JUDGMENT : A. Pasayat, J. - In this appeal under Clause 10 of the Orissa High Court Order, 1948, judgment of a learned Single Judge of this Court in First Appeal No. 185 of 1998 is assailed. 2. A brief reference to factual aspects would suffice. A suit was filed for partition by Balamani, the present respondent for a decree to the effect that he is the son of Kali representing one branch, and was thus entitled to half share in the property which originally belonged to one Dinabandhu, as branch of Dhadi was extinct, and the third branch was of Nidhi, the father of Hadibandhu the defendant. Following genelogy was set out in the plaint. Dinabandhu ______________________________________ | | | Mani Dhadi Nidhi | =Chhachi | | | Kali Hadibandhu | (Defendant) | Balamani (Plaintiff) The present appellants are the sons of Hadibandhu, the original defendant. Hadibandhu's stand was that plaintiff Balamani was not the son of Kali as claimed, and was only a foster child. He had been given 4 annas 6 paisa shame on the basis of partition by metes and bounds by way of family settlement, and therefore, the suit ws misconceived. 3. In support of the case that plaintiff is son of Kali, a series of voters' lists were produced and marked as Ext. 1 series where plaintiff was described as son of Kali. Defendant took the stand that the fact that plaintiff had accepted 4 annas 6 paisa interest, goes a long way to show that the plaintiff was not the son of Kali, as acceptance of such interest was inconsistent with normal human conduct. 4. On appreciation of evidence, the trial Court preliminarily decreed the suit with the finding that the plaintiff is the son of Kali, and there was no previous partition as claimed by the original defendant. 5. The matter was carried in appeal before this Court by Hadibandhu. As he died during pendency of the appeal, the present appellants were substituted on their application. Appeal was dismissed by learned Single Judge, who observed that if a person claims some right he has to establish it. Persons disputing such right cannot effectively prove the negative. It was noticed that had this been a case of no evidence on either side, claim of plaintiff would have been turned down by the Court of fact.
Appeal was dismissed by learned Single Judge, who observed that if a person claims some right he has to establish it. Persons disputing such right cannot effectively prove the negative. It was noticed that had this been a case of no evidence on either side, claim of plaintiff would have been turned down by the Court of fact. It was, however, observed that there being acceptance of the position that the plaintiff was a foster child, the persons challenging the natural happenings were required to prove it, and the onus lay on the person who makes such assertion. Considering the materials available, learned Single Judge affirmed the preliminary decree and dismissed the appeal. 6. Stand of the appellants in this appeal essentially is the same as was before the learned Single Judge. 7. As has been rightly observed by the learned Single Judge, where a person claims some right he is to establish the same, and negative cannot be proved by the persons disputing such right. In the case at hand the plaintiff claimed to be the natural born son. Defendant disputed the assertion stating that he is only foster child, admitting sonship. That being the position the defendant was required to prove that the plaintiff was the foster child. If a person claims to be related to another as son by adoption, and others dispute the same, he who claims relationship by adoption is to prove the same as adoption is not natural. In the case at hand relationship is admitted. The only dispute is whether it is natural as claimed by plaintiff or a foster child as claimed by defendant. The word 'foster' means 'to bring up, rear'. A foster child is a child raised by some one not its own father or mother. In some dictionaries word 'foster' has been described as 'to bring up (a child) with parental care'. (See Oxford English Dictionary, Second Edition, Volume VI). Natural event is to be presumed. Further series of entries in the voters' lists reinforces the stand of the plaintiff that he is son of Kali. The voters' lists have evidentiary value. As observed by a Full Bench of this Court in Kirtan Sahu after him Uma Sahuani and Others Vs. Thakur Sahu and Others and in Naladhar Mohapatra and Anr. v. Seva Dibya and Ors. AIR 1991 Ori.
The voters' lists have evidentiary value. As observed by a Full Bench of this Court in Kirtan Sahu after him Uma Sahuani and Others Vs. Thakur Sahu and Others and in Naladhar Mohapatra and Anr. v. Seva Dibya and Ors. AIR 1991 Ori. 165, voters' list is a public document and is admissible in evidence. Electoral roll being a public document does not require any formal proof. It is to be noticed that u/s 77 of the Indian Evidence Act, 1972, even a certified copy thereof is admissible in evidence. Right from the year 1958, the plaintiff has been described as the son of Kali in the voters' list. Several other documents like Sale Deeds,Khatians have been pressed into service by the plaintiff. It is to be noted that there is no dispute regarding existence, age or residence of the plaintiff. A combined effect of the documents brought on record unimpeachably establish case of the plaintiff. Learned trial Judge and Single Judge were justified in accepting plaintiff's claim. We find no merit in this appeal which is accordingly dismissed. In view of dismissal of the appeal, the amount in deposit be permitted to be withdrawn by respondent Balamani Sutar. In the facts and circumstances, we make no order as to costs. S.C. Datta, J. 8. I agree. Final Result : Dismissed