JUDGMENT : MEHTA, J. 1. This is plaintiff's civil second appeal and it arises from a suit filed by the plaintiffs for partition, separate possession and accounts. 2. One Dalipshing, a Sikh, died at Indore leaving behind him three houses described in the plaint. Defendant Kartarsingh is the son of deceased Dalipsingh by his first wife Mehtab. She died 16 years ago. Parvatibai, plaintiff 4, claims to be the wife of deceased Dalipshigh and the plaintiffs 1, 2 and 3 are said to have been born to her from her marriage with Dalipsingh. 3. Except for a portion of house No.150, the houses are in possession of defendant, hence this suit by the plaintiffs claiming 4/5th share as heirs of deceased Dalipsingh. They contended that the defendant is entitled to 1/5th share. The defendant in his written statement challenged the factum and legality of marriage of Parvatibai with Dalipsingh. Defendant contended that Parvatibai was a concubine of Dalipsingh and the plaintiffs 1, 2 and 3 are illegitimate children. The trial Court held that plaintiff 4 Parvatibai is not the lawfully married wife of the deceased Dalipsingh and the plaintiffs 1, 2 and 3 are not the legitimate sons of deceased Dalipsingh. The District Judge, Indore, therefore dismissed the plaintiffs' suit. 4. In the first appeal Sanghi, J. confirmed the judgment and decree of trial Court and dismissed the appeal. Hence this second appeal. 5. No doubt both the District Judge, Indore and a learned single Judge of this Court came to the conclusion from the facts and evidence on record that the marriage of Parvatibai with Dalipsingh was not proved and that Parvati was married to one Badri and without having obtained a divorce, she could not marry Dalipsingh and therefore Parvatibai was living as a concubine of Dalipsingh. However it is evident and it was not disputed that the matters in contest are questions as to proper legal effect of proved facts and are therefore questions of law. 6. In this case a strong appeal is made to the general presumption of marriage, arising from cohabitation with habit and repute. We have got to examine the conditions necessary for its existence. However, before I take up the evidence of marriage by repute of Dalipsingh and Parvati, I would like to point out, that Sikhs follow their own customary law in matters of marriage. We have got to examine the conditions necessary for its existence. However, before I take up the evidence of marriage by repute of Dalipsingh and Parvati, I would like to point out, that Sikhs follow their own customary law in matters of marriage. Both the lower Courts have approached this case from a strictly orthodox Hindu law view of sacred nature of marriage. As observed in Dalip Kuar v. Fatti, 18 I.C. 930: (100 P.L.R. 1913) "no particular form of conversion need be observed before a woman who is not a Sikhni, can be regarded as having been duly converted to that faith. The drinking of only sanctified water with Patashas diluted in it would be sufficient for conversion of a woman from the point of view of Sikh law or custom." "The Sikhs have no written law, their social institutions being regulated by rules of Hindu law modified by custom. Their forms of marriage, however, are different from those of Hindus in general. Among Jats who are Sikhs, the rules as to marriage are notoriously lax and that among them sacerdotal notions of marriage have obtained little countenance." 7. In this case the evidence of Parvatibai is that she is Mali by caste and was married to one Badri about 30 years ago. She was the repudiated wife of Badri. For eight years she had illicit connection with Dalipshing. Afterwards they went to Ujjain at the house of Parvati's mother and there `Amrit' and Anand form of marriage ceremanies were performed. After her conversion and Anand form of marriage with Dalipsingh, the couple (Parvati and Dalip) are regarded by Sikh community as husband and wife. This evidence of Parvati about her conversion to Sikhism and Anand form of marriage with Dalipsingh is corroborated by P.W. Kamalnayan and P.W. Rambhushan. Their evidence was characterised by Mr. Samvatsar as untrustworthy. May be, as direct evidence of marriage the evidence is doubtful. However, as observed by Privy Council in MahatalaBibi v. Ahmed Haleemoozoo-man, reported as, 10 C.L.R. 293 (P.C.) "where a man has openly and for a long course of time, lived with a woman, as a man living with his wife and has habitually and openly treated the children as his children before the world then the presumption takes its full effect. In that case