Robert Lindsay Ross, J.

1. Narayanprasad Roy had a daughter Unamoyee who inherited his property. That property is in dispute in this case. Unamoyee was married to Golak Prasad who had another wife Alhadini. By Unamoyee he had a son Ramprasad Bose and by Alhadini he had four sons, of whom one Gobind Prasad was the original plaintiff No. 1 and is now represented after his death by his son Rajendra, Sanand Prasad alias Chemo is plaintiff No. 2, and Benode Prasad is plaintiff No. 3. There was another son Sanatan Prasad who is now dead. Ram Prasad Bose was married to one Alhadini alias Gangamoni. He died without issue and his widow adopted one Krishna Prasad Bose who was married to Nirupama Dasi a witness for the defence. He died leaving a son Gopal Prasad Sen alias Gopal Prasad Bose the defendant, who being a minor is represented by his mother. Krishna Prasad Bose was the son of one Ramshankar Sen. Golak Prasad had two brothers Mukunda and Jagannath. Mukunda had a son Sivaprasad whose son is Gokul a witness for the plaintiffs and Jagannath had two sons Raghunath Ghose and Kanu the husband of Adarmani Dassi a defence witness. Ram Prasad Bose, who was a clerk in the Salt Department of the Collectorate at Balasore, died at the age of twenty-four on the 16th of February, 1869, leaving his widow Alhadini alias Gangamoni to whom he had been married for a year or a year and a half and who was then about twelve. Golak Prasad died on the 26th of October, 1873. Krishna Prasad Bose was adopted on the 23rd of November, 1884, and died in 1909. The plaintiffs have brought this suit as heirs of Ram Prasad Bose and claim the property which he inherited from his mother alleging that the anumati-patra or deed of authority to adopt under which Alhadini adopted the defendant's father was a forgery, and in the alternative that the authority was not exercised according to law. The defence was that the anumati-patra was a genuine document executed by Ram Prasad Bose on the day of his death and that the power was duly exercised.

2. The principal issues in the case were:

"Issue No. 4, is the anumati patra a forged or genuine document and issue No. 5, was the defendant's father adopted by Ram Prasad Bose's widow If so, is that adoption legal and valid and was he ever in possession of the property in suit

The learned Subordinate Judge decided both these issues in favour of the defence and dismissed the suit; and the plaintiffs have appealed. The learned Advocate for the appellants dealt first with the fifth issue. The factum of the adoption is no longer disputed nor is the defendant's possession of the property in suit. The question raised in this issue, which was debated in appeal, was confined to the validity of the adoption.

The deed is Ex. B. It recites that as the executant was taken ill and found that he was not likely to live and it was absolutely necessary that he should have an adopted son or sneha-putra to inherit his property, he executed the deed in favour of his wife to the effect that she will take an adopted son, that is, she will adopt his father's youngest son at present called by the name of Chemo. She will take him in adoption and deliver him possession of the property on his (the executant's) death.

"If there be any obstacle to take him in adoption according to the Shastras then he will be made a sneha-putra or she may adopt anyone else whom she wants with the permission of my father and deliver him possession."

