JUDGMENT Jwala Prasad, J.
1. This is an appeal against the decision of the Subordinata Judge, Gaya, datedthe.30th June, 1922, dismissing the plaintiffs' suit.
2. The following genealogy taken from the pleadings and the evidence is not disputed-
__________________________________________________________________________________________ | | | | | Rai Hemnath Patni Mal Kunjbehari Lal, Rai Bishunath Singh Raghunath Singh, (died (died (died (died on 3rd Chait Singh, (died January, 1805 Childless.) Childless.) 1213 F.S.=17th in September =Magh 1212 F.S.) March, 1806), married 1793 married to Dularo to Musammat Gharbharo, Kuer) who died on 13th Baisakh 1216 | F.S. | Daughter Nand Kuer= | | Choa Lal Mahadeo Dutt | | | | | Tek Chand. | | | | | | | | | | | | _______________________________________________ | | | __________________________________________________________________ | | | | | | Mohan Lal. Sohan Lal Tiloke Chand Jagarnath Sahai | | | | Bahoran Lal. Mannan Lal. ____________________________________ | _________________________________________________________________________ | | | Rai Newazi Lal alias Babu Dharam Lal B. Ridhnath Singh Damodar Prasad, died alias Bhinak Lal, alias Ghina Lal on 24th Asin F.S.= (died in 1845) =Khir Kuer 1-10-1835, (Married | Sone Kuer). | Babu Jaswant Lal=Kamal Kuer | (died on 11th Jeth Sani 1284 | F.S.=7-6-1877) | | | _______________________________________________ | | | | | | B. Udit B. Ramnarain B. Lachmi B. Shri Narain Narain Singh (died Narain Singh Singh (died) Singh on Ist Asin (died on 7th | (died.) 1304 F.S.=1897.Asarh 1311= Rai Hari Prasad 1904) (Married Lal, (defendant.) Sohawan Kuer, (died). | | B. Somar Singh, (died 26th April 1889=Baisakh 1296 F.S. | B. Shiva Sahai Lal, (plaintiff) died during pendency of the suit | __________________________________________________________________________________________ | | | | | | | Daughter= Girwardhari Nath Sahai Permeshwar Ishwari Prasad, Bhagwan Krishna B. Saraj Lal, (died (died 4th Dayal, (died (Plaintiff No. 1 Charan Kumar, Narain 10th Bhado Sawan 1307) 3rd Chait | (plaintiff (plaintiff Prasad 1312 Fasli) F.S.) Daughter Rukmini No. 2.) No. 3, died | | Kuer. during the __________ | Shyam Sunder suit.) | | | Prasad alias Gopal, Daug- Daugh- | plaintiff No. 4. ter= ter | Jag- Kailash | pati Pati Na-| Nar- rain Pr-| ain. asad. | | ___________________________________________ | | Daughter=Kali Prasad Daughter=Alakhodeo Narain.
3. The dispute in this appeal relates to the property of one Rai Hemnath Singh. He died in March, 1212, Fasli (January. 1805), leaving his widow Dularo Kuar and a daughter Nand Kuar who was married to one Choa Lal. Nand Kuar had three sons Newazi Lal , Dharam Lal , and Ridhnath. The plaintiffs are the descendants of Dharam Lal. The defendant is the descendant of Ridhnath. Newazi Lal had no issue. The plaintiffs' case is that the three brothers Newazi Lal , Dharam Lal and Ridhnath succeeded to the properties of Hemnath Singh, being his daughter's sons, and remained in joint possession of the same as members of a joint Mitakshara Hindu family, that by an arrangement set forth in an ekrarnama (Ex. 1), dated the 14th November, 1811, entered into amongst the aforesaid three brothers, Newazi Lal was to remain in possession of the joint family properties during his lifetime and after his death Ridhnath, the ancestor of the defendant, and his descendants, were to remain in possession on behalf of the other members of the family, whereas Dharam Lal and his heirs were to receive allowances with rights in certain circumstances set forth in the ekrarnama to have the family properties partitioned that in-accordance with this arrangement after the death of Newazi Lal , who had no issue, Ridhnath came into possession of the properties on behalf of all the members of the family including Dharam Lal and his descendants; that the defendant is now in possession of the family properties on behalf of himself and the plaintiffs who are descendants of Dharam Lal , and that he (the defendant) has been of late mismanaging the properties, has incurred heavy debts and has stopped payment of allowances to the plaintiffs and thus the plaintiffs are entitled to have the properties partitioned.
4. Accordingly, the plaintiffs pray (1) for a partition of the family properties claiming 8 annas share therein, (2) in the alternative for delivery of possession of properties representing their moiety share in case they are found to be out of possession and (3) in the event of their not getting the aforesaid reliefs, for payment of maintenance allowance to them at the rate of Rs. 21 per diem from Kartik, 1326, Fasli declaring the same to be the first charge on the estate.
5. The defendant resists the claim of the plaintiffs. He denies that the three brothers Newazi Lal, Dharam Lal (ancestor of the plaintiffs) and Ridhnath (ancestor of the defendant) succeeded to the properties of their maternal grandfather Hemnath Singh and remained in joint possession of the same 'as members of a joint Mitakshara family. He says that the ordinary succession by inheritance to the properties of their grandfather was intercepted by the adoption of Newazi Lal , one of the brothers, by Hemnath and that Newazi Lal succeeded to the properties as an adopted son and having no male issue he adopted his youngest brother Ridhnath, ancestor of the defendant. Thus, the defendant says that the properties Game to be held by Ridhnath not as a grandson of Hemnath but as an adopted son of his brother Newazi Lal and the succession, to the properties has accordingly been in the line of Ridhnath, and thus the properties have now come to the defendant in the ordinary course as the sole direct male descendant of Ridhnath; and that Dharam Lal , the ancestor of the plaintiffs, did. not succeed to the properties nor had he any share therein and consequently the plaintiffs have no share or interest in the properties. He also denies the genuineness of the ekrarnama (Ex. 1) set up by the plaintiffs as having been executed by the aforesaid three brothers and its binding effect on him. Accordingly, he says that the plaintiffs have no right to partition the properties in suit or to obtain maintenance allowance. He says that the plaintiffs and their ancestors were servants of the estate and received salaries and occasional help, that Sheo Sahay Lal , who was originally plaintiff and died during the pendency of the suit, was dismissed from service and is no longer entitled to receive any salary or maintenance. The defendant asserts that the plaintiffs or their ancestors have never been in possession of the properties and that the suit is barred by limitation.
6. The plaintiffs deny the adoption of Newazi Lal by Hemnath and that of Ridhnath by Newazi Lal set up by the defend" ant and the validity thereof.
7. Upon these contentions, the learned Subordinate Judge framed amongst others issues Nos. 9 and 10. Issue No. 9 relates to the adoption of Newazi Lal by Hemnath and issue No. 10 relates to the adoption of Ridhnath by Newazi Lal.
8. The learned Subordinate Judge has decided both these issues against the plaintiffs and his decision is challenged in this appeal.
9. The plaintiffs deny the adoptions and say that even if the adoptions did take place they were wholly invalid. It is urged that the adoption of Newazi Lal by Hemnath was invalid, inasmuch as Newazi Lal being the daughter's son of Hemnath was not capable of being taken in adoption by the latter. It is not disputed and in fact it has been settled by the authority of the highest judicial tribunal that an adoption of a daughter's son, sister's son and mother's sister's son being expressly forbidden by the texts on Hindu Law, is contrary to law and void in the three regenerate classes, Brahmin, Kshatriya and Vaisya, and the principle a factum valet will not validate such an adoption vide the Privy Council decision in Bhagwan Singh v. Bhagwan Singh 21 A. 412 : 1 Bom. L.R. 311 : 3 C.W.N. 454 : 26 I.A. 153 : 7 Sar. P.C.J. 474 : 9 Ind. Dec. (N.S.) 971 (P.C.).
10. The parties in this case are Kayasthas of Gaya District in Bihar. The learned Subordinate Judge holds them to be Sudra, upon the ground that according to the decision in Raj Coomar Lall v. Bissessur Dyal 10 C. 688 : 8 Ind. Jur. 621 : 5 Ind. Dec. (N.S.) 462 the Bihari Kayasthas as a class are Sudra, though he says that much stress was Lal upon the evidence adduced in that case and that in this case no evidence was given by the parties. The decision in that case was based upon a passage in the Vyavastha Darpana of Shyama Charan Sarcar where it is stated that the Kayasthas were Kshatriyas but they, at least those of Bengal, have been degraded to Sudradom by using after their proper names the surname "Das" instead of their own Kshtriya epithet "Varma" and also by omitting to perform the Upanayana ceremony. Some recent decisions of the Calcutta High Court have held that so far as the province of Bengal is concerned the Kayasthas are Sudra Asita Mohan Ghose Moulik v. Nirode Mohan Ghose Moulik 35 Ind. Cas. 127 : 20 C.W.N. 901; Biswanath Das Ghose v. Sarosibala 66 Ind. Cas. 590 : 25 C.W.N. 639 : 48 C. 926 and Bhola Nath Mitter v. Emperor 81 Ind. Cas. 709 : 28 C.W.N. 323 : 51 C. 488 : A.L.R. 1924 Cal. 616 : 25 Cr. L.J. 997. The last two cases have gone so far as to legalise inter-marriages between Kayasthas and Tantis, Domes in Bengal, on the ground that both of them are sub-castes Of Sudras. The matter was neither inquired into nor discussed. It was taken as settled and the only authority relied upon is the aforesaid passage in the Vyavastha Darpana referred to above. The first of these cases Asita Mohon Ghose Moulik v. Nirode Mohan Ghose Moulik 35 Ind. Gas. 127 : 20 C.W.N. 901 went to the Privy Council Asita Mohan Ghose v. Nirode Mohan Roy Ghosh Moulik 24 C.W.N. 794 : 47 I. A. 140 : (1920) M.W.N. 541 : 12 L.W. 556 : 28 M.L.T. 399 (P.C.) and their Lordships of the Judicial Committee refused to give assent to the decision that the Bengali Kayasthas are Sudras and left the question open in the following words:
One contention was as to the rights of succession of persons who were by caste Bengali Kayasthas. It has been found not on evidence, but following some decisions of the High Court at Calcutta, that Bengali Kayasthas are Sudras. Their Lordships do not think it necessary to decide whether or not Bengali Kayasthas are Sudras, or to decide as to the construction of a text of the Dattaka Chandrika which has been referred to by the Courts below as applicable to Bengali Kayasthas. Their Lordships are of opinion that the rights of the parties depend on the construction of the agreement upon which Kumar Narendra Chandra Roy gave his son Sailendra Mohan Qhosh to Badha Mohan Ghosh in adoption.