we think the law not only raises a presumption of marriage, but in practice prohibits any counter proof short of establishing a legal impossibility, In such a case we may not really believe that there was an actual celebration of marriage, we may have little doubt that there was nothing of the kind; but marriage is legally possible and it must be presumed not as much by presumption of fact as by presumption of law." 8. Hence I will now discuss the evidence of marriage by repute, conduct and circumstances. Mr. Nevaskar contended that the evidence of Gendibai aged 70 and mother of deceased Dalipsingh goes to show that her son Dalipsingh was married to Parvati according to their customary form of marriage. She deposes that Parvati was the wife of Dalipsingh. She deposes that Bahadursingh, Kartarsingh and Dilawar children, begotten from the marriage of Dalipsingh and Parvatibai, are regarded as lawful Sikh children by members of the Sikh community. She deposes that for last 25 years they have been openly cohabiting as husband and wife. P.W. Harkuvarbai, P.W.3 Dalipsingh, P.W. Durgansingh also depose that Parvati was the natra wife of Dalipsingh. They were openly cohabiting and living as husband and wife. Their children be gotten from the union were regarded as legitimate and the elder son Bahadursingh was married to a Sikh girl. On the occasion of the marriage of Hirabai sister of defendant Kartarsingh, Parvati acted and officiated as mother of Hirabai. Her natural mother Mehtab was dead. The Sikh community look upon Dalipsingh and Parvati as husband and wife and Parvati mixed in the Sikh community as a Sikhni and wife of Dalipsingh. There is open assertion in the Sikh community of the relation of Dalipsingh and Parvati as husband and wife. Even D.W.3 Kanahyasingh deposes that we Sikhs regard Parvati as Sikhni because she openly lived and cohabited with Dalipsingh and lived as wife of Dalipsingh for a number of years. In my opinion the evidence discussed above establishes marriage by repute. 9. It is held in Indar Singh v. Thakar Singh, 63 I.C. 387: (AIR (8)1921 Lah. Even D.W.3 Kanahyasingh deposes that we Sikhs regard Parvati as Sikhni because she openly lived and cohabited with Dalipsingh and lived as wife of Dalipsingh for a number of years. In my opinion the evidence discussed above establishes marriage by repute. 9. It is held in Indar Singh v. Thakar Singh, 63 I.C. 387: (AIR (8)1921 Lah. 20), reference page 390 that: "Now it may be taken as settled that the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for a number of years and this presumption of law can be repelled only by strong, distinct and conclusive evidence. The mere fact that the direct evidence of the marriage which took place many years ago, is unsatisfactory, cannot displace this presumption." There are numerous authorities in support of the above proposition: vide Imambandi v. Matasuddi, 13 I.C. 678: (15 C.L.J. 621); reference page 684; Bepin Behari v. Atul Krishna, 15 I.C. 328 (Cal); Ibrahim Ali Khan v. Mt. Mubarak Begum, 56 I.C. 923; (AIR (7) 1920 Lah. 419); Mouji Lal v. Chandrabali, 11 I.C. 502: (38 Cal. 700); Dularey Singh v. Suraj Bali Singh, 43 I.C. 478: (AIR (5) 1918 oudh 103). 10. After a review of authorities and evidence, it appears to me that the marriage of Dalipsingh and Parvati is evidenced, not constituted, by habit and repute. Parvati admits that she was married to Badri when she started illicit intimacy with Dalipsingh. But after 8 years Badri repudiated Parvati as his wife. Parvati deposes that there was some settlement of `zagda' between Dalipsingh and Badri. Some money was given to Badri. It is also in evidence that in Mali community to which Parvati belonged there is a right of natra, and farkati' (divorce) can be given by the first husband. There is no direct evidence of farkati or divorce except the word of Parvati. Parvati states that when Badri gave her divorce, there was no writing. At that time Anguj, Yeshwantrao, Narayan Jamadar, her mother, Dalipsingh and Badri were present. All these persons are dead. It appears to me that the conduct of Badri showed that he acquiesced in the natra of Parvati with Dalipsingh. During the lifetime of Badri for some years Parvati was living with Dalipsingh. At that time Anguj, Yeshwantrao, Narayan Jamadar, her mother, Dalipsingh and Badri were present. All these persons are dead. It appears to me that the conduct of Badri showed that he acquiesced in the natra of Parvati with Dalipsingh. During the lifetime of Badri for some years Parvati was living with Dalipsingh. However, Badri did not move a little finger of his to get her restored to him either by action for restitution of conjugal rights or in criminal proceedings for adultery, His conduct in allowing Parvati to openly cohabit with and live with Dalipsingh indicated that he had repudiated Parvati. 