Gujarat High Court rules mere waiving consent does not invalidate women's Property rights

By: WE Staff | Wednesday, 14 July 2021

The Gujarat high court has ruled in an important decision that a mere consent affidavit by a sister waiving her rights to ancestral property cannot be treated as a relinquishment deed, and her right to a share in the ancestral property is not extinguished.

If her name is excluded without following the procedure outlined in Section 135D of the Gujarat Land Revenue Code, a woman can claim a share and challenge the mutation entry in the ancestral property. A simple consent affidavit waiving her rights in favour of her brothers is insufficient to terminate her property rights.

Shihor was the subject of the case before the Supreme Court. Haji Deraiya abandoned ancestral lands. Roshan Sorathiya and Hasina Kalvatar, his daughters, signed affidavits in 2010 giving up their share. This occurred while their father was still alive. In October of 2010, the father passed away. Following that, only the names of the three sons were recorded in the revenue records, based on consent affidavits from the sisters.  The mutation entry was finalised in 2016.

After the land was transferred to three brothers in 2016, their sister, Roshan Sorathiya, approached the deputy collector to question the exclusion of her name based on an affidavit that was not a registered document. In 2017, her application to change her name was denied. In 2018, her revision application to the district collector was denied.

Roshan Sorathiya's appeal was also rejected by the revenue department's special secretary in June 2020, primarily on the basis of delay, holding that she questioned the distribution of the property more than six years after it was done on the basis of her relinquishment deed.

Sorathiya went to the High Court and challenged the revenue department's decision not to consider her name for a share based on her affidavit. Her lawyer argued that such consent could not be construed as a relinquishment deed.

It was argued that the woman's consent was not obtained in accordance with the procedure outlined in Section 135D of the Code, and that the mutation entry was incorrectly confirmed in 2016.

The brothers objected to the petition, claiming that she challenged the mutation entry at a late stage.