1. The parties to this litigation belong to a, low caste of Hindus known as Sadgope Suri, whose occupation is supposed to be dealing in intoxicating liquors and agriculture. The properties in suit belonged to one Nayan Majhi who died in 1280 B S., corresponding to 1873-71 leaving a widow Garabini and a daughter Bhikarini. Bhikarini died in 1328 (1921) and Garabini in 1330 (1923). The plaintiffs are Nayan's brother's grandsons and defendants 2 to 4 are the sons and grandsons of Bhikarini. It is not disputed that defendants 2 to 4 are preferential heirs according to Hindu law and are entitled to succeed to the properties left by Nayan. But it has bean found that after the death of Bhikarini's first husband she became a Vaishnava and contracted a marriage in the Vaishnava form with defendant 1 who was originally a Brahmin and had become a Vaishnava. The other defendants are their children, The plaintiffs accordingly maintain that the defendants are excluded from inheritance due to change of religion and that they, the plaintiffs, are the heirs of Nayan and entitled to recover possession of the lands in suit. The defendants in answer assert that in spite of their being Vaishnavas they are Hindus and heirs of Nayan under the Hindu law; further they allege that Nayan executed a will in favour of Garabini conveying an absolute interest in the properties in suit, and that Garabini executed a deed of gift of these properties in 1891 in favour of defendant 1. Upon these pleadings two main issues were framed:
(1) Whether the plaintiffs were entitled to succeed in preference to the defendants, to the estate of Nayan Majhi. (2) Whether the will and the deed of gift propounded by the defendants were genuine and should he given effect to.
2. The learned Subordinate Judge in the trial Court decided issue 1 against the defendants, his opinion being that Bhikarini having become a Vaishnava, her children were not entitled to succeed to Nayan Majhi. On the second point he held that the will and the deed of gift were genuine and in that view dismissed the plaintiffs' suit.
3. On appeal the learned District Judge has come to opposite conclusions on the two issues raised, On issue 1 he has held that defendants 2 to 4 are not excluded from heirship under the Hindu law and are thus entitled to succeed to the properties left by Nayan Majhi and are rightly in possession of the same. On issue 2 he has hold that the will was not genuine and therefore the defendants cannot succeed on the strength of the gift by Garabini. The plaintiffs have appealed to this Court and two points have been raised on their behalf.
4. It is firstly urged that the defendants are excluded from inheritance under the Hindu law on the facts found by the Court below. It is next contended that even if Bhikarini was entitled to succeed to her father Nayan. Majhi's estate the defendants, who are her children by a marriage which was not according to Hindu law, cannot succeed to their maternal grandfather's estate.
5. Mr. Bose for the appellant has rested his whole argument on the first point upon the theory of spiritual benefit as understood by the Dayabhaga School of Hindu law. He argues that since the defendants do not offer pindas to their ancestor according to their religious faith, they cannot inherit their grandfather's properties inasmuch as the right of heirship is indissolubly connected with the offering of pindas. Mr. Bose goes further and maintains that the defendants not only do not but cannot offer Pindas to Nayan Majhi, as they are not Hindus and are excluded from inheritance) under the Hindu law. The finding upon this point by the learned Subordinate Judge is to the effect that according to their belief they do not perform Sradh and offer pindas. The learned District Judge does not express any opinion upon this question.
6. Before proceeding further it will be useful to consider what the creed of the Vaishnavas is and what their status is in Hindu society. We find on reference to authorities that there are principally two kinds of Vaishnavas. Among the Hindus there are some who worship the deity Vishnu of the Hindu Trinity in particular and they are generally known after the name of the deity. Vaishnavas are accordingly the worshippers of Vishnu as Saivas and Saktas are worshippers of Siva and Sakti (Kali). They are votaries of 'a particular god of the Hindu pantheon. There is no question of their status because they remain Hindus, though their form of worship is somewhat different from that of the ordinary Hindu. The second class of Vaishnavas are known as Jati Vishnavas, who worship Vishnu and his incarnations and form a distinct sect with their peculiar tenets and customs, a sort of liberal Hinduism. According to them there is no caste system, and persons of any caste may be admitted to their fold and intermarry according to their peculiar marriage rites, but they are still governed by the Hindu law of inheritance. Vaishnavism is a schismatic form of Hinduism but still within it. Among these Vaishnavas there are various subdivisions. Some are called Vairagis or Vaishnava mendicants, and some are Jati Vaishnavas or Vaishnabs or Bashtams as known in Bengal: Bannerjee on the Hindu Law of Marriage and Stridhan, 4th Edn. 269; Risley on Tribes and Castes of Bengal, Vol. 2, 340. The defendants 'admittedly belong to the second class of Vaishnavas, namely, Jati Vaishnavas.
