Lord Simonds:-

This is an appeal from a judgment of the High Court of Judicature at Allahabad modifying a decree of the Civil Judge of Ghazipur. The question raised in the appeal is as to the validity of a marriage between Bawan Das, an Agarwala by caste, and Lachmi Kuer, a Golwara by caste. At one time an issue was raised as to whether that marriage had been duly solemnized. That is no longer an issue in the case, there being concurrent findings of fact upon that question by the High Court and by the Civil Judge.

[2] The parties to the appeal are these. Bawan Das had a first wife, by whom he had no children. He had a second wife, Mt. Bita Kuer, by whom he had one son, Kashi Nath, the appellant on this appeal. He then married his third wife, Lachmi Kuer, by whom he had two sons, Bhagwan Das and Bishwa Nath Prasad, who are the respondents to this appeal.

[3] Bawan Das died on 25th August 1923. Some years after his death, the suit in which this appeal is brought was instituted by the present respondents, the sons of his third marriage, claiming against the son of his second marriage a share in their father's estate. The question is whether that marriage between Bawan Das and Lachmi Kuer, which is now admitted to have been duly solemnized, was valid. It is conceded that the marriage was valid if the Golwaras, the caste to which the third wife belonged, was a sub-caste of the Vaiahya caste, of which the Agarwalas were a sub-caste.

4. That concession was made in view of the decision of their Lordships' Board in 63 IA 295,1 at p. 303, where their Lordships said this :

"Put briefly, the position is this. The Shastras dealing with the Hindu law of marriage do not contain any injunction forbidding marriages between persons belonging to different divisions of the same Varna ; and neither any decided case, nor any general principle, can be invoked which would warrant such a prohibition."

[5] In the view which their Lordships take of this case, it is unnecessary to express any opinion upon the difficult question which would arise if it were found that the Golwaras were not a sub-caste of the Vaishya caste, but were Sudras. That is a question upon which their Lordships do not intend to express any opinion.

[6] The single question upon which they pronounce is whether, upon the evidence adduced in this case, it has been established that the Golwaras are a sub-caste of the Vaishya caste. In approaching that question it must be remembered that here what is being considered is the question of the validity of a marriage which has been duly solemnized.

7. In approaching this question, their Lordships bear in mind what was said as long ago as 1809 in 13 MIA 1412 at p. 158, where the Board, having found that there was a marriage in fact, proceeded thus:

"Then, if there was a marriage in fact, was there a marriage in law ? When once you got to this, namely, that there was a marriage in fact, there would be a presumption in favour of there being a marriage in law. The zemindar, according to the usages of his country and nation, on patting with his first wife, would be naturally desirous of marrying again, and having male issue. It would be a most unlikely thing for a person of his caste to go through the ceremony of marriage if it was known that that marriage was a marriage which was invalid in law."

8. The validity of this marriage, duly solemnized, being in question, that presumption attaches. It is in that light that their Lordships have to review the evidence which was given on one side and the other in this case. The whole of the documentary evidence is one way. It is in favour of the view that the Golwaras are a sub-caste of the Vaishya caste. There is no documentary evidence whatever in favour of the contrary view, nor is the affirmative evidence in favour of the Golwaras being a sub-caste by any means negligible.

[9] Their Lordships would refer only to two documents of a different character. In the Final Report on the Seventh Settlement of the Azamgarh