Allsop, J.:— Mst. Indra Devi, the plaintiff respondent, instituted the suit which has given rise to this appeal in order to obtain a declaration that she was entitled to the estate of Raghubans Puri deceased consisting of movable and immovable property including the village of Kharkhari. She based her claim on the admitted fact that she was his daughter by his first wife, Mst. Janki, and on the allegation that there had been no valid marriage between him and the defendant appellant, Mst. Kaura Devi, who claimed to be his widow. The learned Judge of the court below found, in the first place, that Raghubans Puri and Mst. Kaura Devi had not gone through a form of marriage and, in the second place, that such a marriage, even if it had taken place, would have been invalid for two reasons, namely, that Raghubans Puri was insane at the time and that there could be no legal marriage between a man who was admittedly a grihasth Goshain and a woman who was admittedly a born Rajput.

All the learned Judge's findings have been questioned in appeal.

In order to avoid unnecessary repetition it will be convenient, in the first place, to say something about the life of Raghubans Puri. This man was the son of Suraj or Surya Gir and was originally known as Lungi Singh. He had two brothers, Ganga Singh and Bahadur Gir and two sisters, one of whom, Mst. Ganga Dei, was the mother of Anant Bharti and the other Mst. Bal Devi. It will be necessary to refer to these people in the course of this judgment. Raghubans Puri became the disciple of Ghanshyam Puri from whom he inherited the property in suit. At that time he took the name Raghubans Puri. In 1917 his mind began to fail and in 1918 one Nand Gir was appointed manager of his property under the provisions of the Lunacy Act. We have on the record a copy of the deposition of Captain Reader of the Royal Army Medical Corps recorded on 21st February, 1918, and a certificate issued by him on 18th February, 1918. From these documents it appears that Raghubans Puri displayed the physical signs of general paralysis of the insane, was childish and emotional, laughed foolishly for no reason, replied irrelevantly to questions, became angry without cause and threatened to beat those who were in the room with him and with the doctor. The doctor was of opinion that he was not capable of managing his affairs and stated generally that he would not consider a man who was suffering from general paralysis of the insane to be so capable and that such a man would, at any rate, be very unreliable. Raghubans Puri's wife, Mst. Janki, died in January 1920 and Nand Gir, on 17th April of the same year. Six days later on 23rd April, Bahadur Gir made an application to the District Judge that he should be appointed guardian of the lunatic. The District Judge passed an order that Raghubans Puri should be placed under medical observation and there is evidence that the Assistant Surgeon of Hardwar, where he lived, began visiting him. It is alleged, however, by the defendant appellant that Raghubans Puri came to Kosan, her village, and married her on 6th May. This place is in the hills. The journey to it from Hardwar must be made on foot or on horseback and can be completed in the inside of a day. On 14th May Raghubans Puri was apparently back in Hardwar because Bahadur Gir made an application to the District Judge on that date complaining that he had already had to spend Rs. 35 on doctor's fees and asking that the visits should be reduced to one or at most two a week. On 14th June Anant Bharti put in an application objecting to the appointment of Bahadur Gir and asking that he himself should be made guardian and manager. He suggested that Bahadur Gir's interests were adverse to those of Raghubans Puri's minor daughter and also that he would be unlikely to enforce payment of a debt of Rs. 10,000 alleged to be due to the estate from Mst. Bel Devi. On 15th June Major Hogan, Civil Surgeon at Saharanpur, gave a certificate that Raghubans Puri was suffering from general paralysis of the insane. He stated that his speech was at the time indistinct and incoherent, that he was childish and laughed without any cause, that he was very emotional when questioned about his late wife and his daughter, that his memory was much impaired, that he was restless and that he had a tottering gait and staggered in attempting to walk with closed eyes. On 21st July, 1920, the District Judge passed an order declaring Raghubans Puri to be insane and appointing Anant Bharti manager of his property. On 5th August, 1920, Bahadur Gir made an application that he was about to appeal against the order of the District Judge and that the property, in the meanwhile, should not be delivered to Anant Bharti to whose presence in the house Raghubans Puri objected. On 11th August, an officer of the court, that, is, the amin, made a report that he had gone to Raghubans Puri's house to make an inventory of his property but that Raghubans Puri was not at home and that his sister Mst. Bel Devi, would not allow an inventory to be made in the absence of the agent or karinda. On 28th August, Bahadur Gir made a statement that the trunks and boxes which contained the goods of Raghubans Puri were locked up in certain rooms, the keys of which were, in the possession of Raghubans Puri. He said that Raghubans Puri refused to give him the keys. On 29th August, the amin made another report that he had again been to the house and that Raghubans Puri had refused to give up the keys until his agent arrived. As the agent did not reach the house upto the evening the amin had to come away without making an inventory. On 8th April, 1921, this court passed orders on Bahadur Gir's appeal. It upheld the appointment of Anant Bharti upon the ground that the sum of Rs. 10,000 appeared to be due from Mst. Bel Devi and that it was better not to appoint Bahadur Gir till the trouble about that money had been set at rest. It remarked, however, that it