7. The question that is to be decided is whether the defendants as Vaishnavas are entitled to succeed to the properties of their grandfather, who was a Hindu at the time of his death. The theory of spiritual efficacy in my opinion has been unduly stressed by Mr. Bose. It has been authoritatively laid down that the doctrine of spiritual benefit or offering of funeral oblations is not the only test of heirship. Propinquity or proximity of birth is the principle underlying the order of succession, but the capacity for conferring spiritual benefit is also taken into consideration along with it according to the Bengal School. The question of the capacity to offer funeral cakes becomes important when it has to be considered in connexion with the claims of rival competitors to heirship and in determining the order of succession; in other words, it is a key to the order of succession but not to inheritance. On this ground even among those who are entitled to offer pindaa, preference is given to such heirs as are entitled to offer a larger number of pindas or to a greater number of ancestors than others; Golap Chandra Sastri's Hindu Law 5th Edn. 451. Even according to the Dayabhaga School of Hindu law under which the right of inheritance is mainly based on the doctrine of spiritual benefit, it cannot be applied consistently in all cases in cases of females succeeding to males, in the case of a chela succeeding to a guru or in the case of samanoiktkas. It is on the failure of nearest heirs that the question of spiritual benefit really arises. In Akshoy Chandra Bhattacharjya v. Haridas Goswami  35 Cal. 721 at 727, Mitra, J. states:
Spiritual benefit, notwithstanding some authorities to the contrary, is not always the guiding principle of inheritance under the Bengal School of law. The theory of spiritual benefit cannot apply to a good many cases of inheritance under the Dayabhaga School of law. Spiritual efficacy as a principle guiding rule of succession must fail in the eases of all female relations.
8. This view is supported by the decision In Toolshee Dass Seal v. Luckmy Money Dassee  4 C.W.N. 743
9. Mr. Bose goes so far as to contend that, if an heir does not, or refuses to offer, pindas to his ancestor, he is not entitled under the Hindu law to succeed to him. There is no authority for this proposition. The failure to offer pindas or perform funeral obsequies according to Hindu rites entails sin which is expiable. The right to inherit is based not on offering pinda but on the capacity to offer it. Mayne's Hindu Law, Oh. 16:
The simple fact of being entitled to give pindas the mere circumstance of being comirinl, to perform the exequial rites, constitutes a claim on inheritance : Sarbadhikari's principles of Hindu Law of Inheritance, p. 661.
10. In the present case all that has been found by the Subordinate Judge on the point, as stated above, is that the defendants do not, according to their religious belief, observe sradh or offer pindas. It cannot be said that they have not the capacity to offer pindas. As Vaishnavas they may not observe sradh among themselves but there is nothing to prevent them from offering oblations to a Hindu ancestor.
11. The next question which has been argued at great length is whether a Vaishnaya can succeed to a Hindu ancestor; in other words, whether a Vaishnava is still a Hindu and is entitled to succeed to a Hindu ancestor professing the orthodox creed. In Banerjee's Hindu Law on Marriage and Stridhan, 259, it is observed that the Vaishnavas are admittedly among the Hindu sects. By becoming a Vaishnava a Hindu does not change his religion, he is still a believer in all the deities of the Hindu pantheon though he worships one of them more than any other.
12. The real test as to whether a Vaishnava ceases to be a Hindu and is incapable of inheriting to a Hindu ancestor is to be found in the applicability to his case of Act 21. of 1850, the Disabilities Removal Act, or the Freedom of Religion Act as it is called. Section 1 of the Act says:
So much of any law or usage now in force within the territories of the East India Company as inflicts on any person forfeiture of rights of properties, or may be held in any way to impair or affect any right of inheritance by reason of his or her renouncing or having been excluded from the communion of any religion or being deprived of caste, ceases to be enforced as law in the Courts of the East India Company and in the Courts established by Royal Charter within the said territories.
