ASITA MOHAN GHOSH Vs. NIRODE MOHAN GHOSH

JUDGEMENT

(1.) THESE are two consolidated appeals from two decrees, dated May 8, 1916, of the High Court at Calcutta, in appeal from two decrees, each dated March 30, 1912, of the Subordinate Judge of Birbhum which were made in separate suits which had been tried together. The suits in which these appeals arose were instituted, one in the Court of the District Judge of Birbhum on April 14, 1909; it was subsequently transferred to the Court of the Subordinate Judge of Birbhum and was entered as No. 44 of 1909 on his file. The other suit was instituted in the Court of the Subordinate Judge of Birbhum on August 30, 1909, and was numbered 134 of 1909. In suit No. 44 of 1909 Nirode Mohan Ghosh Moulik, a minor, and Kirode Mohan Ghosh Moulik, a minor, through their guardian, and Sri Sri Radha Gobinda Deb Thakur, a deity, by the other plaintiffs through their next friend, the said guardians are plaintiffs and Asita Mohan Ghosh Moulik is the defendant. That suit is for a declaration of title and other relief. The plaintiffs in that suit describe themselves as by caste Kayastha. In suit No. 134 of 1909 Asita Mohun Ghosh Moulik for himself and on behalf of the Thakur, the deity, is the plaintiff, and Nirode Mohan Ghosh Moulik, Khirode Mohan Ghosh Moulik, and certain other persons are the defendants. In the plaint in the latter suit Asita Mohun Ghosh described himself as by caste a Kayastha, and claimed a declaration that Sailendra Mohun (who was the father of the defendant Nirode Mohan Ghosh and Khirode Mohan Ghosh) had not been adopted as a son by Radha Mohan Ghosh, and other relief.

(2.) THE properties to which the suits relate were at the time of his death vested in Radha Mohan Ghosh, a Bengali Kayastha zamindar, and were situate in the districts of Murshidabad and Birbhum. Some of these properties were his own secular properties, others of them were debottar, and were possessed by him as shebait of the Thakur, the deity. One of the questions in the suits was as to whether certain villages were his secular property or debottar. That question is no longer in issue, it having been finally decided by the High Court. Radha Mohan Ghosh died intestate on September 2, 1903. He and the plaintiffs in each suit were subject to the Dayabhaga school of Hindu law. It has been concurrently found by each Court below that on June 7, 1876, Radha Mohan Ghosh, being then a sonless Hindu, adopted as his son Sailendra Mohan Ghosh, a Bengali Kayastha. In February, 1878, Asita Mohan Ghosh, the natural legitimately born son of Radha Mohan Ghosh, was born. Sailendra Mohan Ghosh was the father of Nirode Mohan Ghosh and of Khirode Mohan Ghosh. The natural father of Sailendra Mohan Ghosh was Kumar Narendra Chandra Roy, who gave his son Sailendra Mohan Ghosh to Radha Mohan Ghosh in adoption.

(3.) ONE contention was as to the rights of succession of persons who were by caste Bengali Kayasthas, It has been found not on evidence, but following some decisions of the High Court at Calcutta, that Bengali Kayasthas are Sudras. Their Lordships do not think it necessary to decide whether or not Bengali .Kayasthas are Sudras, or to decide as to the construction of a text of the Dattaka Chandrika which has been referred to by the Courts below as applicable to Bengali Kayasthas. Their Lordships are of opinion that the rights of the parties depend on the construction of the agreement upon which Kumar Narendra Chandra Roy gave his son Sailendra Mohan Ghosh to Radha Mohan Ghosh in adoption.