Nasim Ali, J.:— [After stating the facts.] In view of all these facts and circumstances, I agree with the Subordinate Judge that defendant No. 1 was adopted as a son by Swarna Mayee.

The next point for determination is whether the adoption of defendant No. 1 is valid according to Hindu law.

The contention of the plaintiff is that Prasanna Kumar was a Sudra and defendant No. 1 is a Vaishya and, consequently, the adoption of defendant No. 1 by Swarna Mayee as a son of Prasanna Kumar is invalid according to Hindu law.

Prasanna Kumar was admittedly a Kâyastha and, therefore, a Sudra.

There is no allegation in the plaint that defendant No. 1 is a Vaishya. There is no evidence also in this case to show that the natural father of defendant No. 1 is a Vaishya or claims to be a Vaishya.

The contention of the plaintiff, however, is this: all Vaidyas are Vaishyas. The natural father of defendant No. 1 is a Vaidya, defendant No. 1 is, therefore, a Vaishya.

In support of this contention reliance was placed upon a passage in the judgment in Ram Lal Shookool v. Akhoy Charan Mitter. In that case a question arose as to whether a marriage between a Vaidya and a Kâyastha was valid. In that case, a Kâyastha woman married a Vaidya. The Subordinate Judge who tried that case quoted the following text from “Vishnu”:—

That the Vaidyas in ancient times were like their fathers in spiritual energy by meditations and yoga (communion). They were inferior to Brâhmins and Kshatriyas and carried on work (vedic ceremonial) like the Vaishyas. By gradual and gradual neglect of the work a Vaidya has become degenerated in the Kali yuga wholly with a Sudra just as the Kshatriyas and Vaishyas.

We have not been able to trace this text.

When the matter came up in appeal in this Court, this Court observed:—

In regard to the title of Chandra Kant Sen, it cannot be disputed that his mother a Kâyastha and therefore a Sudra married his father a Vaishya. The ancient Hindu law did not regard such marriages with the condemnation expressed by later authorities which have been accepted by our Courts so as to make children born from such unequal marriages illegitimate.

But however the law may be, there is ample evidence set out in the judgment of the Sub-Judge on which it must be held that such marriages as in the present case are recognised by local custom in the District of Tippera and that there is no instance on which their validity as been questioned.

The learned Judges in that case did not discuss the question whether a Vaidya is a Vaishya. They assumed in that case that a Vaidya was a Vaishya and held that a marriage between a Vaidya and a Vaishya was valid under the local custom in Tippera. This case is no authority for the proposition that a Vaidya of Sylhet district is also a Vaishya. Further, in the absence of any evidence, this case does not establish that the natural father of defendant No. 1 is a Vaishya.

The surname of a Vaidya is “Dhana” (Sankha Sanghitâ, Ch. 2, V. 4) or “Gupta” (Kalluka's Commentary on Manu). But the natural father of defendant No. 1 is neither a “Dhana” nor a “Gupta” (sometimes he has used after his name “Das Gupta”).

Originally there were four pure castes amongst the Hindus: Brâhman, Kshatriya, Vaishya and Sudra. Later on inter-marriages having taken place amongst the four primitive or pure castes there became several mixed castes.

The sons by women one degree lower than their husbands are named in order the Murdhdhâshikta, Mâhisya and Karana. They are respectively begotten by a Brâhman on a wife of the Kshatriya caste, by a Kshatriya on a Vaishya wife, and by a Vaishya on a Sudra wife.

(Vide Kalluka Bhatta's Commentary on Manu, Ch. 10, V. 8.)

The sons born of women two or three degrees lower than their husbands areas follows:—

From a Brâhman on a wife of the Vaishya class is born a son called Ambastha, on a Sudra wife, a Nishâda, named also Parasava.

Manu Ch. 10, V. 8.

Plaintiff's contention is that a Vaidya is an “Ambastha”, that as his mother is a Vaishya he is a Vaishya and that he cannot be adopted by a Sudra.

The contention raises three questions:—

(1) whether a Vaidya is an “Ambastha”;

(2) whether an “Ambastha” is a Vaishya, and

(3) what is the rule of Hindu law as regards the adoption of an “Ambastha”.

