1. One Radha Mohan Ghose Moulik, a Bengali Kayastha zemindarof the District of Murshidabad governed by the Dayabhaga School of Hindu Law,died intestate on the 16th Vadro 1300 = 2nd September 1903. In the CollectorateRegister he was recorded as the proprietor of certain zamindari properties andas shebait of certain debutter properties. Shortly after his death SailendraMohan Ghose Moulik applied for registration of his name under the LandRegistration Act in respect of 8 annas of both the zeminlari and debutterproperties, alleging that he had been adopted by Radha Mohan as his son on the26th Joistha 1283--7th June 1876 and that Asita Mohan Ghose Moulik, who wasborn on the 29th May 1289 as the afterborn natural son of Radha Mohan GhoseMoulik, was entitled to the other 8 annas. Asita Mohan objected to Sailendrasapplication denying his adoption and applied for registration of his name inrespect of the entire 16 annas as the only son and heir of Radha Mohan. TheLand Registration Officers held that Sailendra was the adopted son of RadhaMohan and registered his name in respect of 8 annas of the zamindari propertiesonly and Asitas name in respect of other 8 annas and as shebait of the entiredebutter properties. Sailendra died on the 22nd Aswin 1312 = 8th October 1905,leaving Nirode Mohan and Khirode Mohan, his sons. They instituted Suit No. 79of 1909 in the Birbhum Court for a declaration that they were entitled asshebaits by descent from their father to 8 annas of such properties as weredebutter. They asserted that the properties set out in Schedules Kha and Ga totheir plaint were not debutter, and prayed for declaration that they wereentitled to one-half of these properties as proprietors, but submitted in thealternative that if the Court found that those properties were charged withdeva sheba expenses, they should be declared entitled thereto and to possessionthereof as proprietors, subject to such charge, or if the Court found them tobe absolute debutter, they submitted that they were entitled thereto asco-shebaits, to the extent of 8 annas.

2. Asita Mohan, on the other hand, instituted Suit No. 134of 1909 in the same Court for declaration of title to and possession of thewhole of mat or zamindari properties as the sole heir of Radha Mohan andclaimed that Kismat Binderpore (Tauzi No. 9552) recorded by the Land RegistrationOfficers as mal property was really the debutter property of Radha Gobind Jiu.Both these suits were tried together (see Order No. 18, dated 31st January1910, in Suit No. 79 of 1909 and Order No. 8 of same date in Suit No. 134 of1909) and one judgment has been delivered in both.

3. The learned Subordinate Judge has held

(i) as to adoption:

(1) That Radha Mohans family is a family of BengalKayasthas, who are Sudras, amongst whom the ceremony of "giving andtaking" only is necessary for the validity of an adoption.

(2) That Sailendra Mohan was given by his natural father,Kumar Narendra Chandra Roy, to Radha Mohan Ghose Moulik, who took the boy inadoption on the 26th Joistha 1283 = 7th June 1876 and that the adoption wasnotcontrary to law or custom in any respect.

That an ekrar-patra (Exhibit 13) was executed by Radha Mohanaddressed to Kumar Narendra Chandra Roy, the natural father of Sailendra Mohan,and a deed of gift (Exhibit 64) was executed by Kumar Narendra Chandra Roy infavour of Radha Mohan at the time of the said adoption and that both thedocuments are genuine, valid and operative.

(3) That being Sudras, Sailendra as the adopted son of RadhaMohan was entitled to share equally with Asita Mohan, the after born naturalson, and that he was also so entitled according to the terms of the ekrar-patra(Exhibit 13).

(ii) As to the debutter properties:

(1) That Kismat Binderpore mentioned in Suit No. 134 of 1909was not debutter nor was it ever treated as debutter.

(2) That as to the properties in Schedules Kha and Gaannexed to the plaint in Suit No. 79 of 1909, Harishchandrapur, Taraf Mandar(appertaining to Huda Kutubpur and Fatehpur) were not debutter, but all theothers were absolute debutter and not merely charged with deva sheba expenses.

(iii) That Sailendra Mohan had no right to be a shebatt inrespect of the deva sheba or the debutter properties in the presence of thenatural born son Asita Mohan, and, therefore, Sailendras sons had no suchright.

4. He has thus decreed that the sons of Saileridra areentitled to one-half of all the secular properties including Binderpore,Harishchandrapur, Taraf Mandar (appertaining to Huda Kutubpur and Fatehpur).

5. It appears that Sailendras son3 have effected mortgagesand granted putni leases in favour of defendants Nos. 3 to 6 in Suit No. 134 of1909. The learned Subordinate Judge has held that they are not binding on AsitaMohan.

6. Asita Mohan and the sons of Sailendra have filed separateappeals against such portions of the judgment and decree as are adverse totheir respective contentions. Defendants Nos. 3 to 6 have not appealed. AsitaMohans appeal, being the earlier one in order of date, came up first, but bothappeals have been heard together at the request of the parties.

7. We intend to deal with the findings of the SubordinateJudge in the order above set out.

(i) As to the adoption:

(1) We agree with the learned Subordinate Judge thatKayasthas according to the law prevalent in Bengal are considered as Sudras.The question has frequently arisen in connection with cases of adoption and itis settled that as Sudras, no religious ceremony is in their case necessary,but that the mere giving and taking of a son is sufficient to give validity toadoption amongst them. See Raj Coomar Lall v. Bissessur Dayal 10 C. 68 694. Asto Bengali Kayasthas being Sudras see the passage from Shayam Charan SirkarsVyavastha Darpana quoted in Raj Coomar Lall v. Bissessur Dyal 10 C. 68 . Theyhave been treated as Sudras in our Court for a long series of years and theirstatus as such cannot now be questioned. Asita Mohan did not submit anything tothe contrary in his plaint or written statement. No issue was raised as towhether Kayasthas are Sudras or not, when issues were settled in the TrialCourt. It appears, however, that during the examination of Banwari Lal Ghose,Asita Mohans witness (No. 22), questions were sought to be put to him aboutsome Kayasthas recently taking the sacred thread, which the learned SubordinateJudge disallowed. See Order No. 110 of the 2nd February 1912 in Suit No. 79 of1909. We think that thelearned Subordinate Judge rightly disallowed suchquestions. During the argument before us nothing was urged by Asita Mohanslearned Vakil on this point, but the concluding sentence of the learned juniorVakils address in reply was, that his clients having raised the point althoughthey as his Vakils had not argued it, it was not to be considered that thepoint was abandoned. We do not think the question ought now to be allowed to beraised. Bengali Kayasthas have been uniformly treated as Sudras in our Courtsand the question does not appear capable of serious argument, although attemptsmay have recently been made by some members of the community to trace theirdescent from Kshatriyas, and some of them may have actually taken the sacredthread as belonging to the regenerate classes.