11. A divorce between Badri and Parvati can be presumed from the conduct of Badri in not taking any action. There was to his knowledge continuous cohabitation between Dalipsingh and Parvati. His acquiescence to this life of husband and wife openly lived by Dalipsingh and Parvati, amounted to his treating Parvati as repudiated by him. 12. Mr. Samvatsar learned pleader for the defendant respondent contended that from the inception, even according to the admission of Parvatibai, her relation with Dalipsingh was adulterous. He contended that the connection between the two remained illicit and no change of status by marriage was proved. He relied on Mt. Jariutool Butool v. Mt. Hoseinee Begum, 11 M.I.A. 194: (10 W.R. 10 P.C.) where it is held that it could not be presumed that a woman once a concubine, had, merely by lapse of time and propriety of conduct become a wife. It was urged that a presumption of marriage may arise from long cohabitation, but if it is known that the connection started in mere concubinage, the presumption cannot arise. Relations or conditions of persons or things, once shown to exist, are presumed to continue until the contrary is proved. In my opinion this is stated in very general terms. Things do not remain in the same state of things and circumstances do change. A connection, however, commencing in adultery, may, on ceasing to be adulterous, become matrimonial and may be evidenced by habit and repute, the parties being at liberty to intermarry. It appears from evidence on record that after living for eight years in adultery, Parvati regularised her union with Dalipsingh and then matrimonial relations were evidenced by habit and repute. A connection, however, commencing in adultery, may, on ceasing to be adulterous, become matrimonial and may be evidenced by habit and repute, the parties being at liberty to intermarry. It appears from evidence on record that after living for eight years in adultery, Parvati regularised her union with Dalipsingh and then matrimonial relations were evidenced by habit and repute. After the union became regular Parvati lived as the wife of Dalipsingh throughout her life for 25 years or more till Dalipsingh died and borne him children and they were accepted as Sikhs by the Sikh community and Dalipsingh and Parvati were regarded as husband and wife by the Sikh community. 13. In the end I would quote the observations of Roe, C.J. in Lachu v. Dalsingh, 33 P.R. 1896: "It would we think, be very difficult to civil Courts to attempt to decide questions of the validity of marriage, and the consequent legitimacy of children by any standard of abstract morality. On this subject, morality must be taken as equivalent to custom. Some communities, religious or tribal, regard marriage as a sacrament in which religious ceremonies are necessary, others require no religious ceremonies, but insist on certain legal formalities and others require no formalities at all, but merely a clear expression of the intention of the parties to live together as man and wife." Here it is abundantly clear that the intention of Dalipsingh and Parvati was to live together as husband and wife. 14. The result is that I hold that marriage of Dalipsingh and Parvati by habit and repute is proved; that the plaintiffs who are children of the union of Dalipsingh and Parvati are legitimate and as such entitled to a share in their father's estate. 15. It is also to be remembered that in the document D-3 executed by defendant Kartarsingh, plaintiffs 1, 2 and 3 are mentioned as sons of Dalipsingh and Parvatibai is mentioned as his wife and is also described as mother by the defendant. Whatever the legal force of the admission immediately repudiated by Kartarsingh, the document D-3 shows that the Panchas of the Sikh community regarded Dalipsingh and Parvati as husband and wife and their children legitimate and wanted to bring about a settlement between the plaintiffs and defendant with regard to the distribution of the estate left by Dalipsingh. 16. Whatever the legal force of the admission immediately repudiated by Kartarsingh, the document D-3 shows that the Panchas of the Sikh community regarded Dalipsingh and Parvati as husband and wife and their children legitimate and wanted to bring about a settlement between the plaintiffs and defendant with regard to the distribution of the estate left by Dalipsingh. 