1. The dispute in this case relates to the property of a deceased Marafcha by name Hambirrao Nana Patil, who died in 1918, childless, leaving three widows defendants Nos. 1, 2 and 9. The contest is between plaintiff No. 1 appellant Subrao, claiming to be adopted by defendant No. 9 Gunabai and defendant-respondent No. 3 Tukaram, claiming to be adopted by defendant No. 2. The plaintiff No. I is the natural son of the sister of the deceased Hambirrao.
2. The five main issues raised in the lower Court were: (1) whether the appellant's mother defendant No. 9 was or was not the senior widow of Hambirrao? (2) Whether she had been guilty of misconduct or was legally disqualified from adopting? (3) Whether Hambirrao had empowered defendant No. 2 to adopt, and, lastly, (4) Whether the adoption of plaintiff No 1 as the son of the sister of the deceased Hambirrao is valid in Jaw? This last issue was divided into two: (a) Whether Hambirrao was a Kshatriya or a Shudra, and (6) if the finding on part (a) be that Hambirrao was a Kshatriya, then whether there was a special custom under which a sister's son could h& adopted.
3. The trial Court held that defendant No. 9 was the senior widow, her power to adopt was not taken away, the deceased bad not specially empowered defendant No. 2, the adoptive mother of defendant No. 3, to adopt, that Hambirrao was a Kshatriya, and therefore the adoption of the plaintiff as a son of the sister was invalid under the Hindu law applying to the first three castes, as no special custom validating such adoptions was proved. He, therefore, dismissed the suit, The plaintiff appeals.
4. The argument for the appellant in this Court has been directed chiefly to show that the Haratha caste to which Hambirrao belonged is a Shudra caste, and not, as held by the lower Court, Kshatriya, and that the adoption of plaintiff No. 1 is, therefore, valid. For the respondents reliance is placed, first, on the admission of plaintiff No. l's natural father that he was a Kshatriya and on the evidence showing that in the family of the deceased the ceremony of upanayan, i. e., wearing of the sacred thread was performed by and without any objection from the Brahmins; and it was contended that Hambirrao belonged to the higher families among the Marathas, who have consistently claimed to be Kshatriyas.
5. Apart from this main issue, which will be considered last, I agree, on the whole, with the findings on the other issues of the trial Court. On the evidence, defendant No. 2 appears to be the youngest of the three widows and defendant No. 9 the eldest, both in point of ago and marriage with Hambirrao. The evidence for the respondents as to her misconduct and as to the special authority by Hambirrao to defendant No. 2 to adopt was, in my opinion, rightly rejected by the learned Subordinate Judge. The only substantial question which remains for consideration, therefore, is whether the fact that the appellant is the son of the sister of the deceased Hambirrao invalidates the adoption. It is now well established that the adoption of. a sister's son amongst the three twice-born castes is prohibited and invalid, whilst amongst Shudras it is valid : Bai Nani v. Chunilal (1897) I.L.R. 22 Bom. 973 and Bhagwan Singh v. Bhagwan Singh (1899) L.R. 26 I.A. 153, s.c. 1 Bom. L.R. 311. There is really little or no evidence of a special custom in the caste, and, therefore, the only question which remains is the issue whether Hambirrao was a Kshatriya or a Shudra. It is admitted that he was a Maratha by caste.
6. With controversies, political or communal, and their passions, the Courts are not concerned. Politically, for instance, the Bombay Electoral Rules, quoted in the judgment of the lower Court, extend the term Maratha to a dozen castes with separate individual names of their own. The castes to which Hambirrao belonged was the Maratha caste proper. It is, numerically, the largest in Maharashtra and the Bombay Presidency and comprises a large majority of the land-owners, and cultivators in the Marathi speaking districts in this Presidency and extends to the Central Provinces. The classes comprising in it vary from Prince to peasant. It is in this sense that the word Maratha is used in the present judgment.
7. Similarly, by the term Shudra, the law, in the sight of which all citizens are equal, implies no kind of inferiority in that caste any more than in the terms Hindu, Mahomedan, or Christian. Legally, Shudra merely denotes one of the two main genera amongst Hindus for certain legal purposes, the other consisting of the three twice-born castes so-called, Brahmin, Kshatriya and Vaishya. While certain rules, along with a considerable amount of law, are common to both, there is some difference in the law in other respects such as the rights of illegitimate sons, and, as in the present ease, the persons who may legally be adopted. How far the laws or customs of the twice-born castes, such as 192S early marriage and the prohibition of the re-marriage of widows are superior or interior, eugenic or dysgenic, are again matters with which the Courts are not concerned.
