Judgement Consolidated Appeals from a judgment and two decrees of the High Court (March 8, 1916), the one varying and the other affirming decrees of the additional Subordinate Judge of Birbhum. The suits related to secular and debottar properties left by one Radha Mohan Ghosh, a Bengalee zamindar, who died in 1905, and was a Kayashtha governed by the Dayabhaga. The appellant in both of the appeals was the natural-born son of the deceased, born in 1878. Nirode and Khirode Mohan Ghosh, respondents in both appeals, were the sons of Sailendra, who it was found by both Courts in India had been validly adopted by Radha Mohan Ghosh in 1876. Upon the adoption a registered agreement or ekrar was entered into, the terms of which appear from the judgment of their Lordships. The Subordinate Judge, who tried both suits together, held that the deceased zamindar, as a Kayastha, was a Sudra, and that consequently no ceremony besides the giving and taking of a child was necessary for a valid adoption, and that Sailendra had been validly adopted. He held that Sailendra was entitled to share equally with the after-born natural son in the secular properties, but that he had no right to be a shebait in respect of the deb-sheba or the debottar properties in the presence of the appellant, the natural-born son. In each suit there was an appeal to the High Court, which held that the respondents, the sons of Sailendra, were also entitled to share equally with the appellant as shebaits of the debottar properties. The learned judges (Chaudhuri and Newbould JJ.) in their judgment said that Kayasthas had been uniformly treated as Sudras by the Courts in Bengal, that the appellant had not by his plaint or written statement submitted anything to the contrary ; and that among Sudras no ceremony of adoption, beyond giving and taking, was necessary. They affirmed the finding in favour of the adoption. They said that the Dattaka Chandrika (V., 29 to 32) was clear authority that among Sudras an adopted son shared equally with an after-born natural son, and referred to judgments of the Privy Council recognizing the great authority of that work in Bengal. They affirmed the finding in favour of the adoption. They said that the Dattaka Chandrika (V., 29 to 32) was clear authority that among Sudras an adopted son shared equally with an after-born natural son, and referred to judgments of the Privy Council recognizing the great authority of that work in Bengal. They pointed out that the rule had been adopted by the High Courts at Madras and Calcutta in 1883 and 1884 respectively, and upon an examination of the question said that in their view the rule laid down in the Dattaka Chandrika did not deviate in any way from the Smritis. They held that both in law and according to the agreement Sailendra was entitled to a half share of the secular properties. With regard to the present respondents claim to be co-sharers with the appellant in the debottar properties, they said " The learned Subordinate Judge has held against Sailendras sons, basing his judgment mainly on the ekrar ; he rightly holds that shebaitship can be held in shares and separate palas may be directed. Ordinarily the right to shebaitship of family deities goes by inheritance unless otherwise provided by the deed of endowment. The learned Subordinate Judge, however, seems to think that inasmuch as in the presence of the natural-born son the adopted son is not competent to perform the krityadis, and no specific mention is made in the ekrar of the adopted sons right to the shebaitship, Sailendras sons have no such right. When he is speaking of krityadis, he is referring collectively to deba krityas and pitri-matri krityas—namely, the shebas and shrads. It is now settled law that as regards inheritance an adopted son holds in all respects the same position as an aurasa son, except in some special matters. Let us see if there are any specific rules excluding him from shebaitship in the presence of an aurasa son. We find that in the presence of an aurasa son an adopted sons right to perform certain shrads is cut down. If after adoption a natural son is born, then the adopted son cannot perform the adya or first shrad, the twelve-monthly shrads which follow, the six-monthly, and the anniversary shrad and the sapindikaran see Sarkar on Adoption, Tagore Law Lectures, 2nd ed., p. 388. If after adoption a natural son is born, then the adopted son cannot perform the adya or first shrad, the twelve-monthly shrads which follow, the six-monthly, and the anniversary shrad and the sapindikaran see Sarkar on Adoption, Tagore Law Lectures, 2nd ed., p. 388. Subject to this restriction, however, he can perform all the other shrads like the aurasa son, with this variation that the anniversary shrads have to be performed by him in the ekoddista form in honour of the deceased only, and by the aurasa son in the parvana mode in which a double set of three oblations are presented. So the aurasa son has a superior right in respect of pitri-matri krityas, but there is no such preference in