16. The plaintiffs claim 4/5th share in the three houses described in para. 1 of the plaint. 17. I would, therefore, allow the appeal, set aside the judgment and decree of the lower Court and pass a preliminary decree in favour of the plaintiffs. They are entitled to 4/5th share in the three houses left by their father Dalipsingh and defendant is entitled to 1/5th share. The case is remanded to the trial Court. A Commissioner should be appointed for effecting partition by metes and bounds and then the decree would be made absolute after hearing parties' objections on Commissioner's report. The plaintiffs are entitled to costs throughout. 18. Chaturvedi, J.I concur in the judgment recorded by my learned brother Mehta J. but wish to add few remarks. 19. It is true that since 1815-since the case of Doe dem Kishen Chandra Shaw v. Baidam Beebee, 2 morely's Digest 22-the view that the Sikhs are Hindus has always been acted upon by Courts in India which have applied Hindu law to them in the absence of custom varying that law. This view received an authoritative pronouncement from the Judicial Committee of the Privy Council in 1903 in Rani Bhagwan Koer v. J.C. Bose, 31 cal. 11:(30 I.A. 249 P.C.) wherein the question for determination was whether the word 'Hindu' includes Sikh in S.2 of Act V[5] of 1881 (Probate and Administration Act). Their Lordships answered the question in the affirmative and held that the application of the Hindu law to the Sikhs was based upon the view that Sikhs were Hindus within the meaning of the early legislation on the subject and not upon the alternative rule of "justice, equity and good conscience" also sanctioned by that legislation. 20. In Basant Das v. Hem Singh, 7 Lah. 275 at pp. 280-283: (AIR (13) 1926 Lah. 100), Zafar Ali J. in his learned judgment dealt with the history of the separation of the Sikh community from the Hindus. 20. In Basant Das v. Hem Singh, 7 Lah. 275 at pp. 280-283: (AIR (13) 1926 Lah. 100), Zafar Ali J. in his learned judgment dealt with the history of the separation of the Sikh community from the Hindus. Guru Nanak condemned the exaggerated observance of caste and received all men as his disciples without any regard to caste, but did not attempt to abolish it and married his own children within his Khatri caste. Guru Gobinda Singh, on the other band, abolished caste altogether and admitted untouchables also into the pale of Sikhism. Further he abolished Kiria, Shradh and all other rites and ceremonies of Hindu origin, strictly prohibited the adoration of Samadhs (tombs of saints), and rejected the authority of Vedas, Puranas and Shastras. Guru Govind Singh initiated, or according to Trumpp, renovated the rite called Pahul (baptism by the dagger and sweetened water) and he gave the epithet of "singh" to every person to whom he administered the pahul. Nanak as well as the Gurus that succeeded him except the last were Hindus. Guru Govind Singh, in fact, renounced Hinduism and rejected everything that smacked of it. 21. Sikhism has since then been a proselytising religion; and Sikhs are disposed to extend recognition to all permanent unions between a member of their community and a woman of another caste. It is, therefore, not proper to apply general principles of Hindu law of marriage to the parties who are Sikhs: Md. Sharif v. Teja Singh, AIR (23) 1936 Lah. 453: (167 I.C. 693). The following extract from Lecture 6 pp, 302-303 of Dr. Sir Gurudas Benerjee's Hindu Law of Marriage and Stridhana (1923 Edition) is both apposite and weighty: "The Sikhs have no written law; their social institutions being regulated by rules which are rules of Hindu Law modified by custom. Their forms of marriage are different from those of Hindus in general. They have an inferior form of marriage called the Anand form, in which the ceremony consists in the recitation of a certain text called the Anand text, which may be celebarated even with a concubine. The issue by such marriage is entitled to inherit from the father (Doe dem Jaggomohan Mullick v. Sam Kumar Beebee 2 Morley's Digest 43.)" 22. This aspect should distinguish the present case from the rulings cited by the learned counsel for the respondent. The issue by such marriage is entitled to inherit from the father (Doe dem Jaggomohan Mullick v. Sam Kumar Beebee 2 Morley's Digest 43.)" 