her parentage. On the other hand, the defendants relied on the statement in Ext.B3 earlier judgment wherein the date of death of her father Krishnan was mentioned as 1.1.1104 ME, which is corresponding to the year 1928. But the date of birth of plaintiff is in the year 1939 as per Ext.A4 birth certificate. The birth certificate is having high evidentiary value regarding the parentage as well as the date of birth. It cannot be eschewed on the ground of any inconsistency with the date of death of her father shown in an earlier judgment, especially when it is a mere statement and not the subject matter of adjudication. It was admitted in the earlier suit that it was not at all an issue or disputed matter raised for adjudication and hence, the mere statement in the judgment cannot be accepted since there is possibility of mistake in the narration of the date of death of her father. The birth certificate produced as that of the plaintiff is the best evidence to show her parentage and date of birth. Hence, the trial court is not justified in rejecting the said evidence, the best evidence merely on the abovesaid unsustainable ground.

4. It is an admitted case that at the time of death of Vasudevan the only surviving legal heir is his sister, the plaintiff herein. By that time, the other brother Sivanandi passed away. Since Sivanandi pre-deceased Vasudevan, he will not get any right over the property held by Vasudevan i.e. 1/3rd right over the property. As such, the plaintiff will get the entire right held by Vasudevan over the property besides her 1/3rd right totalling 2/3rd right over the property.

5. Ext.B6 is an unregistered agreement seen executed without complying with the mandate under Section 17 of the Registration Act and hence the same cannot be treated as either a valid relinquishment deed or a release deed pertaining to immovable property. Further, Ext.B6 would stand hit by Section 6 of the Transfer of Property Act as what is held by the plaintiff was only a Spes Successionis - the chance of an heir-apparent succeeding to an estate/ the chance of a relation obtaining a legacy on the death of a kinsman.

6. Ext.B6 document cannot be construed as a document of waiver of chance of succession on account of execution of deed No.315/1995 by deceased Vasudevan simply on the reason that Ext.B6 was executed on the very same day in favour of the defendants herein. In order to bring out a case of waiver based on the doctrine of election, it must be the part of the very same transaction. In other words, the waiver or the relinquishment of chance of succession with respect to remaining property held by Vasudevan must find a place in the document of transfer itself and that transfer should be a conditional one so that the beneficiary can elect. In fact, there is nothing in the document of transfer to satisfy the said requirement. Hence, Ext.B6 agreement or the deed No.315/1995 dated 24/1/1995 (Ext.B5) will not render any assistance to the case advanced by the defen