8. But, apart from controversy and passion, a, question, such as the present, presents certain difficulties in legal decision. No tests in recognized books are available or are applicable to existing conditions. No test, single or simple, can be applied or is decisive. The Sanskrit texts which lay down certain functions and duties of the four main castes in Hindu society as it might have existed many centuries ago, are not applicable to the present day when function and legal caste do not coincide. The having Brahmins of North Kanara ire in the main cultivators and are among the most export in the difficult cultivation of the betel palm and the eardainum. For the purposes of legal decision, the mythological origin of the four castes from different parts of the body of Brahma, the Creator in the Hindu Trinity, is of as little use as the legend oi Parshuram and his destruction of the entire Kshatriya caste. That legend has been rejected, and it has been held by the Privy Council in Chuolurya Run Murdun Syn v. Sahub Purhulad Syn (1857) 7 M.I.A. 18, 46 that Kshatriyas still exist in India-a decision in perfect accord with the consensus of Hindu social opinion. The Kshatriya easte of Kajput Princes with Udaipur at the head has never been questioned.
9. The origin of easte is likewise not very relevant. It is generally agreed that caste arose, partly from the division of classes and functions and partly from the contest between the fairer Aryan with the darker Dravidiaii, as is sufficiently proved by the Sanskrit word varna or colour for caste. But colour, no more than function, is a test of case, the Shudra of the North being often fairer than the Brahmin of the south. the tendency of occupations to be hereditary in a society which ceased to progress and the crystallization of the idea of caste and its abnormal growth over a large area such as India, are matters of sociological interest but throw little legal light on the question in issue. Even at the present day, the principle that caste springs from birth and cannot be changed is not unchallenged by ethnologists, who point out that miscegenation and the absorption of the aboriginal inhabitants into Hinduism have existed for centuries and have not stopped. This process has also been recognized by the Courts. It suffices to refer to recent cases such as Sahdeo Narain Deo v. Kusum Kumari ```Bom. L.R. 560 where such a process of absorption including the custom of adoption barely a century old was recognized by their Lordships of the Privy Council.
10. Speaking for myself, I confess, therefore, that I am unable to discover any authoritative principle or test or text which could be applied to decide the present question. The difficulty is so great as perhaps to justify a doubt if the ordinary Courts of law are fitted to decide such questions, unless the Legislature is perhaps to lay down general rules for application in cases such as the present. But failing such a principle or rule, the Courts, it seems to me, have at present necessarily to fall back upon the only possible test remaining, namely, the test of custom-a test not inconsistent either with the spirit of Hindu jurisprudence, which itself lays down that custom is even more powerful than the Shastras or with the view of the British Courts on important matters such as succession, primogeniture and impartibility. Even in marriage, the Courts have, notwithstanding the old texts recognising Anulorna and Pratiloma marriages, preferred in some cases a custom of not recognising them, and on the other hand, have recognised the peculiar marriage customs of Malabar.
11. In dwelling on these difficulties, I am not unmindful of the cases in other Provinces in which similar questions have been attempted to be decided by other considerations. The present issue itself has not come up before this Court. In the few reported cases in this Court, on questions of inheritance or succession and particularly as regards the rights of illegitimate sons, the parties have usually agreed that Marathas are Shudras.
12. The respondent has, however, produced a judgment of 1883 (Exhibit 143) of the District Court of Eatnagiri, which on remand upheld a contention that the Maratha family there concerned was Kshatriya. Against this decision there was no appeal to this Court. In a recent case in the High Court of Madras, Maharaja of Kolhapur v. Sundaram Ayyar i.r (1924) . 48 Mad. 1 it was held that the last Baja of Tanjore was not a Kshatriya, being a descendant of an illegitimate descendant of the brother of Shivaji the Great, the founder of the Maratha Empire. In that decision, on which the appellant chiefly relies, the learned Judges, Spencer Offg. C.J. and Kumaraswami Sastri J. considered the question from the stand-point of Maratha history and of genealogy. A certain amount of confusion was apparently introduced by the employment of the term 'Maratha1 in two different senses. Thus at p. 56 it is used in the larger sense as comprising all the castes of Maharashtra from Brahmin to Shudra. The fact that there are Marathi speaking Brahmins and Marathi speaking Shudras is of no assistance in deciding the question whether the Marathas, meaning thereby the caste known as Marathas, are Kshatriyas or Shudras; and in fact while exhausting the historical and genealogical treatment of the question, on the assumption that Rajputs and their descendants alone are Kshatriyas, the judgment accepted (p. 52) the principle 'that the consciousness of a community is a good test of Varna.'
