Lord Porter:-

This appeal by special leave from the High Court of Patna dated 25th January 1938, raises the question whether the appellants who were plaintiffs in the original suit are entitled to succeed in an action against the defendants for malicious prosecution. Plaintiff 1 is the Raja of Aul, once an independent tributary State in Orissa, but now an ordinary zemindari subject to the laws of British India. He is a Khetriya by caste. Appellant 2 is the son of the original plaintiff 2, Krishna Chandra Jagati, deceased, and has been duly substituted for him in the proceedings. Both the original plaintiffs 2 and 3 were servants of plaintiff 1. Respondents 1 and 2 are the sons and legal personal representatives of the original defendant 1, Bamdeb Das, alias Patnaik, who was the father of one Jugal Kishori Das and was related to one Harikrishna Mahanty, now deceased. Defendant 2 is a nephew of defendant 3, who was a cousin of Harikrishna Mahanty. These two defendants formed a joint Hindu family. The defendants and Harikrishna Mahanty were Karans by caste, a caste regarded as of inferior status to that of plaintiff 1. The original defendants are said to have prosecuted the original plaintiffs maliciously in the following circumstances.

On 18th September 1926, Kanaka, the elder daughter of Harikrishna, was with the consent of her father taken to the household of appellant 1, it was said, by the respondents, in order to become his concubine, but, by the appellants, in order to make a subordinate form of marriage which would give her the status of what is called a Chauki Bai, a position which may perhaps be described as that of a secondary wife. There is no doubt that the other two original plaintiffs were implicated in the removal and no argument to the contrary has been addressed to their Lordships. That some such status as Chauki Bai may exist appears from a publication called Pachis Sawal, which contains 25 questions addressed to the Rajas and Chiefs of the Regulation and Tributary Mahals by the Superintendent in 1814 and was published under the authority of Government. Two of these questions may be quoted:

"Question 2- By what titles are the several Ranis distinguished?

Answer- First married is entitled the Pat Mahadae and the rest Mahadae. Besides such those of other castes, kept as Phool Bahees, are entitled "Ranee."

Question 10- On the death of the Raja, suppose he leaves no son born of any of his Ranees but leave a brother(s) and sons by his Phool Beebahis and concubines and suppose the Ranees have not become "Sutees," who in such a case would succeed?

Answer - The son born of the Phool Beebahi becomes the Raja."

This book has previously been received in evidence by their Lordships. In any case apart from it there is a considerable body of evidence to the effect that the Rajas of Aul were accustomed to take to themselves subordinate wives and without determining the question their Lordships are prepared to decide the present case on the assumption that the Rajas are entitled by custom to take such wives.

On the evening on which his daughter was taken away Harikrishna Mahanty appears to have given a caste feast accompanied by various ceremonies such as might indicate that his daughter was to be taken to the Rajah's palace in order to become a Chauki Bai, and after the feast was over she was carried to the palace in a palanquin accompanied by her brother and the village barber. Moreover the feast was attended by a considerable number of the Karan caste including defendants 1 and 3 though these latter explain their presence by saying that they feared the enmity of the Raja if they stayed away. These circumstances are urged by the appellants as showing that the girl was being given in marriage and not in concubinage, since it is said that if the latter had been intended it would have been an occasion for sorrow and not for feasting and in any case members of her caste would not have attended. When they reached the palace the barber an