respect of shebas or deba krityas. The learned Subordinate Judge has drawn an adverse inference against the adopted son, inasmuch as no reference is made in the ekrar to his having equal rights in the debottar properties, while there is such a reference to his succeeding to the secular properties..... If it was intended that the adopted son was not to get the shebaitship at all, Kadha Mohan could have easily inserted in the ekrar that the adopted son would have no such right in the presence of an aurasa son. Neither of them has any interest in the debottar properties except as shebait, and it is quite conceivable that the adopters did not think it necessary expressly to provide for that contingency." The learned judges accordingly held that Sailendras adopted sons (the present respondents) were entitled to an 8 annas share in the debottar properties, and made a decree in the terms mentioned in their Lordships judgment. 1920. Feb. 5. De Gruyther K.C. and Dube for the appellant. Sir Erle Richards K.C. and Parikh for the respondents. The arguments related chiefly to the true construction of the deed, reference also being made to the rules of Hindu law with regard to the rights of an adopted son when a natural son has been born soon after the adoption. March 3. The judgment of their Lordships was delivered by Sir John Edge. 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. March 3. The judgment of their Lordships was delivered by Sir John Edge. 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 plaintiffsand 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. 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. 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. On the death of Radha Mohan Ghosh the Revenue authorities entered in the Revenue papers the name of Sailendra Mohan Ghosh as that of the proprietor in possession of an 8 annas share in the secular properties of which Radha Mohan Ghosh had died possessed, and entered the name of Asita Mohan Ghosh as that of the proprietor in possession of the other 8 annas share in those secular properties and as the proprietor in possession of the debottar property of which Radha Mohan Ghosh had died possessed. Sailendra Mohan Ghosh died on October 8, 1905. The contention between the parties has been whether there was a valid adoption of Sailendra Mohan Ghosh, and what was the effect of it as to the rights of the parties to the properties of which Radha Mohan Ghosh died possessed and as to the right to the shebaitship. 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 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. That agreement was of June 7, 1876, and was registered by Radha Mohan Ghosh on that day. It is as follows " To Kumar Narendra Chandra Roy, son of Raja Purna Chandra Roy, of Sheoraphuli, pargana Boro, chauki Serampur, district Hooghly. " This ekrar patra is executed by Radha Mohan Ghosh Moulik, son of Babu Krishna Kinkar Ghosh Moulik deceased, residing at Panchthopi, pargana Fatehsing, district Birbhum, to the following effect Being without any issue, I intend to adopt a son, and as you are united to me by close ties of relationship you have, of your own free will, made a gift of your second son to me and executed a deed of gift. I also, of my own free will and in good faith, adopt the aforesaid boy according to the Shastras, and by executing this ekrar agree as follows From this day the aforesaid adopted son has become entitled to all my properties, movable and immovable, and to perform the services of the idols and all rites and ceremonies in connection with maternal and paternal ancestors. After my death, he shall perform the services of the deities, and live in my ancestral residence at Panchthopi, and being vested with all my rights, and entitled to the ownership of those properties, he shall protect, enjoy and possess them by exercising the rights of sale and gift, and shall maintain all my rites and ceremonies. If, by the blessing of God, a son of my loins is born, both of them shall be equally entitled to all the aforesaid movable and immovable properties which may be left by me, and the son born of my loins shall not be entitled to claim a larger share in them, and if he does so it shall be rejected. I shall not have the right to do any act prejudicial to the interests of the aforesaid adopted son, and if I do so, it shall not be given effect to or entertained by Court. To this effect, I execute this ekrar patra, of my own free will, in sound health and without importunity, on taking the boy in adoption. Dated the 26th Jaistha 1283." The immovable property of Radha Mohan Ghosh referred to in that agreement consisted of villages which were his private or secular property, and of debottar villages which were in his possession as shebait. The trial judge found that Sailendra Mohan Ghosh had been adopted by Radha Mohan Ghosh, and construed that agreement as an agreement by which the adopted son in the event of a natural son being born to Radha Mohan Ghosh, and surviving him, should get a one-half share in the