13. A similar question as regards the Kayasthas in Bengal was decided in 1884 by the Calcutta High Court in Raj Coomar Loll v. Bissessur Dyal (1884) I.L.R. 10 Cal. 688. The Court held that 'As a general principle Kayasthas are Hindus of the Sudra class, and may, as such, adopt their sisters' son.' On the other hand, in the neighbouring Provinces of Bihar, it has been recently held in Ishwari Prasad v. Rai Hari Prashad Lal (1926) I.L.R. 6 Pat. 506 that the Kayasthas of Bihar belong to the three regenerate classes and are not Shudras. In the former Calcutta case, Raj Coomar Loll v. Bissessur Dyal (p. 695), four tests were applied, first wearing the secred thread; secondly, ability to perform the home; thirdly, the rule as to the period of impurity; and, fourthly, the rule as to the incompetence of illegitimate sons to succeed. In the Patna case, on the other hand, it was held that 'The mere non-observance of the orthodox practices cannot take away the rights of a Kayastha in matters of inheritance, marriage and adoption.'
14. The exact point in the Madras decision could really have been reached on two short grounds: firstly, the women called sword wives were concubines and not legitimate wives, and, secondly, Annapurnabai the mother of Pratap Singh was a sword wife of Tukkoji, and Pratap Singh was, therefore, illegitimate and not legitimate and was not, therefore, a Kshatriya. If so, it was not necessary for the purposes of that decision to go into the further question whether Tukkoji or the Tanjore branch of the Marathas from Shivaji the Great downwards were or were not Kshatriyas. In this view, the observations on this last point in the Madras case, exhaustive and interesting as they are, are observations and not decisions. Those observations and the concluding remarks are based on the assumption that Rajputs and the descendants of Rajputs alone can be Kshatriyas. It is doubtful if this is even the popular view; and it is difficult to reconcile with the fact that Kshatriyas existed before Rajputs. Nor am I 1928 aware of any legal authority for the proposition that Rajputs and Kshatriyas are synonymous and co-extensive in denotation.
15. Similarly the Patna decision, as I understand it, decides that the present day Kayasthas of Bihar are twice-born and implies that they are Kshatriyas, being descendants of Chitragupta. Again, the Calcutta decision assumes that a caste, even though originally twice born, may, by giving up certain external observances such aa the wearing of the sacred thread, become Shudras. The Patna decision repudiates this view. In the face of these inconsistencies, it appears to me that in the three or four reported case of this kind which have come up, the Courts have not been able to agree on the decisive rule a or tests for the decision of such a question. The popular view lays down three tests : (1) the consciousness of the caste, (2) its customs, and (3) the acceptance of that consciousness by the other castes; and it is in the light of these three tests as appearing from the evidence that I propose to consider the present case.
16. If the consciousness of the caste is to be the principle, then it appears that Shivaji, the greatest of the Marathas, claimed to be a Kshatriya as early as in the seventeenth century, and the claim was then conceded though after some discussion. His descendants were afterwards supplanted by his Chitpavan Brahmin minister, who became the Mayor of the Palace. The present controversy has proceeded for a generation and is not act quite at rest. But it appears clear that not only the family of Shivaji the Great nor even the live most ancient families among the Maratbas, but at least ninety-six of them have claimed to be Kshatriyas and repudiate being Shudras; and that even If a similar consciousness and claim have not filtered down to the poorest strata, the consciousness and the. claim are gaining and not losing ground in the caste. If so, at least as regards the ninety-six families, the consciousness is that of Kshatriyas and not of Shudras.
17. I pass on to the question whether the family of the deceased Hambirrao conformed, generally speaking, to the customs of Shudras or to the customs of the twice-born, such as Kshatriyas.
18. Yeshwant (Exhibit 42), the natural father of the appellant, in his examination-in-chief, stated : 'We Marathas are Kshatriyas and not Shudras,' though he followed it up by saying 'a sister's son may be adopted amongst us.' This evidence he attempted to modify on the following day by saying that it was a mistake and adding 'We are Maratha Patils by caste.' It is, however, not disputed and he himself admitted that his surname was Yadav (or Jadhav) and that he was related to the family of Manes who were in turn related to the Maharaja of Kolhapur. In cross-examination, towards the close, he again admitted : 'We belong to one of the Kulas of Kshatriyas.' His evidence is clear therefore, that the deceased claimed to belong to the higher and not to the lower strata of the caste and he was related by blood to the higher and not to the lower families of Marathas. As regards the marriages of widows this witness similarly admitted : 're-marriages are rare amongst us,'
19. Next, as regards the upanayan, i. e., the wearing of the sacred thread, which is one of the essential differences and the material mark distinguishing the twice-born castes from the Shudra, it appears from the evidence of Vishnu Balkrishna Joshi, Exhibit 125, the Brahmin Joshi (priest) of the village, that he performed the upanayan or sacred thread ceremony of the Marathas of Nerli such as the deceased Hambirrao and of forty to fifty other Marathaa during the last six or seven years according to vedi rites; but they performed this ceremony a week or so before the marriage. This evidence is corroborated by two other witnesses in the case. It appears that like other twice-born castes the deceased performed shravani (the ceremony at which new sacred thread is put on) every year. There is no evidence that this right of wearing the sacred thread was challenged in the village or the vicinity.