8. As to the factum of adoption:

Sailendra Mohan was the second son of Kumar Narendra ChandraRoy of Sheoraphuli, the brother of Nagendra Bala, wife of Radha Mohan andmother of Asita Mohan. Narendra has been examined. He deposed to giving the boyin adoption to Rada Mohan on the 26th Joistha 1283 = 7th June 1876. On thatvery day the ekrar-patra (Exhibit 13) and deed of gift (Exhibit 64) were executedand registered and exchanged by and between the natural father and the adopter.The child was then seven or eight months old. Narendra made over the child athis own house at Sheoraphuli to Radha Mohan, who took him as his adopted son inthe presence of a large number of people who had been invited to witness theceremony. Within a month thereafter the boy was removed to Radha Mohans houseat Panchthopi, where the namkaran and annaprasan ceremonies of the boy and theputresthi jag were performed. At these subsequent ceremonies Narendra, thenatural father, was not present. The boy was named Sailendra Mohan GhoseMoulik--Ghose Moulik buing the caste name of Radha Mohan, and was brought up inRadhas family as his adopted son. Sailendra and Asita Mohan, who wassubsequently born, were taken by Radha Mohan himself on the same date (3rdAugust 1891) to the same school, the Metropolitan Institution in Calcutta, andadmitted there as students. All the members of the family of Radha Mohan, theirrelations and agnates, amlas, servants, tenants and others connected with themtreated Sailendra as the adopted son up to his death. He was married at RadhaMohans expense to the daughter of Raja Khetra Mohan Singh, member of a veryrespectable Kayastha family of Dinajpur, in 1298. He was known as the Boro Babu(eldest son) and Asita Mohan as the Chota Babu, the younger son. In the familyaccount books their expenses are so headed. Sailendra called Radha Mohan"father" and Nagendra Bala "mother" and his natural fatherNarendra as "mama" (maternal uncle in his relationship as the brotherof Nagendra Bala). Asita used to address Sailendra as "dada" (eldestbrother). After Radha Mohans death, which took place in Vadro 1310, invitationletters for the shrad, Exhibits 16 (1) and 16 (2), were issued in the name ofSailendra and this was done by Asita Mohan. At the shrad, gifts were dedicatedby Sailendra. In fact the evidence that Sailendra was known as and treated andenjoyed the status of a son during Radha Mohans lifetime and also right no toSailendras death is so overwhelming that both in the Trial Court and beforeus, the facts proved by his sons about such treatment were not seriouslychallenged. Learned Vakil for Asita Mohan conceded that these facts undoubtedlyraised a very strong presumption that Sailendra had been duly adopted. He wentfurther and said that if no direct evidence of the giving and taking had beengiven, the Court would have been justified upon that presumption in upholdingthe validity of the adoption but he argued that inasmuch as some directevidence was given, the question whether giving and taking of the childactually took place or not must rest upon that evidence and not upon anypresumption. If that evidence is unsatisfactory the presumption raised byconduct, he argued, would be of no avail. He criticised the evidence of KumarNarendra Chandra Roy and Jogendra Chandra Ghosh who deposed to the "givingand taking" as discrepant. Narendra could not exactly recall if Jogendrawas at the particular spot at the time of adoption, but "he was atSheoraphuli participating in the matter of adoption." Jogendra said he wasactually present at the time. According to Narendra the baby was brought in thearms of a maid servant to the baitakkhana (the outer apartments) and made overto him and he from his arms made over "the baby to Radha Mohan Babusarms", who took it in his lap and went "inside," meaning theinner apartments, and he followed. That was the giving and taking." Askedif anything was said on that occasion the witness answered: "I said I makeover the baby to you at the free will and consent of myself and my wife (and heaccepted it and said I have already taken the child, you bless him and he wentinside)": the portion within brackets the witness is said to havevolunteered. It is so noted in the deposition.

9. Jogendras version is-"From the inner apartments amaid servant brought the child. Kumar Narendra Chandra took the child from herand made over the child to Radha Mohan."

Q.--What did Narendra Chandra say when he made over thechild

A.--Narendra said, "You have been requesting me for thechild for a year. You may take him now."

Q.--What did he want the child for V A.--He wanted the childfor dattak grahan adoption). Radha Mohan took the child in his arms and went tothe inner apartments and Narendra also followed him. I have narrated theconversation as I heard it.

10. There is no discrepancy between. these two versions ofany value. It must be remembered that the witnesses were speaking in 1912 ofwhat happened in 1876, 36 years ago. That Narendra failed to remember thatJogendra was present at the spot, indicates that they had not been comparingnotes. Most of the other persons said to have been present on that occasion aredead. One Lalit Mohan Ghose is still alive, but it is in evidence that he wasill and bedridden when the case was being heard. As against the above evidencewe have that of Nogendra Bala, the mother of Asita Mohan. Her denial is of novalue. In fact she has so palpably told untruths even in respect of matters notseriously contested by Asita Mohan that the Trial Court was quite right indisregarding it. We are unable to attach any weight to her evidence. It was atfirst argued that the recitals in the ekrar-patra and deed of gift showed thatno giving and taking had taken place on the 26th Joistha 12S3, but later on thelearned Vakil modified his argument by saying that although the ekrar-patra(Exhibit 13) might be read as supporting the statement that the giving andtaking had taken place, the deed of gift was so worded as to show the contrary,that is to say, it showed that the giving and taking was to take place on afuture date.

11. Now Exhibit 13 is quite clear. It contains the followingrecitals:

You (Narendra) have of your own free will made a gift ofyour second son to me and executed a deed of gift. I (Radha Mohan) also of myown free will and in good faith adopt the aforesaid according to the Shastras.

12. This passage leaves no room for ambiguity. The argumentwas, however, based upon the opening sentence of the document which reads thusin the translation put before the Court, viz.--"Being without any issue I(Radha Mohan) intend to adopt a son," which was construed to mean that hehad not yet adopted the boy, but only intended doing so. The passage has,however, been mistranslated. The words used are "ami grahanechchookhawaya", which main "I having desired to take a son." Thistranslation was accepted as correct by the learned Vakil and he withdrew his argumentso far as the ekrar was concerned.

13. The argument as to the deed of gift (Exhibit 64)executed by Narendra is based on the following passage:

By adopting him a# a son according to the rites prescribedby the Shastras, by performing the namkaran and other ceremonies, by bringinghim up as your son, by performing all the ceremonies at different stages oflife, by making him a successor to your properties, etc., etc., you (RadhaMohan) shall live in the enjoyment of perfect felicity.

14. It is argued that this passage shows that the rites wereto be performed later and that inasmuch as the namkaran as a matter of fact didtake place later at Panchthopi, it was intended that everything in connectionwith the adoption was to take place later. This is plausible, but overlooks twopassages in the earlier part of the document, namely:

(a) "Accordingly, I give you my younger son foradoption by divesting myself of all rights in him." This is thetranslation in the paper-book, but the passage correctly translated should readthus--"I am giving you my younger son in adoption by divesting myself,etc." That this is the correct translation is accepted by the appellantsVakil. The Bengali words used in the document are "amar kanistha putrati apanakenisshatwa haiya dattak dan karitechi.

(b) You have also on agreeing to the same and on acceptingthe gift executed an ekrar, I also execute this Deed of Gift and declare asfollows: Whatever rights I had in the aforesaid son have from this day vestedin you.

15. If the giving and taking had not taken place on thatday, how otherwise had the right to the son vested in Radha Mohan from thatday That is the essential element in an adoption between Sudras. No doubt theputresthi jag and namkaran took place afterwards, but they are not essentialceremonies. It is also significant that Narendra was not present at Panchthopiwhere these ceremonies took place afterwards. If the "giving andtaking" was to have taken place later at Panchthopi, why did not Narendrago there The only explanation is that the formal giving and taking had takenplace before at Sheoraphuli.

16. The Bengali passage "apani jatha shastranusharedattak dan grahan kariya" has been translated as by adopting him accordingto the rites prescribed "by the Shastras." The verbal form"kariya" in Bengali may be rendered either as by adopting him,"or having adopted him." We are unable to draw the conclusion suggested bythe learned Vakil having regard to the two passages from the same documentabove given. We must not also forget that Exhibit 13 and Exhibit 64 arecontemporaneous documents.

17. It is quite true that at the time of the adoption RadhaMohan and his wife were not old and that the lady was not past child-bearingage, but they had been married many years and were without a child. Adoptionshad before this taken place in the family. In fact both Radha Mohan and hisfather were adopted sons. There is nothing unnatural in Radha Mohan thinking oftaking a son in adoption at that time. In fact there is evidence, which we seeno reason to disbelieve, that his wife was anxious that he should adopt thesecond son of her own brother and thus prevent him from taking a second wife.She appears to have proposed this adoption through amongst others an English governessin her brothers family.

18. To account for Narendra swearing that he had givenSailendra in adoption to Radha Mohan, it has been suggested that Narendra wasin very poor circumstances and was anxious to thrust the child on hisbrother-in-law, as too heavy a burden upon himself. Narendra was not, however,in straitened circumstances at that time. We do not see any reason why heshould be disbelieved, because he has since suffered from misfortunes and haslost his properties. He belongs to a Kayastha family of rank which at that timeenjoyed a high status. We see no reason to doubt his evidence and are ofopinion that the giving and taking took place as deposed to by him andJogendra.