might be possible to appoint Bahadur Gir at some later time. On 11th or 12th May, Bahadur Gir made a complaint to the District Judge that Anant Bharti had forcibly broken into Raghubans Puri's house, had seized his property and had ejected the lunatic, his wife and daughter. He alleged that the lunatic had been much upset by this action on the part of Anant Bharti. On 12th May, the District Judge passed an order that the wife and daughter of the lunatic should be allowed to be with him. On 17th May, Bahadur Gir made another application that he should also be allowed to live in the house as the wife and daughter were very young and could not live with the lunatic unless there was somebody to look after them. On 28th May, Anant Bharti put in a written statement that he had not ejected the woman who was called the wife of Raghubans Puri but that Bahadur Gir had himself removed her and Raghubans Puri's daughter. He stated that he was willing that the daughter and the woman should live as they had been living up to the time when he had taken possession of the property in his capacity as manager. He also said that the woman who was called the wife of Raghubans Puri was not, as far as he knew, his wedded wife. On 14th July, the District judge passed another order in which he pointed out that Anant Bharti had been appointed manager of the lunatic's estate but not of his person and that there was no manager of the lunatic's person is far as he knew. He also mentioned that it had not been established that the lunatic was incapable of looking after himself. He directed that the wife and daughter should continue to live in the house and that Anant Bharti should place all the valuables in safe custody and leave the ordinary utensils and clothes for the use of the lunatic and his family. On the same date, presumably before orders were passed, Anant Bharti had filed an application and an affidavit. He stated that Bahadur Gir had removed a girl and woman from the house and that he himself had not ejected any one. He also alleged that the woman who was called the wife of Raghubans Puri was not his wife but was, on the other hand, a relation of Bahadur Gir's and had been set up in May 1920 as Raghubans Puri's wife at the time when the application for obtaining a certificate of guardanship was pending. There were certain further proceedings in the course of which Bahadur Gir filed accounts to show what he had done with Raghubans Puri's money while he was in charge of the estate between the date of Nand Gir's death and the date when Anant Bharti took possession. On 16th December, 1921, Anant Bharti reported to the court that Bahadur Gir had brought Raghubans Puri with his daughter and Mst. Kaura, who was called his wife, to Hardwar and that Raghubans Puri had begun to live in his house. On 2nd March, 1922, Bahadur Gir made an application that he no longer wished to be appointed Raghubans Puri's guardian as it would not be possible for him to continue living permanently in Hardwar, but on the same date he asked that Anant Bharti should be directed to pay him a sum of Rs. 200 a month to enable him to maintain the lunatic and his wife and daughter. The District Judge made an order for the payment of a sum of Rs. 180 a month on 28th April, 1922. On 10th February, 1923, the District Judge looked into the accounts presented by Bahadur Gir and passed them. Anant Bharti had at one time raised certain objections to items in the accounts, but he afterwards failed to put in an appearance. On 4th April, 1924, the District Judge directed that the sums spent by Bahadur Gir in excess of the income should be paid to him. Anant Bharti again raised no objection. In 1925, the District Judge made a suggestion to the Collector that the estate should be taken over by the Court of Wards upon the ground that the income was Rs. 20,000 a year and that he himself was not in a position properly to supervise the management of the estate, but Bahadur Gir and Mst. Bel Devi put in an application praising the management of Anant Bharti and suggesting that management by the Court of Wards would be unduly expensive and it appears that the proposal was at that time dropped. On 15th August, 1927, Mst. Indra Devi, who had been married in 1924, put in an application accusing Anant Bharti and Bahadur Gir of mismanagement and misappropriation and asking that the allowance of Rs. 180 per mensem should be paid to her instead of being paid to the latter. She followed this up with an application dated 15th September, 1927, in which she said that a woman called Mst. Kaura at the instigation of the guardian was falsely setting herself up as Raghubans Puri's wife. On 7th November, 1927, Bahadur Gir put in an objection against Mst. Indra Devi's first application which was, it appears, ultimately rejected. In April, 1929, Mst. Indra Devi applied to the court for an allowance of Rs. 150 a month out of the estate and on 7th May, she was allowed an allowance of Rs. 100 a month. In 1931, the question of taking the estate under the management of the Court of Wards was again raised but in 1932 Raghubans Puri died. On 9th March, 1933, Mst. Kaura Devi informed the District Judge that Anant Bharti had delivered the property to her as she was the widow of the deceased and on 1st April in reply to a notice from the court Anant Bharti confirmed the statement. He said that he had not at first admitted the marriage but had been apprised of the facts later and had further relied upon the continuous recognition of Mst. Kaura Devi's claims by the court and by the relations and friends of the family and the members of the brotherhood. Mst. Indra Devi protested against the delivery of the property to Mst. Kaura Devi and after certain proceedings in the court of the District Judge and in this Court the property was put into the possession of a receiver. It was in these circumstances that Mst. Indra Devi instituted the suit which has given rise to this appeal.