20. As regards the ceremony of adoption, there is evidence that the Datta Homa was performed by defendant No. 9 when she adopted the appellant. As to the period of impurity there is little evidence. No instance is quoted as regards the competence of illegitimate sons to succeed. A few instances have been alleged for the appellants, but they are all of illegitimate sons being given property in their fathers' lifetime.
21. As regards intermarriage, it is not seriously disputed that these ninety-six families prefer to intermarry among themselves; and while they may take wives from well-to-do families outside, they do not usually give there daughters to them.
22. Summing up the evidence as a whole, I would hold that the deceased and his family to the category of the Marathas who tin right of wearing the sacred thread, that is of being among the twice-born, and not to the category of those who acknowledged that they were Shudras. I do not think that the respondents can reasonably b. 3 asked to trace the genealogy of tin deceased with an admitted Rajput family as a necessary ingredient without which their claim to ho Kshatriyas rauat fail in law.
23. On the third point of acceptance of this claim, after it was clearly raised in the seventeenth century, it does not appear that it was contested in Maharashtra or outside till about 1900, when it arose in connection with the performance of certain rites. 'This contest, if it has, for all practical purposes, not ceased, is at least lulled.
24. Dividing the Marathas, therefore, into the three sub-division a well recognised among themselves, viz., the five families, the ninety-six families, and the rest, it appears to me that the second class to which the family of Hambirrao belonged, and, a fortiori, the first, are proved to be legally Kshatriyas, judged by the three test a I have formulated above. The line between the second and the third class may not always be clear. Many in the third class have not in the reported cases in the Courts set up a claim to be Kahatriyas but are, apparently and for the most part, content to be governed by the rules applying to Shudras.
25. As regards the third class, it is not necessary for me to express an opinion. Above, however, the case is different. Their claim to be Kshatriyas dates from centuries. They have adopted the Custom of the twice-born castes such as the wearing of the sacred thread, and in my opinion it would be a retrograde step for the Courts to deny them their claim and to insist against their will that the law should include them in the other category, and force on them other rules though they have satisfied the three tests which I have ventured to formulate.
26. As regards the view of ethnology on the question of the caste of the ninety-six families among the Marathas, contrary to the view of Risley and Euthoven and others quoted in the Madras decision, I may refer to an Indian authority, later, and, in my opinion, not less authoritative. I refer to Mr. C.V. Vaidya who, I believe, was the Chief Justice of Gwalior and has devoted himself for many years to research in ancient Indian History He is himself a Brahmin by caste and accustomed to weigh judicial evidence. In a very recent publication in 1927 styled 'Shivaji Souvenir' at page 63 in the Article 'Are the Bhonsles Kshatriyas' he enters into the question from the point of view of the historian and arrives at the conclusion that the ninety-six Maratha families are Ksbatriyas. The legal conclusion at which I have independently arrived above is not, therefore, inconsistent with the conclusion of a historian from another point of view.
27. No evidence of a custom of' adoption of a sister's son is proved. And I agree in substance with the reasoning of the learned Subordinate Judge in his careful judgment and would hold that the deceased Hambirrao, who was among the ninety six families, was a Kshatriya and not a Shudra, and the appellant's adoption is invalid.
28. I would dismiss the appeal with costs. Respondents Nos. 1 to 3 one set, respondent No. 7 another.
29. In this case the plaintiffs sue for a declaration that plaintiff No. 1 is the legally adopted son of one Hambira Nana Patil and for possession of the lands and other property describsd in the plaint. The defendants Nos. 1 to 3 contended that defendant No. 9, who adopted plaintiff No. 1, was not the most senior of Harnbira's widows, that she was discarded by her husband and had no authority to make the adoption, that Hambira was a Kshatriya and not a Shudra, that the adoption of plaintiff No. 1, who is the sister's son of the deceased Hambira, was not valid, and that Hambira had specially authorized his youngest wife, defendant No. 2, to adopt defendant No. 3 who was accordingly adopted by defendant No. 2.
30. The lower Court held that defendant No. 9 was the senior widow of Hambira, that she never misconducted herself, and that no special authority was given either to defendant No. 1 or defendant No. 2 to adopt defendant No. 3 or any other boy. It was further held that the fact of the adoption of plaintiff No. 1 by defendant No. 9 had been amply proved, that Hambira was a Kshatriya and not a Shudra, that plaintiff No. 1 adoption could be regarded as valid only if a special custom permitting such an adoption was proved, and that on the evidence no such special custom had been established. He therefore, dismissed the plaintiffs' suit.
