1. This is an appeal by the plaintiff in a suit in which he claimed the property of his deceased brother which is in the possession of the defendant who claims to be the adopted son of that brother. The plaintiff denied the fact of the adoption and he also said that it was invalid on the ground that the parties who are goldsmiths by profession and call themselves 'Panchals' or 'Panchal Brahmins' belong to the 'twice-born' classes and therefore the adaption of the defendant was invalid because he was the son of the sister of his adoptive father. The adoption has been held by the trial Court to be proved in fact and to be valid in law. The question of fact is not disputed in the appeal. We are concerned only with the validity of the adoption.
2. In Subrao Hambirrao v. Radha Hambirrao I.L.R. (1928) Bom. 497 : 30 Bom. L.R. 692. Mr. Justice Madgavkar accepted certain criteria which as he says in his judgment are recognised in the popular view as the proper method, of determining the question whether a particular caste or community belongs to the twice-born classes or is to be included among the Shudras. These criteria are (1) the consciousness of the caste (2) its customs, and (3) the acceptance of that consciousness by the other castes. The learned advocate who appears for the plaintiff-appellant has pointed out that Mr. Justice Patkar who also delivered a judgment in that case does not appear to have regarded the third of these criteria as essential; at any rate he does not refer to it in his judgment. In my opinion, however, it would be difficult to hold that consciousness of caste among the members of a community and the observance of customs followed by the twice-born classes would be sufficient without any evidence of recognition of the position asserted on the part of members of the other castes.
3. The effect of the evidence in the present case is that the parties, although they sometimes call themselves: simply ' Panchals,' also frequently describe-themselves by the name ' Panchal Vishwa Brahmins' or 'Vishwa Brahmins'. The evidence also makes it clear that they wear the sacred thread, renew it every year in the month of Shravan, go through the ceremony of 'Upanayan' before marriage, observe a period of pollution for the dead, and perform their 'Shradha' every year. It is also clear that there is no custom of widow remarriage in the community. It is established therefore that they perform ceremonies and follow customs which are not commonly used by Shudras. It may be said then that the second of the three criteria mentioned by Mr. Justice Madgavkar is satisfied.
4. There is much more doubt about the first. These Panchals call themselves Brahmins, but it is not easy to say what they mean by that. The defendant says : 'I am a Panchal Vishwa Brahmin. I cannot say if I am a Shudra or a Brahmin'. One of his witnesses Prabhappa (exhibit 81) has stated : 'We are not Shudras'. But witnesses on both sides have admitted that at any rate there are essential differences between themselves and ordinary Brahmins. Thus the plaintiff himself says:-'Panchal Vishwa Brahmins means goldsmiths. They have nothing to do with the ordinary Brahmins known as Vaishnavas, Smarths, etc.'. One of his witnesses (exhibit 93) says : 'I do not know of any religious books, I do not know how the word ' Vishwa Brahmin' is derived. We are not connected with the ordinary Brahmins. We have nothing to do with them. The ordinary Brahmins or their priests do not come to our ceremonies. The principal profession of our community is goldsmith's work. Generally we are called Panchals or Akkasatigs.' The defendant says : 'I am not of the same caste-as the ordinary Brahmins. I am a Vishwa Brahmin. I am not an ordinary Brahmin. The profession of our caste is that of a goldsmith.' His witness Prabhappa (exhibit 81) says : 'The ordinary Brahmins are different from us. There is no inter-dining nor marriages between the ordinary Brahmins and our community. We do not call their priests for our ceremonies. We have-our own priests in our community'. That being the evidence it would be difficult to say that there is among the members of this community, judging as we must by the evidence which has been produced in the case, any consciousness that they belong to the twice-born classes. It is dear that they consider themselves to be superior to the ordinary Shudras, but that is not the same thing.
5. As for the third criterion, recognition by the members of other castes, there is practically no evidence at all- Exhibit 87, who is a Deshastha Brahmin called for the defendant, says that Somappa's caste, that is the caste of these parties, is Sonar or Panchal Brahmin. There is no other evidence on the point, and this is obviously insufficient to prove any recognition of the position claimed by the plaintiff on the part of either Deshastha Brahmins or any other community.
