JUDGMENT :- Challenge in this second appeal is to Judgment rendered by learned Second Ad-hoc Additional District Judge, Nanded, in an appeal (R.C.A. No. 132 of 2000) confirming Judgment and decree rendered by learned Joint Civil Judge (J.D.), Nanded in a suit for partition and perpetual injunction (Spl. C.S. No.375 of 1997).

2. Subject matter of the dispute is a residential house, (which will be referred hereinafter as "the suit house") bearing C.T.S.No.2931 as described in claim clause. The suit house is situated in Chikhalwadi area at Nanded. One Rajaram Ganjare owned the suit house. He died somewhere in 1991, leaving behind him a son, a daughter and a widow. Deceased defendant - Madhukar was his son, deceased plaintiff No.2 - Subhadrabai was the widow and plaintiff No.1 - Lata, who is appellant herein, is the only married daughter left by said Rajaram Ganjare. The plaintiff's marriage was performed somewhere in 197576. She resides with her husband at Mangrulpeer (District Akola).

3. At the time of death of Rajaram Ganjare. the suit house was occupied by the sole surviving male member Madhukar (defendant) being his only son and plaintiff No.2 _ Subhadrabai being his widow.

4. Appellant - Lata and her deceased mother (Subhadrabai) filed suit (Spl. C.S. No.375 of 1997) for partition and separate possession of the suit house and for perpetual injunction restraining defendant - Madhukar from alienating the suit house. They also claimed mesne profits. They asserted that deceased defendant - Madhukar and his wife alongwith their children gave ill-treatment to plaintiff No.2 - Subhadrabai. Defendant _ Madhukar refused to maintain the mother. Consequently, both of them claimed their shares and filed the suit. The suit was resisted by deceased defendant - Madhukar on the ground that the plaintiffs had relinquished their rights in the suit house in the year 1989. He asserted that deceased Rajaram had executed a Will deed dated 1.8.1989 in his favour and had bequeathed the suit house to him. He contended that the plaintiffs were not entitled to claim any partition of the suit house, which is a dwelling house of the joint Hindu family. He, therefore, sought dismissal of the suit.

5. The parties went to trial over certain issues struck below Ex .29 by the trial Court. They adduced oral and documentary evidence in support of the rival contentions. The trial Court held that relinquishment of rights by the plaintiffs was not proved. The trial Court came to the conclusion that the plaintiffs cannot claim partition of the family dwelling house in view of legal embargo enumerated in Section 23 of the Hindu Succession Act. The suit for relief of partition was, therefore, dismissed. However, injunction was clamped restraining deceased defendant - Madhukar from alienating the portion of suit house, which was in the possession of plaintiff No.2 - Subhadrabai during her lifetime.

6. In the first appellate Court. respondent No.2 - Subhash was joined as a party on the allegation that he has purchased a part of the suit house from deceased defendant - Madhukar. The first appellate Court, however, held that mere joining of respondent No.2 - Subhash in the title of the appeal memo was of no consequence without amending the pleadings. The first appellate Court noticed that no relief was sought as against the subsequent purchaser nor any ground was added in the appeal memo in this behalf. The first appellate Court also noticed that transfer of a part of the suit house in favour of respondent No.2 - Subhash was not supported by any documentary evidence nor due to such intervening change further relief was claimed by the plaintiff/appellant.

7. There are suhsequent changes, which occurred during pendency and before filing of the Second Appeal. First, original plaintiff No.2 - Subhadrabai died before filing of the second appeal and, therefore, this second appeal is only at instance of the married daughter i.e. appellant Smt. Lata alias Bhagyashri. Seco

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