As Raghubans Puri's mental and physical state must be taken into consideration in deciding both the question whether the marriage took place and the question whether it was valid, it will be convenient to discuss it before proceeding further. I have already described the medical evidence which was given in 1918 and 1920 and it seems to me that this evidence must be the basis of our conclusions. The doctors themselves are no longer available and though there is oral evidence on both sides it is of no real assistance. The defendant's witnesses suggest that Raghubans Puri was perfectly sane and that is a suggestion which seems to be absurd when one considers the medical evidence, the Judge orders and the conduct of all concerned. The plaintiff produced a number of witnesses. One of these, Ram Chander Vaid, is a physician practising medicine according to Ayurvedic principles, but it is improbable that he has any knowledge or experience of lunacy and he has not claimed to have any. He had treated Raghubans Puri at one time for syphlis, but he was not treating him in 1920. His evidence is that he attended to Mst. Janki during her last illness and that Raghubans Puri had are that time become quite insane and did not even understand that the witness was attending to his wife. The evidence is not that of an expert who had Raghubans Puri under observation and it is not sufficiently definite or detailed to be of much value. This witness also supported Mst. Indra Devi in her contention that there was no marriage at all because he stated that no marriage party went to any place from the Datwali Haveli where Raghubans Puri lived and that he had never seen Kaura Devi in the house up to the year 1930. It is not likely that he could really have had any confidence fourteen years after the event when he was giving evidence that there had been no marriage party and in view of the other evidence it is extremely improbable that Mst. Kaura Devi had not been living in the house. The witness appears to be biased and I would not place any reliance upon him. The learned Judge has mentioned the large number of other witnesses produced by the plaintiff and I do not think it is necessary for me to discuss their evidence in detail. They are all laymen whose opinion is of no great value and their statements appear to be exaggerated. They say that Raghubans Puri was quite unable to recognise anybody or understand anything that was taking place around him, but they are contradicted by the expert evidence given at the time and they also have supported Mst. Indra Devi upon other points upon which their evidence seems to be unreliable. In so far as they say that Raghubans Puri was insane their statements are doubtless true, in so far as ordinary people understand insanity, although there is reason to suspect that some of them at least were not likely to have any knowledge of the matter. That point, however, is not of any great importance because it is clear that the statements can carry no weight where they are inconsistent with the evidence of the medical witnesses. From that evidence it certainly appears that Raghubans Puri was very far from being normal and that he could not be relied upon to make valid judgments or to enter into contracts or dispose of his property, but it does not appear that he was in such a state that he could not understand generally what was taking place. He obviously made an attempt to walk with closed eyes at the instance of Major Hogan and he must have understood what he was required to do. He remembered his deceased wife and understood in some measure his relations with his daughter. He refused to give up the keys of his rooms in the absence of his agent and must have recognised that he was to be deprived of his property. The learned Judge has found that he was “perfectly lunatic” and that he could not understand even the simple ceremonies of marriage, but it seems to me that the evidence does not justify this finding. The medical evidence is that the disease from which he was suffering is progressive and it is to be noticed that he did not die till twelve years after the alleged marriage. No doubt he was childish and his ideas and emotions were exaggerated, but in my judgment there is no reason for thinking that he could not have understood that he was being married and that the ceremonies in connection with the marriage were taking place.

That being his mental state we have now to consider what the effect of it would be upon the validity of a marriage if it was in fact performed. The learned Judge has mentioned the case of Mouji Lal v. Chandrabati Kumari(1) and has stated that their Lordships of the Privy Council have laid down a rule that the marriage of a man in Hindu law would be invalid if on account of lunacy he could not understand the marriage and the marriage ceremonies. Their Lordships of the Privy Council did not lay down any such rule. They did not consider the question whether unsoundness of mind could in any circumstance invalidate a Hindu marriage. Acting on the hypothesis that it might, they pointed out that the degree of unsoundness would always have to be considered and in the particular case before them the man whose marriage was in question was not so insane that he could not understand the ceremonies of the marriage and therefore that particular marriage was not invalid. This Court has recently followed that ruling in the case of Bhagwati Saran Singh v. Parmeshwari Nandan Singh. The Madras High Court has gone further in the case of Amirthammal v. Vallimayil Ammal(2). I do not think it is necessary to discuss the law upon this question at any length in view of these decisions. I do not consider that there is any ground for believing that Raghubans Puri could not understand that he was being married or the nature of the ceremonies and I, would therefore, hold that his marriage was valid provided it took place.

