VENKU BAI Vs. RAJU BHAI

JUDGEMENT

(1.) The appellant herein filed the suit for partition and separate possession of her share in the plaint schedule house situated in Nizamabad town (hereinafter referred to as 'the suit property'). The suit was decreed by the learned Additional District Munsif, Nizamabad. But on an appeal preferred by defendants 3 & 4, the learned District Judge, Nizamabad allowed the appeal and set aside the decree. Aggrieved by the said decision the plaintiff preferred the above Second Appeal.

(2.) Admittedly the suit property belongs to one Samba Shastry. He had four sons by name Narasimha Sastry, Ram Shastry, Vittal Shastry and Rajeshwar Shastry. All the four sons died leaving their respective heirs. The plaintiff is the widow of Rajeshwar Shastry and the defendants are the heirs of the other three brothers of whom defendants 3 & 4 are the wife and son respectively of Vittal Shastry.

(3.) The learned counsel for the appellant argued that the trial Court has found that the suit property constitutes the joint family property of the plaintiff and defendants ; that the husband of the plaintiff and the husband of the 5th defendant have not relinquished their right during their life time over the suit property ; that the plaintiff's husband and the husband of the 3rd defendant did not go in illatom adoption 50 years ago; that the defendants nave failed to establish the construction of the suit house by them or that the joint family funds were utilised for the construction and that the plaintiff has a share in the suit property ; that the lower appellate court has taken all irrelevant considerations in reversing the findings of the trial Court; that the lower appellate Court placed reliance on the shares claimed in the notices and the delay in issuing the notices ; that so long as the suit is filed within the period of limitation, that cannot be taken as a ground to nonsuit the plaintiff, that the plaintiff's husband has contributed to the tune of Rs. 10,000/-. or Rs. 15,000/- for effecting repairs to the suit property : that even otherwise he does not forego his share in the joint family property ; that the burden is on the defendants to prove the relinquishment and that in the absence of relinquishment deed, the learned appellate Judge has committed an error in inferring relinquishment from the circumstances.