JUDGMENT 1. - Ram Narain filed the suit for partition against his uncle Kishan Prasad in respect of the property bearing AMG No. 26/1351 (new) situated at Ram Bagh, Bhagwangunj, Ajmer. During the pendency of the suit, Ram Narain as well as Kishan Prasad died and their legal representatives were brought on record. For the sake of brevity and convenience, we shall refer to the parties, "the plaintiff" and "the Defendant". The suit was dismissed by the trial court vide judgment and decree dated 23.8.1992. On appeal, the Additional District Judge No. 2, Ajmer reversed the judgment and decree of the trial court and decreed plaintiff's suit on 20.3.1990. The judgment and decree of the first appellate court is impugned in this second appeal by the defendant. 2. The following substantial question of law was framed by this Court on 5.4.1991 for consideration of this appeal: "Whether Exhibit A-9 was the relinquishment deed executed by the respondent (plaintiff) in favour of the appellant (defendant)?" 3. Before I deal with the aforesaid question, the facts of the case may be briefly noticed: The brothers Jugal Kishore and Kishan Prasad purchased jointly a plot of land ad-measuring 60'x30' situated at Ram Bagh, Bhagwangung, Ajmer from one Sukh Ram through registered sale deed dated 27.11.1954. Both of them jointly constructed a single storied building over a portion of the said plot of land. Jugal Kishore expired in the year 1955 leaving behind Ram Narain as sole surviving heir. After the death of Jugal Kishore, Ram Narain (plaintiff) claims to have been in joint possession of the said house property alongwith the defendant. As the disputes between the family of the Ram Narain and Kishan Prasad erupted, the plaintiff filed the suit for partition in the Court of Munsif, Ajmer City (West), Ajmer praying for decree,of partition of the aforesaid property by metes and bounds in equal share and further delivery of half of the specific and separate share to the plaintiff. 4. The defendant contested the plaintiff's claim and filed written statement. The defence was set up by the defendant that after the death of Jugal Kishore (father of the plaintiff), the defendant maintained him and gave him education for about 8 years; the defendant was required to spend at least Rs. 80/- per month on the plaintiff. 4. The defendant contested the plaintiff's claim and filed written statement. The defence was set up by the defendant that after the death of Jugal Kishore (father of the plaintiff), the defendant maintained him and gave him education for about 8 years; the defendant was required to spend at least Rs. 80/- per month on the plaintiff. He got the plaintiff married by taking loan out of his provident fund and from others. For payment of loan, the said house was mortgaged with Urban Cooperative Bank Limited, Ajmer by the plaintiff and the defendant vide registered mortgage deed dated 7.10.1965 for a sum of Rs. 1800/-. He satisfied the said loan and redeemed the mortgaged property. Ram Narain (plaintiff) promised to pay the due amount of Rs. 2283.84/- to him but he could not. On 7.5.1971 the plaintiff agreed to give up his share in the suit property and declared Dev Dutt son of the defendant as his successor in respect of his share in the suit property. The defendant averred that since then he and his son have been in possession of the suit c house as the owners. The defendant, thus, prayed that suit for partition filed by the plaintiff was liable to be dismissed. 5. On 13.11.1975, on the basis of the pleadings of the parties, the trial court framed the following issues: (i) Whether the plaintiff and defendant are in joint possession of the suit property ? (ii) Whether the plaintiff can claim partition of the suit property? (iii) Whether the suit is under valued? (iv) Whether the defendant spent money @ Rs. 80/- per month for 8 years on education of plaintiff and took loan for his marriage and for repaying the said loan, the suit property was mortgaged with bank? (v) Whether the plaintiff agreed to give up his share in the property? (vi) Whether Ram Narain was to pay Rs. 150/- per month to defendant? (vii) Relief? 6. The plaintiff as well as the defendant led oral evidence and produced the documentary evidence. As noticed above, the original plaintiff and the original defendant died during the pendency of the suit and, therefore, their evidence could not be recorded. Plaintiff's wife Kamla appeared as PW-1 and the defendant' son Dev Dutt appeared as DW-4. The writing said to be executed by Ram Narain giving up his claim in the property was exhibited A-9. 7. As noticed above, the original plaintiff and the original defendant died during the pendency of the suit and, therefore, their evidence could not be recorded. Plaintiff's wife Kamla appeared as PW-1 and the defendant' son Dev Dutt appeared as DW-4. The writing said to be executed by Ram Narain giving up his claim in the property was exhibited A-9. 7. The trial court dismissed the suit on 23.8.1982. The appeal court reversed the said judgment and decree as already observed above. 