Nasim Ali, J.
1. Prasanna Kumar Das of village Ilashpur in the district of Sylhet was a Kayestha by caste. He married Swarnamoyee the sister of Sashi Mohan Das of village Rabidas (Lalkailash) in the said district, a Baidya by caste. He had no son. His only daughter Rajnandini (plaintiff in the present suit) was married to one Mohendra Nath Das. The latter was a griha jamata (resident son-in-law). His daughter had no male issue during his life-time. Prasanna Kumar was owner of considerable moveable and immovable properties. He made his last will on 1st September 1919. The material terms of this will are these:
Clause 1,-My son-in-law Sriman Mohendra Nath Perkayestha shall become the owner in absolute right, of 4 annas share of the 16 annas of my moveable and immovable properties.
Clause 2. - My only daughter Srimati Raj Nandini shall become the owner in possession, in absolute right of 4 annas share of the 16 annas of my moveable and immovable properties.
Clause 3. - Having had no male issue, for the purpose of preserving my family line I became desirous of taking a son in adoption and have brought in Sriman Aswini Kumar Das (defendant 1 in the present suit) son of Srijut Sashi Nath Choudhury, of mauja Rabidas, pargana Dulali, to my ancestral dwelling house. On account of ill health, I have not been able up to this day to perform the rites; of poshyajag (sacrificial rights of adoption) duly and according to the shastras (scriptures) in connexion with the taking of a son in adoption. If the said rites remain unperformed owing to my sudden death, then I empower my wife Srimati Swarnamayi Chaoudhurani to take in adoption on performing the rites of poshajag (sacrificial rites of adoption) after my death.
Clause 4.-After my death, whenever the rites of poshajag (sacrificial rites of adoption) will be performed by my wife from that very time the said Aswini Kumar Das shall become the owner in possession in absolute right, of the remaining 10 annas share of my moveable immovable properties. In default thereof, my wife shall remain in possession of the said 10 annas share in the right of enjoyment (for life).
Clause 6.--If after my death, the said Aswini Kumar be taken in adoption then until he completes the age of 22 years, my son-in-law Sriman Mohendra Nath Das and my widow Srimati Swarnamoyee Chaudhurani shall be the executors in respect of the management of the aforesaid 10 annas (share) of my moveable and immovable properties.
2. Prasanna Kumar died on 3rd September 1919. On 8th October 1920, Swarnamoyee and Mohendra applied for probate of the will. A son (Kaliprosad) was born to Rajnandini on 12th November 1920. Probate was granted to Swarnamoyee and Mohendra on 1st April 1921. On 25th January 1923, Swarnamoyee, Mohendra and Rajnandini jointly executed a registered Patta (Ex. 9) in favour of one Jafar Mridha for catching fish from certain beels appertaining to the estate of Prosanna Kumar for a term of six years stating therein that they were owners of the said beels in maliki right. On 23rd September 1924 Swarnamoyee died.
3. In 1930, negotiations started between Raj Nandini and Aswini Kumar (defendant l) for an amicable settlement of the dispute between them relating to the title of the 10 annas share of the properties left by Prosanna Kumar. Certain drafts (Ex.7, Ex.7 A, Ex.7B, Ex.7C, Ex.7D and Ex.8) were prepared. The terms of settlement contained in these drafts were these: 'Aswini Kumar will give up his claims to the disputed 10 annas share on receipt of a certain amount. A portion of this amount would be paid in cash and for the balance Mohendra would sell to Aswini certain properties belonging to him.'