11. The decision referred to in the passage quoted above as the basis of the view of the Calcutta High Court is that given in the case of Raj Coomar Lall v. Bissessur Dyal 10 C. 688 : 8 Ind. Jur. 621 : 5 Ind. Deo. (N.S.) 462. The Privy Council decision does, not seem to have been referred to in the subsequent decisions of that Court.
12. Thus the Calcutta High Court decisions as to the Bengali or Bihari Kayasthas being Sudras are inconclusive and the matter has been expressly left open by their Lordships of the Judicial Committee.
13. We are in this case concerned with the decision of Raj Coomar Lal v. Bissessur Dyal 10 C. 688 : 8 Ind. Jur. 621 : 5 Ind. Deo. (N.S.) 462 relied upon by the learned Subordinate Judge for his decision that the Bihari Kayasthas are Sudras.
14. Mr. Justice Field who delivered the judge ment in that case observed as follows:
We think that the whole question has been fairly summed up in the following passage of Babu Shyama Charan Sarkar's Vyavastha Darpana: 'There is, therefore, a preponderance of authority to evince that the Kayasthas whether of Bengal or any other country, were Kshatriyas. But since several centuries past the Kayasthas (at least those of Bengal) have been degenerated and degraded to sudradom not only by using after their proper names the surname 'Dasa' peculiar to the Sudras, and giving up their own which is 'Barma' but principally by omitting to perform the regenerating ceremony, Upanayana hallowed by the gayatri.
15. According to the Vyavastha, the Kayasthas were Kshatriyas. Assuming for the sake of argument that the reasons given therein would entail degradation of a Kshatriya to sudradom, it does not say that the Kayasthas of Bihar call themselves Das or have given up the performance of Upanayana ceremony. Mr. Justice Field also does not find it as a fact that the Kayasthas of Bihar have adopted the surname Das and, as a matter of fact, the parties in that case did not bear the surname of Das. As regards the ceremony Upanayana also his finding is only that the usage of wearing sacred thread and performing certain other ceremonies of Kshatriyas amongst the Kayasthas of Bihar as a class is not uniform. He applied the Vyavastha (opinion) of Babu Shyama Charan Sarcar simply [upon the assumption that the Kayasthas of Bihar are not distinguishable from the Kayasthas of Bengal. In this view he discarded the evidence of the Pandits and the Vyavasthas of Benares to the effect that the Kayasthas of Bihar are Kshatriyas, holding that the Kayasthas of Bihar are different from those of Upper Provinces and Benares. Thus Mr. Justice Field has differentiated the Kayasthas of Bihar from those of Upper Provinces and Benares. No reason has been given nor has any evidence been quoted for this view; it has simply been assumed. With great respect to his Lordship the view is not in consonance with the actual fact.
16. The social position, religious observances, customs and manners of the Kayasthas of Bihar are the same as those of the United Provinces and Oudh. Their marriages take place in the Kayastha families of the United Provinces and they dine with each other. They do not marry in the Kayastha families of Bengal, and in fact have no concern with the Kayasthas of Bengal in matters, social or religious. The Kayasthas of Bihar like those of the United Provinces are governed by the same School of Hindu Law, namely, the Mitakshara Law of Benares, as distinguished from the Dayabhaga which governs the Bengali Jctayastnaa. Benares is looked upon as an authority in all religious and social matters by the Kayasthas of Bihar just as by the other communities of that Province. The territorial division is only for the purpose of administration. A large portion of the Shahabad and Saran Districts in Bihar was for a long time in the United Provinces, and the District of Benares was at one time in Bihar.
17. Mr. Risley of the Indian Civil Service in his book "The Tribes and Castes of Bengal", 1891 Edition, page 443, referring to the Kayasthas or Lalas of Bihar, says that they "trace their mythical parentage to Chitragupta, the scribe or recorder of Yama, the regent of the dead, and pique themselves on being wholly distinct from the Kayasthas of Bengal." and observes that " The physical characters of the Bihar Kayasthas afford some ground for the belief that they may be of tolerably pure Aryan descent."
18. Mr. W. Crooke in his book " Tribes and Castes of the North-Western Provinces and Oudh," Volume III, Edition 1896, page 185, while quoting the aforesaid passage from Risley, remarks that the Bihari Kayasthas are identical with those of the North-Western Provinces and Qudh.
19. The correctness of the Calcutta High Court decision was doubted by the Full Bench of the Allahabad High Court consisting of Sir John Edge, C.J., Straight, Brodhurst, Tyrrell and Mahmood, J. The observation of Mr. Justice Mahmood who delivered the leading judgment in Tulsi Ram v. Behari Lal 12 A. 328 : 6 Jad. Dec. (N.s.) 956 is weighty. Says his Lordship:
Notwithstanding the ruling of a Division Bench of the Calcutta High Court in Raj Commar Lall v. Bissessur Dyal 10 C. 688 : 8 Ind. Jur. 621 : 5 Ind. Deo. (N.S.) 462. I entertain considerable doubts as to the soundness of the view which seems to have been adopted by both the Courts below, that the literary caste of Kayasthas in this part of the country, to which the parties belong, falls under the category of Sudras, as understood in the division of mankind in the Institutes of Manu, or elsewhere in authoritative texts of the Hindu Law. The question is one of considerable difficulty, not only ethnologically, but also from a legal point of view, so far as the administration of the Hindu Law to this important section of the population is concerned.
20. His Lordship further observed that the Kaysthas of lower Bengal "may be distinguishable from the twelve castes of Kayasthas in Upper India, such as the Northwestern Provinces and Oadh."
21. The latter portion of the observation of his Lordship will apply to the Kayasthas of Bihar, inasmuch as they like the Kayasthas of North-Western Provinces and Oudh belong to the twelve sub-castes of Kayasthas and are descendants of the same common ancestor Chitragupta.
22. The learned Subordinate Judge to whom the judgment of Mr. Justice Mahmood was quoted felt himself bound by the Calcutta High Court decision. It seems that his attention was not drawn to the decision in the Privy Council case: Asita Mohan Ghosh v. Nirode Mohan Roy Ghosh Moulik 24 C.W.N. 794 : 47 I. A. 140 : (1920) M.W.N. 541 : 12 L.W. 556 : 28 M.L.T. 399 (P.C.) which left the point open. It is remarkable that Sir John Edge, who delivered the Privy Council judgment was a party to the Full Bench decision of the Allahabad High Court in Tulshi Ram v. Behari Lal 12 A. 328 : 6 Jad. Dec. (N.s.) 956.
23. The view taken in the Vyavastha Darpana or in the Calcutta decision based upon it has not been accepted by Hindu lawyers of eminence and authority. Referring to the recent decision of the Calcutta High Court, Golap Chandra Sastri in his "book on Hindu Law (1924), at page 143, says that it has come as a surprise to the Hindu community. Sarvadhikari in his book " the Principles of Hindu Law of Inheritance" (1923), at page 835, says that the decision is not correct and that it has given rude shock to the whole Kayastha community in Bengal. Similar is the view of Jogendra Chandra Ghosh in his book " The Principles of of Hindu Law " (1917), at page 1006. These lawyers have not accepted the view that the Kayasthas who were admittedly Kshatriyas have become Sudras, nor the view that their giving up the sacred thread or assuming the epithet of ' Das,' even if this is a fact, would cause degradation. On this point Sarvadhikari in his learned work 'The Tagore Law Lectures ' of 1880, at page 830, 1923 Edition, says :" Even the wearing of the sacred thread, the well-known badge of the regenerate classes, cannot furnish in many cases an indubitable test in this vexed question. There are many Thakurs and Banias who though they are universally recognized as members of the regenerate classes do not put on the sacred thread. The only safe rule to follow in all cases where the determination of the caste of a person is in question is to ascertain the custom and usage by which the social conduct of the person given is regulated. The remarriage of widows and equal rights and privileges of legitimate and illegitimate sons and similar customs and usages are marks by which Sudras can be distinguished."
24. The learned author in the succeeding pages 831 to 835 of the book examined the question closely with reference to the texts of Srutis, Smritis, and Puranas, judgments of subordinate Courts, authoritative gazetteers, the Durpanas of the Pandits of the Sadar Dewani Adalat, Agra, Yajnavalkya audits commentary, the Mitakshara, which governs the Kayasthas of Bihar, Northwestern Provinces and Oudh and has held that the Kayasthas belong to the regenerate class, are Kshatriyas and are by no means Sudras. He seriously questions whether the non-observance of some of the practices can permanently degrade people belonging to. a high class into a lower one and says that suppose the people of this caste again resume their former practices, as many Kayasthas in Bengal have done in recent years, what would be their status. The question in the Calcutta case, he says, was neither argued nor decided and the opinion of Shyama Charan Sarcar in his Vyavastha Darpana was regarded as decisive on the point. He says the Kayasthas of Bengal cannot be Sudras.
25. The cases relied upon by the Calcutta High Court for upholding a marriage between a Kayastha and a Sudra woman were those in which the parties were from their origin different sections of Sudra caste. Those cases should not have been applied to the Kayasthas who by their origin are Kshatriyas even if they are degraded Kshatriyas. A person belonging to a regenerate' class does not lose his right of being governed by the rules of that class though, he might be socially looked down upon.
26. As regards the Kayasthas of Northwestern Provinces and of Bombay (this will include the Bihar Kayasthas), Sarvadhikari says that they justly say that they should be governed by the same laws by which the regenerate classes are governed. Similar is the view of Golap Chandra Sarkar both in his book on Adoption and on Hindu Law. He also closely examined all the texts and authorities on Hindu Law: Vyas, Vishnu, Vrihata, Prasara, Padama, Skanda, and Bhayiahya Puranas, Yajnavalkya and Mitaksbara. He is emphatic in his opinion that the Kayasthas are Kshatriyas and that the non-observance of the ceremonies would not degenerate a higher caste into a lower one so as to affect his civil rights. He says that the caste of a person did not originally depend on heredity but on the occupation and possession of characteristic merits under the texts of Manu, but by lapse of time it has become a matter of heredity, and merit or no merit the son gets the caste of the father. By nonobservance of ceremonies no regenerate class has been degraded. If that were so, there will be no caste among the Hindus now except the Sudra, as there are very few of the regenerate classes who can say that they and their ancestors did all the duties imposed on the caste. Why then the Kayasthas of all the regenarate castes should be degraded into the category of Sudras for want of orthodoxy? He further says that it should be noted that in all other respects the Kayasthas observe the rules enjoined upon the Kshatriyas.