6. According to the criteria laid down in Subrao Hambirrao v. Radha Hambirrao, therefore, it must be held that, though the parties may be superior to Shudras in some respects and though there is no doubt that they observe the same ceremonies and customs which are not commonly observed by ordinary Shudras, nevertheless, it is not proved that they are to be included among the twice-born classes; and the law appears to be that in the absence of proof that they belong to the twice-born classes the presumption is that they are Shudras. In that connection I may refer to Maharaja of Kolhapur v. Sundaram Ayyar I.L.R. (1924) Mad 1, 197,
7. The learned advocate for the appellant referred us to a passage in Enthoven's 'Tribes and Castes of Bombay' dealing with Panchals. The passage begins at p. 156 and the particular observations on which reliance is placed are at p. 158 :-
Panchals claim to be Brahmins. They follow Brahmanic sanskaras or sacraments and perform their ceremonies according to Vedic rites. Their claim to Brahmanic rank has never been allowed in recent times. On the contrary, they were often persecuted for performing Vedic rites, and during the rule of the Peshwas, were not allowed to tuck the dhotar or waist cloth up between the legs and in at the waist, a mark of Brahmanic rank.... It is, however, worthy of note that whenever religious disputes between Panchals and Brahmins were referred to the religious heads for decision they refused to support the Brahmins and admitted the claim of the Panchals to Vedic rites.
8. Mr. Enthoven's book makes it perfectly plain however that there are many different kinds of Panchals, and in the absence of any evidence we should not be justified in holding that the claim' of this particular community, the Panchals with whom we are concerned in the present case, has ever been recognised by the religious heads or otherwise.
9. In Mahantawa v. Gangawa I.L.R. (1909) Bom. 693 : 11 Bom. L.R. 822, it was held that the Panchals and the Kurbars are sub-divisions of the Shudra tribe. That fact appears to have '.been admitted in that particular case and perhaps it may be distinguished on the ground which I have already suggested, viz., that there are Panchals and Panchals and a decision as to one particular part of that community may not necessarily be valid in respect of another. We agree however with the learned trial Judge that on the materials on record it must be held that the parties do not belong to the twice-born classes.
10. That was the only point in this connection which was argued in the trial Court. It appears to have been conceded there that if the parties are not shown to be twice-born then the adoption of a sister's son would be valid. The learned advocate for the appellant here, however, has in the alternative raised a different point. He says that anyhow the parties are superior to ordinary Shudras and as that is so the prohibition against the adoption of a sister's son which applies in the case of the twice-born classes ought to be held to apply in the case of these parties also. The authorities, in support of the proposition that the prohibition against the adoption of a sister's son does not apply to Shudras are collected in Mulla's ' Principles of Hindu law,' 8th edn., at p. 538, note (g). It is quite true that many of these cases are distinguishable on the facts. For instance in Kahandas v jivan : AIR1923Bom427 , it Was held that the Lewa Kunbis, who were the parties there, have no Vedic rites, do not perform ceremonies of the twice-born, do not wear the sacred thread, and on the other hand have all the customs which, one should expect among the Shudras. Obviously, it would not follow from; the finding that the adoption of a sister's son is valid among the Lewa Patidars that it must necessarily be valid among all Shudras.
11. Nevertheless the contention of the learned Counsel for the respondent appears to be correct, viz. that the prohibition against the adoption of a sister's son only applies in the case of the twice-born, and therefore if it is held, as it has to be held in this case, that the parties are Shudras, it not having been established that they belong to the twice-born classes, it follows that the adoption of a sister's son is valid. At any rate it would lie on the party who asserts it to prove that the prohibition which applies to the twice-born classes applies to these parties also. This argument derives very strong support from the decision of this Court in Lakshmappa v. Ramava (1875) 12 B.H.C.R. 364. It was there pointed out that the adoption of a sister's son, though prohibited, to the three superior classes, is declared to be 'the most proper for Shudras,' and there is a reference to a passage in the Vyavahara Mayukha. If among the Shudras such adoptions are desirable, it must obviously be the general rule that they are valid, and on the footing that the parties are Shudras any exception to that rule must be proved, that is to say, it must be taken to be the rule among Shudras that the adoption of a sister's son is valid unless in the particular case with reference to the particular community evidence is forthcoming to show that such adoptions are prohibited. It is not suggested that there is evidence of that kind in the present case. The defendant and his witnesses have stated that there is no such prohibition and their statements have not been in any way refuted.
12. The argument advanced for the first time in this first appeal is therefore-not tenable. Accordingly we see no sufficient ground for differing from the-view taken by the Assistant Judge, and the appeal is dismissed with costs.
13. I agree.