RAGHUNATH SHANKAR DIKSHIT Vs. LAKSHMIBAI HARI WARE

JUDGEMENT

(1.) This is an appeal from the appellate decree passed by the District Judge, Nasik, confirming the order of the Subordinate Judge at Nasik in Regular Darkhast No. 247 of 1930 of the last Court.

(2.) In the suit Dwarkabai kom Govinda claimed that her husband had been adopted by the widow of Ramkrishna Gopal Bhat Ware, to whom two-thirds of the property in suit had belonged. The defendants compromised the claim by recognising her husband's title as the adopted son of Ramkrishna and allowed her a half share in the suit property and rents from 1923 to 1927 and in the rents for future years until equitable partition of the property. Thereupon a compromise decree was passed in those terms on September 10, 1927. She made no attempt to execute the decree and in the same year became a convert to Muhammadanism, and she married a Muhammadan in 1928. Thereafter the present darkhast was filed by Lakshmlibai widow of Hari Gopat Ware, who is Dwarkabai's first husband's uncle's widow and who claims to be Govinda's reversioner. She claims that on Dwarkabai's remarriage after conversion she is entitled to inherit Govinda's property under the provisions-of Section 2 of Act XV of 1856.

(3.) A small portion of the property in suit having been acquired by the Municipality of Nasik after the decree, the said Municipality was joined as a co- opponent, and it opposed the darkhast. The darkhast was not contested by- defendant No. 2, who is a brother of defendant No. 1, and it was proceeded with ex parte against him. The appellants (original defendants Nos. 1 and 2) are grandsons of one Rangu, who was a brother of Godu, mother of Govinda's adoptive father Ramkrishna, Lakshmibai being the widow of Hari, Ramkrishna's brother. The following three contentions of the appellants raised in the lower Courts were not pressed in this appeal :-(1) that Govinda was not proved to be Ramkrishna's adopted son, (2) that even if he was, the next reversioner of Govinda would be Radhabai, his father's sister and not his uncle's widow Lakshmibai, and (3) that Radhabai having obtained an. heirship certificate and having assigned all her rights to the appellants, Lakshmibai is not entitled to execute the decree against the appellants. As regards the first of these contentions the learned District Judge has rightly held that the appellants who accepted the position in the suit that Govinda was Ramkrishna's adopted son cannot now go behind that position ; and the second position is concluded by the decision in Pranjivan Hargovan V/s. Bai Bhikhi (1921) I.L.R. 45 Bom. 1247, as held by the learned District Judge. Prima facie, therefore, if Dwarkabai ceased to represent her husband's estate on her conversion and remarriage, Lakshmibai would be entitled to execute her decree under Order XXI, Rule 16, as the decree would be transferred " by operation of law " to Lakshmibai.