27. Mr. J.C. Ghosh is also of the same opinion. Referring to Vyavastha Darpana of Shyama Charan he disputes its correctness and its applicability to the Kayasthas of North-Western Provinces who have got the sacred thread. He says that the distinction of caste being based on the nature of occupations of classes the Kayasthas who are Judicial and Revenue Officers, administering the laws of the Rishis and the Vaidyas who were physicians in the Hindu times, could not be regarded as Sudras.
28. The aforesaid Hindu lawyers base their opinion upon the Sruitis Smritis and Puranas, and the social position and occupations of the Kayasthas as well as upon the custom and usages regulating the marriages and other religious rites and ceremonies. The decision of the Calcutta High Court is based solely upon the Vyavastha Darpana of Shyama Charan Sarkar. The correctness of the decision has been doubted by the Full Bench of the Allahabad High Court. The recent decision of the Privy Council left the point open. The question is important, not only ethnologically but from the legal point of view so far as the administration of the Hindu Law to this important section of the population is concerned, as observed by Mahmood, J., in the case already referred to. Hence the question needs an early solution. Its determination will materially affect the law which, will govern adoption, marriage, rights of legitimate and illegitimate children to succeed, etc., inasmuch as the Hindu Law with regard to these matters is different for the three regenerate classes and the Sudras.
29. The Smritis of the Rishis, such as, Manu, Yajnavalkya, Narada, Vyas, Vasishta, etc., have divided mankind into four castes: Brahman, Kshatriya, Vaisya and Sudra. Manu in Chapter X, Sloka 4, says that there is no fifth caste. Therefore, the Kaysthas have to be located in one of these four castes. The Mahabharata asserts that at first there was no distinction of classes, but that these have subsequently arisen out of differences of character and occupation. According to Dr. Muir (Sanskrit Text, Volume I, pages 159 onwards) "the members of every political society are divisible into four classes corresponding to the four castes of the Hindus. Those distinguished by intellectuality, learning and religion are the real leaders of the society next in importance are the royal class, the warriors on whom the protection and the very existence of the State depend, and who are characterised by physical ability, courage, administrative capacity and intelligence. Then come those concerned in production of wealth by agriculture, trade and cattle breeding or cattle tending, requiring intelligence and a lower standard of morality. And lastly the labourers serving the preceding three classes or practising the mechnical or other similar arts, distinguished by their capacity for physical labour and spirit of dependence. The virtues and qualities requisite for distinction in these occupations as well as their importance to society are taken into consideration for fixing the relative rank of the four classes and the common story of their origin is nothing more than an allegory representing society and different classes of its members, as one human body and its limbs respectively. The fact that there are as many castes as there are occupations proves the origin of the institution."
30. Dr. Muir gives a similar explanation of the mixed classes mentioned in the Smritis, According to him the origin of the mixed classes by inter-marriage between the four tribes is imaginary and allegorical. He says "where the abstract qualities of any two of the four tribes were thought requisite for filling a particular occupation, persons following that occupation were supposed to be descended from the offspring of an intermarriage of a man belonging to the one tribe, with a woman appertaining to the other."
31. He illustrates this by referring to Ambasthas or the physician class of Bengal who combine in themselves the culture and learning of Brahmans and the commercial instincts of Vaisyas. The higher instinct is supposed to be derived from the superior class represented in the Smritisas the father and the lower instinct from the lower order represented by the mother. Thus he says "The principle of heredity underlies the Bystem, and gained considerable support from the state of early society." The scientific way of dividing the members of a society according to character and occupation Laid down by Dr. Muir has been expressed in the form of allegory by the Dharma Sastras of Manu and other Eishis. It is sufficient to refer to Manu for allsthe Smritis and Puracas agree therein.
32. Manu says that for the furtherance of the good of the world the God Brahma created Brahma, Kshatriya, Vaisya and Sudra from his mouth, arms, thighs and legs, according to the relative sacredness of these parts of the body. The Brahman was produced from the mouth for the reason of being the repository of Vedas, the Ruler of all the creation and one who lays down the duties of all the social orders ; the Kshatriya from the arms for the protection of the subjects; the Vaisya from the thighs or loins for the purpose of production of wealth by agriculture, trade, etc., and Sudra from the legs for the service of the three classes (Manu, Chap. I, Slokas 3l and 88 to 92).
33. Manu then deals with the mixed classes by inter-marriage between the four castes according to the occupation requiring mixed qualifications of the principal four castes and lays down rules for the location of them among the four classes according to their heredity. The general principle is that the offspring of an inter-marrige between two castes is lower than the caste of his father and higher than that of the mother. His caste is that Of his father though inferior in rank due to the mother being of a lower order. When none of these tests applies, Manu would have the class determined in accordance with the occupation, act or conduct of the party. The names of castes and sub-castes etymologically denote the occupations of the various castes and sub-castes, The origin of a caste is attributed to a particular limb of the God Brahma to mark the distinctive occupation and status of that caste in society. In this all the Smritis of Manu and others as well as Dr. Muir agree. These allegories and legends as to the origin of particular castes are important to show the character and occupation which originally were attributed to them the social position, the physical and mental capacity which they were originally supposed to possess and the light in which they were regarded by other castes. Therefore, they afford very important tests for determining the caste of a particular community. I would briefly refer to them in connection with the Kayasthas whose caste we have to determine.
34. According to the Hindus, the souls of men after death receive rewards and punishments according to their sins and virtues, and hence it is believed that good and bad deeds of men are not destroyed. The souls of men after death go to Yamapuri which is presided over by the deities called Yamas who keep records of men's actions and accordingly give them their dues. The principal Yama is called Yamaraja or Dharamaraja, that is, the ruler of Yamapuri or the King of Laws.
35. The Yama Samhita which is an extract from the 9th Chapter of Ahilya Kamdhenu, a work of Hindu Law, says that Dharamaraja complained to Brahma about his difficulties in performing his most responsible duties of keeping records of the deeds of men and doing justice to them. Brahma went into meditation. Chitragupta sprang from his body and stood before him bearing an inkpot and a pen. The God Brahma (Creator) said: "Because you are sprung from my body (kaya), therefore you shall be called Kayastha and as you existed in my body unseen I give you the name of Chitragupta." He then assumed charge of Yamapuri. Dharma Sharma married his daughter Irawati to Chitragupta and Manuji, son of Surya (the Sun) married his daughter Sudakhina to him." Chitragupta had eight sons from the former and. four from the latter and these twelve sons became the progenitors of the twelve sub-divisions of the Chitraguptavansi Kayasthas, namely, Mathur, Gaur, Nigam, Ashthana, Kulshretha, Suryadwaja, Balmika Bhatnagar, Srivastava, Ambastha, Saksena and Karana.
36. In Padma Purana, Uttar Khanda, it says that Chitragupta had twelve sons by two wives. They were all invested with the sacred thread and were married to Nagakanyas. They were the ancestors of the twelve sub-divisions of the Kayasthas. The story also says that the Kayasthas are Chitravansi Kshatriyas and never Sudras. They are entitled to all the Sanskars.
37. The same legend with some slight difference is given inmost of the Puranas. Padma Purana after stating the legend says: "Chitragupta was placed near Dharamaraj to register the good and evil actions of all sentient beings, that he was possessed of supernatural wisdom and became the partaker of sacrifices offered to the gods and fire. It is for this reason that the twice-born always give him oblations from their food. As he sprang from the body of Brahma he was called Kayastha of numerous yotras on the face of the earth." Vide W. Crooke's Tribes and Castes, North-Western Provinces and Oudh, 1896 Edition, Vol. 3, pages 184-213.
38. In Shristhi Khanda the same Purana says that the sacrificial rites and study of the Kayasthas should be like the Dwijas and their occupation like that of the Kshatriyas.
39. Bhavishya Purana states that God, the Creator, gave the name and duties of Chitragupta as follows:
Because you have sprung from my body, therefore, you shall be called Kayastha and shall be famous in the world by the name of Chitragupta. Oh my son, let your residence be always in the region of the god of justice for the purpose of determining the merits and demerits of men and receiving my irrevokable order, you should observe the Dharma, law and usages of the Kshatriya tribe according to Shastras.
40. Vignana Tantra says the same thing, adding that the descendants of Chitragupta are Kshatriyas by caste, and not Sudras by any means.
41. The same is the enjoinment of Brahma to Chitragupta according to Brihat Brahma Khanda quoted by Kamalakar Bhatta. He was named Kayastha Kshatriya having sprung from the body (kaya) of Brahma. He was directed to perform the sanskar of Kshatriyas, to marry Kshatriya girls and to have writing as his profession.
42. The story of Chandraseni Kayasthas as having descended from Chandra Sen, a Kshatriya Raja, is well-known and has been reported in the Puranas and also in the modern treatises on tribes, such as of Sherringa, Vol. II, Chap. II, page 181, 1879 Edition, and Steele's Laws and Customs of Hindu Castes in the Deccan Province, page 94, 1868 Edition. For a detailed account vide Skanda Purana Renukamahatamya. On account of contest between the Brahmans and the Kshatriyas with respect to their relative rank in society a fierce war broke out between them in which Parsuram, the Brahmanic hero, is said to have twenty-one times extirpated the Kshatriya race (Sarkar's Hindu Law of Adoption). His father was killed by a Kshatriya Raja he pursued in his thirst for Kshatriya blood the pregnant wife of Chandra Sen into the hermitage of Dalabhaya Rishi, The child in the womb was saved through the entreaties of the Rishi, who when born was called the Kayastha and though deprived of the martial profession was directed to carry on the profession of reading and writing which appertained to the Kshatriyas, He was attached to the Court of Kings, was initiated into the Sanskars. of the Kshatriyas and was taught Vedas. His descendants are the Kshatriyas in the Deccan and are known as Parbhu Kayasthas.
43. Skanda Purana in another place as quoted in Vachaspatya, page 2943, gives an account of Raja Chitra also called Viva-swan, Aditya or Mitra, the blessed and purest, having performed for a long time tapasya (austerities) obtained from God Surya the boon of becoming sarcagya (omniscient), possessed of divine intellect and supernatural powers. Dharamaraja finding his duties of keeping records of the deeds of men and doing justice according to their merits and demerits too onerous managed to remove Raja Chitra to Dharmapuri to assist him in his duties. Chitra having thus disappeared from the mortal world was called Chitragupta, He became one of the fourteen Yamarajas or ruler of Yam-puri (Daksha Smriti).