3. The first question that arises is whether Ram Prasad's step-brother could have been adopted In the first place it is argued that even if the parties are treated as belonging to one of the twice-born classes, the restriction on adoption only extends to daughter's sons, sister's sons, and mother's sister's sons: 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.), and that the adoption of a step-brother even in these classes is lawful. The test is that the adopted boy must not be a boy whose mother the adoptive father could not have legally married, the applicability of this prohibition being considered with reference to the natural mother in her virgin state. This principle is stated in 1863 by a Full Bench in Calcutta in connection with an adoption in a Brahmin family [Morun Moee Debeah v. Bijoy Kishto Gossamee W.R.F.B. 121.] Consequently, adoption of a step brother cannot be prohibited. It will be observed that the condition in the anumati-patra affecting the adoption of Chemo is "If there be any obstacle to take him in adoption according to the Shastras." Now in the Dattaka Mimansa, one of the two authorities on the Law of Adoption, there is an express prohibition of an adoption of a brother and this was held to include a step-brother (Gopal Chandra Sircar's Bindu Law of Adoption. Second Edition, 317, Mayne's Hindu Law, Ninth Edition, page 18. It was argued that the Dattaka Mimansa cannot be held to be included within "the Shastras." But it was undoubtedly a book of great authority. The Judicial Committee had in 1868 approved of Sir William Macnaghten's statement of the authority of the Dattaka Mimansa, Collector of Madura v. Muthu Ramalinga Satthupathy 16 W.R.P.C. 171 B.L.R.P.C. 1 : 12 M.I.A. 397 : 3 Mad. Jur. 298 : 2 Suth. P.C.J. 135 : 2 Sar. P.C.J. 361 : 20 E.R. 389 : 1 Ind. Dec. (N.S.) 1 (P.C.), and in the case of 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.) the Judicial Committee referring to the Dattaka Mimansa and the Dattaka Chandrika observed that both books had been received in Courts of Law including that Board as high authority and that they must be accepted as bearing high authority for so long a time that they have become embedded in the general law. It would, in my opinion, be putting too narrow a construction on the language of the deed to limit it to the original sources of Hindu Law. The real question, it seems to me, is not whether the adoption of a stepbrother has been sanctioned by later decisions or is not within the principle of the prohibitions or even whether it is or is not prohibited in the original sources of Hindu Law, but whether, there was either a prohibition recognized at the time or at least a bona fide doubt; and on this point the case seems clear. Even in 1881 in Sriramalu v. Ramayya 3 M. 15 : 1 Ind. Dec. (N.S.) 566 a distinguished Hindu Judge accepted and explained the reason for the rule that a step-brother could not be adopted.

4. It is contended in the second place that as the parties are Kayasthas of Bengal, they are Sudras and, therefore, free from all restrictions of this kind in the matter of adoption (Vyavastha Darpan, 1859, page 1158), Raj Coomar Lall v. Bissessar Dyal 10 C. 688 : 8. Ind. Jur. 621 : 5 Ind. Dec. (N.S.) 462, Asita Mohan Ghose Moulik v. Nirode Mohan Ghose Moulik 35 Ind. Cas. 127 : 20 C.W.N. 901 and Biswanath Das Ghose v. Sarosibala 66 Ind. Cas. 590 : 48 C. 926 : 25 C.W.N. 639. Consequently there could be in law no obstacle to the adoption of Chemo. The question whether Kayasthas are Sudras has been discussed elaborately in Ishwari Prasad v. Ravi Prasad Lal 106 Ind. Cas. 620 : 8 P.L.T. 34 : A.I.R. 1927 Pat. 145 : 6 Pat. 506. It will be observed that the authorities cited on behalf of the appellants rest on the decision in Raj Coomar Lall v. Bissessur Dyal 10 C. 688 : S. Ind. Jur. 621 : 5 Ind. Dec. (N.S.) 462 which in its turn rests on the Vyavastha Darpan. The decision in Raj Coomar Lall v. Bissessur Dyal  10 C. 688 : S. Ind. Jur. 621 : 5 Ind. Dec. (N.S.) 462 given in the year 1884 was on the case of a Behari Kayastha and, as it has been expressly dissented from in the decision in Ishwari Prasad v. Hari Prasad Lal  106 Ind. Cas. 620 : 8 P.L.T. 34 : A.I.R. 1927 Pat. 145 : 6 Pat. 506 it is not an authority in this Court. It will be further observed that the latest case in Calcutta Biswanath Das Ghose v. Sarosibala 56 Ind. Cas. 590 : 48 C. 926 : 25 C.W.N. 639 relied upon the case of Asita Mohan Ghose Moulik v. Nirode Mohan Ghose Moulik 35 Ind. Cas. 127 : 20 C.W.N. 901 which went before the Privy Council where this question was expressly left undecided: Asita Mohan Ghose Moulik 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 even in the case in Raj Coomar Lall v. Bissessur Dyal 10 C. 688 : S. Ind. Jur. 621 : 5 Ind. Dec. (N.S.) 462 it was held that the Kayasthas had originally been Kshatriyas and it does not seem to follow that because they had long ceased to observe some of the ritual duties of that class, their personal law would thereby have been changed, and in any case, as the learned Subordinate Judge observes, the parties would not have admitted that they were Sudras. Sarbadhikari in his Principles of Hindu Law of Inheritance--Tagore Law Lectures, 1880, 1922 Edition, at page 833, has the following notes:

"Do the Kayasthas of Bengal belong to any of the superior classes In several cases which came up before the Courts, they were taken as Sudras [Sashi Nath Ghosh v. Krishna Sundari Dasi 4 Ind. Jur. (N.S.) 588] The question, however, whether they belong to the Sudra class or not, though raised in some of these cases, was not decided. The question is a very important one and should be considered in all its bearings. The Kayasthas of Bengal indignantly deny that they are sudras and several learned treatises have been written to prove that they belong to the Kshatriya class (see Kayastha Kaustubha by Raja Raj Narain Mitra Varma)."
5. This book was published in 1882. This matter also must then have been in a state of doubt and the authorities which hold that Kayasthas are Sudras are of no real assistance in the matter.

