JUDGEMENT Raina, J. This is a second appeal by the defendants 2 and 3 arising out of a suit filed by the plaintiff respondent No.1 for a declaration of title to the land specified in schedule A and B attached to the plaint and also for possession thereof in case the plaintiff is held to be not in possession. 2. It is not disputed that the land in suit belonged to Matawan who died some time in the year 1960-61. Mst. Tilkunwar, defendant respondent No.3 was living with the deceased Matawan as his wife till his death. After his death she sold the land specified in Schedule A attached to the plaint to defendants 2 and 3. Plaintiff respondent Thakuri is the real brother of deceased Matawan. 3. According to the plaintiffs Mst. Tilkunwar was only a concubine of the defendant and by a will dated 7-2-1960, Ex, P-1, Matawan had bequeathed the land to the plaintiff. Thus, Mst. Tilkunwar was not competent to transfer the land specified in Schedule 8 to the defendants 2 and 3 under the sale-deed dated 16-10-1962, As the defendants have been wrongfully asserting their claim on the land in suit, the plaintiff filed this suit. 4. The case of the defendants is as follows: Deceased Matawan had sold the land described in Schedule B attached to the plaint to defendant No.4. for a consideration of Rs. 12/- and delivered possession thereof. Defendant No.1, is the lawfully married wife of deceased Matawan and was, therefore, competent to transfer the land specified in Schedule A to the defendants 2 and 3 after the death of Matawan. The execution of the will was denied. 5. The learned trial Judge held that Mst. Tilkunwar was the lawfully wedded wife of deceased Matawan and Matawan had not executed any will in favour of the plaintiff. He further held that Matawan had sold the land specified in Schedule B to the defendant No.4 in his life time. The suit of the plaintiff was, therefore, dismissed. 6. In appeal the learned Additional District Judge held that it was not proved that Mst. Tilkunwar was the lawfully wedded wife of the deceased Matawan and therefore, she was not competent to sell the land specified in Schedule A to the plaint to defendant No. 2 and 3. The suit of the plaintiff was, therefore, dismissed. 6. In appeal the learned Additional District Judge held that it was not proved that Mst. Tilkunwar was the lawfully wedded wife of the deceased Matawan and therefore, she was not competent to sell the land specified in Schedule A to the plaint to defendant No. 2 and 3. The finding of the lower Court regarding sale of the land specified in Schedule B of the plaint in favour of respondent No.4 was however, confirmed. The appeal was, therefore, partly allowed. The plaintiff's claim was decreed in respect of the land specified in Schedule A of the plaint while the claim in respect of the land specified in Schedule B was dismissed. The defendants 2 and 3 have, therefore, come up in appeal before this Court, 7. The only point for consideration in this case is whether it has been proved that Mst. Tilkunwar defendant respondent No. 3 is lawfully wedded wife of the deceased Matawan. As noticed above, the finding of the trial Court on this point was in favour of the defendants; but it was reversed by the learned Additional District Judge in appeal. It is clear and in fact it was not disputed before me that the finding relates to a mixed question of law and fact and, therefore, could be questioned in second appeal. In fact the arguments proceeded on that basis. Mst. Tilkunwar (D.W. 1) who is aged about 55 years, testified that she was duly married to Matawan at Kanchanpur and that she lived with her husband as his wife until his death. Plaintiff Thakuri (PW 5) who is the brother of the deceased Matawan admitted in cross examination that Mst. Tilkunwar belonged to Kanchanpur and Matwan has brought her from Kanchanpur. The relevant part of his statement in paragraph 7 of his deposition in this connection is as under : ^^frydq¡vj dks ykus ds fy, dapuiqj erkou x;k Fkk exj gekjs xk¡o dk dksbZ Hkh vkneh ugh x;k Fkk vkSj u eS x;k FkkA erkou frydq¡vj dks fdl izdkj yk;k eq>s ugh ekyweA^^ In Paragraph 13, he stated as under: ^^R;ksgkjks ds fnu es vius HkkbZ ds ?kj ij vkrk tkrk Fkk vkSj HkkStkbZ eqŒ frydq¡vj ds gkFk dk [kkuk [kkrk FkkA eS frydq¡vj dks ukrs ds eqrkfcd HkkStkbZ dgrk FkkA ^^ 9. It is clear from the evidence on record that Mst. It is clear from the evidence on record that Mst. Tilkunwar lived with Matwan as his wife for a number of years until his death and was treated as such by the relations of Matawan. In these circumstances it would be legitimate to draw a presumption unders section 114 of the Evidence Act that Mst. Tilkunwar is lawfully wedded wife of the deceased Matawan. Normally a woman lived with a man only after a lawful marriage. Concubinage is an exception and, therefore, where a man and woman have lived together as husband and wife and have been treated as such by their relations and in the society in which they move, there is a strong presumption about their being lawfully married. The presumption is no doubt rebuttable and may be rebutted by positive evidence to show that the woman started living with the man as a concubine or that there being some legal or other impediment to marriage lawful union was improbable. In such a case it would be necessary for the party asserting the marriage to prove it by direct evidence of the usual ceremonies of marriage but otherwise the presumption is enough. 