Ross, J.:— Narayan Prasad 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 Ram Prasad 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 Sahand 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 Siva prasad whose son is Gokul a witness for the plaintiffs, and Jagannath had two sons Raghunath Ghose and Kanu the husband of Adarmani Dasi 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, Golakprasad 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 Ramprasad Bose on the day of his death and that the power was duly exercised.

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 Ramprasad 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-patra 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.”

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 daughters' sons, sisters' sons and mother's sister's sons: [Bhagwan Singh v. Bhagwan Singh] 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. Bejoy Kristo Gossami]. 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 Golap Chandra Sircar's Hindu Law of Adoption, Second Edition, 317; Mayne's Hindu Law, Ninth Edition, page 181). It was argued that the Dattaka Mimansa cannot be held to be included within “the Shastras.” But it was undoubtedly a work 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. Muttu Ramalinga Sathupathy] And in Bhagwan Singh v. Bhagwan Singh 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 step-brother 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 that time or at least a bona fide doubt; and on this point the case seems clear. Even in 1881 in Sriramula v. Ramayya a distinguished Hindu Judge accepted and explained the reason for the rule that a step-brother could not be adopted.

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 1168); Raj Coomar Lal v. Bissessar Dyal; Asita Mohan Ghosh Moulik v. Nirode Mohan Ghosh Moulik and Biswanath Das Ghose v. Shorashibala Dasi]. Consequently there could be in law no obstacle to the adoption of Chemo. The question whether Kayasthas are Sudras has been discussed elaborately in Iswari Prasad v. Rai Hari Prashad Lal. It will be observed that the authorities cited on behalf of the appellants rest on the decision in Raj Coomar Lal v. Bissessur Dyal which in its turn rests on the Vyavastha Darpan. The decision, which is of the year 1884, was on the case of a Behari Kayesth and, as it has been expressly dissented from in the decision in Iswari Prasad v. Rai Hari Prashad it is not an authority in this Court. It will be further observed that the latest case in Calcutta [Biswanath Das Ghose v. Shorashibala Dasi relied upon the case of Asita Mohan Ghosh Moulik v. Nirode Mohan Roy Ghosh Moulik] which went before the Privy Council, where this question was expressly left undecided [Asita Mohan Ghosh Moulik v. Nirode Mohan Roy Ghosh Moulik] And even in Raj Coomar Lal v. Bissessar Dayal 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 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], at page 951, has the following note:

“Do the Kayasthas of Bengal belong to any of to superior classes? In several cases which came up before the Courts, they were taken as Sudras [Sashi Nath Ghosh v. Srimaty Krishna Sundari Dasi]. 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.” 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.

There remains the question whether the absence of the permission of Golak Prasad invalidates the adoption.

It is argued that an authority to adopt must be strictly pursued [Chowdhury Pudum Singh v. Koer Uddey Singh] 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 (Exhibit 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]. 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 [Sindiqi Lirgappa v. Sindiqi Sidda Basappa] and Sita Bai v. Anna Patil are distinguishable on their facts. On the other hand the decision in Surendro Nandan v. Sailaja Kant Das which was cited with approval by the Judicial Committee in Suryanarayana v. Venkataramana 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 made, 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.

The appeal must be dismissed with costs.

Wort, J.:— 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.

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 son 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 any one else, whom she wants, with the permission of my father.”. 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 the Privy Council, quoting the case of Surendra Nandan v. Sailajakant Das Mahapatra 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 for 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.

Further it is argued by the respondents that what is to be looked at in construing a deed of this kind is the 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 sneha-putra to inhedit 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 plaintiff 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 he 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 the clause under discussion reads: “obstacle * * according to the Shastras.” It is obstacle * * according to 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 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 may we 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 Sriramalu v. Ramayya. But in the later case of Gajana Balkrishna v. Kashinath Narayan 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 the question of the authority of the time whether the opinions of Nanda Pandita were recommendatory or mandatory. From the judgment in the case it would appear that the Court considered the dictum of Mutasami Ayyar, J., as of 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 step-brother is invalid depends upon the authority of Nanda Pandita. But the view as expressed by the Judicial Committee of the Privy Council in the case of Collector of Madura v. Muttu Ramalinga Sathupathy placed the greatest reliance upon this treatise (Nanda Pandita) 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 Nata. In Raj Coomar Lal v. Bissessur Dyal it was held that Kayasthas are Sudras. In the case of Asita Mohan Ghosh Moulik v. Nirode Mohan Ghosh Moulik the same proposition was stated in the higher Court but on appeal before the Judicial Committee they expressly left that question open. In the later case of Biswanath Das Ghose v. Shorashibala Dasi 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 [Iswari Prasad v. Rai Hari Prasad Lal] in which Jwala Prasad, J., delivering the judgment of the Court expressly dissented from the cases in the Calcutta High Court with regard to the establishment of that proposition. It is not 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 Alahadini.

The only other question is whether the adoption of Krishna Prasad Singh 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 Ramshankar 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.

It is argued on behalf of the appellants that there being this clause as to consent in the deed, no adoption without their consent in the circumstances is valid. We are referred to the case of Chowdry Padma Singh v. Koer Oddey Singh. 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 therefore the lack of that consent in the circumstances does not invalidate an adoption. We are referred to a case of Surendra Nandan v. Sailajakant Das Mahapatra 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 having been made without that consent. The case is not directly in point as the manager refused to consent 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. 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.

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 a 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 Golakprasad 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 Allahadini 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.

The appeal is, therefore, dismissed with costs.