4. While these negotiations were going on defendant 1 sold to defendants 2 to 5, 10 annas share of the properties which is the subject-matter of the present suit on 31st July 1931 by a registered deed of sale (Ex.A-l). In this kobala it is stated that out of the consideration the vendor received Rs. 8500 in cash on the date of the execution of the kobala, and that the balance would be paid in two instalments later on. On 10th December 1931, defendant 1 sold to Raj Nandini and Mohendra for a consideration of Rupees 23,000 and on the purchasers agreeing to the vendor remaining the owner and possessor of two annas share of the lands of Bolagunj Bazar his entire interest and share in the properties left by Prosanna Kumar excepting the properties sold by defendant 1 to defendants 2 to 5. Out of the consideration money of Rs. 23,000, Rs. 14,000 was set off against the price of certain properties belonging to Mohendra and sold by him on that day to defendant 1, Rs. 2000 was paid by the purchasers in cash before the kobala and Rs. 5000 was paid in cash on the date of the execution of the kobala. For the balance viz. Rs. 2000 Mohendra executed a bond in favour of defendant 1. On 15th August 1932, Raj Nandini raised the present suit in the Court of the subordinate Judge at Sylhet.
5. The material allegations in the plaint are these : (1) Swarnamoyee had never any intention of taking defendant 1 in adoption. Immediately after her husband's death she gave out that she would not take defendant 1 in adoption; and sent away defendant 1 to his father's house. Since then defendant 1 is living in his father's house. (2) Swarnamoyee died without taking defendant 1 in adoption. (3) The father of defendant 1 is a very litigious man and is heavily involved in debts. Being led away by greed and with the evil motive of getting hold of the 10 annas share of the properties left by Prasanna Kumar he himself and his son defendant 1 on his advice began to give out and proclaim to the people that defendant 1 was the adopted son of Prasanna Kumar. They came to the plaintiff and her husband and requested them to come to a settlement and also threatened them with various sorts of litigation if no amicable settlement were arrived at. Considering that in case of litigation the plaintiff would be put to unnecessary loss and on the other hand in the event of winning in litigation there would be no possibility of realising the cost in Court from defendant 1 who is without any means and considering that the defendant 1 and his father were very near relations of the plaintiff, the plaintiff in consultation with her husband agreed to come to an amicable settlement. Accordingly in June 1931 an amicable settlement was arrived at between both parties to the effect that defendant 1 would give up 10 annas share of the properties left by Prasanna Kumar in favour of the plaintiff and her husband by a deed of release and in lieu thereof the plaintiff and her husband would give defendant 1 some lands and some money in cash. In accordance with these terms the draft of a nadan patra and a kobala were made. Defendant 1 however on the advice of his father subsequently broke his promise and sold the properties mentioned in the schedule of the plaint' to defendants 2 to 5 by a kobala on 31st July 1931.
6. Plaintiff came to know of this kobala on 20th Sravan 1338 B.S. (5th August 1931) from her officer Ram Dulal Purkayestha and immediately on coming to know of the same performed talab-i-mahasibat according to the Muslim law of pre-emption and instructed her officer Ram Dulal to duly observe the requirements of talab-i-isad on her behalf on going without delay to the house of defendants 2 to 5 and on the lands sold. Accordingly, the said officer without any delay went to the house of defendants 2 to 5 with witnesses and in their presence duly performed talab-i-isad on her behalf. The Muslim law of pre-emption has been prevalent from time immemorial in the district of Sylhet amongst the Hindus and Muslims. Even assuming that defendant 1 had any share in the plaint lands the plaintiff being a co-sharer in respect of the remaining share of the said lands she is entitled to claim the right of pre-emption. The defendants in collusion with one another fraudulently stated Rs. 20,000 as the consideration money in the kobala contrary to the real state of things. Plaintiff has come to learn on enquiry that the price was fixed only at Rs. 12,000 and that Rs. 500 only was paid by defendants 2 to 5 to defendant 1 on the date of the execution of the kobala.