We now come to the question whether Raghubans Puri and Mst. Kaura went through a form of marriage. The defendant's story was that Raghubans Puri went to Kosan with his brothers, Bahadur Gir and Ganga Singh and with four Goshains, Kirpal Gir, Kanhai Gir, Sheoraj Gir and Saraswati Gir and that the marriage ceremonies were performed there at the house of Bharat Singh, Mst. Kaura's father. The plaintiff alleged that there was no marriage and that Mst. Kaura was the dasi or mistress of Bahadur Gir.

There are several reasons for thinking that this allegation is not true. Bahadur Gir had two wives and Mst. Kaura was only about thirteen years of age in 1920. Her family belonged to a respectable class and though they were poor and may have succumbed to the temptation of marrying their daughter to a man of unsound mind because he was rich, it is not likely that they would have delivered her over to Bahadur Gir to be his mistress. When Anant Bharti was questioning the marriage in 1921 he did not put forward any such suggestion. He said that the girl was a relation of Bahadur Gir's.

On the other hand, it is probable on general grounds that there was a marriage. There may be cause for suspecting that Bahadur Gir was setting up the marriage for reasons of his own, but if he meant to do so it was obviously to his advantage that the forms should be observed. It was suggested in arguments before us that it would not have been possible for Raghubans. Puri to make the journey to Kosan or to go through the necessary ceremonies, but I have already given reasons for believing that his condition was not bad enough to justify such an assumption. The applications of Bahadur Gir and Anant Bharti in 1921 lead to the conclusion that Mst. Kaura was in Hardwar in Raghubans Puri's house in that year and it is difficult to account for her presence if there had been no marriage. I cannot believe that she was Bahadur Gir's mistress and nobody now suggests that she was living in the family as a relation.

The learned Judge has begun his discussion of this question by referring to the allegation about the date of the marriage. He points out that the exact date was not given in the written statement although it was said chat the marriage had taken place in the month of May. Counsel who appeared for the defendant were questioned on this point on the date when issues were framed. They said that they did not know the exact date. The learned Judge points out that Mst. Kaura Devi said in her statement that she had informed her representative, Parbhu Lal, of the date of her marriage. He then deals with the statement of a witness, Mst. Jai Devi, who said that the marriage had taken place in the month of Baishakh before the Baisakhi fair which is apparently held on about 13th or 14th April. The lunar month of Baisakh ended on 3rd May, 1920. Another witness, Kanhai Gir, said that the marriage took place on Baisakh Sudi 11 or 12. Atma Ram, the priest, who is said to have officiated at the marriage, said that it took place in the solar month of Baisakh and that the only auspicious dates were 27th April and 6th May. The case for the defendant now is that the marriage took place on the latter date. The learned Judge has also mentioned that the items of expenditure on the marriage are entered in Bahadur Gir's accounts on 9th, 10th and 11th May. He has inferred from these facts that there could have been no marriage. It seems to me, however, that the inference is not justified. Mst. Jai Devi and Kanhai Gir were not close relations or very intimately connected with the parties and there is no reason why they should have remembered the date of the marriage so many years later. The entries of the date of the expenditure in the accounts might well have been made after the party returned from Kosan which would have been some days after the wedding. It must be remembered in view of Raghubans Puri's mental and physical condition that it is not improbable that the fact of his marriage would not have been widely advertised and that there may well not have been the usual elaborate feasts and unessential ceremonies. It is even possible that Bahadur Gir and the other members of the family arranged to have the marriage performed more or less in secrecy and in a hurry so that there was less insistance than would ordinarily be expected on an auspicious date. In these circumstances it is even possible that those who were concerned were not very certain of the date on which the marriage took place. It may be that the defence when faced with the evidence of Jai Devi and Kanhai Gir made a foolish attempt to reconcile that evidence with the fact that the marriage must have taken place in May and they, therefore, introduced the story about the marriage having taken place in the solar month of Baisakh.