44. Garuda Purana describes the imperial throne of Chitragupta in Yamapuri holding his Court and dispensing justice according to the deeds of men and maintaining their record, in the following words:
(There Dharmaraja, Chitragupta, Sravana and others see all sins and virtues which remain concealed in the bodies of men).
45. Vyoma Samhita quoted in Shabda-Kal-padrum says.
46. The Kayasthas have sprung from the kaya or body of Brahma. They are similar in rank to Brahmans, but in Kaliyug their religious observances and duties have been prescribed to be those of Kshat-riyas. Brahma himself is said to have ordained them to perform the duties of Kshatriyas. Similarly, Apastamba Shakha of the Veda quoted in Shabda-Kalpadrum 2nd part, page 228, Shabda 20, under Kshatriya, states that Kayasthas are Kshatriyas. Chitragupta who reigns in heaven and his son Chaitrarath, who was light of the family, meritorious and of illustrious deads ruled on earth for a long time as King of Chitrakoot near Allahabad.
47. Meru Tantra quoted in Shabda-Kalpadrum under the word 'Kshatriya' supports the same view.
48. The Mahabharata (Anusasan Parva, Chap. 130) recites the teaching of Chitragupta requiring men to do virtuous and charitable acts and performing Yagya, saying that men are rewarded or punished according to their good or bad deeds.
49. These allegorical descriptions of the origin of Chitragupta and, the Kayasthas having sprung from God Brahma in meditation and, as Risley puts it, from his inner consciousness for the purpose of managing the business affairs, performing literary work, administering justice, punishing and rewarding the deeds of mortals and keeping records thereof, indicate the status and position of the Kayasthas in society and their occupation as appertaining to the three higher or regenerate classes and that they could not be classed as Sudras whose origin is said to be from the lowest part of Brahma indicative of the servile duties requiring absolutely no mental activity.
50. The name Kayastha etymologically denotes the occupation and social position of the Kayasthas. According to Shabda-Kalpadrum, a dictionary of high authority, and Brihat Bidhan, Kayastha is defined as that is, one who lives in the body of everybody and thus comes to know of the inner life of men, that is their deeds and misdeeds, merits and demerits. The word "Chitra" is defined by Shabda Kalpadrum as follows: one who pictures, records and considers the sins and virtues of men and who is one of the Yamas, so as to give the mortals their dues after death.
51. Turning to the Smritis, Vishnu in Chap. VII, verse 3, says that a document attested by the King is one which is written or prepared by a Kayastha, aa officer of the Court appointed by the King, and stamped with the finger prints of the head of the department. The words are Virihat Parasara in Chap. X, Sloka 10 says.
Kayasthas should be appointed as writers being expert in the art of writing.
52. Again in Chap. I, Sloka 235, he says that Danda-dhrita the Magistrates and Judges of the Courts should be (dharmagya) persons versed in laws and good administration, Kayasthas who are versed in the art of writing.
53. Similarly, Shukraaiti in Chap. XXXII, Sloka 420, describes Kayasthas as lekhaks, and in Chap. II, versa 178, says that the accountant and lekhak knew the Vedas, Smritis and Puranas.
54. Brihaspati quoted in Prasara Madhava and Vyas cited in Vaijayanti say that "a lekhnk and ganak (writer and accountant) must be a person who has command over languages (literally who knows particulars about words), is pure in mind (mind and body), has control over his temper, is not covetous, is truthful and can write clearly and in a lucid style."
55. Vyas says that the writer and the accountant should be that is versed in Mimansa (Srutis) and Vedas (Adhyayana) as explained by Mitakshara in commenting upon Yajnavalkya, Chap. II, Sloka 2, which aays that the King's Councillors should be versed in the sacred books of Mimansa and Vedas, expert in law, truthful and impartial.
56. Slokas 10 to 12, Chap. I of Vyas and Blokas 32-34, Chap. VIII of Usanaare either interpolations as some say, or, do not apply to the Chitraguptavansi Kayasthas who have been described by Vyas as writers and accountants, versed in Vedas and Smritis and Councillors and courtesans of kings, as 8hyama Charan Sarkar himself Bays.
57. Yajnavalkya in Slokas 317 to 320 describes how the edicts of the king should be written, sealed and promulgated. Apararka in his commentary upon these Slokas quotes from Vyas and shows that these edicts should be written by lekhaks, the ministers of war and peace (sandhi vigraha kari), and that they should be promulgated to the gentry and officials among whom Kayasthas have been mentioned.
58. Similarly, Vijnanesvara in his Mitakshara commenting upon these Slokas says:
He (King) should cause it to be recorded by that officer of his, who is in charge of war and peace (i.e. by a Kayastha), and not by anybody else. As says a Sruiti: That officer of his, who is sandhi vigraha kari or the officer in charge of peace and war should be its writer (lekhak).
59. Yajnavalkya uses the word "Kayastha" in Slokas 335 36, Chap. I. Commenting upon this, Mitakshara says that Kayasthas are accountants and writers. He makes the word "Kayasthas synonymous with accountants and writers. Similarly, Apararka says that Kayasthas were revenue-collectors (kar-adhi-krita).
60. The author of the Viramitrodaya makes the following comment on the text of Vyas already quoted and proves that the Kayasthas are a twice-born class, "The accountant must be twice born because it is declared, that he should be a person who has studied the Vedas which none but a twice-born can do ; so also the writer must be twice-born, because they go together."
61. The accountants and scribes constitute one of the ten parts of a judicial proceeding (Jolly's Translation of Narada, page 6, Section 16). Brihaspati says the same thing, as quoted in Prasara Madhava, Vyavahara Kanda.
62. Yajnavalkya in Sloka 335 (numbered 334 and 336 in some books) enjoins the king to protect his subjects from the oppression of the Kayasthas especially. Mitakshara gives the reason that they being the favourites of the king (Rajvallabha) and officers of the Court as Ministers of War and Peace, Councillors and writers and accountants are more likely to take advantage of their position and oppress the subjects. This view is in accordance with Manu who in Chap. VII, Verse 123, says that the king's servants connected with the Government of the realm may become exacting and deceitful and the king should protect his subjects from such officials.
63. According to the Smritis, the officers of the realm, such as, ministers of peace and war, courtesans and Councillors, Governors and headmen of villages should be men versed in the Sastras, valorous and born of noble family, pure, intelligent, affluent in wealth and of tested virtue and comprehension: Manu, Chap. VII, Verses 54 to 121 Yajnavalkya, Chap. I, Verse 312.
64. The officers of the Court must be twice-born who are preferable, to Sudras even if they are by name twice-born. A Sudra, the Smritis say, should in no circumstances be associated with the Court : Manu, Chap. VIII, Verse 20 ; Vyas, Chap. I, Verse: Vasishta, Chap. XVI. The realm of a king wherein a Sudra official administers justice is destroyed under his very eyes like a cow merged in the mire (Manu, Verse 21, Chap. VIII).
65. Thus, according to the smritis and the commentaries thereon, notably of Apararka, Vijnaneshwara called the Mitakshara and Viramitrodaya the recognized authorities in the Benares School, the Kayasthas were officers of the Court, Ministers of War and Peace, writers and accountants and were required to study the sacred Vedas and the Dharma Sastras. Had they been Sudra, they would not have been allowed these privileges which appertain exclusively to the regenerate classes.
66. By origin the Kayasthas were of pure regenerate descent. Even if they be of mixed origin, as some say, they cannot be Sudras as shown below.
67. Yajnavalkya in Chap. I, Sloka 92, calls a son begotten by a Vaisya (twice-born) on a Sudra woman a Karan. Some commentators make Karan synonymous with Kayasthas. Yajnavalkya himself does not say so. The confusion has probably arisen on account of Karan being one of the twelve sub castes of Kayasthas which has nothing to do with the offspring of mixed marriage mentioned either in Manu or Yajnavalkya. This is clear from Shabda Ratnakar which gives several meanings of the word " Karan", such as, "Cause, body, war, son of a Vaisya by a Sudra woman, and a sub-division of the Kayasthas."
68. These are different uses of the word; one has nothing to do with the other. Karan sub-caste of the Kayasthas descended from Arua, one of the twelve sons of Chitragupta, is not to be confounded with the offspring of a Vaisya husband and a Sudra wife. Even if Karan be Kayastha he will not be a Sudra, for according to Manu he will retain the caste of the father though he may not have the same respect on account of inferiority of the mother the reason for this given by Manu in Chap. X, Sloka 72, being that the seed of the father is of greater importance in an act of fecundation. In Sloka 4l of that Chapter he clearly states that the sons begotten by twice-born ones on wives of their own caste or on wives belonging to an inferior caste have the rights and privileges of trie twice-born, that is, of being initiated with the thread, etc., and that he will not be a Sudra. Thus, even if Karan be the offspring of a Vaisya on a Sudra woman, he will be a twice-born, and not a Sudra. In any case Karan is only a sub-caste of Kayastha and cannot embrace the whole community. It is undisputed that if Kayastha is the offspring of a Kshatriya by a Vaisya woman, as given by Wilson in his glossary, he will be a twice-born called Mahishya according to Manu and Yajnavalkya, because both the father and mother are such. If he is the offspring of a Kshatriya by a Sudra wife he will be an Urga Kshatriya both according to Manu and Yajnavalkya, and an Urga Kshatriya is not a Sudra as held in Sri Gajapaty Hari Krishna Devi Garu v. Sri Gajapaty Radhika Patta Maha Dei Garu 2 M.H.C.R. 369; Brindavana v. Radhamani 12 M. 72 at p. 78 : 4 Ind. Dec. (N.S.) 399; Jawala Singh v. Sardar 51 Ind. Cas. 216 : 41 A. 629 : 17 A.L.J. 734 : 1 U. P.L.R. (A.) 67 and Chuotwfya Jiun Murdun Syn v. Sahub Purhulad Syn 7 M.I.A. 18 : 4 W.R.P.C. 132 : 1 Suth. P.C.J. 313 : 1 Bar. P.C.J.
591 : 19 E.R. 217 where the Vyavastha of the Pandit of Sadar Dewani Adalat was not accepted and the Rajput was held to be a Kshatriya. These authorities have examined the text carefully and have gone so far as to hold that even an illegitimate son of a twice-born retains the caste of his father and does not become Sudra.