7. After selling the plaint lands to defendants 2 to 5, defendant 1 was about to sell the other properties left by Prasanna Kumar. Considering that the plaintiff and her husband would be ruined by being involved in various sorts of litigations if strangers purchased the other properties plaintiff and her husband on the advice of their relations and well-wishers purchased all the other moveable and immovable properties left by Prasanna Kumar excepting the plaint lands from the defendant 1 on fixing the price thereof at Rs. 23,000. On these allegations plaintiff prays that a decree may be passed:
(a) for declaration of the plaintiff's title to the aforesaid 10 annas share of the land etc. of the schedule obtained by her by virtue of inheritance from her father, the late Prasanna Kumar Choudhury and for confirmation of the plaintiff's possession therein;
(b) for a declaration that defendant 1 is not the adopted son of the late Prasanna Kumar Chowdhury and that defendant 1 hag no title or interest in the lands described below and that defendants 2, 3, 4 and 5 have no title and right to possession in respect of the aforesaid lands; (c) if, owing to the misfortune of the plaintiff, she is, for any reason, found, in the just decision of the Court, not entitled to the reliefs prayed for in items (a) and (b), above, then for declaration of the plaintiff's right of pre-emption in respect of the 10 annas share of the lands in claim and mentioned in the schedule below and for giving a decree to the plaintiff according to law, on directing payment by the plaintiff to defendants 2, 3, 4 and 5 of the real consideration money of their purchase.
8. On 28th November 1932, defendants 2 to 5 filed their written statement stating inter alia: (1) The father and the mother of defendant 1 gave over defendant 1 to the hands of Prasanna Kumar and his wife Swarnamoyee as adopted son. Prasanna Kumar took defendant 1 to his own house, brought him up as his own adopted son and made arrangements for his education and decided that the name of the boy should be Prafulla Kumar Das. (2) Plaintiff's husband being very much aggrieved on account of Pra-sanna's taking defendant 1 as an adopted son tried his best to prevent the performance of the necessary ceremonies. (3) After the death of Prasanna Kumar, Swarnamoyee made arrangements for the performance of the ceremonies in accordance with the directions in the will on a certain day. Mohendra however did not allow the ceremony to take place on that date. (4) In view of the directions in the will of her husband Swarnamoyee was firmly determined to perform the necessary ceremonies on a subsequent day and actually performed the necessary ceremonies, took defendant 1 as the adopted son of her late husband and changed the name of the boy as settled by her husband. (5) Defendant 1 thereafter came to be known to the public by his new name as an adopted son of Prasanna Kumar. (6) After the death of Swarnamoyee, plaintiff and her husband began to ill-treat defendant 1. Thereupon defendant 1 had to leave Prasanna's house. (7) After defendant 1 attained majority he asked Mohendra to deliver to him all his moveable and immovable properties and render proper accounts of the period of his executorship. Mohendra, however, did nothing. Defendant 1 being helpless offered to sell the disputed property to defendants 2 to 5 for a consideration of Rs. 20,000. Defendants 2 to 5 accepted this offer and purchased the property for Rs. 20,000. Out of this consideration only Rs. 9000 still remains unpaid. (8) Plaintiff or her husband did not observe any of the formalities of pre-emption.
9. On 16th January 1933 defendant 1 filed his written statement. His defence in substance is the same as that of defendants 2 to 5. He stated inter alia that after the death of Prasanna, Swarnamoyee on the strength of the permission given by Prasanna took him in adoption in the month of chaitra 1328, duly and according to the shastras on performing the rites of poshyajag, changed his former name into Prafulla Kumar and since then he is known to the public as the adopted son of Prasanna Kumar. He also stated that defendants 2 to 5 paid him only Rs. 500 as the consideration of the kobala executed by him on the date of the kobala and that subsequently he was paid Rs. 2500 only by defendants 2 to 5. He further stated that if the plaintiff be found to be entitled to the relief of pre-emption he was entitled to get Rs. 17,000 (the balance of the consideration) out of the money to be paid by the plaintiff for pre-empting, the disputed lands. On these pleadings fourteen issues were raised in the suit of which the following are only material for the purposes of this appeal: (1) Is defendant 1 the validly adopted son of late Prasanna Kumar Chowdhury? (2) Has the plaintiff observed the legal formalities as required by the law of pre-emption? (3) What was the consideration of the kobala which defendant 1 executed in favour of defendants 2 to 5 on 31st July 1931 : What was the amount paid on the date of the execution of the kobala by defendants 2 to 5 to defendant 1? The subordinate Judge has answered issue 1 in the affirmative and issue 2 in the negative. As regards issue 3 his finding is that although Rs. 20,000 was mentioned as the consideration of the kobala only Rs. 12,000 was fixed as the actual consideration and that only Rs. 800 was paid by defendants 2 to 5 to defendant 1 on the date of the execution of the kobala. . On these findings the subordinate Judge has dismissed the suit. Hence this appeal by the plaintiff.
