1. This is an appeal by the plaintiff against the judgment of Mr. Justus Greaves whereby the learned Judge dismissed the suit.
2. The plaintiff is an infant and sued by his mother and next friend. The suit was brought (i) for a declaration. That the lied entitled to an undivided half share of and in the house and premises Nos. 156, 156-1 and 156-2, Baitakhana Road (formerly No. 156, Old Baitakhana Bazar Road) in the town of Calcutta, subject to the life-interest thereon of the defendant Srimati Shorashibala Dasi; (ii) for a declaration that the indenture of conveyance, dated 25th day of March 1918, executed by the defendants, Srimati Shorashibala Dasi, Nogendra Nath Das Ghose and Srimati Golapmoni Dasi in favour of the defendant Niranjan Krishna Das, is void and inoperative in against the plaintiff; (iii) for a declaration that the defendant Niranjan Krishna Das is not absolutely entitled to the whole of the said premises Nos. 156, 153-1, 156-2, Baitakhana Road (formerly No. 155, Old Baitakhana Bazar Road) in Calcutta.
3. The plaintiff further prayed for an in-junction to restrain the defendant Niranjan Krishna Das, from dealing with the said house and premises, pending the final determination of the suit: for a Receiver and in the alternative that the defendant Shorashibala might be ordered to pay to the plaintiff the sum of Rs. 12,000.
4. At page 155 a family tree is set out, and this may be conveniently referred to:
GORAK CHANDRA DAS GHOSE
Sm. Jaharmani Dasi, Doyal Chandra by sm. Golapmoni Dasi,
Deid 4th July 1913 Das Ghose moni Dasi,
(unmarried). (defendant No. 3)
Sm. Shora Nogendra Jogendra Sm. Charnbala
shibala Dasi, math Das nath Das Dasi, (alleged to
(defendant) Ghose Ghose, (alleged to have
No. 1 (defendant died 22nd been married July or
(unmarried). No. 2 March 1916 August 1905.)
Sm. Provabati, Biswanath Das Ghose,
Born 3rd November Plaintiff
1908. Born 26th January
5. The plaintiff alleges that he is the legitimate son of Jogendra by his wife Charubala and that he was born on the 26th January 1911.
6. Shorashibala the 1st defendant was sister of Jogendra. Nogendrs, the 2nd defendant, was brother of Jogendra. Golapmoni, the 3rd defendant, was the mother of Jogendra, and Niranjan Krishna Das, the 4th defendant, was alleged to be the purchaser of the properly in question from the first three defendants by a conveyance dated the 24th March 1918.
7. The main issues in the case were: (i) Was Chasuble lawfully married to Jogendra? (ii) Is the plaintiff the legitimate son of Jogendra? The plaintiff alleged that in July or August 1905, Jogendra duly married [Charubala, the mother of the plaintiff, according to the Hindu Shastras, and they lived as huehand and wife until the death of Jogendra on 22nd March 1916; that there was issues of the raid marriage, viz; Probhabati, born on 3rd November 1908, and the plaintiff, born en 26th January 1911.
8. The first three defendants in the written statement alleged that Jogendra was never married to Charnbala, but that he kept her as his mistress for sometime, and that Jogendra leaned to live with her since 1909 and that the plaintiff was neither the legitimate nor the illegitimate son of Jogendra.
9. The 4th defendant, Niranjan Krishna Dap, alleged that he verily believed that Charubala was a woman of the town.
10. The facts relating to the property fn question may be taken from the statement contained in the learned Judge's judgment, as follows:
11. One Jaharmani Dasi, the aunt of Sho. rashibala, Nogendra and Jogendra, by her Will, dated the 11th April 1905, appointed Shorashibala role executrix and directed her to pay all her just debts, and gave to Shorashibala absolutely No. 97, Beadon Street, and gave No. 156, Old Baitakhana Bezar Road (now represented by the premises in suit) to Nogendra and Jogendra absolutely in equal moieties subject to a life-interest in favour of Shorashibala, and she directed her executrix to pay monthly out of the income of her estate, Rs. 10 a month to Golapmoni for her maintenance during her life and to Nogendra and Jogendra each a like sum if they or any of them did not live under Shorashibala's care at her own residence. The testatrix gave certain legacies and left all other her movables and immoveables to Shorashibala. Jaharmani died on the 4th July 1913, with-out having revoked or altered her Will, and on the 4th January 1918, Probate of the Will was granted out of this Court to Shorashibala. From annexure ' B' to the affidavit of assets, it appears that no entry was made against the item 'amount of debts, due and owing from the deceased payable by law out of the estate. On the 25th March 1918, Shorashibala, Nogendra and Golapmoni executed in favour of the defendant Niranjan a conveyance of the premises in suit for Rs. 12,800.