19. It has also been suggested that the adoption wasunlikely as on that date Radha Mohan was in asouch, owing to a birth in thefamily of one Mohendra Narain, an agnate of his. The Subordinate Judge is rightin holding that it is not proved that any message about such Birth reachedRadha Mohan on that date. Such asouch results from knowledge of the fact. It isnot shown that Radha Mohan knew of such birth at that time. Besides, it hasbeen held that pollution on account of the birth of a relative does not vitiatean adoption. It is only a bar to religious acts and renders religiousceremonies inefficacious, but gift and acceptance are secular acts. SeeSantappayya v. Rangappayya 18 M. 397 : 5 M.L.J. 66.

20. It is argued that it is unlikely that the "givingand taking" took place in the baithakkhana in Narendras house, when hehad a thakurhari, but it is not a religious ceremony and only a secular act.

21. We have now dealt with all the points raised before usin connection with the adoption and hold that Sailendra Mohan was validlyadopted.

22. We shall now deal with the decision of the learnedSubordinate Judge that being Sudras, Sailendra the adopted son was entitled toshare equally with Asita Mohan the afterborn natural son, and that he was soentitled also according to the terms of ekrar-patra (Exhibit 13).

23. There has been considerable divergence of opinionbetween the different High Courts in India relating to the shares of an adoptedson and an afterborn natural son amongst the three regenerate classes, but thisis a case of Sudras, which has not been the subject of much judicialdiscussion.

24. Mayne thus deals with it in the second portion ofSection 168 H L, 224(8th Edition):

According to a text of Vriddha Gautama, an adopted and anafterborn son share equally. This text is said in the Dattaka Chandrika toapply only to Sudras, and in the Dattaka Mimansa it is explained awayaltogether as referring to an afterborn son destitute of good qualities. TheHigh Court of Madras, following Mr. W. MacNaghten and Sir Thomas Strange, sayit is in force among all Sudras in Southern India, and M. Gibelin says it isthe rule among all classes in Pondichery. It is the rule still in NorthernCeylon. Babu Shamachurn says that in Bengal this rule only applies to the lowerclass of Sudras.

25. Clear authority for the proposition that they shareequally is to be found in the Dattaka Ohandrika. See V, Sections 29 to 32.

26. The Dattaka Chandrika is a work of undoubted authorityin Bengal. It is a special treatise on the subject of adoption and"possesses at present", in the words of Mayne, "an authorityover other works on the same Subject." See Section 30, Hindu Law, page 30(8th Edition).

27. MacNaghten (W.H.) says--"in questions relative tothe law of adoption the doctrine of the Dattaka Ohandrika is adhered to inBengal."

28. In Rungama v. Atchama 4 M.I.A. 1 : 7 W.R. 57 (P.C.) : 1Suth. P.C.J. 197 : 1 Sar. P.C.J. 313 : 18 E.R. 600 their Lordships in the PrivyCouncil said, on page 97 referring to the Dattaka Ohandrika and the DattakaMimansa, as follows: "We think that these treatises are more distinct thanthe work of Jagannatha; they are written on the parti ular subject of adoption;they enjoy, as we understand, the highest reputation throughout India."

29. In Collector of Madura v. Moottoo Ramalinga Saihupathy12 M.I.A. 397 : 17 (P.C.) : 1 B.L.R. 1 (P.C.) : 2 Suth. P.C.J. 135 : 2 Sar.P.C.J 361 : 20 E.R. 389 their Lordships on page 4 37 said: "Of the DattakaMimansa and Dattaka Ohandrika the two treatises on the particular subject ofadoption, Sir William MacNaghten says, that they are respected all over India:but that when they differ the doctrine of the latter is adhered to inBengal."

30. In Woman Raghupati Bova v. Krishnaji Kasiraj Bova 14 B.249 a Full Bench of the Court said on page 259-"The Dattaka Mfmansa and DattakaChandrika are regarded in this Court as the leading authority on the subject ofadoption and although their title to such high authority has been disputed andsuch course may be fairly open to a critic of the decisions of the Court, theCourt should, in the absence of a very cogent reason to the contrary, notdepart from the standard it has uniformly applied in appreciating the value ofthe different text book writers."

31. In Sri Balusu Gurulingaswami v. Sri BalusuBamalahshmamma 26 I.A. 113 : 21 A. 460 : 22 M. 398 : : 3C.W.N. 427 : 1 Bom. L.R. 226 : 9 M.L.J. 67 : 7 Sar. P.C.J. 330 Lord Hobhouse indelivering the judgment of the Board said on page 131 pages of 26 I.A.--Ed.:"The date of the Dattaka Chandiika is not certain, but it is at all eventsvery much later than the Smritis." After dealing with the observations ofWest and Buhler in their Hindu Law, 3rd Edition, page 11, his Lordship says onpage 132 pages of 26 I.A.--Ed.: Both works have had a high place in the estimationof Hindu Lawyers in all parts of India, and having had the advantage of beingtranslated into English at a comparatively early period, have increased theirauthority during the British rule. Their Lordships cannot concur with Knox, J.,in saying that their authority is open to examination, explanation, criticism,adoption or rejection like any scientific treatises on European jurisprudence.Such treatment would not allow for the effect which long acceptance of writtenopinions has upon social customs, and it would probably disturb recognised lawand settled arrangements. But so far as saying that caution is required inaccepting their glosses when they deviate from or add to the Smritis, theirLordships are prepared to soncur with the learned Judge."

32. In Bhagwan Singh v. Bhagwan Singh 26. I.A. 153 : 21 A.412 : 3 C.W.N. 454 : 1 Bom. L.R. 311 : 7 Sar. P.C.J. 474 their Lordships onpage 161 pages of 26 I.A.--Ed. Say--"Their authority (Dattaka Mimansa andDattaka Ghandrikas) has been affirmed as part of the general Hindu Law,founded on the Smritis as the source from whence all Schools of Hindu Lawderive their precepts." They sum up by saying that "both works mustbe accepted as bearing high authority for so long a time that they have becomeembodied in the general law." Their Lordships in the Privy Council in thevery recent case of Nagindas Bhugwandas v. Bachoo Hurkissondas 32 Ind. Cas. 403: 23 C.L.J. 395 : 20 C.W.N. 702 : 30 M.L.J. 19 : 14 A.L.J. 185 : 3 L.W. 259 :19 M.L.T. 193 : 18 Bom. L.R. 172 : (1916) 1 M.W.N. 258 : 40 B. 270 havereferred to the Dattaka Ohandrika as a work of authority and held that theposition of the adopted son is accurately defined in the Dattaka Chandrika andDattaka Mimansa.

33. Having regard to these series of decisions the DattakaChandrika must be considered as a work of great authority.

34. Strange in his Hindu Law, page 99 (Edition 1830),states: "Amongst the Sudras the afterborn son and the adopted shareequally the parental estate" : but no authority is cited in support.Apparently the basis upon which it is based is the Dattaka Chandrika.

35. Although the high authority of the Dattaka Chandrika hasbeen accepted by the Privy Council in a series of cases, some recenttext-writers, among them Golap Chandra Shastri in his Hindu Law (4th Edition),have tried to question the authority of the Dattaka Chandrika, the work beingsaid to be a literary forgery and "according to rumour" written insupport of an adoption case which was then pending in the Calcutta High Court.The author speaks of the rule relating to Sudras as being a novel oneenunciated for the first time in the Dattaka Chandrika.

36. From this and the observations of the Privy Council inthe case of Sri Balusu Qurulingaswami v. Sri Balusu Ramalakshmamma 26 I.A. 113: 21 A. 460 : 22 M. 398 :: 3 C.W.N. 427: 1 Bom. L.R. 226 : 9M.L.J. 67 : 7 Sar. P.C.J. 330 that caution is required in accepting its glosseswhere it deviates from or adds to the Smritis, it has been submitted that noweight ought to be attached to the passages in the Dattaka Chandrika abovereferred to, inasmuch as, it is contended that the learned author has, inlaying down the above rule, deviated from the Smritis or added to them.