10. The first point for determination in this appeal is whether defendant 1 was adopted by Swarnamoyee on 30th chaitra 1328 (13th April 1922) on the authority given to her by her husband. The finding of the subordinate Judge that Swarnamoyee performed the adoption ceremony on 30th chaitra 1328 B.S. (13th April 1922) is based mainly upon the evidence of D. W. 2, d. w. 17, D. W. 11, D.W. 14 and D. W. 16. D. W. 2 is an old muktear of good position. His evidence is that he was invited by Swarnamoyee to the adoption ceremony but he could not attend. He is the brother of the sister's husband of Sashi Babu (the father of defendant l) and it is natural that he would be invited. D. W. 17 is a retired Government officer. He also says that he got an invitation from Swarnamoyee to the adoption ceremony but he did not attend the invitation. He is the maternal uncle of Sashi Babu. It is natural that he would be invited. D. W. 11 is a Srotriya Brahmin and Tarka Nidhi. His evidence is that he was present at the adoption ceremony in the house of Ban Behari Goswami at Kurua and that Swarnamoyee took defendant 1 in adoption after performing the necessary ceremonies. He is an independent witness. The evidence of D. W. 14 is to the same effect. His evidence is that Swarnamoyee took defendant 1 in adoption in the house of Ban Behari Goswami in Kurua and that the name of the boy was altered at the time of the ceremony. He is an independent witness and is a learned pandit. D. W. 16, an old pleader of the Sylhet Bar, says that there was an adoption ceremony in the house of Ban Behari Goswami at Kurua; that he met Swarnamoyee at that ceremony and the father of defendant 1 gave defendant 1 in adoption to Swarnamoyee. He is the brother of the father-in-law of Sashi Mohan, the father of defendant 1.
11. The Subordinate Judge who heard and saw these witnesses has believed their evidence. In a case involving a question of fact the decision of which depends on the reliance to be placed on the testimony of witnesses the view of the Judge who tried the case and saw the witnesses is entitled to great weight. (His Lordship discussed the evidence relating to the adoption of defendant 1 and proceeded.) Where the only question is which set of witnesses is to be believed the findings of the trial Judge should not be lightly regarded on a mere calculation of probabilities by the Court of appeal. (His Lordship resumed the discussion of the evidence relating to the adoption of defendant 1 and concluded that defendant 1 was adopted as a son by Swarnamoyee.) The next point for determination is whether the adoption of defendant 1 is valid according to Hindu law. The contention of the plaintiff is that Prusanna Kumar was a Sudra and defendant 1 is a Vaishya and consequently the adoption of defendant 1 by Swarnamoyee as a son of Prasanna Kumar is invalid according to Hindu law. Prasanna Kumar was admittedly a Kayastha and, therefore, a Sudra. There is no allegation in the plaint that defendant 1 is a Vaishya. There is no evidence also in this case to show that the natural father of defendant 1 is a Vaishya or claims to be a Vaishya. The contention of the plaintiff, however, is this: all Boidyas are Vaishas. The natural father of defendant 1 is a Baidya, defendant 1 is therefore a Vaishya. In support of this contention reliance was placed upon a passage in the judgment in Ram Lal Sukul v. Akshya Charan ('03) 7 CWN 619. In that case a question arose as to whether a marriage between a Baidya and a Kayastha was valid. In that case a Kayastha woman married a Baidya. The subordinate Judge who tried that case quoted the following text from 'Bishnu':
That the Vaidyas in ancient times were like their fathers in spiritual energy by meditations and Yoga (communion). They were inferior to Brahmins and Kshatriyas and carried on work (Vedic ceremonial) like the Vaishyas. By gradual and gradual neglect of the work a Vaidya has become degenerated in the Kali Yuga wholly with a Sudra just as the Kshatrias and Vaishyas.