6. In connection with this part of the case the learned Subordinate Judge has discussed the evidence that Golak Prasad took legal advice at Cuttack after the death of his son as to whether a step-brother could be adopted and received an adverse opinion. This evidence consists of a statement made by the plaintiff's witness No. 2 the clerk of the Vakil Babu Haricharan Banerji. This witness was called in order to prove the handwriting of two written statements. In cross-examination he said that he saw Golak Prasad at Haricharan's house and that he went to consult him if Alhadini could adopt his son Chemo, and Haricharan said that his son could not be legally adopted. The learned Advocate for the appellants contended that the evidence of plaintiff's witness No. 2 must be false because he says that he was. Haricharan's clerk for ten or eleven years until 1885 and consequently he could not have been present at any interview between Haricharan Banerji and Golak Prasad who died in 1873. The learned Subordinate Judge also referred to the evidence of defence witness No. 4. It is argued that this is a mistake so far as Golak Prasad is concerned. This witness spoke of Alhadini's asking him to consult his brother who was a Pleader, as to whether Chemo could be adopted, about a year and a half before she actually adopted Krishna Prasad Bose. Now, in my opinion, there seems no sufficient reason for disbelieving the evidence of Adwait Prasad Roy, plaintiff's witness No. 2. The argument against his evidence rests on an arithmetical calculation based upon the figures above referred to. But the witness was speaking of events that had happened about fifty years before and this test is evidently not a reliable one. Nor is there any reason for disbelieving the evidence of Pitamber Mitra the defence witness. The probability is that Alhadini before adopting would have consulted a lawyer and, as Pitamber Mitra was married to Alhadini's sister and was himself the brother of a Pleader, there is nothing improbable in her having asked him to consult his brother. His evidence is not relevant to the question whether Golak took legal advice but it is relevant to the question why Chemo was not adopted. This evidence has been believed by the learned Subordinate Judge and there is no sufficient reason for differing from his opinion.

7. It was then argued that even if this evidence is true, the wrong advice of Pleaders would not create an obstacle to Chemo's adoption on the ground that ignorance of the law is no excuse. The soundness of this argument must be judged with reference to the position of the parties. If Golak Prasad was in fact advised that the adoption could not be made it seems to me impossible to hold that because that advice was wrong (if it was wrong) there was no obstacle in the way. No responsible person could be expected to go against the opinion of his legal adviser in a matter of this kind: and as soon as this opinion was given, an opinion for which there was good ground in the law as it was understood at that time, it seems to me that an obstacle arose.

8. Then it was said that in the written statement filed on behalf of Krishna Prasad Bose in a suit brought by Sanatan Prasad Bose in 1894 the adoption of Krishna Prasad was not sought to be defended on this ground. The form of the written statement in that suit seems to have been determined by the form of the plaint in which no question about the adoption of Chemo was raised.

9. It was next argued that in Ex. G-1 the deed executed by Alhadini on the 25th of February, 1885, reciting that she had taken in adoption Krishna Prasad the son of Ram Shankar Sen, the reason given for not adopting earlier was that she was involved in debts and engaged in litigation and was unable to get a son born of a respectable family before. But there was no necessity in this deed to recite the reason for her not adopting Chemo and that in itself would have been no explanation of the delay in executing the power.

10. Then it was said that if Chemo could not be adopted, Alhadini was required to take him as a sneha-putra before adopting anyone else. This, in my opinion, is not the true construction of the deed which plainly gives her the alternatives, in the event of an obstacle to Chemo's adoption, either to take him as a sneha-putra or to adopt some one else.