37. Before examining this contention, we should point outthat the rule as laid down in the Dattaka Chandrika relating to the shares ofthe Sudras adopted son and the afterborn natural son that they share equally,was accepted without question by the Madras High Court in Raja v. Subbaraya 7M. 253 one of the Judges in that case being Mr. Justice Muthusami Ayyar, whowas a great Hindu lawyer. The correctness of that decision has never beenquestioned. It has been quoted by the Privy Council in the case of NagindasBhugwandas v. Bachoo Hurkissondas 32 Ind. Cas. 403 : 23 C.L.J. 395 : 20 C.W.N.702 : 30 M.L.J. 19 : 14 A.L.J. 185 : 3 L.W. 259 : 19 M.L.T. 193 : 18 Bom. L.R.172 : (1916) 1 M.W.N. 258 : 40 B. 270 above cited without disapprobation.

38. In Baramanund Mahanti v. Krishna Charan Patnaik 12 Ind.Cas. 6 : 14 C.L.J. : 183 a Bench of this Court accepted the law as laid down inthe Dattaka Chandrika on this point. Their Lordships said: "It is,however, unnecessary to decide this point in the present case, namely, as towhether the adopted son took the fathers full share as the families are Sudrasand by paragraph 29 of the Dattaka Chandrika, Section V of the precedingparagraph 25 does not apply to families of that caste."

39. There are no other decided cases exactly on the point.We feel bound to attach great weight to the fact that these decisions haveremained unchallenged for over thirty years.

40. It has been pointed out to us that in the DattakaMimansa, v. 40 to 44, Vyavastha Darpana, 1042 to 1046, Vyavastha Chandrika(Edition 1880), Volume 2, page 1G9, Dayacrama Sangraha, Chapter VII, Clause 23,Dayatattwa by Raghunandan, Chapter II, Volume 37, Dayabhaga, Chapter X, Section9, V. 13, Vyavahara Mayukha, Mandaliks Edition, page 60, and Mitakshara,Chapter I, Section XII, V. 24 to 25, no special rule as to Sudras has been laiddown.

41. In order to examine the contention that the rule laiddown in the Dattaka Chandrika has added to or deviated from the Smritis, it isnecessary to quote the following passages from the work which give theauthorities in support of the rule:

V. Section 29.-"The mode, however, of partition betweenthe son of the wife, the son given and the rest and the legitimate son whichhas been propounded in what proceeded does not apply to the Sudra class."

V. Section 30.--Since in the following texts of Manu andYajnavalkya, respectively, a share equally to that of the real legitimate sonis prescribed for the son even by the female slave of a man of the class inquestion and the heirship with the daughters son of such son only when havingno brother is intimated; the equal partition of the son of the wife, the songiven and the rest with the real legitimate son whilst the father lives andtheir succession to the moiety of the share of such son, where the father maybe dead at the time of partition, follow a fortiori. And otherwise there wouldbe a great inconsistency, if where the son of the wife, the son given, and therest took the fourth of the share of the legitimate son, the son by a femaleslave, whose title is infinitely inferior in respect to these, were to take tinequal share with the legitimate son. Manu-But a son begotten by a man of theservile class on his female slave or on the female slave of his male slave may,by permission, take a share of the heritage. This is the law established.Yajnavalkya: "Even a son begotten by a Sudra on a female slave may take ashare by the fathers choice. But if the father be dead, the brothers shouldmake him partaker of the moiety of a share; and one who has no brothers may inheritthe whole property in default of daughters sons."

V. Section 31.--"if, according to this authority, wherethere may be no son of the wife and the rest, but there may be a wife anddaughters, the daughters son be entitled to share (with the son by a femaleslave): the rule for the succession of the daughter (or other proper heir)would be infringed; therefore, if any even in the series of heirs down to thedaughters son exist, the son by a female slave does not take the whole estate;but only shares equally with such heirs."

V. Section 32.-"Accordingly the text subjoined must beconstrued as referring merely to Sudras, A son given being thus adopted, if byany chance a legitimate should be born, let them be equal partakers of thefathers estate. So also in the following text the equal participation of alllawfully begotten Sudras having been first propounded, the succession to equalshares, of the other sons likewise, is subsequently declared by the sentence,(If there be ah hundred sons) occurring therein, For a Sudra is ordained awife of his own class and no other. Those begotten on her shall have equalshare; if there be an hundred sons (the same mode of partition shall obtain).If the sentence in question, be referred to the real legitimate son only, theposition contained in it being obtained from what preceded, its rap3titionwould be unmeaning."

42. The Dattaka Chandrika cites Manu and Yajnavalkya asauthority for the proposition laid down by him about the Sudras.

43. The passage in Manu runs thus:

Manu, IX, 179. Translated by Gitidy and Haughton thus:

* * * * *

Manu, IX, 179.

44. Translated by Grady and Haughton thus:

"But a son, begotten by a man of the servile class onhis female slave, or on the female slave of his male slave, may take a share ofthe heritage, if permitted by the other sons : thus is the lawestablished," * * * (anugnatah) has been rendered as if permitted by theother sons, which is wrong--it means, if permitted or directed by the father.See Kallukbhattas note on the above passage. He reads "iti dharmovyavasthita," as "iti shastra vyavastka niyata," that is to say,this is the established vyavastha of the Shastras.

45. The Dattaka Chandrika also supports itself by Manu IX,157, which runs thus:

For a Sudra is ordained a wife of his own class, and noother; all, produced by her shall have equal shares though she have a hundredsons.

46. The Dattaka Chandrika says that the "hundredsons" must refer to different classes of sons, otherwise it would bemerely a repetition of the earlier general rule laid down in Manu, andunmeaning.

47. The Dattaka Chandrika also supports itself by thefollowing from Yajnavalkya:

133.--A son begotten by a Sudra, even though upon a femaleslave, may take a share by choice.

134.--But after the death of the father, the brothers shouldmake him a half sharer-if he have no brothers, he may take the whole property,unless there are sons of daughters.

48. The Mitakshara note on the above is: "A sonbegotten by a Sudra on a female slave, obtains a share by choice (kamatah) thatis, by the option of the father. But after (the death of) the father, if therebe sons of a wedded wife, then these brothers should make that son of thefemale slave a half sharer. That is, they should give him a half from their ownallotment. However, should there be no sons of a wedded wife, the son of thefemale slave shall take the whole estate, provided there be no daughters of awedded wife, nor their sons. But if there be such, the son of the female slaveparticipates for half a share only. From the mention of a Sudra in this place,moreover, (it follows that) the son begotten by a man of a regenerate tribe ona female slave does not obtain a share even by the fathers choice, nor even ahalf, much remote (is the chance of his claiming) the whole. But, if he bedocile, he receives a bare maintenance." (Collection of Hindu Law Textsedited by Gbarpure, published by Nirnaya Sagar Press, Bombay, 1910).

49. The translation of these passages by MacNaghten andColebrooke (Tarbalankars Edition, 1870, page 331) is practically the same, butwe have quoted the above passage from Gharpure, as he follows the text moreclosely.

50. It appears from the above that the law, does riot givethe illegitimate son of a Sudra a right to a share in his fathers lifetime.The father may, if he chooses, (kamatah) give him an equal share with hislegitimate sons, and it is only upop the fathers death that he becomesentitled to a moiety of the share of the legitimate son.