12. We have not been able to trace this text. When the matter came up in appeal in this Court, this Court observed:
In regard to the title of Chandra Kanta Sen it cannot be disputed that his mother a Kayastha and therefore a Sudra married his father a Vaishya. The ancient Hindu law did not regard such marriages with the condemnation expressed by later authorities which have been accepted by our Courts so as to make children born from such unequal marriages illegitimate.
But however the law may be there is ample evidence set out in the judgment of the Sub-Judge on which it must be held that such marriages as in the present case are recognised by local custom in the District of Tipperah and that there is no instance on which their validity has been questioned.
13. The learned Judges in that case did not discuss the question whether a Vaidya is a Vaishya. They assumed in that case that a Baidya was a Vaishya and held that a marriage between a Vaidya and a Vaishya was valid under the local custom in Tipperah, This case is no authority for the proposition that a Vaidya of Sylhet district is also a Vaishya. Further, in the absence of any evidence this case does not establish that the natural father of defendant 1 is a Vaishya. The surname of a Vaidya is 'Dhana' (Sankha Sanghita ch. 2, V. 4) or Gupta (Cullocka's Commentary on Manu). But the natural father of defendant 1 is neither a 'Dhana' nor a Gupta (sometimes he has used after his name Das Gupta). Originally there were four pure castes amongst the Hindus- Brahmana, Kshatriya, Vaisya and Shudra. Later on intermarriages having taken place amongst the four primitive or pure castes there became several mixed castes.
The sons by women one degree lower than their husbands are named in order the Murddhahishikta, Mohishya and Karana. They are respectively begotten by a Brahamana on a wife of the Kshatriya caste, by a Kshatriya on a Vaishya wife, and by a Vaishya on a Shudra wife. (Vide Cullukabhatta's Commentary on Manu Oh. 10, V. 8.)
The sons born of women two or three degrees lower than their husbands are as follows : Prom a Brahmana on a wife of the Vaishya class, is born a son called Ambashtha, on a Shudra wife, a Nishada, named also Parasave. (Manu Ch. 10, V. 8.)
14. Plaintiff's contention is that a Baidya is an 'Ambhastha, that as his mother is a Vaishya he is a Vaishya and that he cannot be adopted by a Shudra. The contention raises three questions : (1) whether a Baidya is an 'Ambhastha'; (2) whether an 'Ambhastha' is a Vaishya and (3) what is the rule of Hindu law as regards the adoption of an 'Ambhastha.'
15. Babu Shyama Charan Bidyabhusan while quoting Manu ch. 10, V. 8, in Chapter on 'Castes and Classes of the Hindus' in his Babhostha Dorpon has added the words 'or Baidya' after the word 'Ambhastha.'
16. Risley in his book on the 'Tribes and Castes of Bengal' has stated:
The name Vaidya does not occur in Manu but the Ambasthas are there said to be the offspring of a Brahman father and a Vaishya mother, and their profession to be the practice of medicine. According to this account the Baidyas are anulomai (born with the hair or grain, i. e., in due order), the father being of higher caste than the mother. Another tradition describes them as begotten on a Brahman woman by one of the Aswini Kumars, the light bringing and healing twinhorsemen of Vedic mythology; and then oddly enough, goes on to say that they were reckoned as Sudras because their mother was of superior rank to their father, and their generation was consequently pratilomaja, 'against the hair' or in the inverse order according to the succession of the castes. It would appear from this that the Aswini Kumaras were classed as Kshatriyas, and that, according to Brahmanical ideas, even the Gods were not equal mates for a Brahman maiden.