22. This aspect should distinguish the present case from the rulings cited by the learned counsel for the respondent. Even the trial Court has held it as established that Parvatibai moved in the Sikh community as the wife of Dalipsingh to which no objection was taken by the community. She also officiated as the mother at the marriage of the sister of the defendant and she received gifts at the time of betrothal of plaintiff 1 in the Sikh community. The very fact that the 70 years old grand-mother of the defendant comes as a witness on behalf of the plaintiffs, gives one the impression that for nearly 16 years Parvatibai remained with Dalipsing as his wife, was recognised as such by the Sikh community and during this period she gave birth not only to one but to the three plaintiffs who were acknowledged by the deceased Dalipsingh as his sons. There is nothing in the file contrary to it, and marriage as a consensual contract would be most satisfactorily established by evidence of this description, from which the intention to contract a permanent union would be fairly inferred: Baness v. Torton, 29 P.R. 1883 at p.504. 23. It becomes very difficult to prove the factum of marriage or divorce after a pretty long period of 16 years and considering this aspect, help is generally taken from legal presumptions. In Mt. Dalip Kumar v. Mt. Fatti, 18 I.C. 930: (1003 P.L.R. 1913), the question for determination was whether a certain Mohammedan woman was or was not the married wife of a Sikh. In deciding this question, the Divisional Bench of the Punjab Chief Court consisting of Sir Arthur Reid C.J. and Rattigan J. held that where a Sikh of position appears to have been anxious to make a woman his lawful wife, the presumption is that he has not omitted to observe any formality for conversion or for marriage that his personal law regarded as an essential condition precedent to his union with the woman who he intended to marry, assuming, of course, that it was within his power to have these formalities observed. 24. The learned counsel for the respondent, Mr. Samvatsar, has however relied on Ma Ween Di v. Ma Kin, 35 Cal. 24. The learned counsel for the respondent, Mr. Samvatsar, has however relied on Ma Ween Di v. Ma Kin, 35 Cal. 232: (35 I.A. 41 P.C.); Mt. Jariutool Butool v. Mt. Hoseinee Begum, 11 M.I.A. 194: (10 W.R. 10 P.C.); Indar Singh V. Thakar Singh, AIR (8) 1921 Lah. 20: (2 Lah. 207); Mt. Indi v. Jai Mal Singh, AIR (14) 1927 Lah. 48: (98 I.C. 887) and Rahmat Ali Shah v. Harbhajan Singh, AIR (33) 1946 Lah. 450: (223 I.C. 505) in support of the proposition that the ordinary legal presumption is that things remain in their original state, and, therefore, though the presumption of cohabitation is in favour of marriage, it is otherwise, if the connection is known to have been in its origin illicit, 25. Now Ma Ween Di v. Ma Kin, 35 cal. 232: (35 I.A. 41 P.C.) is a case from Burma where it was found that a Burman Buddhist who had his wife at Moulmein, went to Siam where he lived with various other women and with the principal appellant. The appellant maintained that while other women were concubines she was a wife, taken as a second wife, the first wife being all the time in Burma. Though it was not forbidden to a Burman Buddhist to have two wives at the same time, yet it was conceded that the leading principle of Buddhism is rather monogamy than polygamy and that polygamy is rare and considered disrespectable. If a woman cohabits with a Burman whom she knows to be a lawful husband of another woman the presumption is that she is a mistress and not a wife and the presumption is strengthened if the cohabitation is behind the back and without the knowledge of the first wife. It was in these circumstances that their Lordships of the Judicial Committee holding that marriage by repute was not established and the appellant remained a concubine, observed: "The habit and repute which alone is effective must be habit and repute of that particular status which in the country in question, is lawful marriage. Amongst most English people cohabitation without marriage is so uncommon that the fact of cohabitation in many classes of society of itself sets up, as a matter of fact, a repute of marriage. Amongst most English people cohabitation without marriage is so uncommon that the fact of cohabitation in many classes of society of itself sets up, as a matter of fact, a repute of marriage. But in countries where customs are different it is necessary to he more discriminating, more especially owing to the laxity with which the word 'wife' is used by witnesses in regard to connexions not reprobated by opinion but not constituting marriage.' 