1. The plaintiff's suit for the possession of a house against certain trespassers was dismissed by the Court of first instance, the Additional Munsif of Farrukhabad, and the defendants' appeal was dismissed by the Subordinate Judge who heard the appeal. The plaintiff's case was that the house was originally owned by two persons Fitam Singh and Parmoda Singh and on their death the plaintiff's brother Gopal Das succeeded to the property. Gopal Das died about eight months prior to the institution of the suit and the plaintiff claimed to succeed his brother by right of survivorship. It was argued in this Court that Gopal Das was an ascetic and had renounced the world; so neither could he succeed to the property nor could the plaintiff succeed to any property left by him. It was, therefore, submitted that the plaintiff had no cause of action and could not dispossess the defendants who were actually in possession. In reply the plaintiff-respondent's learned Counsel Dr. Sen quoted rulings where it was held that for a man to be a sanyasi he must belong to the three regenerate classes of Brahmin, Chhattri or Vaishya. The plaintiff and his brother were Sadhus and there was evidence before the first Court of witnesses produced on behalf of the defence that Sadhu was not a Brahmin or a Chhattri or a Vaishya. He must, therefore, belong to one of the unregenerate classes. In Harish Chandra Roy v. Atir Mahmud 18 Ind. Cas. 474 : 40 C. 545 : 17 C.W.N. 517 a Bench of the Calcutta High Court held that Hindu texts applicable to the disinheritance of ascetics do not apply to Sudras unless some usage or custom to the contrary is proved. This case followed an earlier ruling of the Madras High Court. In 1916 this proposition of law was reaffirmed by the Madras High Court in a ruling reported in Somasundaram Chettiar v. Vaithilinga Mudaliar 41 Ind. Cas. 546 : 40 M. 846 : 6 L.W. 253. A Bench of the Madras High Court held that the texts of Hindu law of disinheritance applicable to Yati or Sanyasi do not apply to Sudra ascetics unless a usage to this effect is established. The same view has been taken in Bombay in Ramdas Gopaldas Sadu v. Baldevdasji 26 Ind. Cas. 607 : 39 B. 168 : 16 Bom. L.R. 757. At page 174 of the report the Judges gave it as their opinion that Sanyasis were confined to the members of the twice-born castes. The first Court has pointed out in its judgment that no special custom was pleaded by the defence in the written statement and so the learned Munsif did not permit any evidence to be produced to prove such a custom. In the absence of any custom to the contrary we hold that Gopal Das did inherit the house and that the plaintiff as his successor-in-interest is entitled to its possession.
2. The appeal is dismissed with costs including in this Court fees on the higher scale.