Norman Macleod, Kt., C.J.
1. The plaintiffs sued for a declaration that the adoption of the first defendant was invalid and accordingly to recover possession of the property specified in the plaint. The relationship of the parties is shown in the pedigree at p. 2. The original holder of the suit property was one Parag Ranchhod who died leaving a widow Parvati and a sister Lakhi. Parvati adopted the first defendant Jivan, son of Lakhi. Plaintiffs, sons of Naran, who was the first cousin of Ranchhod, claimed that to the property in suit which was Bhagdari property, paternal kinsmen succeeded in preference to female heirs, so that if the adoption of the first defendant was declared to be invalid, they would be entitled to succeed. The learned Judge held that as the property was Bhagdari, the plaintiffs would succeed in preference to Lakhi, the sixth defendant. But he held also that the adoption of the first defendant was valid and accordingly dismissed the plaintiffs' suit.
2. The learned Judge discussed the evidence on the question whether the plaintiffs had established that they being Leva Patidars of Gujarat could be considered to be Vaishyas and not Sudras, and he came to the conclusion (1) that the weight of the evidence was against the plaintiffs' plea that they were Vaishyas; (2) that there prevailed a custom in the caste to take a sister's son or daughter's son in adoption. As pointed out by Mr. Justice Shah in Manchharam v. Dattu : (1919)21BOMLR1172 , if the parties are Sudras, there is no necessity to prove a custom permitting the adoption of a sister's son or daughter's son. But it seems to me to be perfectly clear on the evidence that such an adoption was recognised in this community and that would therefore go some distance towards showing that the parties were Sudras and not Vaishyas. Now the evidence, although it may be said to be somewhat indeterminate as well as conflicting, is of very much the same character as in Muncharam v. Dattu, in which the appeal was heard by Mr. Justice Shah and myself. Mr Justice Shah said (p. 1176):
The second question is whether the lower Court in right in its conclusion that the parties are Sudras. The evidence on this point has been fully discussed on behalf of the appellants, and in view of the facts found by the lower Court as to the customs obtaining in cue community to which the parties belong, it is not necessary to examine the oral evidence in detail. It is found by the lover Court that the members of the community to which the parties belong have no Vedic rights and Samskaras prescribed for the twice-born classes among them; that they have not the chief Samskara, Munj, which makes a man Dwija; that they wear the sacred thread only occasionally; that this occasional wearing also in probably of a recent growth; that they have all the customs which one should expect among the Sudras, viz., adoption of a daughter's son, and of sister's son', divorce, Pat marriage, widow remarriage and non-tonsure of the widows which are all badges of an inferior or un-regenerate caste as observed by the High Court in Gopal Narhar Safray v. Hanmant Ganesh Safray I.L.R. (1879) 3 Bom. 273.
3. Compare that with what was said by the First Class Sub-ordinate Judge at p. 6:
In brief, it is an established fact that Lewa Kunbis have no Vedic rights and Samskaras prescribed for the Dwij; that they do not perform chief Upanayan Samskara which makes a man Dwij; that they do not wear sacred thread; that they have all the customs which one should expect among the Sudras, viz., divorce and Natra marriage by widows, and also adoption of a daughter's or sister's son.
4. We think that on the evidence there is sufficient justification for the conclusion at which the learned Judge arrived. Again, in Muncharam v. Dattu Shah J. said at p 1178:
It is to be noted that : the caste to which the parties belong, and which used to be described originally as Kunbi caste has recently been described according to the evidence as Lewa Kunbis; and it seems to me that an attempt has been made on behalf of the defendants to show, it possible, a higher status with a view to escape the liability in the present suit. The description of the caste 'Pajne Kunbis', which was originally given to this caste, has apparently been changed to 'Lewa Kunbis' during the last twenty years.
5. In the same way in this case, it is apparent from the evidence that there have been endeavours in the community to establish their status as Vaishyas. Some of the witnesses for the plaintiffs even admitted that they were not Vaishyas by birth, but only by deeds. Considering, therefore, the whole of the record and the opinion which was formed on that record by the First Class Subordinate Judge, a Hindu of considerable experience in Gujarat, we think that his decision was right and that therefore the appeal must be dismissed with costs. Defendant No. 1 is entitled to his costs in both the Courts. Cross-objections allowed as to costs. Other cross-objections are dismissed.