Chaturvedi, J. - (1.)THIS is a first appeal by defendant 1 directed against the judgment and decree passed on 15 -1 -1953 by Shri P. D. Gupta, Additional District Judge, Indore. The decree consists of two parts. The first part is a final decree of Rs. 1,500/ - passed in favour of the plaintiff against defendant 1. Then there is a preliminary decree declaring that in the property mentioned in Schedules A and C the plaintiff has got a moiety and the defendants 1 and 2 have got the other half share. A commissioner has been appointed for preparing a scheme for partition of the immovable properties.
(2.)THE dispute relates to the property left by one Balkrishna Rao Kunte who died on 28 -1 -44 leaving behind his widow Radha Bai and his adopted son Vasant. Vasant died on 17 -1 -48 and Radha Bai died on 9 -2 -48. The plaintiff is the daughter of Balkrishna Rao Kunte's sister, and defendants 1 and 2 are Radha Bai's real brothers. The plaintiff's case is that the parties are Maharashtrian Brahmins coming from Konkan, worshipping the Goddess of Kolahpur and have, since their migration to former Indore State, continued to observe the customs prevalent in Maharashtra so far as marriage and succession are concerned and so they are governed by the Bombay school.
Before Balkrishna Rao Kunte's death, according to the plaint, the Hindu Women's Rights to Property Act had come into force in former Indore State and according to it, Radha Bai had become owner of half of the property of Balkrishna Rao Kunte in 1944 after his death; and, when Vasant died, Radha Bai became owner of the full property. The plaintiff claims only a moiety of the property which had vested in Radha Bai according to S. 3 (2), Hindu Women's Rights to Property Act. Defendant 1 alone contested the suit and contended that the parties were governed by the Benares School and not by the Bombay School.

He further denied that Radha Bai got any share on the death of Balkrishna Rao Kunte and he claimed the whole of the property, being the nearest heir of the last male holder, Vasant. He also alleged that at the time of adoration of Vasant, Balkrishna Rao Kunte had made a will bequeathing all his property to the adopted son.

The story about the will made by Balkrishna Rao Kunte has been found to be false by the trial Court. The main witness Anna Shahtri D. W. 2 was not produced for cross -examination and defendant 1 and his sister Parbati Bai D. W. 1 and Kale D. W. 4 have not been believed by the learned Additional District Judge. If the version that the original document was given to Vasant's natural father, Fadke of Sangli, is true, surely the document could have been produced and Fadke who is said to be alive could have supported the story. I think on the evidence, as it is, the trial Court was right in discarding the story of a will having been made in favour of the adopted son.

(3.)NOW so far as the question of the school which governs the parties is concerned the evidence of Yeswant Apte P. W. 1 and the plaintiff is sufficient to show that the Kuntes migrated somewhere from Maharashtra and had been residing in Indore State for the last three generations that they are Konkanastha Brahmins and speak Marathi, worship the Goddess of Kolahpur, and observe all the Maharashtrian customs in marriage and other religious ceremonies and have retained their identity as Maharashtrians.
No rebutting evidence was produced by the defendants and the appellant stated clearly that he did not know what is meant by a Maharashtrian Brahmin but that they are known as Deccani Brahmins. In my opinion, on the evidence in the case the learned District Court rightly came to the conclusion that the parties were governed by the Bombay School, and the observations in - - 'Kesheo Rao v. Sadasheo Rao', : AIR 1938 Nag 13 (A), that wherever a family is found clinging to its individuality and retaining its identity as Maharashtrian, it must be presumed until the contrary is shown that it hailed from the race or group of people known as Maharashtrians and carried the law of Maharashtra with them, fully applies to the present case.

Therefore a Maharashtrian Brahmin resident in Malwa portion of Indore State who did not adopt the customs and laws of Malwa but retained his identity is to be governed by the Bombay interpretation of Mitakshara when migration is not proved in the sense that the exact origin of the family cannot be traced.

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