11. There remains the question whether the absence of the permission of Golak Prasad invalidates the adoption. The learned Subordinate Judge has accepted the evidence of Adarmani as showing that Golak Prasad had given formal permission to adopt a stranger. It was argued that this evidence cannot be believed for one reason, because Golak Prasad could not have given such permission inasmuch as if his own son was ineligible he had a son of his nephew, one Hari, in existence, and for another, on account of its casual nature the overhearing of a conversation fifty years before. The learned Subordinate Judge seems to have misconstrued the evidence of Adarmani in treating it as amounting to proof that Golak gave a general permission to adopt but the matter must have been discussed in the family and all that the witness says is that Golak said that he would arrange another boy for Alhadini to adopt as Chemo could not be adopted. There is nothing incredible in this evidence if it is believed that an opinion adverse to Chemo's adoption had been given. This evidence would at least indicate that Golak himself did not consent to the adoption of his son and that would be another reason for setting the matter at large.

12. It is argued that an authority to adopt must be strictly pursued: Chowdry Padam Singh v. Koer Udaya Sing  12 W.R.P.C. 1 : 2 B.L.R.P.C. 101 : 12 M.I.A. 350 : 2 Suth. P.C.J. 219 : 2 Sar. P.C.J. 447 : 4 Mad. Jur. 208 : 1 Ind. Dec. (N.S.) 548 : 20 E.R. 371 and that when the possibility of obtaining the sanction of Golak Prasad ceased with his death, the power to adopt could no longer be exercised. The answer to this argument by the respondent is that the deed (Ex. B) shows an overriding intention that an adoption should be, made:

"I find that it is absolutely necessary that I should have an adopted son or sneha-putra (to inherit) the zamindaries, etc." and that the deed must be construed liberally so as to give effect to that intention if it is possible to do so without contravening the law: Sarada Prasad Pal v. Ramapati Pal  16 Ind. Cas. 817 : 16 C.L.J. 304 : 17 C.W.N. 319. It is pointed out that there is no express prohibition that Alhadini is not to adopt without the sanction of Golak Prasad; and it was contended that if she adopted, the matter of consent was of secondary importance and that in the absence of any mandatory prohibition the adoption would be good. The cases relied upon by the appellants Sindigi Lingappa v. Sindigi Sidda Basappa 38 Ind. Cas. 164 : (1917) M.W.N. 16 : 32 M.L.J. 47 and Sitabai v. Bapu Anna Patil 57 Ind. Cas. 1 : 47 C. 1012 : 39 M.L.J. 106 : 2 U.P.L.R. (P.C.) 106 : (1920) M.W.N. 556 : 12 L.W. 386 : 16 N.L.R. 162 : 25 C.W.N. 97 : 22 Bom. L.R. 1359 : 47 I.A. 202 : 28 M.L.T. 408 (P.C.) are distinguishable on their facts. On the other hand, the decision in Surendra Nandan v. Sailaja Kant Das Mahapatra 18 C. 385 : 9 Ind. Dec. (N.S.) 258 which was cited with approval by the Judicial Committee in Suryanarayana v. Venkataramana 29 M. 382 : 10 C.W.N. 921 : 4 C.L.J. 171 : 16 M.L.J. 276 : 1 M.L.T. 260 : 8 Bom. L.R. 700 : 3 A.L.J. 702 : 33 I.A. 145 (P.C.) is in point. There the direction to the widow was to adopt a son "with the good advice and opinion of the manager". The manager refused his consent though the widow did her best to obtain it. It was held that the adoption was not invalid merely because the manager withheld his consent, on the ground that the Court should not be astute to defeat an adoption but should rather do its utmost to support it unless it was clearly in excess or in breach of the power. In my opinion, if the deed shows a clear intention that an adoption was necessary, effect must be given to the adoption made, even though, when it was matte, the sanction of Golak Prasad could not be and had not been obtained. Nor does the reference to a sneha-putra whose inheritance would not have been that of an adopted son, seriously affect this construction of the deed. The language makes it sufficiently clear that the executant's ideas about the legal position of a sneha-putra were vague and inaccurate as he expressly treats him as capable of inheriting. After giving full consideration to the arguments advanced on both sides I am of opinion that the learned Subordinate Judge came to a correct conclusion on this issue.
13. I now turn to the fifth issue which deals with the genuineness of the anumati-patra.

[His Lordship then dealt with the fifth issue dealing with the genuineness of the anumati-patra and concluded thus:--]

14. The appellants have, in my judgment, failed to establish either of the grounds of their appeal. The appeal must be dismissed with costs.

