Woman's right to property can't be waived off over consent affidavit: HC

The Gujarat High Court has said that a woman's right to a share in her father's property cannot be relinquished on the basis of a mere consent affidavit signed by her waiving her rights.

The court of Justice A Y Kogje allowed a plea of a woman from Bhavnagar district, challenging the decision of the district authorities to accept a consent affidavit giving up her rights in the property while refusing to include her name in the revenue records of the land.

Petitioner Roshan Deraiya and her sister Hasina had signed a consent affidavit before their father Haji Deraiya died in October 2010, giving up their share of land in favour of their three brothers, on the basis of which their names were excluded from the revenue records.

When the land was transferred in the name of the petitioner's brothers after their father's death, she approached the deputy collector questioning the exclusion of her name on the basis of the consent affidavit that she had signed when her father was alive.

The petitioner's application to mutate her name was rejected by both the deputy collector and the collector. The revenue department also rejected her appeal in June 2020 on the grounds of delay.

Even after the death of the father, the petitioner's right on account of the succession for her share in her father's share of the land was required to be examined, the court said in the order, which was made available on Monday.

The consent affidavit could not be treated to have extinguished the right of the petitioner in the share of the father after his death. The order of the deputy collector is therefore faulted on the ground of not considering the relevant material," the court said.

Even if the affidavit in question is to be used as the basis of relinquishment, it has to be established by "cogent evidence", the court said.

The petitioner had told the court that the authorities accepted the relinquishment deed in question despite her objection, and distributed the land belonging to her father among her three brothers without her consent or approval.

When she approached the revenue department, it cited delay, saying the petitioner was raking up a stale claim six years after her father's death.