BAJIRAO MADHAVRAO SUBHEDAR Vs. WAMANRAO ALIAS BHAYYASAHEB PURSHOTTAMDAS

JUDGEMENT

(1.) This is an application in revision against the order of the Second Subordinate Judge at Dharwar under Order XXII, Rule 3(1), of the Civil Procedure Code, 1908, allowing the opponent Wamanrao to proceed with suit No. 235 of 1940 filed by his cousin's widow Radhabai as her legal representative on her death. Radhabai filed that suit against the petitioner Bajirao, who was claiming to be her adopted son, for a declaration that she had not taken him in adoption and that he was not her legally adopted son. When the suit was pending, Radhabai died on June 5, 1941, and on July 16, 1941, her husband's cousin Wamanrao made an application that he was her legal representative and should be brought on record to continue the suit. The application was opposed on the ground that the defendant himself was Radhabai's legal representative as her adopted son and, therefore, the right of suit did not survive after her death, and that in any case Wamanrao could not be her legal representative unless the defendant was held not to be her adopted son.

(2.) The learned Subordinate Judge held that for the purposes of the suit Wamanrao was Radhabai's legal representative as he alone was the proper person to challenge the defendant's adoption, and allowed him to continue the suit as her legal representative.

(3.) Wamanrao was examined at Cawnpur on commission and he stated that Radhabai's husband had died in union with him and that he had succeeded to the joint family property by right of survivorship, and also that in case that contention was not upheld, he was entitled to be brought on record as he was Radhabai's heir. It is, therefore, further contended that in either case Wamanrao should not be allowed to continue the suit as he was either claiming a title superior to that of the deceased plaintiff Radhabai or his claim was inconsistent with the plaint as he was claiming that he was Radhabai's heir and not her reversioner.