8. The substantial question of law framed by this Court for consideration of this appeal relates to the construction of instrument (document) Exhibit A-9. I, therefore, deem it proper to reproduce the said document as it is: " edku ua0 1351 okMZ ua0 26 Hkxoku xat] vtesj dh tehau vkSj edku tks esjs fgLls dk gS viuh bPNkuqlkj nsonRr xgjokj lqiq= Jh fd'ku izlkn xgjokj ds uke rk 7-5-1971 le; jkf= ds 10 ls djrk gwWaA vc nsonRr xgjokj gh bl tehau o edku dk mRrjkf/kdkjh gSA " 9. That the said document is written on a note book paper sheet is not in dispute. That the said property is not ancestral but purchased jointly by Jugal Kishore and Kishan Prasad in the year 1954 is also not in dispute. That it is an admitted position of the parties that after the death of Jugal Kishore, D Ram Narain (original plaintiff) was his sole legal heir and inherited the share of Jugal Kishore in the property. It is pertinent to notice that the object about the admissibility of this document was raised by the plaintiff. When this document Exhibit A-9 was tendered in evidence by Dev Dutt at the time of recording of his deposition on 23.7.1981, the objection was raised by the plaintiff that the document relates to the transfer of right in the immovable property and was, therefore, compulsorily registrable and stamp duty was required to be paid and, if the document related to succession, no succession certificate has been produced. To meet the objection of the admissibility of the said document (Exhibit A-9 dated 7.5.1971), the advocate for the defendant submitted that document could be admitted in evidence as it evidences the defendant's possession and, therefore, such document is neither required to be registered nor any stamp duty was liable to be paid. To meet the objection of the admissibility of the said document (Exhibit A-9 dated 7.5.1971), the advocate for the defendant submitted that document could be admitted in evidence as it evidences the defendant's possession and, therefore, such document is neither required to be registered nor any stamp duty was liable to be paid. The Court observed that the document shall be admissible in evidence on payment of stamp duty. The defendant did pay stamp duty and this is how the document was admitted in evidence as Exhibit A-9. 10. In order to determine whether a document is release or conveyance, the precise nature of rights created by means of instrument are important. What is decisive is the actual character of the transaction. The essential ingredients of relinquishment deed (release deed) are that there should already be a legal right in the property vested in the relinquishee (releasee) and the relinquishment should operate to enlarge that right into an absolute title for the entire property as far as the parties are concerned. There can be no relinquishment (release) by one person in favour of another who is not already entitled to the property as co-owner. Where the property is owned by two co-owners each having an undivided half share in the property and one of them by a deed effaces himself in respect of his title for that part of the property and right to possession in favour of the other co-owner, the document is construed as a relinquishment deed or release deed and not a conveyance. Conversely, if by the instrument one co-owner of the property effaces himself in respect of his title in favour of some third person (i.e. a person not co-owner), such document will not be relinquishment deed (release deed) but a conveyance. 11. The relinquishment is giving of a right, claim or privilege by the person in whom it exists to the person against whom it might have been demanded or enforced. It is surrender of cause of action against whom it exists. The release deed only feed the title but cannot transfer title i.e. renouncing interest in favour of such person who had existing title or interest in the estate. However, if the renouncement of interest is in favour of a person who does not have existing title or interest in the estate, the instrument is not release but a conveyance. 12. The release deed only feed the title but cannot transfer title i.e. renouncing interest in favour of such person who had existing title or interest in the estate. However, if the renouncement of interest is in favour of a person who does not have existing title or interest in the estate, the instrument is not release but a conveyance. 12. Seen thus, what transpires from Exhibit A-9 is that the instrument is not relinquishment or release because it is not in favour of the co-owner Kishan Prasad. That Kishan Prasad was alive on 7.5.1971 when the document was executed is not in dispute. As a matter of fact what is mentioned in the instrument dated 7.5.71 is that Ram Narain willingly transfers his share in the suit property in favour of Dev Dutt with effect from 7.5.1971 at 10.00 PM and that hence-forth Dev Dutt and his family has succeeded his rights in the said property. It is true that Dev Dutt is son of Kishan Prasad but that is not material because the share is not relinquished in favour of Kishan Prasad but transferred to Dev Dutt. In whatever way the instrument dated 7.5.1971 is seen, I have no hesitation in holding that the said instrument is not relinquishment deed (release deed). Rather it is a conveyance in favour of Dev Dutt. Obviously such conveyance could only have been done by registered document or payment of adequate stamp duty. Even if it be assumed that the instrument dated 7.5.1971 was executed by Ram Narain, it cannot be held that by the said document his right in the joint property came to be extinguished. It appears that the defendant's advocate was aware of this legal position and, therefore, when the document was tendered in evidence by Dev Dutt (DW-4), in response to the objection raised by the plaintiff's advocate regarding the admissibility of the said document, he submitted that the document evidences defendant's possession and therefore, admissible to that extent. Merely because the stamp duty was paid by the defendant pursuant to the order dated 23.7.1981 in respect of the instrument dated 7.5.1971, the character of the said document is to be determined with reference to its contents; payment of stamp duty cannot alter the character of such document. Merely because the stamp duty was paid by the defendant pursuant to the order dated 23.7.1981 in respect of the instrument dated 7.5.1971, the character of the said document is to be determined with reference to its contents; payment of stamp duty cannot alter the character of such document. I have already held above that the instrument dated 7.5.1971 cannot be construed to be relinquishment deed (release deed) by the plaintiff in favour of the defendant. 13. In view of the foregoing discussion this appeal Is liable to be dismissed and is dismissed with no order as to costs.Appeal Dismissed. *******