51. The law does not require even a Sudra father torecognise such a son, probably with a view to discourage alliances with femaleslaves. Instead of creating a moral obligation for the maintenance of such ason out of the fathers estate upon the taker of the inheritance, the law givesthe illegitimate son of a Sudra the right to an equal share. The DattakaChandrika argues that if the illegitimate son of a Sudra gets an equal share,the adopted son, who is superior, a fortiori gets such a share. This, it issaid, proceeds upon an assumption that the adopted Son is superior to the sonby a female slave. The right of the son by a female slave, it is argued, isbased upon consanguinity, whereas an adopted son has no such claim. How then,it is asked, is he superior That amongst the regenerate classes the adoptedson is superior to the illegitimate son, is not questioned. He has a legalstatus, the illegitimate son has none. Even amongst Sudras the son by a femaleslave is not legitimate, and has no status as a son unless his father choosesto give it to him. The superiority of the adopted son in their case alsofollows my analogy. The adopted son is voluntarily brought into the family andgiven the position of a son. It does not, therefore, appear to us that theDattaka Chandrika has made an incorrect assumption in asserting that amongstSudras the adopted son is superior to the son by a female slave.

52. The first text referred to in the Dattaka Ohandrika inV, 32, is evidently that in Vriddha Gautama which is quoted in the DattakaMimansa thus (see Section V, 43): As for the text of Vriddha Gautama, "Agiven son abounding in good qualities (yatha jate) existing should a legitimateson be born at any time; let both be equal sharers of the fathers wholeestate."

53. It will be noticed that the Dattaka Chandrika uses thewords tatha jute meaning (subsequently born) instead of yatha jate. A slighttypographical variation would make yatha jate into tatha jate, and it isdifficult to say which really is the correct expression. Tatha jate gives anatural meaning and is an ordinary expression, but yatha jate is not. It hasseverely taxed the ingenuity of commentators. The way it has been construed tomean "one possessed of good qualities" is not very convincing. Thisis how the Dattaka Mimansa reads it: "That (passage) must be construed assupposing the former possessed of good qualities, and the legitimate son,destitute of same: on account of the epithet yatha jate (abounding in goodqualities). He, in whom there is a jate, that is, an assemblage (sarnulvi) ofgood qualities, (implied by yatha), is yatha jate--one abounding in goodqualities. This is the meaning; for, the term, yatha is significant ofsimilitude, depending on quality."

54. The meaning given in Dattaka Mimansa is said to receivesupport from Manu IX--141, which runs thus:

Of the man, to whom a son has been given, according to asubsequent law adorned with every virtue (* * * * * Upapannagunai): that sonshall take a fifth or sixth part of the heritage, though brought from adifferent family.

55. The Dattaka Chandrika says that the above passage fromVriddha Gautama, really refers to Sudras only, which seems to me to be anatural and logical conclusion. His argument is that it refers to a separateclass not to the regenerate classes, as otherwise the unequal shares mentionedfor the regenerate classes in the Smriti cannot be reconciled. To reconcileVriddha Gautamas text with those texts a forced interpretation has to be givenafter adopting such an unusual expression as yatha jate for a natural andeasily intelligible expression as tatha jate.

56. The Mitakshara says in the passage above quoted that thesons of a wedded wife should give the son of the female slave half from theirown allotment. This is made clear by Balambhatta, page 182, 11, 22-23, alsoSubodhini, page 61, 1, 26 (same edition) which runs thus: "From the entireestate, a half of what would be regarded as his share, i.e., one-half of theamount allotted to a legitimate issue."

57. This question about the Sudra adopted son and anafterborn legitimate sons share has been dealt with in Dattaka Siromonicompiled by Professor Bharat Chandra Siromoni of the Sanskrit College atCalcutta, an eminent Sanskrit scholar held in high respect in Bengal. It is avery valuable treatise on the law of adoption, which was published in 1867.

58. It comprises the following treatises on the law ofadoption: 1. Dattaka Mimansa: 2. Dattaka Chandrika: 3. Dattaka Nirnaya, (acompilation by Srinath Bhatta, a celebratred Pandit referred to in MacNaghtensConsiderations on Hindu Law, Preface, page xiii): 4. Dattaka Tilaka (referredto as a fragment of valuable commentary on Hindu Jurisprudence by Bhavadeva, anold writer on Hindu rituals also mentioned in Colebrookes Digest): 5. DattakaDarpana (a modern digest): 6. Dattaka Kaumudi (referred to in MacNaghtensPrinciples and Precedents of Hindu Law, Vol. II, page 200): 7. Dattaka Didhitireferred to as a work of authority in the evidence of Ramcoomar Siromoni inSrimutty Degumberry Dahy v. Srimutty Taramoney Baby quoted in MacNaghtensHindu Law edition 1824 Appendix xiii; 8 Dattaka Siddhanta Munjuri (also amodern digest).

59. After discussing the various authorities in Chapter Xthe learned author oil Dattaka Siromoni concludes thus (see page 194/2):

* * * * *

60. The meaning of the Shastras is that amongst Sadras theadopted son takes equal share with the aurasa son.

61. Tn Dattaka Kaumdi, page 25, we have the following:

* * * * *

The proof of this is set out in Vidhanamala. If after theadoption an aurasa son be born (yada jate) they become equal sharers of thewhole of the fathers estate.

62. It will be noticed that in the above the reading isagain different. It is neither yatha jate nor tatha jate but yada jate whichmeans, when born, which is practically the same as tatha jate.

63. Vidhanamala is undoubtedly an ancient work of authority.Dattaka Didhiti also supports the same view. Having regard to the above wecannot say that the Dattaka Chandrika has in any way deviated from the Smritisand inasmuch as the rule laid down in the Dattaka Chandrika in the case ofSudras has been accepted as correct by both the Madras and Calcutta HighCourts, we think the matter must rest there.

64. In this case the adopted son also takes an equal shareaccording to the ekrar-patra (Exhibit 13) which runs thus:

If by the blessing of God, a son of my loins is born, bothof them shall be equally entitled to all the aforesaid moveable and Immovableproperties which may be left by me, and the son born of my loins shall not beentitled to claim a larger share in them, and if he does so, it shall berejected.

65. We hold that the ekrar is valid and operative.

66. In the Andul case, namely, that of Surendro Keshub Boyv. Doorgasoondery Dossee 19 C. 513 (P.C.) : 19 I.A. 108 the ekrar was heldbinding as between the Ranis, the adoptive mothers, and it was further heldthat the adopted sons could insist upon the performance of the contract bywhich each Rani bound herself to the other to deal with the estate in theirfavour. In Bhala Nahana v. Parbhu Hari 2 B. 67 it was held that, where a personby an express promise to settle his property upon the boy induced his parentsto give him in adoption, but died without having executed a settlement, theequity to compel the heir and legal representative of the adoptive fatherspecifically to perform his contract survived, and that the property in thehands of the widow, the heir-in-law in that case, was bound by that contract.

67. Asita Mohan, the afterborn son, also relies upon theekrar (Exhibit 13) in support of his contention that according to its terms thedebutter properties do not go to the adopted son or his heirs.

68. We hold that in law and according to the ekrar Sailendrawas entitled to one half of the secular properties and his sons are nowentitled thereto.

69. Debutter:

The appeals so far as they relate to the debutter propertiesfall under the following heads:

1. That the properties alleged to be debutter are not so.

2. That in law the adopted son has no right to be treated asa shebait in respect of the debutter properties in the presence of thenatural-born son.