12. The conveyance recites, inter alia, the Will of Jaharmani, the grant of Probate, the death of Jogendra on the 22nd Marsh 1916, unmarried and intestate, and leaving his mother Golapmani as his sole heiress and legal representative, and that Shorashibala as executrix got possession of the estate of Jaharmani and paid up the legacies and maintenance mentioned in the Will, and that Shorashibala, being in need of money for carrying out the directions in the Will as aforesaid, had agreed to sell the premises in suit, and that Nogendra and Golapmoni had agreed to join as reversioners so as to convey to the purchaser a good and valid title. Shorashibala, Nogendra and Golapmoni grant, sell, convey and transfer to the purchaser the premises in suit and all the estate, right, title, inheritance, use, trust, property, claim and demand of the vendors and of each of them into and upon the said property and the conveyance contains the usual covenant that the vendors and each of them had good right, full power, absolute authority and indefeasible title to convey and a covenant for quiet possession and to indemnify and for further assurance.
Shorashibala, Nogendra and Golapmoni on the same day swore an affidavit stating (paragraph 4) Jogendra's death, intestate and unmarried, and, that Golapmoni was his heir and (paragraph 5) that besides themselves no other persons had any interest in the premises in suit and (paragraph 6) that the legacies and maintenance had been fully paid and discharged by the executrix. The same persons on the same day executed a bond in a sum of Rs. 25,600 in favour of the purchase which rositoo, inter alia, the payment of the legacies. One of the conditions of the bond being to protest the purchaser against any persons al timing to be the heirs of Jogendra, Neither the conveyance nor the affidavit nor the bond makes any reference to any debts of the deceased Jaharmani.
13. After referring to the evidence, documentary and oral, the learned Judge held that a ceremony of marriage was gone through between Jogendra and charnbala, and that charnbala was recognised as Jogendra's wife, and her children were recognised as his and that she lived with him as his wife in Upper Chitpore Road.
14. He further held that Jogendra was a Kayestha and that charnbala was of the, weaver class and he then stated that it was necessary to consider whether a marriage between them could be a valid marriage and the children legitimate.
15. In this Court, the above mentioned findings of fact of the learned Judge have not been challenged by the learned Counsel who appeared for the first three, respondents or by the learned Counsel who appeared for the 4th respondent, Niranjan Krishna Das.
16. The learned Counsel, who appeared for the appellant, challenged the learned Judge's finding that the plaintiff's mother was of the weaver class and urged that the Court should hold that she was a Kayastha: I see no reason, however, to differ from the learned Judge's finding in this respect and, consequently, the case must be decided upon the learned Judge's findings of fact.
17. The learned Judge further said that ho must hold that, according to the law as laid down in Bengal, Kayasthas are Sudras and that the two (by which I understand him to. mean the Kayasthas and weavers) are sub divisions of the same caste. The learned Counsel for the first three respondents said that he disputed that finding, but he did not discuses the cases to which the learned Judge referred and on which he based his judgment in this respect. The case of Asita Mohan Ghose Moulik. v. Nerode Mohan Ghose Moulik 33 Ind. Cas. 127 : 30 C. W. N. 901 at p. 904, one of the cases to which the learned Judge referred, Was decided by Chaudhuri and Newbould JJ., in 1916 and at pages 901 and 905 will he found the following passages:
We agree with the learned Subordinate Judge that Kayasthas, according to the law prevalent in Bengal, are considered as Sudras. The question has frequently arisen in connection with cases of adoption, and it is settled that as Sudras no religions ceremony is in their case necessary, but that the mere giving and taking of a san is sufficient to give validity to adoption amongst them.... They have been treated as Sudras in our courts for a long series of years and their status as sash cannot now be questioned.