31. The adopted son, plaintiff No. 1 has appealed. The defendants, while supporting the decree of the lower Court on the grounds mentioned in the judgment of the lower Court, also sought to support it on the ground that defendant No. 2 was specially authorized by Hambira to adopt defendant No. 3. In a previous suit No. 93 of 1919, defendants Nos. 1 and 2 did not impugn the validity of plaintiff No. 1 adoption on the ground that defendant No. 9 was not the most senior widow of Hambira. The lower Court has discussed the evidence and held that the evidence on behalf of the defendants was unreliable. It is not likely that Hambira would have allowed defendant No. 9 to live as the mistress of another person, and that Hambira sister would have given her son, plaintiff No. 1, in adoption to defendant No. 9 if she was a woman of bad character. The lower Court has believed the witnesses, Exhibits Nos. 97, 100, 106, 107 and 108, and its appreciation of the evidence is, in my opinion, correct. I there fore, agree with the view of the lower Court that defendant No. 9 was the eldest widow of Hambira, that she did not misconduct herself during his lifetime, and that no special authority was given by Hambira to defendant No. 1 or to defendant No. 2 to adopt defendant No. 3 or any other boy.
32. The fact of the adoption of plaintiff No. 1 by defendant No. 9 is not disputed before us. The only question is whether the adoption is valid. It is urged on behalf of the appellant that Hambira belonged to the Maratha community and that all Marathas are Shudras, and that at least the family of Hambira belonged to the Shudra community. Reliance was placed on the decision of the Madras High Court in Maharaja of Kolhapw v. Sundaram Ayyar (1924) . 48 Mad. I. It is further urged on behalf of the appellant that even if Hambira was a Kshatriya there was a special custom in the community to adopt the sister's son, It is argued, on the other hand, on behalf of the respondents, that Hambira was a Kahatriya, and the special custom set up was not proved.
33. In Maharaja of Kolhapur v. Sundaram Ayyar the learned Judges held that Shivaji, the last ruler of Tanjore, was a descendant of an illegitimate descendant of the brother of Shivaji the Great, the founder of the Maratha Empire, Though the question as to whether the descendants of Shivaji the Great were Kshatri-yas or Shudras was not decided, it was held that the Tanjore family was not entitled to be included in the Varna of Kshatriya.
34. According to Mr. Enthoven in Vol. Ill of his book 'Tribes and Castes of Bombay', page 8, the word Maratha covers three
(1) Maratha proper, the Chiefs, land-owners, and fighting Marathaa of the Deocan and Konkan, or claming Kthttriya-rank, eschewing widow-remarriage and socially superior to the cultivating classes, from whom, however, in places, they will take girls in marriage. (2) Maratha Kunbia or cultivators also known as Kulvadi. (3) Marabha occupational castes such as the following: Bhandari, Lohar, Mali, Teli.
35. Mr. Euthoven, however, was of opinion that the claim of the Marathaa to belong to the ancient ninety-six families of the Ksbatriya racs had no foundation in fact, but must have been advanced after they rose to power.
36. Sir Herbert Risley, Director of Ethnography for India, in his work 'The people of India', at p. 86, says:-
The Highest class of Maratha is supposed to consist of ninety-six families who profess to be of Rajput descent and to represent the Kshatriyas of the traditional system. They wear the sacred thread, marry their daughters before puberty and forbid widows to marry again.
37. Steele in his Law and Custom of Hindu castes at p. 89 says:-
The Rajpoots, Maratha chiefs of the Sattara or Bhosle and Kolhapoor -families, also the Patunkur, Ghorpure, Gharge, Sirke and other houses lay claim to the title of Kshubriy, and wear the Jenwa. But they are considered Soodrua by the Brahmuns.
38. Reference may be made in this connection to Bhattacharjee's Hindu Castes and Sects, pp. 149 and 150.
39. The question as to whether the Marathas proper are Kshatriyas or Shudras is not free from difficulty; There is difference of opinion between the historians on the point, Elphinstone, Vincent Smith, Grand Duff, Jadunath Sarkar, Dr. Bhandarkar, Surendra-nath Sen and Takkhav. The late Mr. Justice Telang in an essay entitled 'Gleanings from Maratha Chronicles' observes :
But from those which relate to Shivaji himself, it rather appears if we read between the lines, that the claim set up on his behalf to be of the Kshatriya caste was not universally regarded as really and truly tenable, although from considerations of policy and expediency it might be conceded. From tie Biographies of Shivaji by Krishnoji Anant Sabhasacl, and by Chitragupta, it seems to follow that the search for the origin of Shivaji'a family, whichresulted in the discovery that he belonged to the Sisode clan of Rajputs who reigned in Udayapur, was not commenced until after the idea of an installation (or Abbi-seka) had been started.