3. That in this case the adopted son cannot make any suchclaim having regard to the ekrar.

70. Before dealing with these contentions it is necessary togive a short account of the family to follow the history of the creation of thedebutter properties and the dealingstherewith. It is necessary to begin fromthe time of Nrisingha Deb Ghose Moulik who died about 1200, B.S. (1793-94). Heleft him surviving his brother named Gobind Deb, his widow Lakshiswari, a sonnamed Badan Chandra Ghose Moulik and Brojomoni, a daughter. Badan Chandra diedon the 6th Sravan 1213. He executed two documents on the day of his death,namely, a muhtipatra (Exhibit 14) in favour of his mother Lakshiswari by whichhe appointed her manager of his estate and an anwmatipatra (Exhibit 46) infavour of his wives Khudumoni and Bhubaneswari. Shortly after his death,namely, on the 17th of Sravan 1213, his two wives executed an ekrar-patra(Exhibit 47)in favour of their mother-in-law Lakshiswari, by which theyacknowledged and confirmed her appointment as manager and harta of the estateleft by their husband, and agreed that she was to get her name registered inthe Collectorate, and also stipulated that in the event of their adopting ason, he would in his turn be registered as proprietor. Lakshiswari thus tookpossession of the estate and got her name registered in the CollectorateRecords. It appears that Lakshiswari had some litigation with Gobind Deb, butthey settled their dispute by a deed of compromise dated the 18th Assar 1220(Exhibit 15), which recited amongst other things that Gobind Deb bad separatedfrom Lakshiswari and Badan in 1204. Lakshiswari continued in possession of theestate until the 26th Joistha 1230, when she withdrew from the management andexecuted a deed of relinquishment (Exhibit 48) in favour of her survivingdaughter-in-law Bhubaneswari, empowering her to get her name registered and tomanage the estate until she adopted a son, and pending his minority.Lakshiswari also executed about this time two debutter patras, VI and V2, infavour of her widowed daughter Brojomoni as shebait, namely, on the26th Joistha1230and 30th Joistha 1320, respectively. She died on the 11th Assar 1230.Bhubaneswari adopted a son named Krishna Kinkar, who married three wives,Kristapriya, Monmohini and Kristamoni, by whom he had three daughters but noson. He accordingly executed an anumatipatra, dated the 14th Kartik 1351 (29thOctober 1844), in favour of two of his surviving wives, namely, Kristapriya andKristamoni, giving them permission to adopt, but provided that his motherBhubaneswari was to continue as the manager of the estate during her lifetimeand after her death the widows were to be the managers, until the adopted soncame of age. They adopted a son named Radha Mohan and on the 29th Sravan 1272(12th August 1865) executed an ekrarpatra (Exhibit 45) in favour ofBhubaneswari and Radha Mohan, leaving the management in Bhubaneswaris hands,and giving up their rights in the estate in consideration of some propertiesgiven to them by way of maintenance. This deed also provided that the estatewas to vest in Bhubaneswari after their death and in Radha Mohan afterBhubaneswaris death. On the 6th Pous 1286 (20th December 1879) Bhubaneswariexecuted a "deed of gift and relinquishment" (Exhibit T) in favour ofRadha Mohan "as he was at that time fit to manage the estate and to takeit out of the hands of the Court of Wards," which had in the meantimetaken possession, owing to the incompetency of the proprietor. Radha Mohanthereafter took possession of the estate from the Court of Wards and thecontest is now between the sons of his adopted son Sailendra, and Asita Mohanhis afterborn natural son.

71. The debutter properties in suit are said to belong totwo deities, namely, RadhakantJiuand Jiu Shiva Durga. So far as the latter, isconcerned, there is no physical image, but p:ojas of both have been carried onin the family for a considerable time, the poojas of the latter being heldannually at Durga poojah time.

72. Of the debutter properties Taraf Harishpur alone is saidto have been dedicated to Joy Shiva Durga and the rest are claimed on behalf ofRadhakant Jiu. We intend to deal with individual items of the property in theorder in which we have summarised the findings of the learned SubordinateJudge.

(1) Kismat Binderpore.--The learned Subordinate Judge hadheld that this property is not debutter and was never treated as such.

73. It is said to have been endowed by Lakshiswari by a deedof gift, Exhibit M, dated the 8th Bysakh 1226, in favour of Radhakant Jiu.

74. Asita Mohan is the only witness who speaks of theproduction of Exhibit M from proper custody. He did not search for it, he hadnever seen it before he got it from one Gobind Adhikari who was in charge ofthe estate daftarkhana, Gobind Adhikari did not tell him where he had got itfrom. Gobind is still in his service but has not been called. We hold with thelearned Subordinate Judge that the production of Exhibit M from proper custodyhas not been proved.

75. It is a document written on plain paper and is notregistered. A large number of other documents executed during the time ofLakshiswaris management, both before and after the date of Exhibit M, appears,all of them, to have been registered. Its nonregistration is a circumstancewhich has to be remembered in considering the question of its genuineness.

76. Exhibit 36(2), which is a certified copy of theDecennial Settlement, shows that Kismat Binderpore was settled by theGovernment with Gobind Deb for the years 1197 to 1206, B.S.

77. Exhibit 40 (2), dated 28th Ohaitra 1212 = (9th April1806, is Badans application for registration of his name as proprietor, inwhich he alleged that Gobind Deb was the benamidar.

78. Lakshiswari is said to have dedicated this property byExhibit M in 1226. She was at that time managing the estate of Badan under themuktipatra. She had no right to dedicate any property either as mukhtear, or asexecutor if the muhtipatra be held to operate as Badans Will. She gave up hermanagement in favour of Bhubaneswari in 1233 by Exhibit 48. In that documentBinderpur is one of the properties mentioned by name as belonging to theestate. There is a Clause in that document which runs thus-"That you(Bhubaneswari) shall maintain the service and worship of the deitiesestablished by your husband according to custom, preside over your husbandshouse, etc." This is a general direction to the lady to manage the estateand keep up the shevas. It does not support the contention that Binderpur wastfeated as debutter property at that time. The document taken as a whole rathergoes against such a contention, as Binderpur appears in the schedule ofproperties therein set out as belonging to the estate of Badan. It directsBhubaneswari to get her name registered in respect of such properties in herplace.

79. Exhibit 42 (2), dated Aswin 1230 = 17th September 1823,shows that Bhubaneswari got her name so registered.

80. Exhibit 12, dated 18th Sravan 1275 = 1st August 1868),is an ijara lease granted by Bhubaneswari of the mal and kharidji lands of fiveinauzas including Binderpur. It is not clear from it what property is referredto as "dedicated to the service of the deities," but it is clearlynot a lease granted as shebait and the bulk of the lands leased seems to be mallands.

81. Bhubaneswari relinquished her management in favour ofRadha Mohan by Exhibit T, dated 6th Pous 1286 = 20th December 1879. This deedrecites that "Radha Mohan is the sole reversionary heir to theproperties," that he is "entitled to exercise the right of sale andgift in those properties and to remain in possession of them from generation togeneration in succession in any way he pleased." In the list of propertiesBinderpur is not specifically mentioned as debutter. This document purports totransfer the zamindaris, mal, debutter, etc., to Radha Mohan and. contains ageneral direction that he should perform the service of the deities, etc.

82. We have from the mutation decree, Exhibit 50(11), dateillegible, that Nabin Krishna Banerjee as manager for Bhubaneswari wasregistered for Binderpur and from Exhibit 50(10), dated 15th January 1881, thatRadha Mohan was registered as proprietor of that mauza, neither of them asshebaits for the (hahur From 1201, as shown from Exhibit 51(2), up to 1881 inthe Collectorate Records the zemindars are recorded as proprietors, not asshebaits. In Exhibit 24, dated 3rd Vadra 1308 = 19th August 1901) which is ahabuliyat by a tenant in favour of Radha Mohan in respect of certain chowkidarichakran lands. Kismat Binderpur is referred to as appertaining to hiszamindari. From Exhibit 58, a hastabad and terij prepared in 1288, Binderpurappears to have been treated as part of the zamindari estate. Dakhilas for agreat number of years, Exhibit 25 series and Exhibit 26, are in the name of thezemindars as owners.

83. The receipts from the property and payments of itsGovernment revenue are entered in the mal accounts of the family. Althoughpayments for land revenue of the other debutter properties are shown in thedebutter accounts, such payment for Binderpur is not there shown.

84. The above facts show that the learned Subordinate Judgewas quite right in holding that Binderpur was not debutter property and has notbeen treated as such.

85. The mere reference to the properties in Exhibit 12"dedicated to the service of the deities", even taking that referenceas relating to Binderpur, cannot lead one to conclude that Binderpur was reallydebutter property.

