JUDGMENT P.C. Saxena, Member. - This is a second appeal against the judgment and decree dated May 28, 1974 passed by the Commissioner, Kumanun Division. 2. The facts are briefly that plaintiff Munna Lal filed a suit under Section 59 of the U.P. Tenancy Act alleging that his father Sheo Charan Lal was co-tenant with defendants 4 and 5 and after his death he himself should be declared co-tenant as heir of Sheo Charan Lal. The suit was contested by defendants who claimed that plaintiff was not the son of Sheo Charan Lal as his mother Smt. Mangia was not the legally married wife of the latter. 3. The learned trial court dismissed the suit in 1961 holding that Sheo Charan Lal was a Brahman and smt. Mangia was Haldini by caste, that the Karao ceremony of marriage claimed by plaintiff was not valid amongst Brahmans and, therefore, Mangia was not legally married to Sheo Charan Lal. The matter was the subject of prolonged litigation between the parties upto the Hon'ble High Court, which remanded the case for decision by the Commissioner, Kumanun Division with the direction that the evidence of the parties should be assessed and a fresh decision given. This has been done by the learned Commissioner, who has confirmed the judgment of the trial court by his order dated March 28, 1974. 4. P.W. 1 was the plaintiff himself. He admitted that his mother Mangia was Haldini by caste and that Sheo Charan Lal was a Brahman. He deposed that he and his sister Jasoda were born of these two persons. The second witness for the plaintiff corroborated these statements and also stated that Sheo Charan Lal and Mangia lived as husband and wife and had two children as claimed by plaintiff. Mangia died in the house of Sheo Charan Lal. 5. The third witness, a Muslim, deposed that he was a Nai, and he had participated in the Karao between the two persons which had been performed by Jaggu Pandit. He did not know where Mangia had died. 6. The fourth witness for the plaintiff stated that when he took up his own residence in the village, Mangia was living with Sheo Charan Lal who lived both at the house of Mangia and at his own house. The Karao had taken place in his presence and the ceremony had been conducted by Jaggu Pandit. 6. The fourth witness for the plaintiff stated that when he took up his own residence in the village, Mangia was living with Sheo Charan Lal who lived both at the house of Mangia and at his own house. The Karao had taken place in his presence and the ceremony had been conducted by Jaggu Pandit. Seven steps were taken around the sacred fire and the Pandit had recited slokes. The witness, however, stated that Sheo Charan Lal died in his own house and Mangia at her own house. The witnesses, also state that before the death of Mangia plaintiff resided at the house of Dori Lal and after her death Sheo Charan Lal brought the children to his own house. 7. The last witness for the plaintiff Salik Ram gave evidence in regard to the Karao. 8. Defendants produced only one witness, who denied the claim of Karao and stated that such a ceremony could not be performed between Brahmans and Haldinis. 9. The learned Commissioner took the view that since marriage by 'Karao' was not valid among Brahmans, a legal marriage between Sheo Charan Lal and Mangia could not be presumed. Further he held that co-habitation between two persons could not be presumed even though Sheo Charan Lal lived at some times at his own house in the house of Mangia. The fact, that after the death of Mangia her children were taken in his own house by Sheo Charan Lal, has been taken by the learned Commissioner to prove that Mangia did not dwell with Sheo Charan Lal and, therefore, they could not be husband and wife. 10. The learned Commissioner appears to have given undue importance to the fact that Sheo Charan Lal was a Brahman and the ceremony of Karao is not valid in this community. He has failed to examine the legal consequence of the fact that the other party was not a Brahman. There has been no serious challenge in this case to the claim that the custom of 'Karao' was valid in the caste to which Mangia belonged. If the two persons concerned belong to communities which have different customs of marriage, it is obvious that the custom which may be followed in any one of the two communities would validated the marriage. 11. If the two persons concerned belong to communities which have different customs of marriage, it is obvious that the custom which may be followed in any one of the two communities would validated the marriage. 11. Learned counsel for the respondent has cited a ruling of the Hon'ble High Court reported in 1954 AIR (Madras) 657 in which a Division Bench has discussed in detail the requirements of a legal marriage between two Hindus in support of his contention that the two essential requirements for a marriage ceremony between Hindus are the Saptapdi and Kanyadan and no particular sect or community can lay down its own rules for the validity of a marriage. 12. I have studied this ruling carefully. Here, the essence of the dispute was that a marriage function had taken place between a woman of the Reddy caste and a man of the Nattukotai Chettiar caste. They had subsequently lived together for several years and children had been borne of the union. It was admitted in evidence that the marriage had taken place under the auspice of a newly formed society called 'Purohit Maruppu Sangham' or 'anti-Purohit Association' and the ceremony consisted essentially of the bride and bridegroom exchanging garlands and rings in the presence of an invited gathering and declaring fidelity to each other followed by a dinner. 