40. Mr. C.V. Vaidya in his essay 'Are the Bhosles Kshastriyas11, recently published in Shivaji Souvenir Tercentenary Celebration' at p. 70, has pointed out that Steele, Wilkes, and Duff and other authors had not the advantage of epigraphic evidence discovered since they wrote, and that proper evidence of the consciousness of the community and repute could alone prove descent, and after discussion of the inscriptions and other evidence has come to the conclusion that the Maratha Kshatriyas who first settled in Maharashtra were Yadavas or Chandra vansi Kshatriyas that the Rashtrakutas who ruled over Maharashtra after the Chalukyas were also Kshatriyas, that the Ksshatriyas like Brahmins were one caste in India before 1100 A.D., and the tendency of splitting the main castes or Varnas into sub-castes arose afterwards, that Shannavkuli Maratha, families were Kshatriyas according to history and Dharmashastra, and then proceeded to discuss the question whether the Bhonsle family was Kshatriya, and reached the conclusion that the Bhonsles were Kshatriyas, and the rules applicable to Kshatriyas on all matters according to Hindu Dhsrmashastra and not to the Shudras would apply to them.
41. The Varnashrama Dharma in its pristine purity does not exist in India at the present; time, and the Hindu society is divided into castes and sub-castes. The question, therefore, whether a particular caste can be allocated to any of the four Varnas is involved in obscurity and attended with considerable difficulty. The question lias, however, to be decided on the evidence in the case. In Chwotvrya Run Murdun Syn v. Sahub Purhulad Syn (14857) 7 M.I.A. 18, 48 their Lordships held that the existence of the Khatri class, as one of the regenerate tribes, is fully recognized throughout India.
42. Mr. Sarvadhikari in his book 'Hindu Law of Inheritance' (2nd Edn.), observes (p. 830):-
It often becomes difficult to distinguish a Sudra from one of the regenerate classes. We all know that a Sudra is not dwija, or 'regenerate'; but where are we to find the distinctive marks by which a given person may be easily known either as a dwija, or a Sudra? Even the weaving of the sacred thread, the well-known badge of the regenerate classes, cannot furnish in many oasea an indubitable teat in this vexed question. There are many Thahurs and Banias who, though they are universally recognised as members of the regenerate classes, do not put on the sacred thread.
The Only safe rule to follow in all oases where the determination of the oaste of a person is in question, is to ascertain the customs and usages by wbioh the social conduct of the given person is regulated.
43. In the case of Maharaja of Kolhapur v. Sundaram Ayyar (1924) I.L.R. 48 Mad. I,52 the consciousness of a community is recognized as a good test of Varna. And the question whether the deceased Hambira was a Kshatriya, has to be considered inter alia by that test.
44. In Raj Goomar Loll v. Bissessur Dyal I.L.R. (1884) Cal. 688 four tests were laid down for consideration of the question whether the Kayasthas of Bihar were Kshatriyas or Shudras : 'First, wearing the sacred thread; secondly, ability to perform the home; thirdly, the rule as to the period of impurity; and fourthly, the rule as to the incompetence of illegitimate sons to succeed.' On the question of wearing the sacred thread the evidence in this case is clear that thread ceremony is invariably performed in the community shortly before the marriage, and they begin to wear the sacred thread from the date of the performance of the thread ceremony. They change the sacred thread every year in the month of Shravan. Plaintiff No. l's natural father Yeehwant, Exhibit 42, in his examination-in-chief stated : 'We Marathas are Kshatriyas and not Shudras.' Later on, he resiled from that statement, and stated that he committed a mistake when he stated that he was a Kshatriya. Witness Radha Exhibit 43, states: 'The thread ceremony takes place shortly before marriage amongst us. The Janwe is changed every year...I have seen thread ceremonies taking place shortly before the marriage amongst us. My brother's thread ceremony was performed by a Brahmin priest.' Plaintiffs' witness Aba (Exhibit 97) and defendants' witnesses Appasaheb (Exhibit 114), Krishna (Exhibit 119), Vishnu (Exhibit 125), Narayan (Exhibit 127), Ganu (Exhibit 130), Vithu (Exhibit 131), Chandru (Exhibit 132), and Anubai (Exhibit 133) prove that the thread ceremony takes place in their community. Krishna (Exhibit 119) says: 'A Home is performed at the time of the thread ceremony. A janwe is worn at the time of the thread ceremony. We change our janwes every year in the month of Shravan.' Vishnu Balkrishna (Exhibit 125), the Brahmin priest, proves that Munj or thread ceremony is performed amongst these Marathas a week or so before the marriage and that he performed the Munj ceremonies of about forty to fifty Marathas according to the vedic rites as in the case of Brahmins and a home was performed, and that the shravani was performed in the month of Shravan every year. He also mentions the Gotra of the natural father of defendant No. 8 and the of the Bhosle family to which Hambira belonged. If this evidence is believed, as it has been believed by the lower Court, it lends strong support to the contention of the defendants that Hambira belonged to the Dwija or regenerate class, Reference may bo made in this connection to verse 10 of Yadnyavalkya, Achar Adhyaya: 'The castes are the Brahmins, the Kshatriyas, the Vaishyas, and the Shudras. Only the first three (of these) are twice born, the performance of the ceremonies beginning with the rites of impregnation and ending (with the funeral rites) in the cremation ground, of these only, is prescribed with sacred formulas' (Mantras), Balambhatta's gloss on this verse as translated by Vidyaranya in the Sacred Books of the Hindus, Achara Adhyaya (Panini Office), p. 18, is as follows :-
The word Dwija (twice-born) is a technical terra retaining also its etymological meaning, namely, they we twice-born or regenerate; for the investiture with the sacred thread is the second birth, All ceremonies of the three higher castes are performed by reciting sacred formulas; those of the Sudras are performed in silence without such recitation.