10. In Mohabbat Ali v. Mohammad Ibrahim Khan AIR 1929 PC 135, their Lordships held that the law presumes in favour of marriage and against concubinage when a man and a woman have cohabited continuously for a number of years. 11. In Shivajirao v. Baburao 1957 JLJ 444 = 1957 MPLJ 481, this Court made the following observations which are pertinent regarding the presumption of marriage from long cohabitation: "A cohabitation between members of opposite sex should ordinarily give rise to an inference that a marriage has been solemnised between them. The act of cohabitation no doubt is susceptible of two contrary inferences one that the persons cohabiting are married and the other that they are not. But as is well known the law in general presumes against vice and immorality and, therefore, the Court should give effect to the presumption of innocence and regard the cohabitation to be regular and moral. As a necessary corollary of such presumption, the offspring of such a presumed union, should also be regarded as legitimate. The presumption of legitimacy must be regarded as the foundation on which the whole fabric of society rests. As a necessary corollary of such presumption, the offspring of such a presumed union, should also be regarded as legitimate. The presumption of legitimacy must be regarded as the foundation on which the whole fabric of society rests. If the presumption is allowed to prevail the other way, there is no saying what consequences may have to be faced. For one thing, it will shatter the fabric of the whole society and plunge everyone in a state of utter confusion, In this view of the matter I hold that law presumes in favour of marriage and against concubinage and on him who challenges the legitimacy must be thrown the burden of proving it." 12. In Gokalchand v. Parvin Kumari AIR 1952 SC 231 , their Lordships made the following pertinent observations in paragraph 10 while dealing with the question in what circumstances a lawful marriage can be inferred: "It seems to us that the question as to how far the evidence of those particular witnesses is relevant under section 50 is academic, because it is well-settled that continuous cohabitation for a number of years may raise the presumption of marriage. XX XX "But the presumption which may be drawn from long cohabitation is rebuttable, and if there are circumstances which weaken or destroy that presumption, the Court cannot ignore them." It is, therefore, necessary to consider whether in the light of the principles enunciated above the presumption of lawful marriage stands rebutted in this case. 13. The learned Additional District Judge after carefully scrutinizing the evidence adduced by the defendants about the actual marriage ceremony pointed out numerous infirmities and held the evidence to be unworthy of reliance. It seems that the defendants in their anxiety to prove that the marriage was solemnized with usual rites introduced false evidence. This is a common failing with the litigants. But we have to bear in mind that the testimony of Mst. Tilkunwar herself stands on a different footings than that of other witnesses. She has positively asserted that her marriage was performed according to usual rites and there is no evidence to the contrary. 14. This is a common failing with the litigants. But we have to bear in mind that the testimony of Mst. Tilkunwar herself stands on a different footings than that of other witnesses. She has positively asserted that her marriage was performed according to usual rites and there is no evidence to the contrary. 14. It is no doubt true, as pointed out by the learned Additional District Judge that plaintiff could not be expected to adduce positive evidence to prove that no lawful marriage was performed but there is nothing in the evidence of the plaintiff himself or his witnesses to show that a lawful marriage could not have taken place. It has not been suggested that there was any impediment to the lawful union of the two. According to the plaintiff, Thakuri himself, Matawan had gone to Kanchanpur and from there he had brought Tilkunwar as his wife. It is further in his evidence that he treated her as Bhojai (brother's wife) and took food at her hands. He says that he did not attend the marriage, That may be because it was not the first marriage of Matawan. This was his second marriage as admitted by Thakuri and second marriage are usually more of a summary nature and are not attended with the usual pomp and show involving expenditure. 