26. The first para lays down the criterion to be applied to questions arising in such cases but para 2 of the observations of their Lordships of the Judicial Committee quoted by the learned Judge on the Single Bench, in his judgment was meant with reference to the facts of the particular case, only for a particular community in Burma and there can be no justification for extending it to the Sikh community in India where rules are different and where Anand form of marriage can he celebrated with a concubine giving right to inheritance to the children, and where general presumption, as seen above, will be in favour of marriage. In the present case it is also significant to note that Parvatibai was taken in the house by Dalipsingh only after the death of Mehatab, his former wife. The two did not live in the family together and there was no other woman living in the house, as a concubine, when Parvati Bai joined the family 27. Mst. Juriutool Butool v. Mtt. Hosseni Begum, 11 M.I.A. 191: (10 W.R. 10 P.C.) and Rehamatali v. Harbhajansingh, AIR (33) 1946 Lah. 450: (223 I.C. 505) can easily be passed over as these cases dealt with question of manage according to Muhammadan law and the main point in these cases was whether marriage can be presumed merely from long cohabitation with a Muhammadan prostitute. It was held that while acknowledgment may be good evidence of a legal marriage in cases where marriage can be safely presumed it cannot be held so in the absence of any satisfactory and legal evidence of marriage in cases where the woman is found to have been adulterous in its inception. These findings cannot be relied on in cases where the concubine is not a prostitute. 28. In Mt. Indi v. Jaimalsingh, AIR (14) 1927 Lah. These findings cannot be relied on in cases where the concubine is not a prostitute. 28. In Mt. Indi v. Jaimalsingh, AIR (14) 1927 Lah. 48: (98 I.C. 887) there was already a judicial decision of 1914 to the effect that the woman was a concubine and not a married wife of Harisingh. It was found that Harisingh died in 1918. Addison J. held that the presumption of marriage cannot arise during the period, 1914 to 1918. 29. Indersingh v. Thakursingh, AIR (8) 1921 Lah. 20: (63 I.C. 387) lays down that "though the presumption in case of cohabitation is in favour of marriage it is otherwise if the connection is known to have been in its origin illicit." but the judgment added "a connection, however, commencing in adultery, may on ceasing to be adulterous become matrimonial, and may be evidenced by habit and repute, the parties being at liberty to intermarry." 30. The learned counsel for the appellant relies on the latter part of the ruling and the learned counsel for the respondent on the former part and on the findings arrived at. The plaintiff's case was that his mother Mst. Mithana was Bhurji by caste residing at Lucknow where she attracted the attention of Wazir Uttam Singh, a resident of the territory formerly known as Maudi State. The cohabitation between them was continuous and of a permanent nature and by habit and repute they were known and recognised as husband and wife. The plaintiff, therefore, contended that the presumption must be in favour of their marriage. It was established in the case that in Mandi State marriage tie is very lose, but Mst. Mithana had her former husband Jawahara alive, who did not divorce her, nor acquiesced in her desertion. Jawahara was still alive when the plaintiff was born. Broadway J. held that as Mst. Mithana and Jawahara belonged to the United Provinces Mst. Mithana's right to remarry during Jawahar's lifetime must be decided according to the laws and customs of the United Provinces and as the consent of the first husband was necessary to the validity of the second marriage by a married woman, the connection between Mst. Mithana and Wazir Uttam Singh was adulterous and continued to be until the time of Jawahara's death, when alone a valid marriage was possible. Mithana and Wazir Uttam Singh was adulterous and continued to be until the time of Jawahara's death, when alone a valid marriage was possible. The learned Judge further held that marriage is evidenced and not constituted, by habit and repute; and in a case where no valid marriage is possible no amount of evidence as to habit and repute can establish it. Leslie Jones J. concurred in these views and observed that the plaintiff did not plead even the divorce of his mother and the continued existence of his mother's former husband formed an insurmountable impediment to the plaintiff's legitimacy. 