69. Thus, even if Kayastha is an offspring of inter-marriage he will be a twice-born. Even Shyama Charan Sarkar whose Vyavastha is the basis of the decision under review does not accept that a Kayastha is the offspring of a mixed marriage or that he is Karan. He is decidedly of opinion that the Kayasthas are Kshatriyas and this is so according to the Smritis and the Puranas. He, however, says that they have degraded themselves to sudradom by omitting to perform the Upanayana ceremony. This will not cause their degradation to sudradom, as Manu himself in Chap. X, Verse 20, definitely lays down that twice-born ones devoid of the rights of initiation with the thread are Vratyas (broken vowed ones) called Vratya Brahmans, Vratya Kshatriyas and Vratya Vaisyas respectively. Among Vratya Kshatriyas he mentions the name of Karan in Sloka 22. So if Karan is synonymous with Kayastha as some commentators say, then Kayastha will be Vratya Kshatriya, that is Kshatriya by origin and descent but of broken vows. Yajnavalkya in Chap. 2, Sloka 38, says that they will be Vratyas, "do long as they do not perform the sacrifices called Vratyastoma," and Mitakshara commenting upon this says "performing which (Vratyastoma) they again become entitled to Upanayana."
70. Mitakshara and Balambhatta both explain Vratya as devoid of sacrament, that IB, excluded from performing the religious ceremonies. They do not say that such a twice-born will lose the civil rights of succession, marriage and adoption. Sarvadhikari, as already observed, emphatically expressed it and asked the question what would happen if the Kayasthas, who are Kshatriyas and who according to Shyama Oharan Sarkar omitted to perform Upanayana and thus degraded themselves to sudradom, would again begin, as many are doing, to wear the sacred thread? It is not clear whether Shyama Charan Sarkar means by degradation to sudradom that they become Sudra in all respects and will be governed by the laws of Sudras. Perhaps he means to say what Yajna-valkya and Mitakshara have held that they will be devoid of sacrament only, while retaining their rights as Kshatriyas by birth.
71. Sirisa Chand Vidyarnava in his translation of the Mitakshara at page 214, 1918 Edition, upon the authority of Balambhatta, says that the Chand faseni-Kayasthas or Parbhus of Bombay and the Chitragupta Kayasthas are Kshatriyas. So far as the Kayasthas of Upper India, Behar and the Deccan are concerned, the matter is concluded by the authorities of Mitakshara and Viramitrodaya, which govern them, that they belong to regenerate class. By profession assigned to them from time immemorial they must be regarded as Kshatriyas, for according to Amar Kosha, Kshatriya verga, Slokas 16-17, writing is one of the duties of Kshatriyas.
72. The careful research of the modern writers of authority shows that the position assigned to the Kayasthas of the aforesaid Provinces is still retained by them by occupation and observance of religious rites and ceremonies.
73. W. Crooke of the Bengal Civil Service in his book on the Tribes and Castes of the North-Western Provinces and Oudh, Vol. Ill, pages 184 to 213, deals with the Kayasthas. He gives the Puranic legends of their original growth already referred to. Their common ancestor was Chitragupta" He had twelve sons: Bhanoo, Vibhanu, Vishwabhanu, Virjawan, Oharu, Sucharu, Chitra, Matiman, Himavan, Chitracharu, Arun and Atindriya. The twelve sub-castes of Kayasthas have descended from these twelve sons; Srivastava from Bhanoo, Surajdhwaja from Vibhanu, Asthana from Vishwabhanu, Balmiki from Virjawan, Mathur from Charu, Gaur from Sucharu, Bhatnagar from Chitra, Saksena from Matiman, Ambasthafrom Himavan, Nigram from Chitracharu, Karan from Arun, and Kulas-restha from Atindriya. Bhanoo, the ancestor of Srivastva, immigrated to Kashmer where he became Raja of Srinagar and obtained the title of Bajadhiraja from Ghandragupta, the Raja of Magadh (South Bihar), Vibhanu, the ancestor of Surajdhwaja, obtained this title from Raja Sursena of the Ikshwaku race because he helped him in performing a sacrifice. Vishwabhanu, the ancestor of Asthana, was honoured by the Raja of Benares and he presented to him astha or eight kinds of precious pearls and hence he was called Asthana, Virjawan, the ancestor of Balmiki, gained the name of Balmiki on account of his austerities and devout meditation in God. Mathurs, the descendants of Oharu, are so called on account of their having settled at Mathura. The Gaur Kayasthas, descendants of Sucharu, are so called from Gaur or Gauda, the old capital of Bengal. The Sena dynasty was founded by this sub-caste; their ancestor Bhagadutta is said to have fought in the war of Mahabharata on the side of Duryodhana against Yudhishtra. Raja Lalasena was another famous king among them. The last of that dynasty was Raja Lakshmania. Bakhtiar Khilji deposed the Gaur Kayastha dynasty. The Bhatnagar sub-caste derives the name from the residence on the bank of the Bhat river or the old town of Bhatner, the fort of which is of some historical interest having been at various times captured by Mahmud of Gaznavi, Tamur and Kamran, brother of Hamayun. The Saksena sub-caste, literary "friend of the army " was given this title by the Srivastava Raja of Srinagar on account of their skill in war. One of their ancestors Surajohandra or Somadutta obtained the title of Kharua as a recognition of his honesty as treasurer to Kusa, one of the twin-sons of Rama and Sita; hence the Kharva sect of Saksena sub-caste. The other section called Dusra is so named because one of them accompanied Humayun, father of Emperor Akbar, during his refuge in Iran after his defeat by Sher Shah. Ambasthas are so called because of their worship of the goddess Ambaji. They have settled at Girnar hill. They are versed in the art of surgery, and there is a colony known as Kothar at Nagram in the Lucknow district, who have a great local repute. The Ambastha subject is also to be found in the Gaya and Patna districts of Bihar. There is a class called Ambastha who are Vaidya or physician in Bengal. In the Sruiti already referred to (Mauu X, 8), Ambastha is mentioned as descended from a Brahman and a Vaisya woman. Some say that this refers to the Ambastha Kayastha of Bengal. Even then, according to Manu, they would be inferior to Brahman and superior to Vaisya. They will take the caste of their father though of an inferior order; but really the Ambastha referred to in the Smiriti is not to be confounded with the Ambastha sub-caste of the Kayasthas who are descendants of Chitragupta through his son Himavan.
74. The Karan sub-caste, the descendants of Arun, says Mr. Crooke, is a purely Aryan sub-caste, and they traditionally take their name from Karnali on the Narbada, It applies to the indigenous writer class in Orissa called Karan of whom a fall account is given by Mr. Risley.
75. According to the account given by Crooke of the different sub-castes of Kayasthas, they seem to have played a very important part in the history. They founded dynasties, became Rajas and Rajadhirajas, fought on the battlefields, displayed skill in war and were honoured by the kings and the people and occupied a high place in society. Their religious ceremonies were performed according to the rules prescribed for the higher classes. As to marriage, Crooke says " The Kayasthas follow the highest form of the eight kinds of marriage" recognized by Manu in his Institutes--that known as Brahma. The ceremony is performed according to the rite Laid down in the Sanskrit treatise known as the Vivah Paddhati, with the Vedic formulas (mintra) as in the case of Brahmans and the other twice born classes. The essential and binding portions of the ceremony are the kanyadan or the giving of the girl by her father, the panigrahana or taking of the bride's hand by the bridegroom, Saptapadi or seven-fold circumambulation of the sacred fire by the pair, fand the sindurdana or application of red powder by the bridegroom to the parting of the hair of the bride. As a rule too, every Kayastha bridegroom must be invested with the sacred thread before or at the time of marriage.' Trie marriage among them is forbidden between sipindas, that is, who are within five degrees of affinity on the side of the mother and seven degrees on the side of the father. No marriaga can take place between persons belonging to the same al nor can a man marry a woman belonging to the al of his maternal grandfather or great-grand-father. Polyandry is strictly prohibited and polygamy though allowed is rarely resorted a to even: though the first wife is barren. Re-marriage of widows is absolutely prohibited. They worship Chitragupta, particularly on the second day of the bright fortnight of the month of Kartik known as Yama Dvytiya, which is a, day for worship for all the Hindus, Chitragupta being one of the fourteen Yamas The other deities, says Mr. Crooke, are the same as those of the other Hindu castes.
76. As to social status and occupation, Mr. Crooke says "Notwithstanding the jealousy with which they are regarded by their less esteemed neighbours the social position of the caste is in the main literary and they have supplied many valuable officers of Government and Members of the Bar and educational department. There are numerous Sanskrit terms indicating the present occupations of the caste, such as lekhaka and ganaka."
77. To the same effect is the observation of Mr. Risley in his book called the Tribes and Castes of Bengal, 1891, Vol. I, pages 431 and onwards. At page 452 he says: " Nothwithstanding the jealousy with which the less astute neighbours regard them, the social position of the Bihar Kayastha is unquestionably a high one. Popular opinion ranks them next in order to Babhans and Rajputs and, like these, when they hold land as raiyats they get their homestead free of rent." At another place at page 443 he says "The physical character of the Behar Kayasthas affords some ground for the belief that they may be tolerably of purn Aryan descent." They claim to be the descendants of Chitragupta who was produced from the inner conscienciousness of Brahma for the purpose of managing the business affairs and to have been invested with the sacred thread marking the twice-born caste, and they claim to be distinct from the Kayasthas of Bengal. He observes "Putting tradition aside and looking on the one hand to the physical type of the Kayasthas and, on the other, to their remarkable intellectual attainments it would seem that their claim to Aryan descent cannot be wholly rejected."
78. He describes the religion and the occupation of the Bihar Kayasthas to be the same as those of the United Provinces and Oudh described by Mr. Crooke. They observe the same marriage rules as are observed by; the Brahmans or the other twice-born ones, and the widows do not re-marry and exogamy is carefully observed in relation to the kul and they have the Brahmanical gotra kasyapa. He describes the various ancient families in Bihar bearing the Dwija surnames of Panres, Tewaris, Bakshi?, Rai, Thakur, Misser, Singh and Sahuliar. No Kayastha in Behar has been described by him as having the surname of 'Das'. He says that the religious ceremonies of the Kayasthas are performed by the Brahmans with the recitation of Mantras and rituals (this would not have been the case if they were Sudras).