15. Mst. Tilkunwar has no doubt asserted that a regular Barat (wedding party) had come but that may be an exaggeration. The very fact that Matawan had gone to Kanchanpur and brought Tilkunwar from her parents clearly goes to negative the suggestion that she started living with Matawan as his concubine. Concubines are not brought from their parents in this manner. 16. Plaintiff and his witnesses have all asserted their ignorance of the fact as to how and in what manner Matawan brought Tilkunwar from her parents. In these circumstances there appears to be no reason to disbelieve Tilkunwar on the point that she was lawfully married to Matawan although it appears that it was a summary form of marriage. The testimony of Tilkunwar is further supported by the presumption which arises from her cohabitation with Matawan as his wife and the fact that Thakuri brother of Matawan treated her as his Bhojai (sister-in-law). The testimony of Tilkunwar is further supported by the presumption which arises from her cohabitation with Matawan as his wife and the fact that Thakuri brother of Matawan treated her as his Bhojai (sister-in-law). The learned Additional District Judge considered her marriage with Matawan as improbable because on her own admission she had previously lived with one Khora without any marriage. But this could hardly be a good reason fur disbelieving her assertion that she was lawfully married to Matawan particularly because the evidence does not at all indicate that her cohabitation with Matawan started as a concubine. There are cases where a women developes illicit relationship with a man and then begins to live with him as his concubine. There is absolutely no evidence in this case to this effect. On the contrary, the evidence shows that Matawan had gone to Kanchanpur and had brought Tilkunwar from there and thereafter she lived with him as his wife. Concubines are not brought in this manner. Moreover, as there was no impediment to the marriage Tilkunwar's assertion that Matawan brought her from her village after marrying her cannot be disbelieved in the absence of any evidence to the contrary. 17. Learned Additional District Judge seems to have been very much influenced by the consideration that in the Will Ex. P-1 Mst. Tilkunwar was referred to as "Dasta-Aurat". In the first place the Will was held to be not proved by the trial Judge and he observed that it was a suspicious document. The learned Additional District Judge did not consider the evidence on record and did not care to examine the reasons given by the learned Judge on the point. He observed as under in paragraph 17 : “I will not deal on this point in detail for the simple reason that even if this will is held to be bogus it is not going to help the defendants.” I fail to see how the learned Judge could draw inference from certain statements made in the will without going into the question whether it was a genuine document or not. Apart from this even the contents of the will do not clearly establish that Tilkunwar was only a concubine. The expression "Dasta Aurat" is consistent with her being his second wife married in a summary form. The use of the word 'Aurat" is significant. Apart from this even the contents of the will do not clearly establish that Tilkunwar was only a concubine. The expression "Dasta Aurat" is consistent with her being his second wife married in a summary form. The use of the word 'Aurat" is significant. If the word "Dasta" alone had been used, the position would be different. This conclusion is re-inforced by the consideration that in this will it is clearly stated as under: ^;fn og nwljh lxkbZ ugh djrh gS vkSj gekjs uke ij csck jgrh gS rks mls edku es jgus dk gd gksxkA^ The aforesaid recital in the will clearly suggests an implied admission that first Sagai of Tilkunwar was with deceased Matawan and that she had become widow on his death and that is why there was anxiety on his part to provide her with residence and maintenance. 18. Thus after careful consideration of the entire evidence on record I hold that the learned Additional District Judge committed a grave error of law in setting aside the finding of the learned trial Judge that Mst. Tilkunwar was the lawful wife of Matawan and not his concubine. This finding is fully supported by the evidence of Mst. Tilkunwar herself as well as by the presumption arising from the long cohabitation and other circumstances on record. 19. The appeal is, therefore, allowed and the judgment and decree of the learned Additional District Judge are set aside. The judgment and decree of the trial Judge are hereby restored. The respondent shall pay the costs of the appellant and bear that of his own. Counsel's fee according to scale, if certified.