JUDGMENT
Cuming, J.
1. This appeal arises out, of a suit for partition after declaration of the plaintiff’s title to an eight annas, share in the properties in suit. The properties in dispute belonged to one Raj Kumar Banerji. Defendant 1 is the son of Raj Kumar by his wife, defendant 2. The plaintiff claimed an eight annas share being a son of Raj Kumar by another wife. The defendants resisted the plaintiff’s claim on the ground that he was not a legitimate son of Raj Kumar and hence he was not his heir. The first Court held that the plaintiff’s mother was not a legally married wife of Raj Kumar and hence the plaintiff was not an heir of Raj Kumar and on these findings lie dismissed the suit. The plaintiff appealed to the District Court and the learned Subordinate Judge, held that the plaintiff was a legitimate son of Raj Kumar, that Raj Kumar and the plaintiff’s mother had been legally married according to the rites of the, Bairagi sect and hence he was entitled to an eight annas share of the properties. On these findings he set aside the judgment of the lower Court and made a, preliminary decree for partition. The defendants have appealed to this Court.
2. It is somewhat unforunate that in deciding a matter affecting a marriage by custom amongst a sect of the Hindus we have not the assistance of any pleader on behalf of the respondent.
3. The appellant has argued that the lower appellate Court is wrong in holding that as Durga was united to Raj Kumar in Patri form it must be presumed that she did become a Bairagi when the marriage was celebrated. It has not, however, been shown that any formal conversion is necessary to validate a marriage in Patri form, Any case law on the question is conspicuous by its absence.
4. In the case of Dial Das v. Dhianum [1914] 36 P.R. 1914 it was held that in Kulu a Bairagi may marry an’ agriculturist woman by Ganesh Puja and that the minor restriction rules of Hindu Law such as the naming of certain classes with which a Bairagi may or may not marry cannot with propriety be applied in that district in the absence of proof of special custom. There is no suggestion in this decision that the woman must formally be admitted as a Bairagi as a preliminary to the marriage. In this decision it was pointed out that any one becomes a Bairagi by submitting to the rules of the order. Further bearing in mind that the Bairagi as a sect appears to repudiate ceremonies and forms as much as possible this would be probably unlikely. The presumption is always in favour of the legality of a marriage and the has not been shown to my satisfaction that a formal admittance to the sect is a necessary preliminary on the part of the woman to constitute a legal marriage among the Bairagis. Strictly speaking a Bhairagi is vowed to a life of celibacy though that does not necessarily make the marriage illegal. Sir Guroo Das Banerji in his Tagore Lecture (p. 249) said that owing to their belief in the inefficacy of ritual observances choice in matrimony among the Bairagis is very little fettered.
5. The learned commentator points out that among the Gossains, a Bombay branch of the Saiva sect a Gossain can only marry a female Gossain but that if he does marry any other woman the marriage is not annulled. In the circumstances of the case I am not prepared to hold that the learned Judge is wrong in the conclusion to which he has come. The appeal stands dismissed. As there has been no appearance on behalf of the respondent there will be no order as to costs.
Pearson, J.
6. I agree.