Bengali Kayasthas have bean uniformly treated as Sudras in our Courts and the question does not appear capable of serious argument, although attempts may have recently been made by some members of the community to trace their descent from Khatriyas, and some of them may have actually taken the sacred thread as belonging to the regenerate.
18. This judgment, as I have already said, was not in any way challenge i by either of the learned Counsel who appeared for the respondents.
19. It must, therefore, be taken, as the learned fudges said in the above-mentioned case, that the Bangali, Kayesthas are treated as Sudras in this Court.
20. It follows, therefore, that Jogendra, being a Kayastha, and Charubela, being a Tanti, ware members of two sub-divisions of the same caste, viz., the Sudras. The question, therefore, arises, whether the marriage between Jogendra and Charubala was invalid by reason of the fact that they belonged to two sub divisions of the Sudra caste.
21. The learned Judge relied upon the opinion expressed by Mitter, J., in Narain Dhara v. Rakhal Gain 1 C. J. 23 W. R. 334: 1 Ind. Dec. (n. s.) 1. and upon the opinion of Sir Gooroodas Banerjee to be found at pages 75 and 76 in the 4th edition of his book on the Hindu law of Marriage and Stridhan.
22. It has, however, been held by the Privy Council in Inderun Valungypooly Taoer v. Ramawsamy Pandir. Talavar 13 M. I. A. 141 : 3 B. L. R. P. C. 1 : 12 W. R. P. C. 41 : 2 Suth. P. C. J. 267 : 2 Sar. P. C. J. 493 : 20 E. R. 504. that if there has been a marriage in fact, there would be a presumption in favour of there being a marriage in law.
23. In this case the learned Judge, as I have already stated, found that there was in fact a marriage between Jogendra and Charubala, that Charubala was recognised as his wife, and her children were recognised as his, and that she lived with him as his wife in Upper Chitpore Road, Calcutta. These findings stand unchallenged. There is, therefore, a presumption that the marriage was valid and according to law, and the onus rests on the respondents to displace this presumption. No evidence of any usage or custom applicable to the parties was-given, except that Charubala, the mother of the plaintiff, in arose-examination, said that Jogendra and Nogendra were Kayasthas, and that they could only marry Kayasthas: Charubala, however, was, at the time, asserting that she and her father also were Kayasthas and that there was a valid marriage between Jogendra and herself. The validity of a marriage between a Kayastha and Tanti was obviously not present to her mind.
24. In this Court the learned Counsel for the first three respondents urged us to remit the case for a further hearing upon the question whether, by the usage and custom in this part of Bengal, a Kayastha could marry a woman of the Tanti class, and the learned Counsel was willing to submit to any terms as to costs which we might fix. This was opposed by the learned Counsel for the plaintiff. The case of these respondents in the Court below was, in the first plane, that Charubala was a kept mistress and that Jogendra had not married her; but the case was not confined to that as appears from the evidence and also from the learned Judge's judgment. It was obviously contended on behalf of these defendants that, even if there was a marriage between Jogendra and Charubala, it was not valid, because Jogendra was a Kayastha and Charubala was a Tanti, and evidence was sailed by the defendants to show that Charubala was a Tanti; that being so, in my judgment, if the defendants were desirous of relying on any usage or custom which went to show the invalidity of such a marriage they should have produced evidence in respect thereof at the trial. No sash usage or custom was pleaded, nor was any evidence given thereof and, under these circumstances, in my judgment, we should not now be justified in remitting this case for a further hearing in respect of this point. As already stated, the defendants abstained from calling any evidence as to usage and custom prevailing in this part of Bengal, but, for the purpose of rebutting the above-mentioned presumption, reliance appears to have been placed upon the opinion to which the learned Judge referred. In Narain Dhara v. Rakhal Gain 1 C. J : 23 W. R. 334 : 1 Ind. Doc. (n. s.) 1. it was decided that, according to the doctrine of the Bengal School of Hindu Law. a certain description only of illegitimate sons of a Sudra by an unmarried Sudra woman is entitled to inherit the father's property in the absence of legitimate issue, viz,, the illegitimate sons of a Sudra by a female slave or a female slave of his slave.