Babu Shyama Charan Vidyabhushan, while quoting Manu Ch. 10, V. 8, in Chapter on “Castes and Classes of the Hindus” in his “Vyavasthâ Darpan” has added the words “or Vaidya” after the word “Ambastha”.

Risley, in his book on the “Tribes and Castes of Bengal” has stated:—

The name Vaidya does not occur in Manu, but the Ambasthas are there said to be the offspring of a Brâhman father and a Vaishya mother, and their profession to be the practice of medicine. According to this account, the Vaidyas are anulomaja (born with the hair or grain, i.e, in due order), the father being of higher caste than the mother. Another tradition describes them as begotten on a Brâhman woman by one of the Aswini Kumâras, the light-bringing and healing twin-horsemen of Vedic mythology; and then, oddly enough, goes on to say that they were reckoned as Sudras because their mother was of superior rank to their father, and their generation was consequently pratilomaja, “against the hair”, or in the inverse order according to the succession of the castes. It would appear from this that the Aswini Kumâras were classed as Kshatriyas, and that, according to Brâhmanical ideas, even the Gods were not equal mates for a Brâhman maiden.

An expanded version of the pedigree given by Manu is found in the Skanda Purâna. This legend tells how Gâlva Muni, a pupil or son of Viswâ Mitra, being greatly distressed by thirst while on a pilgrimage, was given a draught of water by a Vaishya girl named Bir Bhadra. The grateful sage blessed the maiden that she should soon have a son. Bir Bhadra demurred to this boon, on the ground that she was unmarried; but the rash oath, so characteristic of Indian mythology, could not be recalled, nor could Galva himself put matters straight by marrying the virgin whose kindness had involved her in so strange a difficulty. For, so it is explained, she had saved his life by the draught of water, and therefore he looked upon her in the light of a mother. A miracle was clearly in request. By the word of power of a Vedic mantra a wisp of kusa grass (Poa Cynosuroides) was transformed into a male child, variously known as Dhanvaniari, Amrita Achârya and Ambastha. He was the first of the Vaidyas, because to a vedic (Vaidik) text he owed his birth. He was also Ambastha because he had no father, and therefore belonged to the family of his mother (Ambâ). A number of analogous myths have been collected by Bachofen in his two letters on “Pueri Juncini”, and his method of interpretation, if applied to the present case, would lead to the conclusion that the tradition given in the Skanda Purâna, records an instance of female kinship.

(See Volume I, pp. 46-47.)

Babu Golap Chandra Sarkar, in his treatise on Hindu Law (7th Ed., p. 149) has observed:—

The explanation of the mixed classes by supposing them to be the issue of inter-marriage appears to be a play of imagination; where the abstract qualities of any two of the four tribes were thought requisite for filling a particular occupation, persons following that occupation were supposed to be descended from the offspring of an inter-marriage or illicit connection between a man of one of the one tribe and a woman of the other. Thus the Ambasthas or the members of the physician caste of Bengal are imagined, to be a mixed caste sprung from the issue of a Brâhman father and a Vaishya mother: a physician resembles a Brâhman in his general culture and learning and also a Vaishya, inasmuch as he does, in a manner, trade with his learning, and so the class is fancied to be mixed of the said two tribes, the worse quality being supposed to be derived from the mother and the better from the father. The number of castes appears to have increased with the increase of occupations, in the course of progress, for, later writers enumerate many that are not mentioned in the earlier works, and they describe the origin of the new castes according to their fancy.

No other authority was placed before us to show the origin of Vaidyas.

This being the position it is very difficult to say that Vaidyas are Ambasthas as mentioned in Manu's text quoted above.

No authority was cited before us in support of the view that an Ambastha is a Vaishya.

Assuming that a Vaidya is an Ambastha, what is the rule of Hindu law relating to his adoption?

He is called a son given whom his father or mother affectionately gives as a son being alike etc.

Manu 9, 168. The word “alike” in Manu's text, according to Medhâtithi, means “alike by qualities suitable to the family”.

This interpretation, however, has not been accepted in Dattaka Chandrikâ and Dattaka Mimângshâ. In these two books the word has been interpreted as “alike by tribe”.

The adoption of a son by any Brâhman must be made from amongst. sapindas or kinsmen connected by an oblation of food or on failure of these an asapinda or one not so connected otherwise let him not adopt; of Kshatriyas in their own class positively……; of Vaishyas from amongst those of the Vaishya class; of Sudras from amongst those of the Sudra class; of all and the tribes likewise (in their own) classes only and not otherwise.