79. To the same effect is the view of Hastings in his Encyclopaedia of Religion and Ethics and of Ruesel in his book on Tribes and Castes of the Central Provinces, 1916, Vol. Ill, page 400 and onwards. Ruesel in support of his view quotes from Matsya Purana and shows that the Kayasthas who were Lekhaks and writers in Puranic literature were Kshatriyas, versed in the Sas-tras and faithful to the king. At page 409 he quotes from the Bombay Gazetteer which states that under the arrangement made by the Emperor Akbar the work of collecting the revenues of the '28 districts subordinate to Burat was entrusted to Kayasthas.
80. Nesfield, in his brief review of the caste system in the North-Western Provinces and Oudh, page 132, (1885), says "There is no reason to doubt that this caste is chiefly an offshoot from Kshatriyas Kayasthas have from time immemorial been allowed to wear the sacred cord and many of them wear it still. The name of Thakur or Lord, which is by courtesy the title of Chattris, as Pandit or Maharaj is that of Brahmans, is not uncommon among men of the Kayastha caste. Local traditions are not wanting of Kayasthas who have won distinction as warriors and leaders of military bands. It was decreed in certain law books that the Kayastha appointed by the king as his accountant or secretary 'must be one versed in the shastras or sacred literature,' which shows that he was not a man of the so-called Sudra or servile class, as his detractors' have tried to prove. It is not difficult to conceive that princes and the owners of landed estates generally would prefer to appoint their own younger sons, or nephews, or any other near relatives, to whom they have no land to give, but on whose honesty they could rely, as their estate managers and accountants, and that families or" clans engaged in such work for several generations in succession would gradually become detached from the parent caste and found a new one of their own.... The Kayasthas invented the alphabet or character which after them is called Kaithi which is written in a running hand and is derived from Nagri, the character pre eminently used by Brahmans. This character is prevalent in both the Provinces (North-Western Provinces and Oudh). Kaithi is in all private transactions more widely used than any other vernacular character both by Hindus and Muhammadans. Registers and accounts used to be written is this character, Gavernment has replaced it in the Northwestern Provinces by Nagri or Urdu. In Oudh it is still permitted. Kaithi is the prevalent character in Bihar and Central Provinces also.... The Kayastha has not always served in the humble capacity of village accountant. From the earliest times there was a higher and more ambitious class, who served as secretaries and finance ministers in the Courts of Kings. In the Smriti, or collection of laws, ascribed to Virhaspati,' it is said that 'a king has ten constituent parts, viz., himself, the Chief Justice, the Councillors, the Smriti or laws, the accountant, the writer, the gold, the fire, the water and the attendants. Now the Chief Justice and the Councillors were Brahmans, but the accountant and the writers were Kayasthas. In the same Code it is said ; 'The accountant makes calculations, and the secretary takes down the proceedings.' The sama Code says in another place : The persons must be appointed by the king, a secretary and an accountant, who are skilled in the expounding of words and meanings, adept at counting, upright and learned in the different dialects."
81. Bhattacharyaji in his book on Hindu Castes and Sects, 1896, Chap. IX, pages 175-76, enumerates the high offices, judicial and executive, held by the Kayasthas and the important part played by them in the administration of the country during the time of the Hindu Kings, the Muhammadan Rulers and the British Government. He refers to Rai Durlabha Ram, the Prime Minister of Aliwardi Khan, and Rajas Shitab Rai and Ram Narayan were Governors of Behar.
82. The Oudh Gazetteer published under the authority of Government, Vol, II, page 878 referred to in Sarvadhikari's Hindu Law, 1922. Edition, page 834, says that upon a question being referred by the Maharaja of Benares the Pandits of Benares, Kashmere, Bengal and Bombay affirmed the view of the Padam Purana that the Kayasthas are descendants of Chitragupta and the off springs of the grand-daughters of Brahma and Surjya and that the name 'Kayastha' is derived from their having sprung from the kaya or body of Brahma, who invested them with the profession of scribe and the duties of Kshatriyas, the pen being substituted for the sword, They also based their opinion upon the similarity of habits and customs and on religious authority. At page 375 it mentions the high posts octsupied by Kayasthas as Nizains, Collectors or Captains under the Oudh Government and high titles being conferred upon them and their continuing to hold similar appointments under the British Rule. At page 73 it refers to the Kayasthas as warlike and gives instances of their having fought battles, such as the military deeds of Triloke Chand. In Vols. II and III it gives a number of instances of the military deeds performed by Kayasthas and their having taken part in the battlefields and having thereby acquired large territories and having been invested with titles of Rajas, Thakurs, Sabedars, etc. According to Rajputana Gazetteer, the Kayasthas. of Rajputana call themselves Rajdhana.
83. The research of the modern writers, as shown above, has led to the conclusion that the Kayasthas are not Sudras but belong to the three regenerate classes.
84. Sarvadhikari in his book on Hindu Law, 1922 Edition, page 633, has referred to Vyavastha No. 60 of 1861 of the Pandit of Sadar Dewani Adalat of North-Western Provinces then located at Agra. This Vyavastha contains the well-considered and authoritative opinion of the Pandit that the Kayasthas are Kshatriyas. We Lave been referred to the Kayastha Ethnology of the late Munshi Kali Prasad Srivastava, 1877, which quotes a number of Vyavasthas of the Pandits of Kashmere, Kashi, Mathura, Patna Mithila, Agra, Oudh, Central Provinces and Bengal given from time to time and extending over a large period. The book also refers to a number of decisions of the subordinate Courts of the United Provinces, Oudh and Behar (Patna), showing that the Kayasthas were held to belong the regenerate class, wear the sacred thread and I perform the marriage and other ceremonies according to the rules that govern the regenerate classes, widows do not re-marry and illegitimate children do not inherit.
85. I would, however, prefer to rest my judgment on the Smritis, the Puranas and other authoritative works and the independent research by eminent writers which I have already referred to. It is, however, important to notice that no contrary view of any Court in the United Provinces and Behar has been referred to us. This shows that it has been accepted without any controversy that the status of the Kayasthas as belonging to the twice-born caste has been accepted in those Provinces. Even Shyama Oharan Sarkar whose Vyavastha is the basis of the solitary decision in the case of Raj Coomar Lall v. Bissessur Dyal 10 C. 688 : 8 Ind. Jur. 621 : 5 Ind. Deo. (N.S.) 462 admits that the Kayasthas whether of Bengal or any other country are Kshatriyas. There is, therefore, no controversy that by origin the Kayasthas are Kshatriyas. Shyama Charan Sarkar, however, says that they were degraded to sudradom by non-observance of the Upanayana ceremony and by assuming the Sudra epithet of 'Das' instead of their own Kshatriya 'Varma'. It has already been shown that his opinion does not relate definitely to the Kayasthas of Bihar and other Provinces except that of Bengal and that, as a matter of fact, this is not so far as the Kayasthas of Behar are concerned. Even if it were so, these lapses referred to above would not cause any actual degradation or the loss of rights of the Kayasthas in matters of inheritance, marriage and adoption. The Sastras do not entail any such result by such deviation from the orthodox practices. The Dharma Sastras have Laid down the rules of conduct, rites and ceremonies in the Acharya and Vyahara Kanda. If any twice-born fails to pay due regard to the precepts of Acharya and Vyahara Kanda or commits a breach thereof he can purify himself by the rules of expiation Lal d down in the Prayaschitta part; so long as he does not do so he may only be looked down upon but cannot be degraded to sudradom or the status of a Sudra so far as his civil rights are concerned. His caste for civil matters is that which he acquires by birth; he retains the caste of his father even if his mother be of an inferior caste. In the case of Bhagwan Kuar v. Jogendra Chandra Bose 30 I.A. 249 : 31 C. 11 : 7 C.W.N. 895 : 13 M.L.J. 381 : 84 P.R. 1903 : 135 P.L.R. 1903 (P.C.) it was held that a Hindu does not cease to be so merely by occasional lapses in matters of diet and ceremonial observances from orthodox Hindu practice. The principle will equally apply where the question is whether the members of a regenerate class have ceased to belong to it by reason of such lapses. If the omission to wear the sacred thread were to cause degradation, the Banias and Thakurs who do not put on the sacred thread would have become Sudra whereas they admittedly belong to the Dwija class. As already shown by reference to Yajnavalkya Mitakshara and Balambhatta such an omission will only deprive a twice-born of his sacramental rights and he can re-gain that right by performing the vratyastoma ceremony.
86. It is not necessary to pursue the matter further. The reasons given by Shyama Charan Sarkar in his Vyavastha cannot cause degradation of the Kayasthas to sudradom and in any case the Behari Kayasthas are not Sudra, and I respectfully differ from the view taken in the case of Raj Coomar Lall v. Bissessur Dyal 10 C. 688 : 8 Ind. Jur. 621 : 5 Ind. Deo. (N.S.) 462.
87. The Kayasthas of Behar are the descendants of Chitragupta and belong principally to the sub castes of Srivastava and Ambastha; there are a few who belong to the other sub castes. All of them came down from Upper India and are governed by the laws and customs which prevail there: Parbati Kumari Debi v. Jagadis Chunder Dhabal 29 C. 433 : 6 C.W.N. 490 : 4 Bom. L.R. 365 : 8 Sar. P.C.J. 205 : 29 I.A. 82 (P.C.) and Rutcheputhy Dutt Jha v. Rejunder Narain Rai 2 M.I.A. 132 : 2 Suth. P.C.J. 1 : 1 Sar C.J. 161 : 18 E.R. 251. According to Mitakshara and Viramitrodaya, whose authority has been recognized by the Privy Council, they belong to the Dwija or regenerate class. Therefore, the rule prohibiting an adoption of a daughter's son, mother's sister's son and sister's son among the three regenerate classes will apply to them. The evidence in this case, particularly on behalf of the defendant, indicates that the family in question has been observing the ceremonies in connection with marriages, deaths and births ' according to the Vedic rites that obtain in the case of the regenerate classes and priests of high order officiate those ceremonies. In the absence of direct evidence to the contrary the learned Subordinate Judge was not justified in holding that the parties belong to the Sudra caste and in refusing to apply the above rule prohibiting the adoption of a daughter's son. The general rule of Hindu Law cannot be disputed; but it may be varied by family custom. The plaintiffs did not specifically raise this legal-objection to the validity of the adoption of Newazi Lal by Hemnath, the maternal grandfather, and the defendant was thus precluded from pleading custom varying the rule. There was no issue raised upon the point and the plaintiffs, therefore, cannot rely upon the general principle of prohibition: Rup Narain v. Gopal Devi 3 Ind. Cas. 382 : 36 C. 780 : 6 A.L.J. 567 : 10 C.L.R. 58 : 13 C.W.N. 920 : 5 M.L.T. 423 : 11 Bom. L.R. 833 : 19 M.L.J. 548 : 93 P.R. 1909 : 146 P.W.R. 1909 : 68 P.L.R. 1910 : 36 I.A. 103 (P.C.). The only issue raised was "did Hemnath adopt Newazi Lal as his son as contemplated by the Hindu Law?" (Issue No. 9). This is an issue regarding the factum of adoption, and the plaintiffs say that Newazi Lal was not adopted according to the Sastras. On the other hand, the defendant asserts that Newazi Lal was duly adopted.