13. It has to be seen whether the case of a Vaishnava comes within the category of the disabilities mentioned in that Act entailing forfeiture of right of inheritance. A Vaishnava does not renounce the Hindu religion. He is a Hindu and believes in the Hindu deities and professes the Hindu religion in his own way. He may have seceded from orthodox Hinduism, as Lutherans did from the orthodox Catholic Church, but has not gone out of the pale of Hinduism. Nor has he been excluded from the communion of the Hindu religion. We have the authority of the learned District Judge, who is a Hindu for holding that the Vaishnavas may be said to have renounced caste without renouncing religion. Jati Vaishnavas, whom the learned Judge calls 'casteless Vaishnavas' as they do not recognize the caste system, are considered in society a perfectly respectable sect by the other Hindus of Bengal. They are not regarded untouchable by the ordinary caste Hindu. On the other hand a member of an untouchable caste whose water cannot be drunk actually becomes touchable on becoming a Vaishnava.
14. Now it may be said that a Vaishnava is included within the third class mentioned in Section 1, Act 21 of 1850, namely that 'he is deprived of caste.' These words have to be read with those preceding as meaning what is generally understood by the word 'outcaste'; one excluded from religion and community. his matter has been considered at length by the great Hindu lawyer, Golap Chandra Sastri, in his book on Hindu Law where he observes (pp. 5 and 9):
If the Act (21 of 1850) be read and construed by the light of its preamble, there cannot be any doubt that deprivation of -caste, owing only to change of religion, is what is intended by the Act to be declared as having no legal effect so as to affect the rights of a person changing his religion.
15. Deprivation of caste in the section means deprivation of caste by reason of change of religion and not merely for moral degradation.
16. The preamble of the Act shows that it simply extends Regulation 7 of 1832. That regulation was to this effect:
Whenever in any civil suit the parties to such suit may be of different persuasions, when one party shall be of the Hindu and the other of the Mahomedan persuasion, or where one or more of the parties to the suit shall not be either of the Mahomedan or Hindu persuasions the Jaws of these religions shall not be permitted to operate to deprive such party or parties of any property to which, but for the operation of such laws, they would have been entitled.
17. It is apparent therefore that Act 21 of 1850, is intended to apply only in a case where a person loses his right to inheritance according to the religion he has renounced. As I have pointed out a Vaishnava does not renounce the Hindu [religion and is still within the Hindu communion, though he does not follow all the ritual of the orthodox Hindu religion. It has been judicially held that a Vairagi who belongs to the Vaishnava sect, is not incapable of succeeding ac-cording to Hindu law: Teeluck Chunder v. Shama Prokash Churn  1 W.R. 209.. In my opinion accordingly it cannot be said that an heir of a Hindu, especially of the class to which these people belong, is necessarily deprived of inheritance if he becomes a Vaishnava. Act 21 of 1850, does not apply in his case, and the Hindu law does not inflict on him forfeiture of right of inheritance.
18. The next question ought not to raise much difficulty. If Bhikarini had survived Garabini she would have succeeded to the estate of Nayan. After Garabini's death succession opened out to Bhikarini's children and they would apparently be entitled to succeed. They are born of lawful wedlock and are legitimate, Benode Behari Adhikari v. Sashi Bhusan Bhur  59 I.C. 882. The marriage may not have been contracted according to strict Hindu law; it is still a marriage recognized by Courts as a form of marriage prevalent in a particular sect. Besides a marriage between a Brahmin and a Sudra woman, as in this instance, though not an approved type of marriage, is still a marriage and the children are legitimate. Moreover it is in evidence that a Brahmin, the plaintiff's guru or priest, was present at the marriage which was not probably wholly unorthodox.
19. Accordingly in agreement with the learned District Judge I hold that Bhikarini's sons are not excluded from inheritance and succession to the properties left by Nayan. This being so, the plaintiffs' suit must fail and the appeal should be dismissed with costs.
20. The question involved in this appeal is whether Bhikarini and Rajani have ceased to be Hindus or in other words have gone altogether outside the pale of the Hindu religion or not.
21. The Court below has negatived this contention and has held that the sons of Bhikarini and Rajani cannot be excluded from inheritance to the property of their grandfather Nayan. That conclusion is in my judgment supported by the authorities to some of which my learned brother has referred. I agree with the view expressed by my learned brother and that the appeal must be dismissed.