Saunaka.

By the terms “Kshatriya and the rest” in the above text of Saunaka, the inclusion of Murdhâbashikta and others regulated by the same rule as the Kshatriya and the rest is meant:—for a text of Sankha expresses—

One procreated on a female Kshatriya by a Brâhman is a Kshatriya even: on a Vaishya woman by a Kshatriya is a Vaishya even: by a Vaishya on a female Sudra is even a Sudra.

(Dattaka Mimângshâ, Sec. 2, Cl. 84.)

An Ambastha, therefore, does not come under “Murdhdhâshikta and others” mentioned in s. 2, cl. 84 of Dattaka Mimângshâ.

The rule of prohibition contained in Manu's text and Saunaka's text quoted above does not, therefore, apply to an “Ambastha”.

The rule laid down in Saunaka applies to a, Sudra and therefore to a Kâyastha.

Shyama Char an Sarkar Vidyabhushan, after reviewing the authorities, has observed:—

There is, therefore, a preponderance of authority to evince that the Kâyasthas whether of Bengal or of any other country were Kshatriyas. But, since several centuries passed, the Kâyasthas (at least those of Bengal) have been degenerated and degraded to Sudradom not only by using after their proper names the surname “Dâs” pecuilar to the Sudras giving up their own which is “Barmâ,” but principally by omitting to perform the regenerating ceremony upanayana hallowed by the Gâyatri.

(See 3rd Ed. of Vyavastha Darpan, p. 670.)

Here apparently the learned author was referring to verse 4, Ch. 2 of Sankha Sanghitâ where it is stated that a Sudra is called “Dâs” and a Kshatriya is called “Barmâ”.

The Vaidyas are now divided into the following four sub-castes:—(1) Rârhi, (2) Banga, (3) Bârendra, (4) Panchakoti, according to the parts of Bengal in which their ancestors resided. All of these are endogamous. A fifth endogamous group which, however, bears no distinctive name comprises those Vaidya families of the districts of Sylhet, Chittagong and Tippera, who intermarry with Kâyastha and Sunris, the children in each case following the caste the father. This practice appears to be the only modern instance of inter-marriage between members of different castes. It is said to have arisen from the reluctance of the Vaidyas farther west to give their daughters to men who had settled in the country east of the Brahmaputra. Failing women of their own caste, the latter were compelled not only to marry the daughters of Kâyasthas, but to give their own daughters in return………. The evidence of inscriptions shows that a dynasty of Vaidya kings ruled over at least a portion of Bengal from 1010 to 1200 A.D To the most famous of these, Ballal Sen, is ascribed the separation of the Vaidyas into two divisions, one of which were the sacred thread and observed fifteen days as the prescribed period of mourning, while with the other investitute with the thread was optional and mourning lasted for a month………. There has been some Controversy between Vaidyas and Kâyasthas regarding their relative rank…. Putting aside the manifest futility of the discussion, we may fairly sum it up by saying that in point of general culture there is probably little I to choose between the two castes and that the Vaidyas have distinctly the best of the technical claim to precedence. On the other hand it would, I think, strike most observers that the Kâyasthas are the more pliant and adaptive of the two, and have thereby drawn to themselves a larger share of official preferment than the more conservative Vaidyas.

Risley, Vol. I, pp. 47 to 50.

Swarna Mayee, the sister of the father of defendant No. 1, was married to Prasanna Kumar, who was admittedly a Kâyastha and, therefore a Sudra. This marriage admittedly is valid according to local custom. Saunaka, while propounding the form of the adoption, says—

Having taken him by both hands……….the boy bearing the reflection of a son.

The words “reflection of a son” in the above text of Saunaka has been interpreted in Dattaka Chandrikâ [S. 2, cl. (8)] as the “resemblance of a son” or in other words “the capability to have been begotten by the adopter through appointment and so forth”.

The words “so forth” include marriage [Hari Das Chatterji v. Manmatha Nath Mallik*].

Defendant No. 1 could have been legally begotten by Prasanna, through marriage with the mother of defendant No. 1, as such marriage would have been valid and legal.