Wort

15. I entirely agree. The only two questions in this case to be decided are (1) the genuineness of the anumati-patra deed and (2) the validity of the adoption itself. It is agreed on all hands that the adoption undoubtedly took place as a fact. The direct evidence on the genuineness of the deed, as one would suppose, is meagre. On the part of the plaintiffs we have the statement of Sananda Prasad Bose, who was the second son of Golak Prasad by his second wife Alhadini Dasi, who states that his cousin Shiva Prasad told him that he (Shiva) had fabricated the Will and the anumati-patra deed on the advice of a Pleader and that Raghunath Ghose fair copied them and signed them for Ram Prasad. He further states that the signatures both in the Will and in the deed are in those of Ram Prasad Bose. It was argued that this evidence was not admissible, but, in my judgment, it is under s. 32 of the Indian Evidence Act.

16. But the questions of its admissibility and its weight are entirely different things.

* * * *

17. Now, this case, in my view so far as the genuineness of the deed is concerned is concluded by the question of onus of proof. The learned Subordinate Judge has presumed the due execution of the deed under s. 90 of the Evidence Act, the deed being more than 30 years old. It is true that a Court is not bound to presume due execution; it has a discretion. That discretion is undoubtedly with the trial Court, and if this Court was to decide that that discretion, in the circumstances, was wrongly exercised by the Subordinate Judge it would be bound to remand the case to enable the party adversely affected by the decision to discharge the onus that was thus placed upon him. The learned Subordinate Judge decided that the onus was on the plaintiff and I do not think that in the circumstances of this case we should interfere with that decision or that the case should be remanded on that point for the purpose I have indicated. The question, therefore, arises whether the plaintiffs have discharged that onus. Apart from the direct evidence which I have discussed regarding the alleged conversation with the cousin of Sananda Prasad Bose, the Court as I have said was invited to draw inferences from the facts and circumstances of the case. These inferences in my judgment amount to mere speculation and as I am not inclined to reverse the finding of the learned Subordinate Judge on direct evidence or to accept, the arguments as to the inferences to be drawn from the circumstances of the case unhesitatingly, I come to the conclusion that the plaintiffs have not discharged the onus that was upon them.

18. The deed being genuine we have to consider the question of the validity of the adoption. The first question to be decided is the construction of the deed itself. Under the deed Chemo the youngest eon of Golak Prasad Bose was to be adopted. The deed goes on to say that

"if there be any obstacle to take him in adoption according to the Shastras then he will be made a sneha-putra or she may adopt anyone else whom she wants with the permission of my father."
19. The first matter to consider is as to whether there was any obstacle within the meaning of the deed against the adoption of Chemo. It is argued by the appellants that even if the parties were advised against Chemo's adoption, if the true interpretation of the law was that Chemo could be adopted then there was no obstacle in the way of his adoption within the meaning of the deed. In my judgment this is a strained construction. In the case of Suryanarayana v. Venkataramana  29 M. 382 : 10 C.W.N. 921 : 4 C.L.J. 171 : 16 M.L.J. 276 : 1 M.L.T. 260 : 8 Bom. L.R. 700 : 3 A.L.J. 702 : 33 I.A. 145 (P.C.) the Privy Council quoting the case of Surendra Nandan v. Sailaja Kant Das Mahapatra 8 C. 385 : 9 Ind. Dec. (N.S.) 258 stated that looking at the religious efficacy resulting from adoption of the son, Courts should not be astute to set aside such an adoption. This is an authority to the proposition that the deed of adoption should be construed liberally but reasonably and I cannot but hold that "obstacle" means an obstacle in the judgment of the parties concerned whether the view they hold of the law was right or wrong so long as they held such view bona fide. Any other interpretation will, in my opinion, be doing violence to the deed itself.