31. This case was distinguished by Jailal J. in Gurudial Singh v. Bhagat Singh, AIR (21) 1934 Lah. 517: (153 I.C. 241) from which it appears that if it is found that the first husband of the woman had divorced her, or had acquiesced in her leaving him, and if the woman then lived with another man and a child was born during such period, even though the connection might have remained adulterous at its inception, presumption of legitimacy could be raised. 32. In the case before us there is the deposition of Parvatibai that her former husband Badri, a Mali of Indore, had acquiesced in her leaving him and had orally divorced her. There is nothing to show, as had been observed by the learned Judge on the Single Bench, how amongst the Melia of Indore or Ujjain a divorce is affected. If according to the customary law of Malis of Indore or Ujjain, divorce should be in writing the oral evidence of divorce will not be sufficient: AIR (22) 1935 Lah. 755 (sic) but as the custom has not been proved, and custom cannot be proved by a single statement of Gopi Bai, and as there is nothing to show that a divorce in writing was necessary, the question that arises is whether there has been such a repudiation of Parvati Bai by Badri as may amount to a divorce. From the evidence of Durjan Singh P.W.4 it transpires that Parvati Bai remained separate and earned her livelihood by sewing garments. There is no evidence to show that Badri ever cared to maintain her during this period even once or attempted to take her away to his home during the period of 8 years of her concubinage. From the evidence of Durjan Singh P.W.4 it transpires that Parvati Bai remained separate and earned her livelihood by sewing garments. There is no evidence to show that Badri ever cared to maintain her during this period even once or attempted to take her away to his home during the period of 8 years of her concubinage. From the circumstances of the case the only reasonable inference is that Badri had renounced his rights as a husband and his acts were equivalent to a divorce entitling Parvati Bai to marry Dalip Singh, Lachu v. Dal Singh, 33 P.R. 1896. 33. It may also be mentioned here that there is a strong and marked difference as to the effect of evidence in civil and criminal proceedings. In civil cases it cannot be said that the benefit of every reasonable doubt must necessarily go to the defendant, Venkata Rao v. Vankayya, AIR (30) 1943 Mad. 38: (207 I.C. 163). The attempt of the learned trial Court for insisting for very strict proof of divorce as well as of marriage in this case shows some misunderstanding about the proviso to S.50, Indore Evidence Act, which lays down nothing more than this that in those cases where marriage is an ingredient in an offence as in bigamy, adultery or the enticing away of a married woman, or in divorce cases, the fact of the marriage must be strictly proved. As Taylor points out, the first exception tests on the ground that a prosecution for bigamy being of penal nature requires strict proof. In such cases it is permissible to base a conviction on the presumption of marriage arising from cohabitation for a number of years Gul Mahomed v. Emperor, AIR (21) 1934 Sind 10: (35 Cr.L.J. 816). 34. The proviso to S.50 cannot, however, be applied to ordinary civil cases where the fact of marriage or of divorce is in dispute. The Indian Evidence Act has adopted the requirements of the prudent man as an appropriate concrete standard by which to measure proof, and the Evidence Act is at the same time expressed in terms which allow full effect to be given to circumstances or conditions of probability or improbability. In considering whether a fact is proved or not a Court must not expect evidence which cannot be produced, Dukharam Nath v. Commercial Credit Corporation Ltd., AIR (27) 1940 Oudh 35: (15 Luck. 191). In considering whether a fact is proved or not a Court must not expect evidence which cannot be produced, Dukharam Nath v. Commercial Credit Corporation Ltd., AIR (27) 1940 Oudh 35: (15 Luck. 191). In civil proceedings a mere preponderance of probability, due regard being had to the burden of proof is a sufficient basis of decision: and if a Court required a standard of proof higher than that laid down by the Evidence Act it is deemed to be an error of law or procedure which would justify interference in second appeal, Pracasarao Naidu v. Ramamurthi Naidu, 1937 M.W.N. 188; Venkata Rao v. Venkayya, AIR (30) 1943 Mad. 38: (207 I.C. 163). There is nothing in the file to show that Parvati Bai's statement about Badri's leaving her after a settlement with