In cl. 3 of the will of Prasanna Kumar, defendant No. 1 is described as “Aswini Kumar Das”. The declaration (Ex. Q), which was made by the father of defendant No. 1 at the time of the adoption, shows that he is a “Dâs” and his wife a “Dâs”. The father of defendant No. 1 signed the declaration as “Sashi Mohan Das”. In the notice (Ex. G) which was published in the Sylhet Chronicle the name of defendant No. 1 was given as “Aswini Kumar Das”. There cannot be any, doubt, therefore, that the father of defendant No. 1 uses the surname “Das” after his name (though he sometimes adds Gupta after Das). There is no evidence in this case that upanayana ceremony (investitute with sacred thread) which regenerates (Brâhmans, Kshatriyas and Vaishyas and without which they become degraded) with Gâyatri (a sacred verse which is considered to be the essence of the Vedas which is imparted or taught to every youth of the three superior classes upon receiving his investiture with the sacred thread) is performed in the family of the natural father of defendant No. 1. There is also no evidence that the period of mourning in Sashi Mohan's family lasts for fifteen days.

In view of these facts and circumstances, I am of opinion that, even if the ancestors of Sashi Mohan were Ambasthas or Vaisyas, his family has been degenerated and degraded to sudradom and that he is a Sudra.

I, therefore, hold that the adoption of defendant No. 1 by Swarna Mayee was valid according to Hindu law.

It was contended on behalf of the defendants that by cl. (4) of Prasanna's will defendant No. 1 became entitled to ten annas share of his property as soon as the adoption ceremony was performed by Swarna Mayee irrespective of the question whether the adoption is valid in law or not. There is much force in this contention. But, as I have found that the adoption of defendant No. 1 is valid in law, it is not necessary to express any opinion on this point.

The last point for determination in this appeal is whether the plaintiff is entitled to pre-empt the disputed properties from defendants Nos. 2 to 5.

By custom the Hindus of the district of Sylhet are entitled to the benefit of the Muslim law of pre-emption.

In order to entitle the plaintiff to a decree for pre-emption, she has to prove that she made two talabs—talab-i-mawasibat (hereinafter referred to, as the “first demand”) and talab-i-ishhad (hereinafter referred to as the “second demand”) in accordance with the Muslim law of pre-emption.

Under the circumstances I am not prepared to hold that the Subordinate Judge was wrong in holding that the plaintiff did not perform the two demands as required by the Muslim law of preemption.

In view of this finding; the question of the price paid or agreed to be paid by defendants Nos. 2 to 5 to defendant No. 1 does not arise. But an issue was raised on this point in the trial Court. The Subordinate Judge has recorded a finding on this point. It is, therefore, necessary to determine this point.

In the kabâlâ the consideration was stated to be Rs. 20,000. There is a recital in the kabâlâ that Rs. 8,500 was paid in cash on the date of the execution of the kabâlâ. The trial Judge has found that only Rs. 500 was paid on that date of the execution.

I agree with this finding of the trial Judge in view of the evidence in the case. I hold that the real price fixed for the sale was only Rs. 12,000.

The result, therefore, is that this appeal fails and is dismissed with costs to respondents 2 to 5.

No order is necessary on the application presented on February 1, 1937.

Rau, J.:— I agree and would add only a few words as to the evidence on the question of adoption. P.W 12, Babu Ramesh Ranjan Das, a senior pleader of Sylhet, has stated in his evidence that Swarna Mayee, when she came to Sylhet to swear an affidavit in connection with the probate of her, husband's will—this must have been sometime in 1921, the date of the grant being April 1, 1921—said to him in the course of conversation: “Now that a son has been born to my daughter, what would I do by adopting a son”? In my humble opinion, there is no sufficient reason to disbelieve the witness on this point: Swarna Mayee may well have made such a remark. It was not unnatural that for some time after the birth of a son to her daughter in 1920 she should have been asking herself whether there was any longer any object in exercising the power of adoption given to her. But it does not at all follow that she did not ultimately, in 1922, overcome her initial doubts and decide to adopt. There is evidence, which has been believed by the learned Subordinate Judge and which we have no ground for disbelieving, that she did in the end perform the necessary ceremonies and make or complete the adoption.

[Note—Leave to appeal to His Majesty in Council from this judgment was cancelled on May 5, 1941—Ed.]

Appeal dismissed.

A.A