20. Further it is argued by the respondents that what is to be looked at in construing a deed of this kind is a primary intention of the deed and the authority I have quoted is advanced to support that proposition also. Dealing with this question I have no doubt that the primary intention of this deed was an adoption-There were three courses open to the widow under the deed: (1) to adopt Chemo, (2 to make him a sneha-putra and (3) to adopt anyone else with the consent of the father. Of these three courses two enable the widow to adopt. Can there be any doubt that the primary intention of Ram Prasad Bose was to allow his wife to adopt a son In this connection our attention is directed to the earlier part of the deed where it is stated as follows: In the circumstances I find that it is "absolutely necessary that I should have an adopted son or a sneha-putra to inherit the zamindaries etc." The printed translation of the deed omits the word "absolutely" but the correct translation of the original is "absolutely necessary". Looking at this clause in my judgment the primary intention was to adopt and in the light of that view I have to consider whether in the first place there was an obstacle in the sense which I have held was the true meaning of that word. There is evidence on the record that Golak after the death of his son consulted Pleaders at Cuttack and they advised him that Chemo could not be adopted. The first witness on that question is the Pleader's clerk called by the plaintiffs who in cross-examination stated that Golak Prasad Bose came to consult his master as to the adoption of Chemo and that the advice given to Golak was that be could not be legally adopted. The defendants having obtained this answer in cross examination the plaintiffs-appellants before this Court attempted to discredit it on the grounds that having regard to the dates the witness could not possibly have been with the Pleader at the time the advice was sought. In my view the plaintiffs are not entitled to discredit their own witness not having had leave to treat him as hostile, and as the discrepancy which they allege is trifling in any event the Court would not be justified in discrediting the evidence on that ground. Another witness gives evidence to the same effect. I have, therefore, to decide this point on the meagre evidence available and the probabilities. It is a fact that Chemo was not adopted and the question might well be asked why he was not. The matter was entirely under the control of Golak Prasad Bose, the father of Chemo and the probabilities are that he would have seen that Chemo was adopted if that course could possibly be followed. Further it is to be noted that clause under discussion reads "obstacle..................... according to the Shastras". It is argued by the respondent that the true meaning of this expression is that the only condition is that it must be an obstacle in the opinion of those versed in Hindu Law and custom and the opinion held at the time of the deed and not in the sense of what the true state of the law was at the time as it might ultimately be declared. In my opinion this contention is well founded as I have already stated. This being so, the question arises whether any support can be given to the evidence to which I have referred as to the advice which Golak Prasad obtained from the probabilities in the case. In other words, we may conclude that at the time of this deed this family might reasonably have held the view that Chemo could not be adopted. The learned Subordinate Judge in the course of his judgment says that it is not certain if the parties belong to the first three classes of Hindus but they would not concede that they are Sudras. There seems to have been little doubt that as regards the three regenerate classes there is a prohibition against adoption of a step-brother. This is clearly recognized in the case of Sriramulu v. Ramayya (4). But in a later case of Gajanan Balkrishna v. Kashinath Narayan  23 Ind. Cas. 978 : 39 B. 410 : 17 Bom. L.R. 372 the adoption of a step-brother was held to be valid; but in that case it is to be noted, however, that the decision mainly depended on the view taken by the Court on question of the authority of the time whether the opinions of Nanda Pandit were recommendatory or mandatory. From the judgment in the case it would appear that the Court considered the dictum of Mr. Justice Muttusami Ayyar as of a doubtful authority and considered that they were bound by the decision of their own Court. It would be seen that the opinion that the adoption of a stepbrother is invalid depends upon the authority of Nanda Pandit. But the view as expressed by the Judicial Committee of the Privy Council in the case of Collector of Madura v. Muthu Ramalinga Satthupathy (3) placed the greatest reliance upon this treatise (Nanda Pandit) as an authority all over India. At least this might be stated that it is clear from the authorities quoted that up to the year 1915 the question as to whether a step-brother could be adopted was a debatable one. No more need be said to show that this family not admitting that they are Sudras would have been advised in the sense that the evidence shows. The appellants, however, argue that the Kayasthas were Sudras and they being Sudras this provision would not apply. It is argued on behalf of the respondents that even though they were Sudras and, therefore, unregenerate the personal law of the Kshatriyas still applies to them and they would observe the rules regarding the matter of this kind. But in the light of the decisions of the Courts I do not think that this can be successfully contended. The authority against this proposition is to be found in Phundo v. Jangi Nath 15 A. 327 : A.W.N. (1893) 110 : 7 Ind. Dec. (N.S.) 926. In Raj Coomar Lall v. Bissessur Dyal 10 C. 688 : S. Ind. Jur. 621 : 5 Ind. Dec. (N.S.) 462 it was held that the Kayasthas are Sudras. In the case of Asita Mohan Ghose Moulik v. Nirode Mohan Ghose Moulik  35 Ind. Cas. 127 : 20 C.W.N. 901 the same proposition was stated in the higher Court but on appeal before the Judicial Committee they expressly left that question open. In a later case of Biswanath Dad Ghost v. Sarosibala (7) the learned Chief Justice of the Calcutta High Court considered that the proposition that Kayasthas are Sudras is well established and relied upon the authority in his own Court as establishing that proposition. But it is to be noted that the report of that case when it came before the Board of the Privy Council was not called to their attention. The last case dealing with this matter is one in our own Court. Ishwari Prasad v. Hari Prasad Lal 106 Ind. Cas. 620 : 8 P.L.T. 34 : A.I.R. 1927 Pat. 145 : 6 Pat. 506 in which Jwala Prasad, J., delivering the judgment of the Court expressly dissented from the cases in Calcutta High Court with regard to the establishment of that proposition. It is unreasonable to say that the authorities on this question are in an unsatisfactory state and the question has by no means been decided. It is not unreasonable to say, therefore, that at the time of this deed of adoption it is probable that the advice which would have been given to the parties was against the adoption of Chemo. In any event there seems to be no reason to doubt the evidence which has been adduced in the case, meagre as it may be, that Golak was advised that his son could not be adopted by Alhadini.