An expanded version of the pedigree given by Manu is found in the Skanda Purana. This legend tells how Galva Muni, a pupil or son of Viswa-mitra, being greatly distressed by thirst while on a pilgrimage, was given a draught of water by a Vaisya girl named Birbhadra. The grateful sage blessed the maiden that she should soon have a son. Birbhadra demurred to this boon, on the ground that she was unmarried; but the rash oath, so characteristic of Indian mythology, could not be recalled, nor could Galava himself put matters straight by marrying the virgin whose kindness had involved her in so strange a difficulty. For so it is explained, she had saved his life by the draught of water, and therefore he looked upon her in the light of a mother. A miracle was clearly in request. By the word of power of a Vedic mantra a wisp of kusa grass (Poa Cynosuroides) was transformed into a male child, variously known as Dhanvantari, Amrita Acharya, and Ambastha. He was the first of the Vaidyas, because he had no father, and therefore belonged to the family of his mother (Amba). A number of analogous myths have been collected by a Bachofen in his two letters on 'pueri juncini,' and his method of interpretation, if applied to the present case, would lead to the conclusion that the tradition given in the Skanda Purana records an instance of female kinship : see Vol. 1, pp. 46, 47.
17. Babu Golap Chandra Sarker in his Treatise on Hindu law (Edn. 7, p. 149) has observed:
The explanation of the mixed classes by supposing them to be the issue of inter-marriage appears to be a play of imagination; where the abstract qualities of any two of the four tribes, were thought requisite for filling a particular occupation, persons following that occupation were supposed to be descended from the offspring of an intermarriage or illicit connexion between a man of one tribe and a woman of the other. Thus, the Ambasthas or the members of the physician caste of Bengal are imagined to be a mixed caste sprung from the issue of a Brahmana father and a Vaisya mother : a physician resembles a Brahmana in his general culture and learning, and also a Vaisya, inasmuch as, he does, in a manner, trade with his learning, and so the class is fancied to be mixed of the said two tribes, the worse quality being supposed to be derived from the mother and the better from the father. The number of castes appears to have increased with the increase of occupations, in the course of progress; for, later writers enumerate many that are not mentioned in the earlier works, and they describe the origin of the new castes according to their fancy.
18. No other authority was placed before us to show the origin of Baidyas. This being the position it is very difficult to say that Baidyas are Ambhasthas as mentioned in Manu's text quoted above. No authority was cited before us in support of the view that an Ambastha is a Vaisya. Assuming that a Baidya is an Ambastha, what is the rule of Hindu law relating to his adoption?
19. 'He is called a son given whom his father or mother affectionately gives as a son being alike, etc.': Manu 9-168. The word 'alike' in Manu's text according to Medhatithi means 'alike by qualities suitable to the family.' This interpretation, however, has not been accepted in Dattakachandrika and Dattakamimangsha. In these two books the word has been interpreted as 'alike by tribe':
The adoption of a son by any Brahmin must be made from amongst shopindos or kinsmen connected by an oblation of food or on failure of these an Asopindo or one not so connected otherwise let him not adopt. Of Kshatriyas in their own class positively .... of Vaishyas from amongst those of the Vaishya class, of Sudras from amongst those of the Sudra class; of all and the tribes likewise (in their own) classes only and not otherwise. (Saunaka.)
20. By the terms 'Kshatriya and the rest' in the above text of Saunaka the inclusion of Murdhavishikta and others regulated by the same rule as the Kshatriya and the rest is meant : for a text of. Sankha expresses:
One procreated on a female Kshatriya by a Brahman is a Kshatriya even : on a Vaishya woman by a Kshatriya is a Vaishya even; by a Vaishya on a female Sudra is even a Sudra. (Dattaka Mimangsha Section 2, Clause 84).
