JUDGMENT The following substantial questions of law were raised at the time of admission on 18-10-2000: 2. Whether the Appellate Court was justified in reversing the judgment and decree of the Trial Court dismissing the suit on the ground that the sisters of the appellant were not made as parties even though when the plaintiffs stated that they had relinquished their rights over the properties? 3. Similarly, whether the Appellate Court was justified in holding that Shankaravva was not made as a party to this suit even though she failed to respond to the Court summons? 2. The suit was filed by the plaintiff seeking for 1/3rd share and separate possession in respect of the suit properties except Sy. No. 32/1+2 of Dhanakshirur Village and to declare that the plaintiff is entitled to half share in Sy. No. 32/1+2 of the said village by effecting partition by metes and bounds. 3. One Shankarappa was the propositus who had three sons and two daughters. One of the sons - Basappa filed a suit for partition impleading his brothers Bhimmappa and Mahagundappa as the defendants. Shankaravva and Sangavva are the sisters of the plaintiff. Since Sangavva was dead, she was not made a party. According to the plaintiff, originally a suit was filed by the plaintiff in O.S. No. 48 of 1982 before the Munsiff, Badami. During pendency of the said suit, Basappa died and his legal representatives were brought on record. On the point of pecuniary jurisdiction, the plaint was returned and resubmitted before the Civil Judge, Bagalkot. In that suit, Shankaravva was arrayed as a party but, after return of the plaint and after the death of Basappa during pendency of the suit, Shankaravva was not made a party. Further, by way of amendment, Shankaravva was impleaded as 3rd defendant. In the meanwhile, Shankaravva had relinquished her interest in the suit property in favour of deceased Basappa and the defendants jointly before the Munsiff Court at Badami. Stating that Shankaravva was not a necessary party, a suit was filed against the other defendants claiming 1/3rd share. 4. The suit was resisted by the 2nd defendant on the ground of nonjoinder of necessary parties and also that all properties are not stated in the plaint. In the suit properties, according to the 2nd defendant, 3.00 acres of land in Sy. 4. The suit was resisted by the 2nd defendant on the ground of nonjoinder of necessary parties and also that all properties are not stated in the plaint. In the suit properties, according to the 2nd defendant, 3.00 acres of land in Sy. No. 32/1+2 is in possession of the 2nd defendant as an exclusive tenant. He had filed Form 7 in respect of this land and thus he is the tenant in possession of the land. Written statement was also filed stating that two more properties in Sy. Nos. 96/3 and 96/5 situate at Dhanakshirur have not been included and so also the house properties in VPC Nos. 139, 140 and 141 situate in the same village at Badami are not included. Based on the pleadings, as many as seven issues were raised. After trial and after hearing the parties, the suit of the plaintiff was decreed declaring that plaintiff is entitled to 1/3rd share with separate possession in respect of the suit schedule properties excepting property in Sy. No. 32/1+2 of Dhanakshirur Village and also half share with separate possession in Sy. No. 32/1+2. Being aggrieved by the same, 2nd defendant preferred an appeal before the I Additional Civil Judge, Bagalkot in R.A. No.2 of 1998. The lower Appellate Court while answering the points raised for determination as to whether the suit is not maintainable for non-joinder of necessary parties, has come to the conclusion that the suit is bad for non-joinder of necessary party i.e., Shankaravva who was not impleaded as a necessary party. Being aggrieved by the same, this second appeal is filed by the plaintiff. 5. Heard the Counsel for the respective parties. 6. It is the submission of the learned Counsel for the appellants that the Trial Court having examined the matter in detail and also on the ground that after issuance of notice to Shankaravva, she was also impleaded as 3rd defendant and she had also relinquished her right in favour of the joint family and the said relinquishment by way of waiver does not require any registration, had decreed the suit of the plaintiff. It was further contended that the Trial Court having held that Shankaravva was not a necessary party, has rightly ordered for 1/3rd and half share respectively. It was further contended that the Trial Court having held that Shankaravva was not a necessary party, has rightly ordered for 1/3rd and half share respectively. It is further contended that insofar as tenancy is concerned, it is a joint tenancy in favour of the family and the plaintiff as well as the 2nd defendant are jointly entitled for the suit lands and that there is no error or illegality in the order passed by the Trial Court. But, the lower Appellate Court, primarily on the ground that Shankaravva was not impleaded as a necessary party, has proceeded to pass an order which is erroneous. 7. Per contra, learned Counsel for the respondent contended that the grant of tenancy in respect of the suit land ought not to have been treated as a tenancy in favour of the family and there is also a discussion by the Trial Court in this regard and that the relinquishment deed, the value of which was more than Rs. 100/- ought to have been registered and when it is an unregistered document, Shankaravva necessarily ought to have been made a party and since it has not been done so, the relinquishment deed does not bind the parties. 