88. Newazi Lal is said to have been adopted at the time of his marriage which was performed by Hemnath in 1804. On 26th May, 1804, Hemnath executed a deed of tamliknama appointing Newazi Lal as successor to his properties after his death. He died in January, 1805, leaving his widow Dulari Kuer, his daughter Nand Kuer and three grandsons by his daughter, namely, Newazi Lal , Dharamlal and Ridhnath. Innisown paternal family his brother Bishwanath and his nephews Mohan, Sohan, Tirloke Chand and Jagannath Sahay, sons of his predeceased brother Raghuaath Singh who had died in 1793, were alive. Bishwanath died on 17th March, 1806, leaving his widow Gharbaro Kuer and a daughter married to Mahadeo Dutt. Soon after the death of Bishwanath, Tirloke Chand and others, sons of Raghunath, instituted Suit Wo. 5ft in the Provincial Court of Azimabad against Musammat Gharbaro Kuer widow of Bishwanath, Musammat Dulari Kuer, widow of Hemnath and Newazi Lal , alleging that the properties in dispute were acquired by the three brother a Hemnath, Bishwanath and Raghunath, father of the plaintiffs, and that they were jointly held by them, but that the defendants on the death of Bishwanath on 13th Chaitra 1213 wrongfully took possession of the properties and refused to give any share to the plaintiffs in that case.
89. Newazi Lal contested the suit on the ground that the properties were acquired by Hemnath and he had a right to those properties as his adopted son.
90. The Provincial Court by its judgment (Ex. H), dated the 12th December, 1812, dismissed the plaintiffs' suit upon the ground that it was not proved that the plaintiffs or their father Raghunath were co-parceners with Hemnath and had jointly acquired the properties in dispute. As to the plaintiffs' claim to succeed as a reversionary heir of Bishwanath, the Court observed that so long as the adoption and the tamliknama set up by Newazi Lal were not set aside the latter had a preferential claim. The Court, however, did not determine the question of adoption on the ground that the matter was directly pending in another suit in the Provincial Court of Azimabad instituted by Newazi Lal against Mahadeo Dutt, son-in law of Bishwanath o-n the 13th September, 1809. In that suit Newazi Lal sought to set aside a deed of gift, dated 2nd Baisakh 1216 (2nd April, 1809), executed by Gharbaro Kuer, widow of Bishwanath after the death of the latter. Newazi Lal claimed the properties as an adopted son of Hemnath, asserting that the properties belonged to Hemnath and that Bishwanath was merely a farzidar for Hemnath and hence the widow had no right to execute the deed of gift in favour of her son-in-law. The Court by its judgment (Ex. HI), dated the 6th May, 1813, upheld the contention of Newazi Lal and decreed his claim. Newazi Lal had instituted several other suits in which he claimed properties which stood in the names of various persons on the ground that they were mere farzidars of Hemnath. These cases were also decided in his favour and were along with the aforesaid case of Mahadeo Dutt taken in appeal to the Sadar Dewani Adalat and were decided by the judgment of that Court, dated 3rd December, 1818, (Ex. H-2) in favour of Newazi Lal . The Sadar Dewani Adalat differing from the Provincial Court held that the properties were jointly acquired and Bishwanath had one-third interest herein. It, however, agreed with the Provincial Court in holding that the deed of, gift executed by the widow of Bishwanath in favour of her son-in-law Mahadeo Dutt was a forged document and observed that the claim to the one-third share of Bishwanath would be adjudicated upon when it would be made by a proper heir of Bishwanath, The Sadar Dewani Adalat dismissed the appeal.
91. Mahadeo Dutt then appealed to the Privy Council, but subsequently withdrew the appeal and filed a deed of relinquishment, dated the 19th April, 1826, and set forth in the Rubkari (Ex. H-3) of the Sadar Dewani Adalat, dated the 22nd August, 1826. By this deed Mahadeo Dutt waived his claim to the properties in dispute admitting that they were the self-acquired properties of Hemnath and were purchased in the farzi name of Bishwanath and that Newazi Lal was adopted by Hemnath. He also stated that Newazi Lal remitted his claim for wasilat and costs and hence he filed the deed of relinquishment.
92. The judgment of the Sadar Dewani Adalat (Ex. H-4), dated the 20th January, 1838, shows that Nand Kuer, daughter of Hemnath was alive and in fact is said to have given Ridhnath her son, the defendant's ancestor, in adoption to Newazi Lal in Chaitra 1230 (1830) long after the aforesaid litigations. The widow of Hemnath was a party to the aforesaid litigation. The plaintiffs, therefore, contend that during the lifetime of Dulari Kuer and Nand Kuer, the mother and grandmother respectively of Dharam Lal , Newazi Lal and Ridhnath, they had no right to the properties of Hemnath" nor were Dharam Lal and Ridhnath, the respective ancestors of the plaintiffs and the defendant, parties to those litigations, and hence they are not bound by the result of those litigations or anything said or done by the parties thereto.
93. As regards the judgments (Exs. H-1 and H-2), dated the 6th May, 1813, and 3lst De-eamber,1818, of the Provincial Court of Azimabad and of the Sadar Dewani Adalat respectively, it is urged that these decisions do not prove any actual adoption attended with necessary ceremonies, and, on the other hand, they show that proper ceremonies were not performed and the actual giving and taking, which is essential for a valid adoption, had not taken plase. The judgment of the Provincial Court does not refer to the ceremonies at all. The judgment of the Sadar Dewani Adalat refers to it in the following words:
Although it is not clear if all the necessary ceremonies in connection with the adoption of Rai NewaziLal were performed according to the Sastras, yet from a perusal of the depositions of the witnesses as well as from the other circumstances of the case it is evident that Rai Hemnath Singh took Newazi Lal in his lap and adopted him in the presence of the audience, especially his near relatives, Rai Bishwanath Singh and others. As a matter of fact, on the death of Rai Hemnath Singh, Rai Bishwanath Singh placed the turban of succession on the head of Newazi Lal and the necessary ceremonies connected therewith were performed by Bishwanath himself as well as other relations and caste-men. The sapindi karam and kiria (after death ceremonies) of Rai Hemnath Singh and Rai Bishwanath Singh were also performed by Rai Newazi Lal respondent. Hence there remains no doubt about the fact if Rai Newazi Lal has been adopted by Rai Hemnath Singh or not. With a view to the above facts there appears to be no reason to alter the decision of the Senior Judge of the Provincial Court of Azimabad, dated the 5th May, 1814.
94. As to what actually took place at the time of adoption it is to be found in the evidence of Tula Ram (Ex. 1-2) who was examined as a witness in both the aforesaid litigations:
The mother of Newazi Lal had been at first sitting behind the purdah (curtain) along with other ladies. At that time Hemnath Singh called her and obtained her permission, saying that he was going to adopt Newazi Lal as his son and that he had already obtained the permission of Choa Lal (father of Newazi Lal). The mother of Newazi Lal replied that she gave her consent out of her own free will.
95. At another place he said:
He took the bride (the girl to be married on the occasion to Newazi Lal) as well as Newazi Lal the bridegroom on his lap in janvasa (place where the bridegroom's party stops) and said that he adopted Newazi Lal as his son and addressed the audience and told them to be aware thereof I did not see Choa Lal under the mandwa at the time when Rai Hemnath Singh adopted Newazi Lal as his son, on the performance of the ceremony n which kus (grass) and water are used. It is possible that he may have come later on He may have gone there after the performance of the ceremony in which kus and water are used.
96. The plaintiffs rely, upon the case of Shoshinath Ghose v. Krishnasunderi Dasi 7 I.A. 250 : 6 C. 381 : 7 C.L.R. 313 : 3 Shome L.R. 231 : 4 Sar P.C.J. 191 : 3 Suth. P.C.J. 812: 4 Ind. Jur. 589 : 3 lad. Dec. (N.S.) 248 and Krishna Bhamini Dasi v. Braja Mohini Dasi 66 Ind. Cas. 38 : 25 C.W.N. 403 at p. 408 and contend that a mere declaration by the adoptive father is not sufficient to create a valid adoption and that the actual giving and taking is essential for a valid adoption whether the parties belong to the three regenerate classes or are Sudra. They say that the evidence of Tula Ram, who was an accredited servant of Hemnath and was in charge of all important affairs and in fact properties were also purchased by Hemnath in his farzi name, and his presence at the adoption show that Hemnath simply obtained permission of the mother of the boy, took Newazi Lal on his lap in the janvasa (marriage canopy) and de" clared that he had adopted him as his son; that Choa Lal , father of NewaziLal, was not present at the time and neither he nor his wife actually performed the ceremony of giving and that the permission given by the wife is not valid in law during the lifetime of her husband. Upon the evidence of Tula Ram given soon after the adoption the plaintiffs contend that the actual giving and taking was not proved and that the Sadar Dewani Adalat did not hold that a proper giving and taking ceremony had taken place but it only held that Hemnath took Newazi Lal on his lap and adopted, him. It is conceded that it would not be reasonable to expect direct evidence of adoption and all the necessary ceremonies having been performed after a lapse of long time; tout it is contended that this would not apply to the present case where the adoption was investigated and evidence was given when it was quite fresh and that evidence showed that the essential ceremony of actual giving and taking had not taken place. Accordingly, the plaintiffs contend that Newazi Lal did not become a legally adopted son of Hemnath and he did not cease to be the son of his. own father Ohoa Lal . The plaintiffs also rely upon the tamliknama of 1804 (Ex. Q) executed by Hemnath and contend that had Hemnath adopted Newazi Lal he would not have appointed him to be his successor after his death, for upon a valid adoption Newazi Lal would have become the son of Hemnath from the moment the adoption took place and would have become a co-parcener with him as his aurasa or a natural born son.