86. Exhibits VI and V2 both of June 1823 and which areregistered debutter deeds executed by Lakshiswari in favour of the deity RadhaGobind Jiu, appointing her widowed daughter Brojomdni as shebait, make noreference to Exhibit M, or to Binderpur as having been previously dedicated.Exhibit M has, however been sought to be supported by another unregistereddocument (Exhibit C) which is an arpannama, said to have been executed byBhubaneswari on the 4th Bysakh 1253. The date on this document appears to havebeen altered and some other documents, such as the Collectors rubokari(Exhibit A2) for registration of Bhubaneswaris name as shebait, dated 18thBaisakL 1273, which makes no mention of Exhibit C, throw doubt on itsgenuineness.

87. It is pointed out that both Exhibit M and Exhibit C beara note that they were filed in a case before the Deputy Collector. There is noevidence, however, that they were actually so filed.

88. To sum up, having regard to the registration of thenames of the zemindars as proprietors, not as shebaits, to the dakhilas intheir names as zemindars, to the absence of entries relating to the propertiesin the debutter accounts as above mentioned, to the payment of Governmentrevenue from the mal accounts, and the non-registration of the deed ofendowment, Exhibit M, when the bulk of the documents of transfer executed bymembers of the family are found to have been registered, and the want of proofthat Exhibit M was produced from proper custody, support the finding of theSubordinate Judge, which we uphold.

89. The Trial Court has also found that Harishchandrapur isnot debutter property and we agree with that finding, and as there is no appealfrom it by Asita Mohan, we need not deal with it any further.

90. As to the properties found to be debutter by the TrialCourt We shall deal with them in the order in which they appear in hisjudgment.

Harishpur.

91. This property is shown to have been purchased in 1192B.S. by Nrishingha Deb Ghosh Moulik as shebait in the name of the deity JoyShiva Durga. See Exhibits S3 and S2 (where his name appears as Nursing Ghose),dated 1st Chait 1192 B.S. and 21st Chait 1192 Respectively. The habuliyat forthe Decennial Settlement for this estate from 1197 to 1206 B.S. was executed byNrisingha Deb as such shebait. See Exhibit SI. We find from Exhibit W2, dated13th July 1807, that Government revenue was paid for it by Lakshiswari asshebait and Exhibit E4, dated 1st Aghran 1287, that Bjadha Mohan applied forregistration of his name as shebait. This exhibit also shows that before himBhubaneswari was recorded in the register as shebait, although the rubokariExhibit 42 (2), dated 17th September 1823, in respect of Bhubaneswarisapplication for registration does not specifically show that she applied tohave her name registered as such shebait.

92. It is clear from the evidence that there has been anannual puja held in the family in the name of Joy Shiva Durga. No doubt themere purchase of an estate in the name of a thakur dees not prove a dedicationsee Bajmohun Gossain v. Gourmohun Gossain 4 W.R. 46 (P.C.) : 8 M.I.A. 91 : 1Suth. P.C.J. 378 : 1 Sar. P.C.J. 723 : 19 E.R. 464 and Maharanee BrojosoonderyBebea v. Ranee Luchmee Koonwaree 20 W.R. 95 : 15 B.L.R. (P.C.) 176 : 4 Sar.P.C.J. 810 but we think that the documents above referred to and the way inwhich the proprietors of the estate dealt with the property, show that Harishpurwas validly endowed to the deity. No adverse inference can legitimately bedrawn against the debutter character of the property from the fact that itsincome is entered in a separate account, nor in the books of account of thedeity Jtadha Gobind Jiu. That her puja expenses appear in the secular accountis probably due to the fact that the income of the dedicated property wasinsufficient and had to be supplemented from the income of the secular estate.It is a small property and is shown to have been treated as debutter bysuccessive holders of the estate and held by them as shebaits.

93. We have been asked to hold by the sons of SailendraMohan on the strength of Exhibit 15, which is a deed of compromise executed inAssar 1220 by Gobind Deb in favour of Lakshiswari settling the litigation abovereferred to, that inasmuch as Mauza Harishpur is there recited as belonging toLakshiswari in her own right as her nij taluk, there is ample ground forholding that Nrisingha Dob Ghose Moulik acquired it in the benami name of thethakur to deprive his brother Gobind Deb, that it was put in the name of thethakur although it was really secular property. In support of this contentionreference has also been made to the mukti-patra (Exhibit 14) in favour of Lakshiswariand the ekrar of Lakshiswari (Exhibit 48) in favour of Bhubaneswari, wherethera is no specific mention of this property being debutter. We are unable toaccede to this contention. The absence of a permanent image has also beencommented upon. Such an image is not absolutely essential for dedication to athakur. The Durga Puja is a periodical festival in Bengal and clay images ofthe thakur are built every year and thrown into a river after the puja 13 over.Such puja of Shiva Durga has been held every year for a long period in thisfamily. We agree with the Trial Court that Harishpur is debutter property.

94. Huda Kutubpur (Fatehpur), Dayanagar and Hasnabad.Exhibits V1 and V2 and Exhibit 101 govern the above.

95. V-1 deals with Kutubpur and portion of Dayanagar,Exhibit 104 with Dayanagar and V2 with Hasnabad.

96. VI and V2 are taken together, as Lakshiswari purportedto create these endowments appointing Brojomoni shebait. They were executedabout the same time, namely, VI on the 26th Joistha 1230 and V2 on the 30thJoistha 1230. The endowment is in favour of the deity Radha Gobind which alsoappears to have been established about the same time. The thakur is inexistence and has been located in a large thakurbari and its daily andperiodical festivals have been conducted ever since. Separate accounts are keptin the name of the thakur and the sheva has been carried on by successiveholders of the estate. Brojomoni got her name registered as shebait, seeExhibits E, E2 and US. Brojomoni acquired other properties out of the income ofthe endowed properties in the name of the thakur and got her name registered inrespect of them as shebait. She paid revenue as shebait and remained inpossession as such up to her death, which occurred in 1285 B. Section After herdeath Badans heirs kept those properties separate and treated them as validlyendowed, as also the properties acquired out of their income.

97. The originals of VI and V2 have not been produced. AsitaMohan was called upon to produce the original of one of them, but did not, andcertified copies produced by him were admitted. The sons of Sailendra Mohan hadin fact called upon Asita Mohan to produce VI arid V2 and were ready to filecertified copies upon non-production of the originals. We hold that VI and V2have been properly admitted and that they are genuine documents.

98. It is to be noticed that Lakshiswari relinquished hermanagement in favour of Bhubaneswari by Exhibit 48 on the 26th Joistha 1230,the same day she executed VI in favour of Brojomoni, and four days later,namely, on the 30th Joistha 1230, she dedicated further properties by V2 inBrojomonis favour as shebait. It is quite clear she, as manager or executor,had no authority to create such debutters. It has been argued that thesededications were apparent, and that in substance they were by way of provisionfor Brojomoni, specially as the deeds provided that after Brojomonis deathBhubaneswari was to succeed as shebait and after her the adopted son of Badan.It is no doubt capable of that inference, but it is quite possible also thatBrojomoni was pious minded and Lakshiswari thought her a fit and proper personto act as shebait. Nothing has been placed before us to show that any fraud wascontemplated. This has not even been suggested.

99. It is quite correct that Lakshiswari had no legal powerto create such endowments, but the subsequent successors to the inheritance didnot question their validity prior to this suit. No doubt in the list ofproperties made by the Court of Wards during its management, these propertieswere included in a general list of properties belonging to the estate, as alsoin the schedule to Exhibit T, But we find from Exhibits BB1 and EE3, RadhaMohan applied as shebait in 1881 to have the name of the thakur registered inrespect of Dayanagar, Kutubpur and Patehpur and it was so ordered.

100. Having regard to all the circumstances we hold that theabove properties were debutter. We do not think we ought to, after this lapseof time, hold the endowments void.

101. Sreedhurpur, Paharpur and portion of Kutubpur.--Thesewere purchased from the income of the other three.

102. Exhibit N1 is the conveyance of Sreedhurpur in favourof the idol represented by Brojomoni as shebait, dated 6th Falgoon 1237.