21. An Ambhastha therefore does not come under 'Murdhavhishikta and others' mentioned in Section 2, Clause 84 of Dattakamimangsha. The rule of prohibition contained in Manu's text and Saunaka's text quoted above does not therefore apply to an 'Ambhastha'. The rule laid down in Saunaka applies to a Sudra and therefore to a Kayastha. Shama Charan Sarkar Bidyabhusan after reviewing the authorities has observed:
There is therefore a preponderance of authority to evince that the Kayasthas whether of Bengal or of any other country were Kshatriyas. But since several centuries passed the Kayasthas (at least those of Bengal) have been degenerated and degraded to Sudradom not only by using after their proper names the surname 'Das' peculiar to the Sudras giving up their own which is 'Banna', but principally by omitting to perform the regenerating ceremony Upanayana hallowed by the Gayatri:(See Edn.3 of Babhostha Darpan p. 670.)
22. Here apparently the learned author was referring to verse 4, ch. 2 of Sankha San-ghita where it is stated that a Shudra is called 'Das' and a Kshatriya is called 'Barma':
The Baidyas are now divided into the following four sub-castes : (1) Rarhi, (2) Banga, (3) Baren-dra and (4) Panchakoti, according to the parts of Bengal in which their ancestors resided. All of these are endogamous. A fifth endogamous group which, however, bears no distinctive name, comprises those Baidya families of the districts of Sylhet, Chittagong and Tipperah who intermarry with Kayastha and Sunris, the children in each case following the caste of the father. This practice appears to be the only modern instance of intermarriage between members of different castes. It is said to have arisen from the reluctance of the Baidayas farther west to give their daughters to men who had settled in the country east of the Brahmaputra. Failing women of their own caste, the latter were compelled not only to marry the daughters of Kayasthas, but to give their own daughters in return .... The evidence of inscriptions shows that a dynasty of Baidya Kings ruled over at least a portion of Bengal from 1010 to 1200 A. D. To the most famous of these, Ballal Sen, is ascribed the separation of the Baidyas into two divisions, one of which wore the sacred thread and observed 15 days as the prescribed period of mourning, while with the other investiture with the thread was optional and mourning lasted for a month... There has been some controversy between Baidyas and Kayasthas regarding their relative rank. . . Putting aside the manifest futility of the discussion, we may fairly sum it up by saying that in point of general culture there is probably little to choose between the two castes, and that the Baidyas have distinctly the best of the technical claim to precedence. On the other hand, it would, I think, strike most observers that the Kayasthas are the more pliant and adaptive of the two, and have thereby drawn to themselves a larger share of official preferment than the more conservative Baidyas. (Risley Vol. I, pp. 47 to 50).
23. Swarnamoyee, the sister of the father of defendant 1, was married to Prasanna Kumar who was admittedly a Kayastha and therefore a Sudra. This marriage admittedly is valid according to local custom. Saunaka while propounding the form of the adoption says: 'Having taken him by both hands... the boy bearing the reflection of a son.' The word 'reflection of a son' in the above text of Saunka has been interpreted in Dattakachandrika (Section 2, Clause 8) as the 'resemblance of a son' or in other words 'the capability to have been begotten by the adopter through appointment and so forth.' The words 'so forth' include marriage, Haridas Chatterjee v. Monmotho Nath ('37) 41 CWN 322 at p. 330. Defendant 1 could have been legally begotten by Prasanna through marriage with the mother of defendant 1, as such marriage would have been valid and legal. In Clause 3 of the will of Prasanna Kumar defendant 1 is described as 'Aswini Kumar Das.' The declaration (ex. q) which was made by the father of defendant 1 at the time of the adoption, shows that he is a 'Das' and his wife a 'Dassi.' The father of defendant 1 signed the declaration as 'Sashi Mohan Das.' In the notice (ex. g) which was published in the Sylhet Chronicle the name of defendant 1 was given as 'Aswini Kumar Das.' There cannot be any doubt therefore that the father of defendant 1 uses the surname 'Das' after his name (though he sometimes adds Gupta after Das). There is no evidence in this case that Uponoyana ceremony (investiture with sacred thread) which regenerates Brahmans, Khatriyas and Vaishyas and without which they become degraded with Gayotri (a sacred verse which is considered to be the essence of the Vedas which is imparted or taught to every youth' of the three superior classes upon receiving his investiture with the sacred thread) is performed in the family of the natural father of defendant 1. There is also no evidence that the period of mourning in Sashi Mohan's family lasts for fifteen days.