25. That decision has been disapproved of in a recent Fall Bench case, Rajani Nath Das v. Nitai Chandra De 63 Ind. Cas. 50 : 32 C. L. J. 333 : 25 C. W. N. 433 : 48 C. 643 (F. B.)., But the opinion of Mitter, J., in Narain Dhara v. Bakhal Gain 1 C. J : 23 W. R. 334 : 1 Ind. Doc. (n. s.) 1. upon which Greaves, J., relied, was not overruled though it was pointed out by Mookerjee, J., in Raiani Nath Das. V. Nitai Chandra De 63 Ind. Cas. 50 : 32 C. L. J. 333 : 25 C. W. N. 433 : 48 C. 643 (F. B.)., at page 373,* that, 'although it has been sometimes asserted that inter-marriages between different castes is prohibited in the present age, the authorities are not unanimous as to how far this prohibition extends to intermarriages between different castes of the Sudra class in Bengal.'
26. The opinion of Mitter, J., in Narain Dhara v. Rakhal Gain 1 C. J : 23 W. R. 334 : 1 Ind. Doc. (n. s.) 1. was as follows:
In an ordinary case, where it is established that parties have lived together as husband and wife for a long length of time, it is consonant with natural justice to presume a valid marriage between them; and I am not aware of any peculiar provision in the, Hindu Law which is inconsistent with such a presumption as this, But in this case there is no room for it, for the parties are of different castes, and a valid marriage between them is impossible unless sanctioned by any peculiar social custom governing them: see Vayavastha Darpana, p. 1038, and Ward's Account of the Hindus, Volume I, page 94.
27. Markby, J., however, in giving judgment said:---'The only doubt I have is as to the reasons given by my learned colleague for holding that the District Judge is wrong in presuming that there was in this case a valid marriage, and that the son of Radhoo' was, therefore, legitimate. I understand my learned colleague to consider that the presumption is excluded, because the alleged wife is of a different caste from the husband and that, unless sanctioned by custom, such a marriage is not legally binding. Upon a question of this kind I should hesitate greatly before I differed from my learned colleague, it being a question with which he is peculiarly well qualified to deal, I only wish to point out that no legal authority is quoted for this position. In the ancient test bocks no such authority could be found, because it is admitted (i) that in ancient times the Sudras were but one general caste or class; (ii) that in ancient times the marriage of a man with a girl of a different class or caste was not prohibited. Whether the comparatively modern prohibition against inter-marriage of persons of a different class or caste extends in this part of India to the modern sub divisions of the Sudra caste or alias is a matter of very great importance. The restrictions thus imposed would be very numerous; and restrictions upon marriage, however convenient socially, assume quite a different aspect when recognized by the law. If the law does recognise them, of course, they cannot be ignored. But if it does not, it would be wrong to impose them, and I feel great hesitation in saying, for the first time, that there is a legal bar to these marriages.' It is to be noted that the learned Judge dwelt upon the point that he was averse to holding for the first time that there was a legal bar to these marriages. The date of this case was 1875.