45. The investiture of the sacred thread would ordinarily be a ground of differentiation between the three higher Varnas and the Sudras. So also the performance of the sanskaras with mantras Vedic hymns or sacred prayers recited is another ground of differentiation.
46. With regard to the period of impurity, there is evidence of Exhibit 42, the natural father of plaintiff No. 1, that they observe mourning for ten days. Ganpatrao (Exhibit 116) says : PathvrJ. 'My sister's marriage had to be postponed as Abasahib was in 'mourning for ten days owing to the death of the late Shahu Maharaja of Kolhapur to whom he was related.'
47. There is very little evidence in this case as to the question whether in this community illegitimate sons are allowed to succeed. Witness Aba (Exhibit 97) gives evidence on the point; but it is too meagre to be made the basis of any inference on the point. I think, therefore, that it is not proved in this case that illegitimate sons are allowed a share in this community.
48. It is further proved by witnesses both on behalf of the plaintiffs and the defendants that marriages of widows are not permitted in the community to which the parties belong. The evidence on the point consists of the testimony of the natural father of plaintiff No. 1, Yeshwant (Exhibit 42), Guna (Exhibit 86), Aba (Exhibit 97), Appasaheb (Exhibit 114) and Anubai (Exhibit 13S). In addition to this evidence there is the admission of plaintiff No. l's natural father who in his examination-in-chief says: 'We Marathas are Kshatriyas and not Shudras' And though he resiled from that statement later on, he admitted that he belonged to one of the ninety-six Kulas of Kshatriyas.
49. The question as to whether any particular community belongs to the Kshatriya or the Shudra class is one of great difficulty. In Raj Goomar Lall v. Bissessur Dyal the Calcutta High Court has held that so far as the province of Bengal is concerned the Kayasthas are Shudras. Vide also Asita Motion Ghosh Moulik v. Nirode Mohon Ghosh Moidik (1916) 20 c.w.n. 901; Biswanath Das Ghose v. Shora-shibala Dasi I.L.R. (1921) Cal. 926 and Bhola Nath Milter v. Emperor I.L.R. (1924) Cal. 488 the last two cases have decided in favour of inter-marriages between Kayasthas and Tatnis and Domes in Bengal, on the ground that both of them are sub-castes of Sudras. The case of Asita Mohon Ghosh Moulih v. Nirode Mohon Mowlih Ghosh went up to the Privy Council, but the point was left undecided by their Lordships (Vide 47 I.A. 141). It was however, held in Ishwari Prashad v. Rai Hari Prashad Lal I.L.R.(1926) Pat. 506 that the Kayasthas of Bihar belong to one of the three regenerate classes and are not Sudras, and that the mere non-observance of the orthodox practices cannot take away the rights of a Kayastha in matters of inheritance, marriage and adoption. The decision of the Calcutta High Court in Raj Goomar Lall v. Bissessur Dyal was doubted in Tulshi Ram v. Behari Lal I.L.R.(1889) All 328. f.b. in so far as it held that the Kayasthaa fell within the category of Sudras, though their Lordships held (page 334):-
The question is one of considerable difficulty, not only ethnologically, but also from a legal point of view, so fur as the administration of the Hindu law to this important action of the population is concerned.