24. In view of these facts and circumstances I- am of opinion that even if the ancestors of Sashi Mohan were Ambasthas or Vaisyas his family has been degenerated and degraded to Sudradom and that he is a Sudra. I therefore hold that the adoption of defendant 1 by Swarnamoyee was valid according to Hindu law. It was contended on behalf of the defendants that by Clause (4) of Prasanna's will defendant 1 became entitled to 10 annas share of his property as soon as the adoption ceremony was performed by Swarnamoyee irrespective of the question whether the adoption is valid in law or not. There is much force in this contention. But as I have found that the adoption of defendant 1 is valid in law it is not necessary to express any opinion on this point. The last point for determination in this appeal is whether the plaintiff is entitled to pre-empt the disputed properties from defendants 2 to 5. By custom the Hindus of the District of Sylhet are entitled to the benefit of the Muslim law of pre-emption. In order to entitle the plaintiff to a decree for pre-emption she has to prove that she made two talabs-talab-i-mawasibat (hereinafter referred to as the 'first demand') and talab-i-isad (hereinafter referred to as the second demand') in accordance with the Muslim law of pre-emption. (His Lordship discussed the plaintiff's evidence regarding the two talabs and proceeded.) Under the circumstances I am not prepared to hold that the subordinate Judge was wrong in holding that the plaintiff did not perform the two demands as required by the Muslim law of pre-emption.
25. In view of this finding the question of the price paid or agreed to be paid by defendants 2 to 5 to defendant 1 does not arise. But an issue was raised on this point in the trial Court. The subordinate Judge has recorded a finding on this point. It is therefore necessary to determine this point. In the kobala the consideration was stated to be Rs. 20,000. There is a recital in the kobala that Rs. 8500 was paid in cash on the date of the execution of the kobala. The trial Judge has found that only Rs. 500 was paid on the date of the execution. I agree with this finding of the trial Judge in view of the evidence in the case. I hold that the real price fixed for the sale was only Rs. 12,000. The result therefore is that this appeal fails and is dismissed with costs to respondents 2 to 5. No order is necessary on the application presented on 1st February 1937.
Narsing Rau, J.
26. I agree and would add only a few words as to the evidence on the question of adoption. P. W. 12 Babu Ramesh Ranjan Das, a senior pleader of Sylhet, has stated in his evidence that Swarnamoyee, when she came to Sylhet to swear an affidavit in connexion with the probate of her husband's will this must have been sometime in 1921, the date of the grant being 1st April 1921 said to him in the course of conversation : 'Now that a son has been born to my daughter, what would I do by adopting a son?' In my humble opinion there is no sufficient reason to disbelieve the witness on this point : Swarnamoyee may well have made such a remark. It was not unnatural that for some time after the birth of a son to her daughter in 1920 she should have been asking herself whether there was any longer any object in exercising the power of adoption given to her. But it does not at all follow that she did not ultimately in 1922 overcome her initial doubts and decide to adopt. There is evidence, which has been believed by the learned subordinate Judge and which we have no ground for disbelieving, that she did in the end perform the necessary ceremonies and make or complete the adoption.