103. Exhibits O and P (dated 3rd Joistha 1238 and 28thJoistha 123") are similar conveyances of Paharpur and Exhibit Q, dated27th Ohoitra 1237, is a similar conveyance in respect of 7 1/2 annas ofKutubpur.

104. It is conceded by the appellants that our decision inrespect of the other three will also govern these properties. We hold that theyare debutter.

105. The last one of the properties we have to deal with is

Mohonpur.--Lakshiswari obtained this property as a gift fromher father. See Exhibit Y, dated 25th Agran 129S. Exhibit R, dated 14th Kartik1251, is the anumati-patra in favour of his widows executed by Kristo Kinkar.It also purports to assign Mohonpur as additional estate for the thakur RadhaGrobind. The ekrarf Exhibit 45, of 12/2 executed by the widows in favour ofBbubaneswari and Radha Mohan contains a recital that Mohonpur is dedicated tothe thakur and we find from Exhibit AA4 that in 1287 Radha Mohati got thethakur registered in the Oollectorate as proprietor represented by him asshebait.

105. We hold that Mohonpur is debutter. In fact it has notbeen seriously contested that it is not.

106. The sons of Sailondra Mohan have, however, submittedthat as the income of the debutter properties exceeds the expenditure for devasheva and inasmuch as large sums of money from the deva sheva fund have beenshown to have been spent in Radha Mohans time in payment of his personal debtsand expenses, as also for the maintenance of the daughters of Kristo Kinkar, weshould hold that the above properties were only charged to the extent of theamount necessary for the sheila and the balance of the income should bedeclared divisible as secular property. The learned Subordinate Judge has foundthat the income of the debutter properties is roughly between Rs. 6,000 and Rs.8,000 and the expenses have been variously estimated between Rs. 3,000 and Rs.5,000. It may be that there is a small margin left over, but as we find thatthere was a clear intention of creating the properties dibutter and they weretreated as such by the subsequent holders of the estate, although Radha Mohanappears to have spent some of the income on his personal account and also tohave mortgaged Paharpur without mentioning that it was1 debutter property, wedo not think it would be right to hold on the materials before us that theproperties were not absolutely dedicated, but are merely charged with devasheva expenses. All the documents show that these were genuine endowments, andintended to be absolute.

107. The next question is as to the right of Asiti Mohan andSailendras sons to be treated as co-sharers. The learned Subordinate Judge hasheld against the latter, basing his judgment mainly on the ekrar executed byRadha Mohan, Exhibit 13. He rightly holds that shebaitship can be held inshares and separate palas may be directed. Ordinarily the right to shebait shipof family deities goes by inheritance unless otherwise provided by the deed ofendowment. The learned Subordinate Judge, however, seems to think that inasmuchas in the presence of the natural-born son, the adopted son is not competent toperform the krityadis and no specific mention is made in the ekrar in this caserelating to the adopted sons right to the shebaitship, Sailendra had no rightto it, and so Sailendras sons have no such right, When he is speaking, ofkriyadis, he is referring collectively to deva krityas and pitri krityas,namely, the shevas and shrads. It is now settled law that as regardsinheritance the adopted son holds in all respects the same position as anaurasa son, except in some special matters. Let us see if there are anyspecific rules excluding him from shebaitship in the presence of the aurasason. We find that in the presence of the aurasa son, the adopted sons right toperform certain shrads is cut down. If after adoption a natural son is born tothe adopter, then the adopted son cannot perform the adya or first shrad, thetwelve monthly shrads which follow, the six-monthly and the anniversary shradand the sapindi-karan (see Sarkar on Adoption--Tagore Law Lectures, 2ndEdition, page 388). Subject to this restriction, however, he can perform allthe other shrads like the aurasa son, with this variation that the anniversaryshrads have to be performed by him in the ekoddista form in honour of thedeceased only and by the aurasa son in the parvana mode, in which a double setof three oblations are presented. So the aurasa son has a superior right inrespect of pitri-matri krityas, but there is no such preference in respect ofshevas or deva krityas.

108. The learned Subordinate Judge has drawn an adverseinference against the adopted son inasmuch as no reference is made in theekrar, Exhibit 13, to his having equal rights in the debutter properties, whilethere is such a reference to his succeeding to the secular properties.

109. The passage in the ekrar runs thus:

From this day the aforesaid adopted son has become entitledto all my properties, moveable and immovable, and to perform the services ofthe idols and all rites and ceremonies in connection with maternal and paternalancestors. After my death, he shall perform the services of the deities andlive in my ancestral residence at Punchthopi, and being vested in all myrights, and entitled to the ownership of these properties, be shall protect,enjoy and possess them by exercising the rights of sale and gift, and shallmaintain all my rites and ceremonies. If by the blessing of God a son of myloins is born, both of them shall be equally entitled to all the aforesaidmoveable and Immovable properties which may be left by me, and the son born ofmy loins shall not be entitled to claim a larger share in them, and if he doesso, it shall be rejected.

110. In the second portion there is no reference to theright to perform the service of the idols, but we are unable to agree with himin construing the silence into a denial of the right. The right has not beenexpressly taken away, nor can it be said to have been taken away byimplication. It is difficult to draw such an inference on the supposition thatthe adoptive father must be taken to have known that the natural son has somesuperiority over the adopted son in respect of shrads, and his intention wasaccordingly to disqualify him from sharing the shevas. Such a conclusion is far-fetched.The learned Subordinate Judge also supports his decision on the ground that itappears from Narendras evidence that the question of debutter properties wasdiscussed at the time of the adoption, and he says that because nothing ismentioned in the ekrar about them, it must be taken that Radha Mohan intendedto exclude the adoption in case of thebirth of an aurasa son. This is based onthe following passages in Narendras evidence which appears in hiscross-examination:

Q.--Was there any talk about the debutter properties at thetime of the ekrar

A.--Not at the time of the ekrar, but when the draft wasbeing made.

Q.--What was it

A.--Radha Mohan Babu proposed that in case he gets anatural-born son, he would have the right to perform the deva kirti and pitrakirti, that is, he did propose but not accepted, neither inserted in the deeds.

Q.--Again I ask, was there any talk regarding debutterproperties (Objected to).

A.--Radha Mohan Babu said he got the debutter properties andin case he gets a natural-born child, he would have control over the debutterproperties, but it was not accepted, but as, it tantamounted to carving of theproperty, for good or bad reasons, I did not agree, and hence it was notinserted in the deed.

111. It is quite possible that if there was a discussion atthe time, and Narendra did not agree to Radha Mohans suggestion about thedebutter properties, the matter was dropped and the law was left to take itsown course. If it was settled that the adopted son was not to get it at all,Radha Mohan could have easily inserted in the deed that the adopted son wouldhave no such right in the presence of the aurasa son. Neither of them has anyinterest in the debutter properties except as shebait, and it is quiteconceivable that the adopter did not think it necessary expressly to providefor the contingency.

112. We hold, therefore, that Sailendras sons are entitledto take eight annas in the properties found by the Subordinate Judge andourselves not to be debutter and that they are jointly entitled to rank asshebaits equally with Asita Mohan in respect of the properties found by bothCourts as debutter. For convenience of the shevas the properties are to be heldunder joint management, but the periods of the skeva may be divided intosix-monthly palas or annual palas or in alternate years, as they may arrangebetween themselves, failing-which liberty is given to them to take thedirection of the Court.

113. During the progress of the appeal we were informed thatthe parties had settled their disputes amicably and the matter was allowed tostand over for recording the settlement, subject to our sanction, as infantswere involved. We regret that in spite of the advice of the learned Vakils thesettlement has fallen through. The estate is not a large one and may be lost inthis somewhat expensive litigation.

114. Asita Mohans appeal fails in every respect and isdismissed with costs.

115. The appeal of Nirode Mohan and others succeeds asregards their right to shebaitship and we allow their appeal with half costs.

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Asita Mohan Ghose Moulikvs. Nerode Mohan Ghose Moulik(08.05.1916 - CALHC)