50. In Chuoturya Run Murdun 8yn v. Sahub Purhulad Syn (1857) 7 M.I.A. 18. it was contended that there were no Kshatriyas and that only two castes Brahmins and Sudras existed, on the authority of Ward's 'Account of the Hindoos,' Vol. I, p. 66 (ed. 1815) and on the authority of Steele's 'Summary of the Law and Customs of Hindoo castes,' p. 95, referring to the legend that Parsharam destroyed the whole caste of the Kahatriyas. But in Ghuoturya Run Murdun Syn's case their Lordships say (p. 48) :-
It seems to us, therefore, not only that the Khalri class must be considered as subsisting, but the it cording to the Hindoo law generally prevailing in this part of India, and independently of exceptions arising out of any well-established usage or custom to the contrary, as to particular places or families, Rajpoots are to be considered as of the Khalri class.
51. Reference may also be made in this connection to the case of Ambabai v. Govind I.L.R. (1898) Bom. 257 where Ranade J. discarded the myth of the extirpation of the Kahatriyas and referred to the opinion of Steele as to claim of Rajput and Maratha chief a as Kshatriyas.
52. We have, therefore, to decide the question on the evidence in the case after applying the test aa to the consciousness of the community laid down by the Madras High Court (Maharaja of Kolhapur v. Sundaram Ayyar) and the four tests laid down by the Calcutta High Court (Raj Coomar Lall v. Bissessur Dyal) as to wearing the sacred thread, ability to perform the homa, the rule as to the period of impurity and the rule as to the incompetence of illegitimxte sons to sucked the learned Subordinate Judge held that the Marathas proper and not the other castes classed as Marathas in the Bombay electoral rules still possessed warlike qualities and distinguished themselves on the several battlefields in the late war. The evidence in the case discloses that thread ceremony is performed in this community by the Brahmin priests according to Vedic rites, that they observe sutak or period of impurity, that re-marriage of widows is rare and it is not shown by any reliable evidence that illegitimate sons have assorted their rights to claim a share in the inheritance. Having regard to the admission of plaintiff No. 1's natural father that he belongs to one of the ninety-six families of the Kshatriyas, I am not prepared to differ from the view of the lower Court that the family of Hambira is, on the evidence in this case, shown to be a Kshatriya family. The inference of the lower Court is supported by the decision (Exhibit 143) in cross-appeals Nos. 619 and 12 of 1884 of the District Court of Eatnagiri, in which it was held that the Surve family belonging to the higher Maratha community were Kshatriyas. The case came up to the High Court in Second Appeal No. 404 of 1885 and although the correctness of the finding, that the parties were to be regarded as Kshatriyas for the purposes of general Hindu law of adoption, was not questioned, the case was remanded for a finding as to whether a special custom permitting the adoption of a daughter's son existed in the caste.
53. It would, therefore, follow that as Hambira was a Kshatriya, the adoption of plaintiff No. 1 would be invalid unless a special custom permitting the adoption was proved : see Gopal Narhar Safray v. Hanmant Ganesh Safray and another I.L.R. (1879) Bom. 273, Ramchandra v. Gopal I.L.R. (1908) Bom. 533: 14 Bom. L.R. 543 Yamnava v. Laxman Bhimrao I.L.R.(1912) Bom. 533: 14 Bom. L.R. 543 Bhagwan Singh v. Bhagwan Singh ( On the special custom set up in this case there is the evidence of Aba (Exhibit 97), Ramrao (Exhibit 100) and Govinda (Exhibit 106) alleging that there is a custom in the community of adopting daughter's son and Bister's son. The instances are recent ones, one of eight or ten years ago and the other of seven or eight years ago. The evidence on this point is not, therefore, conclusive and is not sufficient to prove any special custom. A custom at variance with the ordinary rules of succession in the community to which the parties belong should be established by clear and unambiguous evidence (vide Mahomed Ibrahi v. Shaikh Ibrahi : (1922)24BOMLR944 p.c. In Ramalakshmi Ammal v. Sivanantha Perumal Bethurayar (1872) 14 M.I.A. 670 it is laid down (p. 585):-
It is of the essence of special usages, modifying the ordinary law of succession that they should be ancient and invariable : and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the Courts can be assured of their existence, and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends.
54. In Parshotam v. Venichand (1920) 23 Bom. L.R. 227 a presumption was drawn in favour of the antiquity of a custom, of which instances extending over a period of about thirty years were forthcoming. The plaintiff No. 1 was, on his application, Exhibit 136, granted nearly a six weeks' adjournment for adducing evidence to prove the alleged custom, but no evidence was produced: see the Purshis (Exhibit 137). The evidence adduced on the point as to the special custom falls short of the standard of proof which is necessary to sustain an ancient and valid custom, I think, therefore, the view of the lower Court that Hambira was a Kshatriya and not a Shudra, and the adoption of a sister's son is not valid as the alleged custom is not proved, is correct, I would, therefore, dismiss the appeal with costs.