28. In Upoma Kuchain v, Bholaram Dhubi 15 C. 708 : 13 Ind. Jur. 108 : 7 Ind. Dec. (n. s.) 1055. which was a case from Assam, it was held that there is nothing in Hindu Law prohibiting marriages between persons belonging to different sections or sub-divisions of the udra caste, The matterial part of the judgment was as follows:
The question remains, however, whether, according to Hindu Law, this was a valid marriage. It was contended, on the authority of a judgment of Mr. Justice Mitter in the case of Narain Dhara v. Rakhal Gain 1 C. J : 23 W. R. 334 : 1 Ind. Doc. (n. s.) 1. that marriage between two persons belonging to different sub-divisions of the Sudra caste is invalid. But that we think amounted to no more than an expression of opinion. The Opinion of Mr. Justice Mitter was dissented from by Mr. Justine Markby and the case was not decided on that ground. We further think that the opinion there expressed is inconsistent with the decision of the Judicial Committee of the Privy Council in the case of Inderun Valungypooly Taver v. Ramasawmy Talaver 13 M. I. A. 141 : 3 B. L. R. P. C. 1 : 12 W. R. P. C. 41 : 2 Suth. P. C. J. 267 : 2 Sar. P. C. J. 493 : 20 E. R. 504. The question there was, whether the plaintiff, being illegitimate, and, therefore, as it was argued, of no casts at all, could contract a legal marriage with a person of the Sudra caste, and their Lordships said:---'Their Lordships are not aware that there is any authority---there has been none quoted, and it does net appear that there is any authority supporting any such proposition as that which is contended for by the Pundits; and though their Lordships do not agree in everything that has been stated in the High Court of Appeal, they are satisfied that, in the Sudra caste, illegitimate children may inherit, and have It right to maintenance; and that, in this very instance, the illegitimate father of the mother of the plaintiff as well as his daughter, were treated as members of the family: and, on the whole, seeing that these parties are both of the Sudra caste, and that the utmost that has been alleged really is that the Zemindar was of one part of the Sudra caste and the lady to whom he was married was of another part, or of a sub-caste, their Lordships bold the marriage to have been valid; to hold the contrary would, in fast, be introducing a new rule, and a rule which ought not to be countenanced.
The same view was taken in the case of Ramamani Ammal v. Kulanthai Natchear 14 M. I. A. 346 : 17 W. R. 1 : 2 Suth. P. C. J. 493 : 2 Sar. P. C. J. 736, 20 E. R. 816. There a similar objection having been taken, their Lordships said (page 352):---'On the argument of this appeal this objection was not insisted on; it was conceded on both sides that resent decisions had declared the legality of a marriage between persons of those two sub classes of the Sudra caste
We think that those decisions are conclusive as to there being no rule of law rendering such marriages invalid. It is true that the cases referred to were cases from the Madras Presidency; but it has not been shown to us that in this respect any principle of Hindu Law followed in that Presidency is inapplicable to the Presidency of Bengal, nor has any case or any authority from ancient writers been cited to show that such marriages are invalid. Mr. Mayne in his work on Hindu Law treats such marriages as obsolete; and, most probably, they are so in the more advanced parts of Bengal; in which castes have become sub-divided in such a way that the subdivisions are regarded as distinct castes in themselves. Bat the fact that these marriages are not resorted to is no ground' for holding that they are invalid according to law. Oar attention was also called to another case---an unreported one---(Rag. App. 274 and 322 of 1886) which came before Mr. Justice Wilson and Mr. Justice O'Kinealy. In that case, it was not necessary to decide the precise point which is now before us, but both the learned Judges intimated very distinctly their opinion that, if it were necessary to dissent from the opinion of Mr. Justice Mitter, in the case to which we have referred, they would have done so. We hold, therefore, that there is nothing in the Hindu Law prohibiting a marriage between the parties to this suit.