The learned Judge's next argument is that the expenditure on the marriage was much too small in view of the fact that Raghubans Puri was a Mahant who owned considerable property. This argument is also vitiated by the fact that he was not a normal person and that the marriage would naturally have been celebrated in a very quiet manner. Bahadur Gir had applied for the guardianship of Raghubans Puri and the latter had been placed under medical observation. It is not unlikely that Bahadur Gir may have anticipated objections from Anant Bharti or other relations and that he might have taken steps to prevent them from getting information that the marriage was about to be performed so that they might not apply to the District Judge to get it stopped.

The same considerations apply to the learned Judge's next argument that there were too few people in the marriage party which was supposed to have gone with Raghubans Puri to Kosan and to another argument that Raghubans Puri's priest and barber were not employed. A barber exercises some necessary functions in connection with a marriage, but it might have been arranged to employ a priest and a barber who were not ordinarily connected with Raghubans Puri so that information about the impending marriage should not be noised abroad. The priest Atma Ram was apparently connected with the original family of Raghubans Puri and possibly with the family of the bride's father.

In discussing the oral evidence the learned Judge has relied very much upon a number of discrepancies which appear in the statements of the various witnesses, but these discrepancies are upon minor points and it is not fair, in my judgment, to rely upon them when the witnesses were giving evidence fourteen years after the marriage. The learned Judge says that Kirpal Gir stated that he had received an invitation in ordinary handwriting, Sheoraj Gir that he had been invited orally and Saraswati Gir that he had not been invited at all except by Raghubans Puri in person. There is supposed to have been a preliminary ceremony at Hardwar called the Mundwa ceremony. The learned Judge says that Kirpal Gir and Kanhai Gir stated that no such ceremony had taken place, Saraswari Gir that he had not been present and Mangat that these three witnesses had been at the ceremony. Then there is supposed to have been a feast in connection with this ceremony. Kirpal Gir said that there were fifty guests. Kanhai Gir that there were only five or six and Mangat again that there were forty or fifty. Kanhai Gir said that the feast took place at 8 o'clock in the evening, Jai Kishen that it took place at half past five and Mangat that it took place at six. Bahadur Gir stated that no money had been spent on this feast. The learned Judge has expressed the opinion that the witnesses could not have forgotten the facts, but I cannot agree with him upon this point. It may be true and in fact is probable that there were no elaborate ceremonies or feasts at Hardwar before the party set out for Kosan, but that does not necessarily prove that there was no wedding at the house of Bharat Singh. There are also discrepancies about another preliminary ceremony called the Ghurchari. The same arguments apply to these discrepancies. Then the learned Judge refers to discrepancies about the number of servants and grooms who went with the party, about the building in which Raghubans Puri's party stayed, about the presents given by Raghubans Puri to his bride and the presents given to Raghubans Puri by the bride's father, about the place where the marriage feast was held, about the description of Bharat Singh's house and about the presents given in the way of gaudan. This gaudan is the presentation of a cow or something equivalent to the priest or to the bridegroom or some member of the family. One witness, Lungi Ram, said that a black cow had been presented. The priest's nephew, Gopal Dat, said that a sum of Rs. 20 or 25 had been given instead of a cow and another witness, Mora Singh that the present consisted of a piece of gold and a sum of Re. 1-4-0. It may be that the witnesses were careless or even unscrupulous about answering questions about matters which they did not remember but that does not seem to me to be very good reason for doubting the evidence on the main point that a marriage had taken place. In point of fact it seems extremely improbable that any of these people would have remembered after so many years exactly where they stayed or exactly what presents were given to the bride or to the bridegroom or to the priest or how many servants had attended the party that went with Raghubans Puri to Kosan. In my judgment the reasons given by the learned. Judge for disbelieving the oral evidence are not satisfactory. It may be true that the Goshain witnesses were not present because they are undoubtedly all closely connected with Anant Bharti who is now on the defendant's side but who in 1921 was questioning the marriage and who might have opposed it if he had known that it was about to take place. If Bahadur Gir was keeping him from knowledge of the impending marriage it is improbable that he would have informed close relations or connections of his. There seems to me, however, no sufficient reason for doubting the evidence of the thirteen witnesses who live in the hills at or near Kosan and who say that they were at the marriage. Mst. Kaura's mother, Mst. Thakuri, has given evidence and has deposed that the marriage took place. Bharat Singh himself was alleged to be too ill to appear in the witness-box. The witnesses may not be reliable about details after so many years, but I think that they should be believed on the main point especially when the circumstances suggest that there must have been a marriage and when Mst. Kaura was undoubtedly being treated as the wife of Raghubans Puri from about the year 1920 till after his death. The learned Judge has referred to the fact that the marriage was originally denied by Anant Bharti and was again denied by Mst. Indra when she came of age in 1927. He has also said that the first mention of the marriage was in the application made by Bahadur Gir on 11th or 12th May, 1921. Anant Bharti now accepts the marriage and he did not at any stage deny it forcibly. He eventually agreed in 1921 that Mst. Kaura should live in Raghubans Puri's house and though there may be ground for suspicion that he and Bahadur Gir were both attempting to get possession over the estate and that they came to terms when Bahadur Gir gave up all claim and Anant Bharti allowed Bahadur Gir's accounts to be passed and an allowance of Rs. 180 a month to be paid to him, still the fact remains that after Anant Bharti's original objections he acquiesced in the treatment of Mst. Kaura as Raghubans Puri's wife. Mst. Indra's application in 1927 was certainly disingenuous. It gives the impression that she had heard then for the first time of the existence of Mst. Kaura which could not possibly have been true. None of the other relations, such as Bel Devi, appears ever to have questioned the fact that the marriage had taken place.