13. The Division Bench of the Madras High Court held the marriage performed in the above form to be invalid. It was held that a marriage between two Hindus must be inclusive of the Saptapadi before the sacred fire and Kanyadan. Any other form of marriage must either be in accordance with the custom of either of the two parties or sanctioned by specific enactment of law. Since the ceremony prescribed by the Anti Purohit Society did not have the formal sanction of law behind it nor the authority of custom of either party to the marriage, nor the procedure prescribed by the Dharma Shastras the marriage was invalid. The entire legal position may be summarised in the following extracts which is paragraph 41 of the Judgment of the Hon'ble High Court of Madras:- "Paragraph 41: What then is the position on the facts of the present case. The entire legal position may be summarised in the following extracts which is paragraph 41 of the Judgment of the Hon'ble High Court of Madras:- "Paragraph 41: What then is the position on the facts of the present case. Assuming that the Gandharv form of marriage was intended, in the absence of the performance of any religious rites so as to bring about a valid marriage, it must be held that a valid marriage, in that form between the first plaintiff and the third defendant was not established. No ceremonies of any sort either having the force of law were performed according to the evidence in the case and none were prescribed by the rules of the association. There remains only the agreement between the parties and the declaration, the exchange of garlands and rings and living together from 1934 as man and wife. The parties have not been able to establish a marriage according to Hindu law, i.e. according to the Dharmashastras; they have not been able to establish that they conformed to the usage of either the Nattukottai Chettiars or the Reddis; nor have they been able to establish any independent usage having the force of law by which such a union brings about a valid marriage. There is no authority of any kind to support the extreme contention that mere agreement followed by a declaration and living together as husband and wife with the exchange of garlands and rings are sufficient to constitute a valid marriage under Hindu Law." 14. It is clear that the ruling cited does not held the case of the respondent. In fact it strengthens the view expressed above that the learned commissioner erred in holding that since 'Karao' was not an accepted custom among Brahmans there could have been no valid marriage between Sheo Charan Lal and Mangia. As in the extract cited above, the Madras High Court has clearly stated that the usage either of the Chettiars or the Reddis would have been sufficient to constitute a valid marriage it must be held in the present case that if the system of Karao was prevalent among the caste of Hindus the ceremony of 'Karao' between Sheo Charan Lal and Mangia would be sufficient to constitute a valid marriage. 15. The other view taken by the learned Commissioner in respect of the meaning of co-habitation cannot also be upheld. 15. The other view taken by the learned Commissioner in respect of the meaning of co-habitation cannot also be upheld. Learned Counsel for the respondent argued that co-habitation between two persons must be under the same roof in order to constitute a legal marriage between two persons. In support of his view, he has cited a ruling of the Rangoon High Court reported in 1940 AIR (page 181). This was a case heard by a Division Bench and the word co-habitation' has been discussed in detail by one of the learned Judges. The judgment deals with a case under Buddhist Law (Burmese) where the plaintiff denied marriage with the defendant and proved his marriage with another wife. The facts were that defendant had stayed for some years in the house of the mother of the plaintiff along with him. There was a great deal of illicit sexual intercourse under that roof. When defendant became pregnant she left the house since after 4 months, she was turned out by the mother of the plaintiff as soon as the fact of pregnancy became known. The Rangoon High Court held that to raise a prima facie presumption of marriage it must be proved that the acts of intercourse were not clandestine but that there was open avowal of the marriage state as distinct from the relationship between a man and his mistress. And if the parties made no open avowal their method of living must have been such as to induce the members of the public, not to gossip about the relationship, but to show by their conduct that they were treating the pair as man and wife. The court held that the expression 'secret and clandestine co-habitation' is a contradiction in terms. The parties in the case had frequent sexual intercourse with one another, but it was held that though they had lived under the same root for some years there was no evidence that they ever lived together. This would clearly show that the term 'living together' has legally no relevance to the fact of physical dwelling beneath the same roof or different roofs. This would clearly show that the term 'living together' has legally no relevance to the fact of physical dwelling beneath the same roof or different roofs. Applying the principle laid down in the above ruling, the fact that Sheo Charan Lal and Mangia lived in two different houses at intervals during their association with each other cannot by itself be held to rule out the fact that there was co-habitation between them in the legal sense for the entire period between the 'Karao' and the death of Mangia. 16. In the Burma case cited the fact that when his son died the plaintiff did not take the trouble to attend his funeral was also held to disprove the theory of marriage. In the case before me the evidence that Sheo Charan Lal brought his children born of Mangia to his own house after her death must be held to strengthen the theory of marriage as also the fact that his co-habitation with Mangia was not secret but openly avowed before the general public. 17. Both the theory of 'Karao' as well as subsequent co-habitation between Sheo Charan Lal and Mangia must, therefore be held to have been proved in the present case. 18. The appeal is allowed. The suit of the plaintiff shall stand decreed with costs.