97. The plaintiffs further contend that their ancestor Dharam Lal was not a party to that litigation and that no title to the property had accrued to him at that time, inasmuch as both the widow and the daughter of Hemnath were living and hence the plaintiffs or their ancestor are not affected by any finding of the Court in that case.
98. These contentions are sound. The fact, however, remains that Newazi Lal took possession of the estate of Hemnath and remained in possession till his death on 24th Asin 1243 (1st October, 1835) and that Sona Kuer his widow entered into possession and occupation of the properties. This led to another litigation. Ridhnath the youngest brother of Newazi Lal alleged that he was adopted by Newazi Lal in Chait 1230 Fasli (1823) and set up a deed of inheritance, dated 9th Jamad-us sani 1251 A.H. (October 1835) said to have been executed by Newazi Lal . He obtained a rubkari in December 1836 from the Badar Amin in respect of a certain sum of money which stood in the name of Newazi Lal . This was upheld by the District Judge. Accordingly, Sona Kuer instituted Suit No. 220 of 1836 in the Civil Court of the District of Bihar for declaring the adoption and deed of inheritance set up by Eidhnath to be false and invalid. The Court by its judgment, dated the 20th January, 1838, Ex. H (4), held that the deed of inheritance set up by Ridhnath was spurious and his alleged adoption by Newazi Lal was false ; that the adoption had not taken place; that the mother of Eidhnath had no power to give him in adoption without having aa authority from her deceased husband Ohoa Lal and that the necessary ceremonies, such as the' performance of homa, the recitation of mantras,-pouring of water and taking the child in the lap of the adopter, were not performed. The Court set aside the rubkari, dated the 17th November, 1836, and decreed the suit of Sona Kuer, the plaintiff.
99. Ridhnath appealed to the Sadar Dewani Adalat. The appeal was disposed of on compromise. Both Sona Kuer and Eidhnath filed ekrarnamas Exs. J (37) and J(38), dated the 19th August, 1839, in the said appeal, agreeing that both of them would jointly remain in possession of the properties and after the death of Musammat Sona Kuer, Ridhnath and his descendants would remain in sole possession thereof. Accordingly, both of them remained in possession of the properties, and after the' death of Sona Kuer, Ridhnath remained insole possession.
100. Dharam Lal was not a party to the litigation, but he intervened in the appeal in the Sadar Dewani Adalat and admitted both the adoptions: (1) of Newazi Lal by Hemnath and (2) of Ridhnath by Newazi Lal and disclaimed all connections with the properties. He, however, was not a party to the compromise between Ridhnath and Sona Kuer.
101. On behalf of the defendant it is urged that Dharam Lal having renounced his claim to the properties, he or his descendants the plaintiffs are estopped from claiming them. They are also estopped from disputing the adoptions, inasmuch as Dharam Lal admitted it in that case. The plaintiffs dispute this contention. They urge that Dharam Lal had no title to the properties at that time and his mother Nand Kuer being alive there was nothing which he could disclaim. The adoption was in spite of the admission set aside, and it was held that the adoption had not taken place. His admission was against truth and he or his descendants the plaintiffs are not estopped from relying upon the true fact that adoption had not taken place. He was not a party to the compromise' entered into between Ridhnath and Sona Kuer. He was, therefore, not bound by the statement of Sona Kuer in that case.
102. Briefly the plaintiffs contention is that the aforesaid litigations and the adoptions set up by Newazi Lal and Ridhnath did not affect the right of Dharam Lal to succeed to the properties after the death of their grandmother and mother. They also say that during their lifetime the possession of Newazi Lal or Ridhnath did not affect the right of the plaintiffs' ancestor which accrued only after the death of their mother and grandmother. This is true. But the possession of Ridhnath and his descendants would be adverse to Dharam Lal and his descendants the plaintiffs after the death of the mother and the grandmother when the succession opened to the grandsons of Hemnath. The exact daughter of Hemnath are not known. All that is known is that the widow of Hemnath was alive during the litigation between Tirloke Chand, herself and Newazi Lal which terminated with the judgment (Ex, H), dated the 12th November, 1812. Since then her name has not appeared in any litigation.
103. Nand Kuer, the daughter of Hemnath, is mentioned in the judgment (Ex. H 4), dated the 20th January, 1838, as having given her son Ridhnath in adoption to Newazi Lal . This is all that is known about her. She had at least three sons in 1805 when her father Hemnath died. One of the sons was married in 1804. She must have been much over 60 years in 1838 during the aforesaid litigation and, therefore, when the present suit was instituted in 1918 both she and her mother must have died when several twelve years had elapsed.
104. Now, Dharam Lal knew that Newazi Lal and Eidhnath set up their exclusive title to the properties based on their respective adoption. In fact, he admitted the adoption of the latter in the litigation with Sona Kuer which ended in 1839. He also knew that they were in possession of the properties by virtue of a claim adverse to him. Ridhnath and his descendants were solely recorded in the Government registers in respect of the properties in dispute ; they have been dealing with the properties as their own and have been in possession thereof as sole owners the documents are too numerous to mention.
105. Therefore, unless the plaintiffs prove that they and their ancestors were jointly in possession of the properties along with Ridhnath and his descendants their claim to a partition of the properties and to recover possession of their share therein is long barred by time. In fact, the plaintiffs or their ancestor could not Succeed without having the adoptions of Newazi Lal and Ridhnath set aside and the suit for setting aside such adoptions is barred by limitation even if the said adoptions are invalid, vide Mohesh Narain Munshi v. Taruck Nath Moitra 20 C. 487 : 20 I.A. 30 : 6 Bar. P.C.J. 261 : 17 Ind. Jur. 164 : 10 Ind. Deo. (N.S.) 330 (P.C.); Jagadamba Chowdhrani v. Dakhina Mohan, Roy Chaodhri 13 I.A. 84 : 13 C. 308 : 10 Ind. Jur. 307 : 4 Sar. P.C.J. 715 : 6 Ind. Deo. (N.S.) 705 (P.C.) and Vaithialinga Mudaliar v. Srirangath Anni 92 Ind. Cas. 85 : 48 M. 883 : A.I.R. 1925 P.C. 249 : L.R. 6 A.
(P.C.) 169 : 49 M.L.J. 769 : 42 C.L.J. 563 : 30 C.W.N. 313 : 28 Bom. L.R.
173 : (1926) M.W.N. 11 : 521. A. 322 (P.C.). In order to prove their joint possession the plaintiffs set up an ekrarnama or agreement (Ex. 1), dated the 14th November, 1811, entered into between the three brothers Newazi Lal , Dharam Lal and Ridhnath declaring their title to the properties and their joint possession and agreeing that Newazi Lal and after him Ridhnath would be in possession of the properties as karta or manager on behalf of Dharam Lal and his descendants.
106. The plaintiffs' case is that, as a matter of fact, neither Newazi Lal was adopted by Hemnath nor was Ridhnath adopted by Newazi Lal , but that the adoptions were; set up in order to prevent the properties going to the brother and nephews of Hemnath. Accordingly, the plaintiffs say that Dharam Lal supported the adoption of Ridhnath and with a view to his not being permanently deprived of the inheritance the ekrarnama in question was executed. The plaintiffs' case, therefore, entirely rests upon the ekrarnama.
107. The Court below has held that the ekrarnama is not genuine and has given good reasons' for this view. The Court says that the signature and seal of Newazi Lal on this document do not agree with, his signature and seal on the admitted 'documents on the record ; that the documents of 1811 were all written in the Persian language, but the ekrarnama is written in Urdu; that the description of the District as Zila Gayaji in the document is false, inasmuch as Zila Gaya did not come into existence until 1965 prior to which the District was called Zila Bihar. No good reason has been given for differing from the view taken by the Court below as regards this document.
108. Thus, the ekrarnama not having been proved, the plaintiffs have no other evidence to prove that they or their ancestors were in joint possession of the properties with Ridhnath or his descendants. Admittedly, for the last several generations the defendant and his ancestors have been in possession of the properties and their names have been successively recorded in. public and private documents. The plaintiffs have failed to prove their possession over the properties in dispute and consequently their claim for partition or for the recovery of actual possession must fail.
109. As to their claim for receiving allowances from the estate, it is not denied that for the last several generations they received allowances. The plaintiffs say that they and their ancestors used to receive maintenance allowances from the-estate on account of the arrangement arrived at between Dharam Lal and Ridhnath the ancestors of the parties. The defendant admits that they used to receive money and help, but denies that this ,was done on account of any arrangement between the parties or as a matter of right but that the plaintiffs and their ancestors received money and help on ceremonial occasions in their family on account of their being servants of the estate.
110. The parties through the able assistance of their legal advisers and the suggestions made by the Court have arrived at a satisfactory solution by means of an amicable settlement. The defendant has allowed the plaintiffs to 'get property yielding a net income of Rs. 1,200 yearly after deducting Government revenue, casses and collection charges. The terms of the settlement have been set forth in the sworn petition filed on behalf of the parties. The points involved in this case are, as this somewhat lengthy judgment will show, complicated. They were argued at great length and with ability at the Bar. We are satisfied upon a careful consideration of those points that the Battlement arrived at is for the benefit of all the parties concerned and notably of the minor plaintiffs-appellants, and accordingly we accord our sanction to it as being for their benefit. We direct that the appeal be decreed in terms of the compromise petition which will be embodied in the decree of this Court as a part thereof.
111. An objection has been taken as to the item in the decree of the Court below, regarding the Court-fee to be paid by the plaintiffs. This was the subject of issue No. 2 in the Court below. The Court below assessad ad valorem Court-fee upon the value of the properties in suit and accordingly directed the plaintiffs to pay the deficiency. The plaintiffs appealed to this Court, but ultimately withdrew the appeal in view of the fact that they were permitted to sue in forma pauperis. They were also allowed to appeal as paupers. The litigation having terminated as indicated above, the question has been raised as to the correctness of the decision of the Court below regarding the Court-fee payable by the plaintiffs. It would seem that the view taken by the Court below is incorrect. The learned Subordinate Judge held that reading the plaintiff it was a suit pure and simple for partition, and the Court-fee originally paid by the plaintiffs was sufficient. Upon the objection, however, of the defendant and in consideration of the ekrarnama, (Ex. 1) the Court changed its view and held that ad valorem. Court-fee was leviable. In my opinion the Court-fee is leviable upon the construction of the plaintiff alone and consequently the plaintiffs were liable to pay Court-fee as in a partition suit. Accordingly, the plaintiffs, who were allowed to sue as paupers, are directed to pay the Court-fee calculated as above.
112. I agree.