21. The only other question is whether the adoption of Krishna Prasad Sen was invalid by reason of the fact that the consent of Golak Prasad had not been taken. The adoption took place at the end of 1884, and the formalities were completed in the beginning of 1885. The actual deed of adoption was dated the 25th February, 1885, and the deed of gift executed by Ram Shankar Singh the father of the boy being on the same date. This was some 8 years after the death of Golak Prasad he having died on the 26th October, 1873.

22. It is argued on behalf of the appellants that there being this clause as to consent in the deed no adoption without the consent in the circumstances is valid. We are referred to the case of Chowdry Padam Sing v. Koer Udaya Sing 12 W.R.P.C. 1 : 2 B.L.R.P.C. 101 : 12 M.I.A. 350 : 2 Suth. P.C.J. 219 : 2 Sar. P.C.J. 447 : 4 Mad. Jur. 208 : 1 Ind. Dec. (N.S.) 548 : 20 E.R. 371. On behalf of the respondents it is argued that as the primary intention of the deed is adoption the provision as to consent is of secondary importance and, there fore, the lack of that consent in the circumstances does not invalidate an adoption. We are referred to a case of Surendra Nandan v. Sailaja Kant Das Mahapatra  18 C. 385 : 9 Ind. Dec. (N.S.) 258 where a widow was given a power under a deed to adopt a son with the good advice and opinion of the manager with the adoption ceremony and it was held that the consent of the manager was not a condition precedent to the validity of the adoption and it was not invalidated by reason of its having been made without that consent. The case is not directly in point but in my view the principle established in that case applies to the case before us. It was stated in the course of the judgment that as the primary desire of the testator was that the widow should adopt and that as there was no penalty attached to the failure to obtain consent the consent was not a condition precedent. We are also referred to the case of Suryanarayana v. Venkataramana  29 M. 382 : 10 C.W.N. 921 : 4 C.L.J. 171 : 16 M.L.J. 276 : 1 M.L.T. 260 : 8 Bom. L.R. 700 : 3 A.L.J. 702 : 33 I.A. 145 (P.C.). I have already decided that the primary intention here was to adopt and as there is no penalty attaching to the failure to obtain consent it seems to me that as the consent was a secondary consideration that failure to obtain consent does not invalidate the adoption. It must also be remembered that failure here was due to a cause beyond the control of the person acting upon the deed.

23. Now, apart from the considerations of the two questions I have discussed, there is a third. There is the fact that this adoption was recognised for many years; and as the persons, who one would have supposed are most interested in upsetting it, had recognised it apparently without protest, it would be grave responsibility for this Court to disturb or to upset it. This fact is clearly shown by the following:--Nirupama Dasi, the widow of the son of the adopted boy, states in her evidence that Govinda Prasad Bose the eldest son of Golak Prasad and brother of Chemo was present at the ear-boring ceremony of Gopal the witness's son and further in a letter written by Govinda to Alhadini Dasi these words were used "blessings to Gopal and Bahuma" referring obviously to the wife of the adopted boy. The same expression by Govinda is used in a post card dated the 14th September, 1920, and addressed to Gopal Prasad Bose himself. No doubt Govinda the brother of Chemo recognised at this time the adoption. There is this further fact that until the present suit these plaintiffs one of whom was Govinda himself up to his death did nothing to call its validity in question. Although these facts may have no direct bearing on the two main questions discussed in this case they are not in my judgment, without significance.

24. The appeal is, therefore, dismissed with costs.