Straight and Brodhurst, JJ.
1. We both feel that what professes to be the judgment of the Subordinate Judge in appeal is a most inadequate and unsatisfactory production, and that it is not proper for us, upon the basis of it, to determine a question of such vital importance to the plaintiff and her two children as is involved in the present suit. She claimed upon the basis of her being the widow of one Aman Singh, deceased, and the mother of his two infant daughters, to have her right declared as his widow to possession of the property in suit; the effect of which declaration, if granted, would have been that the two infant daughters, if they survived her, would, on her death, succeed to the share; assuming always that the allegation made by the defendants that they were joint with Aman Singh was not made out. The plaintiff seems, in the first Court, to have given evidence to show that she was married to Aman Singh, and that her two infant daughters were the offspring of that marriage. Under these circumstances, and looking to the provisions of Act XV of 1856, we are inclined to think that the presumption was in favour of the legality of such marriage, until the contrary was shown, that is, as in the present case, until the defendants have established that, according to the custom of the caste of Gaur Rajputs, to which Achhru and Aman Singh belonged, the marriage of a cousin with his deceased cousin's widow is prohibited. With these remarks, and without repeating what we have already said as to the character of the decision of the Subordinate Judge appealed from, we think that the appeal was not in reality tried at all by that officer, for he entirely failed to grasp the legal points involved in the case, or to record a decision with which, looking to the real questions raised between the parties, it is possible for us to deal as a Court of Appeal. The only proper course appears to us to decree the appeal, and set aside the judgment and decree of the Lower Appellate Court.
2. We remand the case to the present Subordinate Judge of Cawnpore, for restoration of the appeal to his file and for trial de novo on the merits in advertence to our remarks as to Act XV of 1856, and with due regard to the pleas taken in the memorandum of appeal to the Lower Appellate Court. The costs of this appeal and the other costs hitherto incurred in the litigation will be costs in the cause.