29. We have referred to the judgment in the unreported case to which reference is made by the learned Judges in the last mentioned case. It was an appeal from an original decree Nos. 274 and 322 of 1886 and the judgment was that of Wilson and O'Kinealy, JJ. I will read the material portion of it:
Then, it is said that, if the adoption took place in fact, it is invalid in law, and for this reason that, although the alleged adoptive father and the alleged adopted son were both Sudras, they did not belong to the same branch of the caste or class of Sudras and that, by some rule of law the adoption by a person belonging to a particular class of the general caste of Sudras, of a person belonging to the Sudra caste but to a different sub-division of it is invalid. It has always been accepted that the question of inter-marriage between two classes and the question of adoption from one of these classes into the other is practically the same question. An opinion has, no doubt, been expressed by one of the learned Judges of this Court, Mr. Justice Mitter, in the case of Narain Dhara v. Rahhal Gain 1 C. J : 23 W. R. 334 : 1 Ind. Doc. (n. s.) 1. that a marriage between parties in different sub-divisions of the Sudra caste is prohibited unless sanctioned by any special custom. That, I think, did not amount to a decision, but it does amount to a distinct expression of opinion by ore whose opinion carries very great weight. On the other hand, it was dissented from by Mr. Justice Markby who heard the case with Mr. Justice Mitter. If it were necessary for us to decide that question, we should, as at present advised, not be prepared to follow that rule. That there is no such rule of Hindu Law generally is now authoritatively settled by two decision s of the Privy Council, one in the case of Inderun Valungypooly Taver v. Ramasawmy Pandia Talaver 13 M. I. A. 141 : 3 B. L. R. P. C. 1 : 12 W. R. P. C. 41 : 2 Suth. P. C. J. 267 : 2 Sar. P. C. J. 493 : 20 E. R. 504. where their Lordships deal with the matter very decisively. They express their view on this question thus at page 159: 'On the whole, seeing that these parties are both of the Sudra caste and that the utmost that has been alleged really is that the Zemindar was of one part of the Sudra caste, and the lady, to whom he was married was of another part, or of a sub-caste, their Lordships hold the marriage to have been valid; to hold the contrary would in fact be introducing a new rule, and a rule which ought not to be countenanced. The same question was before the same tribunal in another case from Madras, the case of Ramamani Ammal v. Kulanthai Natchear 14 M. I. A. 346 : 17 W. R. 1 : 2 Suth. P. C. J. 493 : 2 Sar. P. C. J. 736, 20 E. R. 816. and again the same law was distinctly laid down. That is conclusive against the existence of the rule contended for as a rule of Hindu Law generally. And we know of no principle accepted as belonging to the Bengal School of Hindu Law which could distinguish it from the other schools; nor is such a rule laid down in the books upon whose authority we are accustomed to rely. On the contrary, we know that any approach to such a doctrine is distinctly negatived by the highest authority of the Bengal school of Hindu Law, the Dayabhaga, In the case before Mr. Justice Mitter, the Privy Council decisions are not referred to and only two authorities are cited, one is Ward's 'Accounts of the Hindus'---that is a Madras book---and if the writer rather intended to lay down a rule of law and not merely to describe the habits of the people, the Privy council has declared that he was wrong. The second authority is also a passage in Shyama charan's Vyavastha Darpana, but that writer has cited no authority in support of his position. If, therefore, it had been necessary to decide this question of law we should have been inclined to dissent from the opinion of Mr. Justice Mitter. But it is not nesessary to do so, because the utmost that has been said is that the rule is a rule which prevails in the absence of special custom.
30. In view of these decisions, in my judgment, it must be held that there is no general rule of Hindu Law which renders the marriage between Jogendra and Charubala, which in fact took place, invalid, merely by reason of the fact that Jogendra was of one part of the Sudra caste and that Charubala was of another part of the same caste. In the judgment of Wilson and O'Kinealy, JJ, it was stated that the learned Judges knew of no principle accepted as belonging to the Bengal School of Hindu Law which could distinguish it from the other schools, nor is such a rule laid down in the books upon whose authority we are accustomed to rely. The date of that case was 1888.
31. The position, therefore, is as follows:---A marriage between Jogendra and Charubala did in fact take place. Charubala lived with Jogendra, was recognised as his wife and had two children by him, who were recognised as his children.
32. The presumption, therefore, is that it was a valid marriage---there is no general rule of Hindu Law which rendered their marriage invalid. There was no evidence of any special usage or custom applying to the parties or to that part of Bengal in which they lived, showing that the marriage was invalid, and, in the absence of such evidence, and in view of the decisions of this Court to which I have referred, in my judgment the general rule of the Hindu Law must be applied and the marriage must be held to be valid. Toe learned Counsel for the first three respondents strongly urged, as already stated, that if an order for remand were made, he would be able to tall evidence to prove the existence of such special mage or custom in this part of Bengal; we have decided that, in this ease, it would not be right to make such an order. It was urged on behalf of the respondents that, from the social point of view in the part of Bengal in which the parties live, a marriage between a Kayastha and a Tanti would be almost impossible. In this case there is not mush to be said from the social point of view, for Jogendra, according to the evidence of his sister Shorashibala, was a man of bad character and a drunkard who, when under the in flounce of liquor, used to assault people, and Shorashibala herself was kept as a mistress. But this is not the question which we have to decide: we have to be satisfied that the restrictions upon marriage alleged by the learned Counsel for the respondents have been recognised by the law and that the marriage which in fact took place between Jogendra and Charubala was not valid according to Hindu Law. It may be that a special usage or custom prohibiting inter marriages between two persons of the Kayastha and Tanti nub-divisions of the Sudra caste in some part of Bengal may be established by proper evidence. It is sufficient for us to say that in this case there is no evidence of any such usage or custom, prohibiting the marriage of Jogendra and Charubala, on which we could act. In my judgment, therefore, the marriage between Jogendra and Charubala must be held valid according to the law and custom prevalent in Bengal and the plaintiff must be held to be the legitimate eon of Jogendra.