8. It is seen that the Trial Court while considering the tenanted land in Sy. No. 32/1+2 and also while considering whether the 2nd defendant is entitled to it as an exclusive tenant and occupant of the Western side of 3 acres of land in Sy. No. 32/1+2, has observed that Sy. No. 32/1+2 measuring about 5.10 acres was a tenanted land and deceased Basappa the original plaintiff and the 2nd defendant were cultivating the said land as tenants and accordingly, the Land Tribunal, Badami conferred occupancy rights on both the plaintiff and 2nd defendant in respect of the 3 acres of land on the western side. No. 32/1+2 measuring about 5.10 acres was a tenanted land and deceased Basappa the original plaintiff and the 2nd defendant were cultivating the said land as tenants and accordingly, the Land Tribunal, Badami conferred occupancy rights on both the plaintiff and 2nd defendant in respect of the 3 acres of land on the western side. The Trial Court, on the basis of the evidence let in and also considering the rival contentions of the parties and also referring to the decision in Mudakappa v. Rudrappa and Others and also Section 133 of the Karnataka Land Reforms Act, 1961, has held that the Tribunal has discussed the aspect as to the right of the family members whether it is a joint holding on behalf of the family or individual holding and has come to the right conclusion confirming the finding of the Land Tribunal while discarding the contention of the defendant that he alone is entitled for the tenanted land. The above aspect has been dealt in incidentally to ascertain the legal position as to whether the defendant would be entitled to a right in the suit property exclusively or it has to be shared between himself and the plaintiff. 9. Further, it is noticed insofar as the order of Land Tribunal is concerned regarding division of the tenanted land between the plaintiff and the defendant in Sy. No. 32/1+2 to the extent of 3 acres, it is the evidence of the plaintiff that he was also cultivating the said land along with the 2nd defendant. The defendant was said to be cultivating the land since 40-50 years and there is no partition in the family to show that he was one of the member of the joint family although Form 7 was filed by him individually. Under the Karnataka Land Reforms Act, as per Explanation 2 to the definition of the words 'To cultivate personally in case of a joint family, a land shall be deemed to be cultivated personally, if it is cultivated by any member of such family. The said explanation clearly indicates that though the 2nd defendant claimed that he was cultivating the land in his individual capacity, it enures that the benefit of the family. The said explanation clearly indicates that though the 2nd defendant claimed that he was cultivating the land in his individual capacity, it enures that the benefit of the family. Since it is the case of the defendant that he was cultivating the tenanted land since more than 40-50 years at a undisputed point of time and also at that time there was no partition effected in the family, the lower Appellate Court simply stating that there is supporting evidence in favour of the defendant that he was cultivating the suit property and ignoring the fact that there was no partition in the family and the property was held in favour of all the members of the family, has reversed the finding of the Trial Court. 10. While answering issue 5, the Trial Court has noted that Shankaravva relinquished her right in the suit property and not only that, even after issuance of summons to her, she did not appear before the Court. Accepting the contention of the plaintiff, the Trial Court has held that Shankaravva who was also impleaded as 3rd defendant has not been subsequently impleaded, and such non-appearance or nonimpleading will not in any way affect the suit. If any such relinquishment is by one of the members of the family by way of a waiver and when such waiver is by one of the party to the partition giving up her right, necessarily such waiver amounts to not claiming a right rather than usurping. Under such circumstances, the very conduct of the party in relinquishing her right in the form of waiver does not amount to transfer. In that view of the matter, the relinquishment deed is not compulsorily registerable. As such, when she has not been impleaded, the suit is not to be treated as bad for non-joinder of necessary parties in the factual circumstance of the case. In a similar situation, the Apex Court in the case of Roshan Singh and Others v. Zile Singh and Others has held that such an arrangement not necessarily has to be registered. The finding of the lower Appellate Court on this point is erroneous and as such, it requires to be interfered with. Hence, the 1st substantial question of law raised has to be answered in favour of the appellants. 11. The finding of the lower Appellate Court on this point is erroneous and as such, it requires to be interfered with. Hence, the 1st substantial question of law raised has to be answered in favour of the appellants. 11. Apart from that, as can be seen from the records, notice was ordered in the suit filed to Shankaravva and when she did not respond to the said notice, the lower Appellate Court could have held that issuance of notice to one of the defendants although she was impleaded subsequently, was sufficient for the purpose and she would come and appear in the continuation proceedings that too when she had knowledge of the suit. Might be on the ground that having given up her right, she did not appear before Court. The lower Appellate Court on technicality could not have reversed the finding of the Trial Court. The reasoning given by the lower Appellate Court in that regard cannot be sustained. 12. For the foregoing reasons, while answering the substantial questions of law raised in favour of the appellant-plaintiff, the finding of the lower Appellate Court has to be set aside. In the result, the appeal is allowed. The judgment and decree of the lower Appellate Court is set aside while confirming the judgment and decree of the Trial Court. Parties to bear their own costs.