Dalip Singh is false. In the absence of any evidence on behalf of the respondent, contradicting or disproving Parvati Bai's statement and considering the special circumstances of the case stated above I am of opinion that Badri had divorced Parvati Bai before she was taken in the family of Dalip Singh. Thus, a valid marriage between Parvati Bai and Dalip Singh was possible and their connection having been in its origin illicit, became matrimonial after Mehtab's death and was evidenced by habit and repute. Long cohabitation between them may give rise to a presumption of marriage. Of course, this presumption can be rebutted by showing that the conduct of the parties was inconsistent with relation of husband and wife, Mt. Parvin Kumari v. Gokol Chandi Rala Ram, AIR (36) 1949 E.P. 35: (50 P.L.R. 151) but no attempt has been made in the trial Court to rebut it except by pressing for a stricter proof of divorce proceedings. As I have held the divorce by Badri proved I am also of opinion that the presumption of marriage remains unrebutted. As the conduct of the parties is shown to be compatible with the existence of the relation of husband and wife, every presumption ought to be made in favour of marriage in fact, when there had been a lengthened cohabitation, especially in a case where the alleged marriage took place so long ago that it must be very difficult to obtain a trustworthy account of what really occurred. 35. 35. Moreover the presumption of marriage in such cases can be repelled only by the evidence of the clearest character, for the presumption of law is not to be lightly repelled and it is not to be shaken of by a mere balance of probability. The evidence for the purpose of repelling it must be strong, distinct, satisfactory, and conclusive, Imambanti v. Matasuddi, 13 I.C. 678: (15 Cr.L.J. 621). As no evidence has been produced on behalf of the respondent for repelling this presumption, I come to the conclusion that there was a marriage in fact; and this leads to the presumption in favour of there being a marriage in law, Inderan Valungypuly Taver v. Ramaswami Pandia, 13 M.I.A. 141: (3 Bang. L.R. 1 (P.C.)); Andrakennedige Dinohamy v. W. Liyanapatabendige Balahamy, AIR (14) 1927 P.C. 185: (104 I.C. 327); Inder Singh v. Thakur Singh, 2 Lah. 207: (AIR (8) 1921 Lah. 20) and Jaginder Singh v. Kartara, AIR (23) 1936 Lah. 551: (166 I.C.719). The legal presumption being in favour of legitimacy, the onus lies on the party alleging illegitimacy to prove it, Dularey Singh v. Suraj Bali Singh 43 I.C. 478 at p.479: (AIR (5) 1918 Oudh 103.) The adjustment of the burden of proof is a question of law and it is on this question of law that the learned trial Court has gone wrong. Of course, concurrent findings of fact are binding in second appeal but they should not be based upon fundamentally wrong principles. This case has been judged from a strictly caste-Hindu orthodox point of view relying on sacerdotal notions of marriage and on standards of abstract morality. The defendant born of a mother coming from an orthodox Sikh family is preferred to the plaintiffs who are born of a mother who came from an ordinary Mali community was deserted by her husband and as a former concubine, who was regarded as degraded. The fact has been overlooked by the learned trial Court that rules of marriage amongst the Sikhs are notoriously lax and marriages with other castes including with those whose touch is pollution to orthodox Hindus are generally recognised. The fact has been overlooked by the learned trial Court that rules of marriage amongst the Sikhs are notoriously lax and marriages with other castes including with those whose touch is pollution to orthodox Hindus are generally recognised. Consequently, amongst the Sikhs the legitimate son of the most low born, debased and degraded woman to whom a man could be lawfully united has just the same proprietary right in his father's property as if his mother had been the most well-born and the purest Bearing all these in my mind, I am of opinion that the decision of the learned District Judge is founded upon presumptions not warranted by the facts of the case and in some degree upon misconceptions of the main principles of law involved, and the judgment ought not to be allowed to stand. 36. The remit is that the three plaintiffs are, as the legitimate sons of Dalip Singh, entitled to a share in their father's estate along with their mother. I would, therefore, accept the appeal, set aside the decrees of the lower Courts and agree with the order passed by my learned brother.