LAXMIBAI GANPATRAO MAHAJAN Vs. RADHABAI KRISHNAJI MAHAJAN

JUDGEMENT

(1.) The plaintiff-appellant brought this suit for a declaration that the decree obtained by defendant-respondent No. 1 in Special Suit No. 581 of 1923 was not executable against the properties in suit and for a permanent injunction restraining defendant No. 1 from proceeding with the execution of an award decree obtained by her against the said properties.

(2.) The parties to the suit were related in the following manner :- Krishnaji died in 1920. In the same year defendant No. 3 filed Suit No. 453 of 1920 against defendant No. 1. and others for accounts. In 1923 defendant No. 1 adopted her natural brother, defendant No. 2, and in the same year defendant No. 2 filed Suit No. 581 of 1923 for partition. The matters in dispute in both these suits were referred to arbitration, and on October 31, 1927, an award decree was made by which the adoption of defendant No. 2 by defendant 1 was declared invalid, and defendant No. 1 was given a decree for maintenance at the rate of Rs. 500 per year in respect of which a charge was created on the properties in suit. It was also found, on accounts being taken, that Rs. 5,000 were due from defendant No. 1's father to defendant No. 3. Thereafter defendant No. 2 was again adopted by defendant No. 1 in the year 1933 after which defendant No. 2 filed Suit No. 102 of 1933 for partition against defendants Nos. 1 and 3 and others. This suit was decided on April 24, 1937; defendant No. 2's adoption was held valid, but the suit was dis- missed because the Court found that defendant No. 2 was in possession of property of more value than his half share in the family property. The plaintiff filed Suit No. 205 of 1933 against defendant No. 3, her son, for maintenance and obtained an award decree in respect of which a charge was created on the properties in suit. Thereafter in execution she obtained possession of the said properties. After this in 1937 defendant No. 1 filed a darkhast for the execution of the award decree in Suit No. 581 of 1923, and it was on account of that darkhast that the present suit was filed, the plaintiff's contention being that defendant No. 1 was not entitled to enforce the charge created in her favour on the suit properties in the said decree. Defendant No. 1 contended that as the family was still joint and as her charge was prior to that obtained by the plaintiff in the maintenance suit of 1933, she was perfectly entitled to proceed against the properties in suit in execution of her decree.

(3.) The trial Court held that the family became divided on the partition suit being filed by defendant No. 2, that neither the decree in Special Suit No. 10of 1933 nor the adoption of defendant No. 2 by defendant No. 1 extinguished the right of defendant No. 1 to recover her maintenance in terms of her decree, and that the plaintiff's decree had no priority over the charge in favour of defendant No. 1 created by the decree in Suit No. 581 of 1923. The suit was accordingly dismissed. In view of the fact that in defendant No. 2's partition suit it had been held that defendant No. 2 was in possession of pro-, perty in excess of his legitimate share and in view of the fact that, the properties in suit have remained throughout with the branch of defendant No. 3, the Court further held that the said properties, which the plaintiff has now obtained by filing a darkhast in execution of her maintenance decree, " have now assumed the character of the separate properties of defendant No. 3."