The learned Judge has placed some reliance upon the fact that Mst. Kaura did not know the exact date of her husband's death or the exact dates of the anniversaries of the deaths of the other members of the family, but since Mst. Kaura must have been living in the house in some capacity when Raghubans Puri died, I can attach no importance to this fact. The learned Judge also says that she mentioned only a few occasions when she visited other Goshains or attended ceremonies at their houses, but it appears from an examination of her statement that she must have been asked in cross-examination in a general way on what occasions she had made visits to such people and it is not surprising that a woman of her class should have given what might appear to be an unsatisfactory answer. How many people when required to answer question of that nature would be able to say with any accuracy when or how often they had visited their relations or people in their society over a period of thirteen years?

The learned Judge has also suggested that Raghubans Puri could not possibly have gone to Kosan about 6th May, 1920, because he was under the daily observation of the Assistant Surgeon. He says, “The order of the District Judge, Ex. 42 or DD, dated 24th April, 1920, and the application of Bahadur Gir, Ex. 45, dated 14th May, 1920, when read together go unmistakably to point out that Raghubans Puri was under daily observation of the Assistant Civil Surgeon, Hardwar, from 28th April, 1920, to 14th May, 1920. Bahadur Gir was specifically asked about it in his examination-in-chief on behalf of the plaintiff but he was not prepared to deny it on oath.” This passage is not in my judgment, at all fair to the defendant. Ex. DD is an extract from the order sheet of the miscellaneous case relating to the appointment of a guardian for Raghubans Puri. The learned Judge passed an order on 24th April, 1920, that the alleged lunatic should be kept under observation by the Civil Surgeon of Saharanpur, but on the same date he passed a further order that he was informed that the alleged lunatic would not allow himself to be taken to Saharanpur and consequently that the Assistant Surgeon in Hardwar should be asked to keep him under observation till 15th June when his evidence would be required. There is nothing in this order to suggest that he was to be under daily observation. The application Ex. 45 is the one in which Bahadur Gir complained about the expense of paying fees to the Assistant Surgeon and asked that the Assistant Surgeon should visit Raghubans Puri once or at most twice a week. He said in that application that he had already had to pay Rs. 35 as the Assistant Surgeon's fee and Rs. 3 for tonga hire. The accounts which he produced show payments of Rs. 5 a day on 29th and 30th April and on 1st, 3rd, 12th, 13th together with 0-12-0 for tonga hire on 29th, 30th April and 1st May in all Rs. 30 by way of fees and Rs. 2-4-0 by way of tonga hire. There is no entry of any payment on 14th May, but it may be that when the application was drawn up it was assumed that there would be a payment of Rs. 5-12-0 on that date. There is no direct evidence that the Assistant Surgeon visited Raghubans Puri between 4th and 11th May inclusive and it seems to me that it is impossible to assume in the absence of any such evidence from the order of the District Judge or the application of Bahadur Gir or the accounts produced that he must have visited him so that he could not have been in Kosan. All that Bahadur Gir said in cross-examination was that he did not remember whether the District Judge's order contained a direction that the Assistant Surgeon should visit Raghubans Puri every day.

The Judge has also placed some reliance upon the fact that the story was that the marriage party returned to Hardwar from Kosan over a bridge which was not intended for passenger traffic and which consisted of planks with intervals of a foot or so between them. He seems to have thought that it was quite impossible for anybody to cross this bridge, especially for litter bearers who are alleged to have carried Mst. Kaura across it. This does not seem to me to be an argument of any force. People do cross bridges of that kind. Their capacity to do so largely depends upon their experience and courage and if crossing over this bridge had been so impossible, there is no reason why a story of this kind should have been told. It would have been perfectly easy for the defence to allege that the party came round by another way.

In all the circumstances of this case I am satisfied that a marriage must have taken place and that the evidence of the witnesses at least from the hills must be accepted.