33. At the end of the judgment, the learned Judge said: 'if I had been able to hold that the marriage was a valid one, I should have held that, by virtue of the conveyance, the share of the plaintiff did not pass and I should have held on the evidence that Jaharmani left no debts which were unpaid at the date of the conveyance and that the purchaser bought with notice of this and that Shorashibala was not entitled at the date of the sale to sell as executrix. It is a well-settled rule of conveyancing, and laid down in the authorities, that, under circumstances similar to the present, if an executor sells, as such, within 20 years of the death and purchaser has no knowledge that there are no debts (and he is not bound to enquire) the whole interest passes, but this is not so if, as here, the purchaser knows there are no debts. I disbelieve the evidence of Pannarani and of the other woman who swore to debts and payment, and I disbelieve the evidence of Niranjan that be was told there were debts which is inconsistent with all the documents in the case.
34. These findings of the learned Judge have not been challenged. It follows, therefore, in view of these findings and the marriage being hold to be valid, that the share of the plaintiff did not pass by virtue of the conveyance, that Jaharmani left no debts and that the respondent, Niranjan Kishna Das, bought with notice of this a ad that Shorashibala was not entitled, at the date of the sale, to sell as executrix.
35. This being so, in my judgment, the appeal must be allowed and a declaration must be made in accordance with the first three paragraphs of the prayer in the plaint. The respondent must pay the costs of the plaintiff of the suit and of this appeal.
36. Daring the opening of the appeal reference was made to the above mentioned Fall Bench case of Raiani Nath Das v. Nitai chandra Das 63 Ind. Cas. 50 : 32 C. L. J. 333 : 25 C. W. N. 433 : 48 C. 643 (F. B.)., and it was argued on behalf of the appellant that, even if the marriage between Jogendra and Charubala was invalid, the plaintiff was entitled to inherit a share of his father's (Jogendra's) estate. The learned Counsel for the respondents objected to this case being disposed of on that ground, and he urged that the case had nit been investigatel from that point of view, and that it might be that there were other persons who would have preference over the plaintiff: the learned leading Counsel for the appellant in his reply admitted that the appellant must stand or fall by the case which he had made in the Court below. S) that in this appeal it is not nesessary for us to consider further the above mentioned point.
37. I arges. In my opinion the current of authority on this topic, ancient and modern, is strong to show that this marriage between a Kayastha and Tanti, however unusual, however opposed to current ideas it may be, was valid in law.
38. The Tantis are Sudras, and there are decisions binding on us whish compel us to hold that the Kayasthas are also Sudras [such as Raj Coomar Loll v. Bissessur Dyal 10 C. 688 : 8 Ind. Jur. 621 : 5 Ind. Deo. (n. s.) 462.]. The parties, therefore, belonged to different sub divisions of the Sudraca ate and, that being so, it is not disputed that, according to the classical law, according to Mann's Institutes and the Dayabhaga, the marriage would be a good and legal marriage and the issue legitimate.
39. The Dayabhaga is still the store house of the common law of the Hindus of this Province: 'it is to that treatise that we must look for the authoritative exposition of the law which governs Lower Bengal.' [Moniram Kolita v, Keri Koliani 7 I. A. 115 at p. 150: 6 C. L. R. 322 : 4 Sar. P. C. J. 103 : 5 C. 776 : 3 Suth. P. C. J. 765 : 4 Ind. Jur. 363 : 3 Shome L. R. 1918 : 2 Ind. Dec. (n. s.) 1102 (P. C.).,
40. It follows that the burden of proving a modern custom varying the Dayabhaga lies on those who let up the custom.
41. Here the marriage was solemnized in fast, and strict proof must be required of a custom which would invalidate the marriage and bastardize the issue.