secular properties, but should not get any share in the shebait or in the debottar properties or have any right to act in shebas and pujas and in deb kirtyas and pitri kirtyas, and made decrees accordingly, which were respectively appealed to the High Court. The High Court in appeal came to a construction of the agreement different from that of the trial judge, and held that " Sailendras sons are entitled to take 8 annas in the properties found not to be debottar, by the Subordinate judge and ourselves, and that they are jointly entitled to rank as shebaits equally with Asita Mohan in respect of the properties found by both Courts as debottar. For convenience of the shebas the properties are to be held under joint management, but the periods of the shebas may be divided into six-monthly palas, or annual palas in alternate years, as they may arrange between themselves, failing which liberty is given to them to take the direction of the Court." In so construing the agreement the learned judges of the High Court did not overlook the fact that by Hindu law the natural son could perform religious ceremonies which his brother by adoption could not perform, but they reasonably came to the conclusion that Radha Mohan Ghosh in not expressly dealing with that matter did not think it necessary to provide for the contingency, as the Hindu law on that subject was clear. Those learned judges rightly held that neither Asita Mohan Ghosh nor Nirode Mohan Ghosh or his brother Khirode Mohan Ghosh had any interest in the debottar properties except as shebaits. The High Court by its decree dismissed the appeal of Asita Mohan Ghosh, and made the following decree in the appeal of Nirode Mohan Ghosh, Khirode Mohan Ghosh and the Thakur, varying the decree below " It is ordered and decreed that the decree of the lower Court in so far as it dismissed the plaintiffs suit with regard to their claim of shebaitship of the deities Sri Sri Radha Gobinda Deb Thakur and Sri Sri Joy Shiba Durga jointly with defendant No. 1 (Asita Mohan Ghosh) be and the same is hereby set aside, and in lieu thereof it is declared that the plaintiffs have a right of shebaitship of the aforesaid deities jointly with the defendant and of joint management of all the debottar properties with the said defendant (it being left open to the parties to arrange for their period of shebas among themselves), and it is further ordered and decreed that the decree of the lower Court is hereby confirmed and this appeal dismissed.". . . . From those decrees these consolidated appeals have been brought. In their Lordships opinion the High Court rightly construed the agreement of June 7, 1876. When Radha Mohan Ghosh made that agreement with Kumar Narendra Chandra Roy he was sonless, but it obviously was in the contemplation of the parties that Radha Mohan Ghosh might have a son of his own body born to him, and it was desirable that the agreement upon which Kumar Narendra Chandra Roy would consent to give his son Sailendra Mohan Ghosh in adoption to Radha Mohan Ghosh should provide for the event of Radha Mohan Ghosh not having a son of his body born to him and for the alternative event, which occurred, of a son of his body being born to him after the adoption. It cannot be disputed that " all my properties, movable and immovable " in the earlier part of the agreement to which the adopted son was to become entitled included not only Radha Mohan Ghoshs secular properties but also the debottar properties of which he was possessed as shebait. It cannot be disputed that " all my properties, movable and immovable " in the earlier part of the agreement to which the adopted son was to become entitled included not only Radha Mohan Ghoshs secular properties but also the debottar properties of which he was possessed as shebait. In the succeeding passage of the agreement the words " those properties " must have referred to " all my properties, movable and immovable " of the earlier passage. Then the agreement provides as to what should happen in the event of a son of his body being born to Radha Mohan Ghosh after the adoption of Sailendra Mohan Ghosh in the words following " If, by the blessing of God, a son of my loins is born, both of them " (his adopted son and the son of his body) "shall be equally entitled to all the aforesaid movable and immovable properties which may be left by me, and the son of my loins shall not be entitled to claim a larger share in them, and if he does so, it shall be rejected." " All the aforesaid movable and immovable properties" must have reference to "all my properties, movable and immovable," of the earlier passage, and must be so construed. The words " this appeal dismissed " in the decree of the High Court in the appeal of Nirode Mohan Ghosh, Khirode Mohan Ghosh and the Thakur must have meant that except as to the variation decreed by the High Court in the decrees then under appeal that appeal was dismissed. These consolidated appeals fail, and their Lordships will humbly advise His Majesty that they should be dismissed with costs.