There remains the question whether there could be a valid marriage between Raghubans Puri and Mst. Kaura, the former being a Goshain and the latter a Rajput by caste. The allegation made by the defence is that Mst. Kaura was initiated as a Goshain a few days before the marriage according to the usual practice. There is evidence that the initiation took place. If this was a mere form there is no reason why it should have been omitted. The main argument for the plaintiff is that a Goshain man can contract a valid marriage only with a born Goshain woman. These Goshains were originally members of ten orders of ascetics who neither married nor owned property and who devoted themselves to the study of religion. In course of time they have become to all intents and purposes Hindu castes and have divided themselves into two main groups, namely, Nehangs who do not marry and Grihasths or gharbaris who do marry. Many members of both groups own property. Nobody can enter an ordinary Hindu caste unless he is born into it, but this rule cannot apply at least to Nehang Goshains and entry into their caste is by initiation. There was a question raised whether the custom of initiation prevailed amongst Grihasth Goshains, but there seems to be no reason why it should not. Crooke in his “Tribes and Castes” (volume II, page 260) says that a man from any caste can become a Sanyasi but they are mostly Brahmins and Kshattriyas. A Sanyasi includes a Goshain. Sherring in his “Hindu Tribes and Castes” volume I, pages 255 and 257 says that a man may become a Goshain by initiation and is then cut off from his caste. In Steels' Law and Custom of Hindoo Castes, (1868 edition) as quoted by the learned Judge it is stated that the customs of Grihasth Goshains differ from those of Nehang Goshains only in the matter of marriage. Raghubans Puri himself obviously became a Goshain by initiation. The learned Judge has found that he was born a Goshain, but the reasons for his conclusion are not satisfactory. It is true that his father was called Suraj or Surya Gir, Gir being one of the orders of the Goshains, but this does not establish that he himself was born a Goshain. It was alleged by the defence that Suraj Gir was never a Goshain but that he took the title of Gir because his daughters married Goshains. The learned Judge has repudiated this argument and he may be right upon this point, but it does not follow that Suraj Gir himself was born a Goshain or that his children were born after he had ceased to be a member of his original caste. There is one document upon the record which seems to me to be conclusive upon the point that Raghubans Puri was born a Rajput. It is a copy of an extract from the land records of the village of Talla Banas which was prepared at the time of the Paw settlement which took place sometime in the nineties of the last century. In this document part of the land in the village is recorded as being held by Ganga Singh, Lungi Singh and Bahadur Singh, sons of Surya Gir, caste Rajput, Dikola Negi. This entry was made long before there was any dispute about the caste of these people and it is not denied that Lungi Singh was Raghubans Puri and Bahadur Singh was. Bahadur Gir. Ganga Singh was the third brother who is now said to have disappeared but is alleged to have taken part in the marriage of Raghubans Puri with Mst. Kaura. It may be that Surya Gir was at sometime initiated as a Goshain but his sons are described as, Rajputs of the Dikola Negi sub-caste and there is no reason to doubt the correctness of the entry. It seems to me to be sufficiently established that Raghubans Puri was born a Rajput and consequently the fact of his own initiation which was never questioned shows that Rajputs can become Grihasth Goshains.