42. Of proof by oral evidence there is none worth mentioning.
43. As to modern judicial authority, no doubt Inderun yalungypooly Tater's case 13 M. I. A. 141 : 3 B. L. R. P. C. 1 : 12 W. R. P. C. 41 : 2 Suth. P. C. J. 267 : 2 Sar. P. C. J. 493 : 20 E. R. 504. and Ramamani Ammal's case 14 M. I. A. 346 : 17 W. R. 1 : 2 Suth. P. C. J. 493 : 2 Sar. P. C. J. 736, 20 E. R. 816. came from Madras, but there are the Bengal decisions to which copious reference has already been made by the learned chief Justice. The only judicial pronouncement which can be brought against the legality of the marriage is the expression of Mitter, J., in Naram Dhara's cue 1 C. J : 23 W. R. 334 : 1 Ind. Doc. (n. s.) 1. that inter-class marriages are 'impossible,' a pronouncement which went beyond the actual necessities of the case, to which his colleague demurred at the time, and which has not been accepted as good law in subsequent cases. It would have been sufficient for the purpose then in hand to say that inter class marriages were so rare that the presumption of a legal marriage could not, in the circumstances, be drawn from the mere cohabitation of the parties. But enough has already been said about that ease. The trend of judicial opinion in Bengal undoubtedly upholds the marriage.
44. The unsupported dicta of modern commentators, however eminent, do not make the law. Mitter, J., refers to the Vyavastha Darpana. The first edition (1859), Volume II, page 1172, Principle 601) cites no authority. Nor does Mr. J. C. Ghose (1917, Principles of Hindu Law, Volume I, page 792). Sir Gooroo Das Banerjee, whose opinion is always entitled to the greatest respect, in his Hindu Law of Marriage and Stridhan, adopted the view of Mitter, J., but it is still the duty of the Courts to consider and give effect to the cases as a whole.
45. Dicta on the other side are not wanting. Reference may be made to Golap Chandra Sircar's Hindu law (3rd Edition, page 103). Dr. Dwarkanath Mitter, in his 'Position of Women in Hindu Law' (1913, page 346), does not discuss the Bengal cases, but seems to lean towards the more liberal view.
46. Any argument based on the fast that inter class marriages are so infrequent as to be obsolete is now met by the observations of Sir Asutosh Mukerjee as Officiating Chief Justice in the judgment which he delivered on behalf of the majority in Rajani Nath Das v. Nitas Chundra De 63 Ind. Cas. 50 : 32 C. L. J. 333 : 25 C. W. N. 433 : 48 C. 643 (F. B.)., It is right to remember that that case had not been decided when the present case was tried in the court of first instance.
47. The respectability and the distinction of the Kayasthas of Bengal as a class or caste stands unquestioned and unassailable. The Tantis of the Province, though their social status, according to the rules which govern these matters, is undoubtedly inferior to that of the Kayasthas, are still described as a ' clean caste,' and as one of the superior Sudra castes (Bhattacharya's Hindu Castes and Tribes). Nevertheless, such a marriage as that in question may be regarded with disapprobation by the friends and relations of the husband or by the Kayasthas as a class. There may be reasons, sufficient or insufficient, why such marriages should be socially reprehensible from the point of view of either or both of the classes to which the parties belong. But both classes are equally members of the body politic. And while it is true that Hindu Law, Hindu religion and Hindu social observances are closely interwoven, a declaration that all inter class marriages are illegal cannot safely be founded on social considerations alone. There are still social observances which, if they are to be enforced, must depend on social and not on legal sanctions.
48. As to the particular circumstances of the present case, regard being had to the Character and standing of the Kayastha family to which the husband belonged and to his own Character and reputation, I also agree that there was perhaps no such great misalliance on his part as might at first be supposed.
49. I agree that the appeal should be allowed.