Release deed in favour of elder brother - Executed in his individual capacity - not in body of family - brother can't claim half share on it

(2022) 3 MLJ 102

 LNIND 2022 MAD 453

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Present:

Hon'ble Mr. Justice N. Anand Venkatesh

S.A. No. 758 of 2016 and C.M.P. No. 14269 of 2016

7th February, 2022

B. Subramani

... Appellant

Versus

Krishnamoorthy and Others

... Respondents

Succession Laws - Partition - Relinquishment - Plaintiff filed suit for partition against his brother, on ground that he was refusing to effect partition of suit properties in line with their respective shares - Trial Court passed preliminary decree for partition and Lower Appellate Court modified share allotted by Trial Court, hence this appeal by Plaintiff - Whether Appellate Court was right in finding that relinquishment made by other sharers in favour of Plaintiff was only in his capacity as Elder brother or elder Member of family and hence Plaintiff would be entitled only for half share and balance half share would go in favour of Defendant - Whether Appellate Court properly exercised its jurisdiction while reversing finding of Trial Court in so far as allotment of share was concerned - Held, none of witnesses stated in their evidence that they relinquished in favour of Plaintiff only because he was elder male member- Every witness stated that they relinquished their share in favour of Plaintiff and in many of cases they had also taken some money for releasing their share - When such statement was made, it could not be interpreted by Lower Appellate Court in particular way which would defeat very purport of relinquishment made by other sharers- Those sharers never intended to give their share in favour of Defendants- Lower Appellate court by giving peculiar interpretation, had virtually taken away their share and given it in favour of Defendant and thereby held that Defendant would be entitled for half share in suit properties - Finding rendered by Lower Appellate court was perverse and opposed to oral and documentary evidence available on record - Judgment and decree of Appellate court set aside and that of Trial Court restored - Appeal allowed.

Held: None of the witnesses state in their evidence that they relinquished in favour of the Plaintiff only because he was the elder male member. Every witness categorically states that they relinquished their share in favour of the Plaintiff and

MLJ-07-04-2022

Thank you

MLJ