The main question is whether a man who has become a Grihasth Goshain can marry a woman of another caste who has herself been initiated. The learned Judge's argument is that the ordinary rule of Hindu law is that there can be no valid marriage except between a man and a woman of the same caste and that the custom alleged by the defence required very rigid proof. It seems to me, however, that it would, on the other hand, require very good evidence to establish the invalidity of any class of marriages if they were very generally contracted. It must be remembered that these Goshains in their origin were celebates and when a certain class of them began to marry, there must at least have been a stage where they married women of other castes because there were no legitimate female children of their own caste whom they could marry and if it is now the rule that a Grihasth Goshain can contract a valid marriage only with a born Goshain woman that rule must have come into existence by custom in the course of time and it must be a variation from the original rule which prevailed. The appendix to Mr. Steele's book was compiled as a result of inquiries made by another officer from a number of Goshains in the southern Mahratta country. The learned Judge has quoted extracts from this appendix in which it is said that a Goswami (that is a Goshain) is not permitted to marry other than a Goswami, but if he does so, his marriage is not annulled but his wife is not acknowledged as a Goswami. This seems to suggest that a marriage between a Goswami and a woman of another caste is valid although it is not approved. It is also said that a female of any Hindu caste who is initiated as a disciple is not allowed to marry. It seems to me not improbable that the Goshains or Goswamis who stated the customs of their caste in 1868 or thereabouts were stating the customs which they approved rather than those which were in actual existence. It may be that they thought that the initiation of girls with a view to marriage was not quite a respectable practice and I should hesitate to say on the authority of these statements that there was a universal custom that no Goshain could marry a girl who had been initiated into his caste. The defendant has produced the evidence of a large number of people in support of her allegation that it is quite usual for a girl to be initiated and to be married soon after to a Goshain. There is evidence produced by the plaintiff on the other side but the defendant has produced witnesses to prove a large number of concrete instances. As the learned Judge says, there are four instances from Poona, three from Chhapra in Bihar, four from Ajmer Merwara, four from Naini Tal, one from Ambala, two from Hisar, one from Delhi, one from Muzaffarnagar, eight from Meerut, four from Roorkee, eleven from Gola Gokaran Nath and seventeen from Hardwar. The learned Judge then proceeds to discuss the evidence and comes to the conclusion that it is unreliable. There is a witness called Narain Giri who says that he is the Secretary of the Goswami Poona Mandal, that is, some association of Goswamis at Poona. This witness stated that two Giris whom he knew had married two women called Yamna Bai and Saraswati Bai who were a Brahmin and a Kshattriya respectively by caste. The learned Judge disbelieved the witness because he did not know the names of the fathers of the two women and because he could not trace their families. The Judge said that the two men, Mahadeo Giri and Chaman Giri and the woman Yamna Bai were alive and that they had not been produced. He then criticised the witness because he had travelled all the way from Poona to Saharanpur to give evidence for the defendant whom he did not even know from before. It appears that the witness received a letter from Mst. Kaura asking him to give evidence about the custom. The learned Judge thought that the witness was unreliable but there seems to be no sufficient reason for this conclusion. The facts suggest that there may be two sections of opinion among the Goswamis or Goshains one of which wishes to make the caste more self contained or pure and the other which approves of introducing people of other castes. The witness is apparently an officer of some Goswami association and he was doubtless interested in the result of a case which might affect the validity of a large number of Goshain marriages. That would be sufficient inducement for him to go from Poona to Saharanpur to give evidence in the case and I do not think there is any reason to disbelieve him. He might very well know of two marriages and yet not know the names of the girls' fathers or have any particular knowledge of their families. On the other hand the people who were married might not be willing to incur the trouble and expense of journeying a long distance. Mst. Kaura might well know the name of an officer of a particular Goswami association, but it is not likely that she would know or be able to trace persons who had themselves contracted marriages: It seems to me unnecessary to discuss the evidence of all the witnesses one by one. The criticisms made by the Judge are largely of the same nature and the same considerations apply to them as apply to the arguments about Narain Giri. About the witnesses from Gola Gokaran Nath the learned Judge argues that they prove only that there have been karao marriages between Goshains and women of other castes and he considers the evidence irrelevant because it does not apply to marriages in the ordinary form. A karao marriage, however, is a perfectly valid marriage and there seems to be no reason why a marriage in the more regular forms should be invalid if there is a custom of marrying by the karao form. We have been taken through the evidence and I am satisfied that it is a very general custom among Goshains to marry women of other caste after initiation and that these marriages are always treated as valid. The best argument to my mind is that Raghubans Puri's two sisters married Goshains. The learned Judge having held that these women were Goshains by birth has regarded this evidence as of little value, but I have already given my reasons for thinking that the women were born Rajputs. One of them was the mother of Anant Bharti and nobody has ever suggested that Anant Bharti is not the legitimate son of his father. It would be no light matter to lay down a principle which would invalidate a large number of marriages which in fact have taken place and would bastardise the children of those marriages. Even the quotation from Steele's work suggests that a marriage of a Grihasth Goshain with a woman of another caste is perfectly valid although it may not be approved. I am satisfied that there is no reason for holding that the marriage of Mst. Kaura and Raghubans Puri was invalid because the latter was a Goshain and the former was born a Rajput and was initiated as a Goshain only a few days before her marriage.

I have mentioned that one of the properties in suit is the village of Kharkhari. It was suggested by the appellant that the plaintiff could not get a declaration about this village because it was held by Raghubans Puri as a trustee. The learned Judge of the court below came to the conclusion that it was not necessary to decide the question whether the village was the personal property of Raghubans Puri and I think he was right because both parties apparently assumed that Raghubans Puri's successor-in-interest would be entitled to possession as a trustee even if the village was trust property. I may add that the question does not arise if the suit is to be dismissed.

In these circumstances I would hold that the appeal should succeed and that the suit by Mst. Indra Devi should be dismissed with costs in both courts.

Hamilton, J.:— I agree and have nothing to add.

By the Court— We allow this appeal and dismiss the suit with costs in both courts.