LINGA MALLIK Vs. AJODHYA MALLIKANI
HIGH COURT OF ORISSA
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(1.) THIS is an appeal by the defendant against a confirming judgment of the additional Subordinate Judge, Bolangir. One Ganda Mallik since deceased was the admitted owner of the suit land and he died leaving behind him his wife Badani (defendant No. 2) and two sons Satya and Linga. The plaintiff Ajodhya Mallikani claims to be the married second wife of Satya. Her case is that after the death of ganda, his widow and his two sons continued to remain in joint mess and in such state of jointness Satya died. She. therefore, filed a suit for partition of the disputed lands measuring 7. 999 acres into three equal shares and for allotment of one such share to her. The defendants pleaded inter alia that the plaintiff is not the wife of Satya; that Ganda Mallik and his sons had partitioned the joint family properties and were in possession of their respective shares therein; that tilottama the first wife of late Satya Mallik instituted Title Suit No. 18 of 1954 claiming maintenance against them and obtained a decree in execution of which the entire share of Satya in the disputed properties was sold in public auction; that in the said auction one Parama Barik purchased Satya's share and remained in possession thereof till 1960 and that he sold the same in favour of defendant No. 1 for a consideration of Rs. 300/- and that after the said purchase defendant No. 1 became the absolute owner of the share which Satya had in the disputed properties. In the circumstances, the plaintiff is not entitled to any relief.
(2.) THE trial Court held that the plaintiff is the legally married second wife of late satya that there was no previous partition either between Ganda and his sons or between Satya and his brother defendant No. 1, that the purchase by Parama of satva's share in the disputed property in Court auction, was Benami for the joint family and that consequently Satya's share in the joint familv was intact by the time of his death and the plaintiff would therefore be entitled to a one-third share. On these findings he passed a decree fox partition as prayed for by the plaintiff. All these findings were upheld in appeal by the learned Additional Subordinate Judge. Hence this appeal by defendant No. 1 Linga Malick.
(3.) THE concurrent finding of the Courts below that the plaintiff is the married wife of Satya is assailed on two grounds, namely, that in arriving at the finding that a marriage between the plaintiff and Satya did take place, the Courts below were considerablv influenced by Ext. 1 which is an entrv in the Voter's list describing the plaintiff as Satya's wife and secondly even if a ceremony of marriage had taken place as found by the Courts below, it cannot be valid unless it is proved that the necessary ceremonies to constitute a valid marriage had been gone through and in the absence of any such evidence, the Courts below were not justified in holding that the plaintiff is the married wife of Satya. The electoral roll is a public document and has been prepared by a public servant in discharge of his official duty. The entrv therein showing that the plaintiff is the wife of Satya is a relevant fact in this suit. A Full Bench of this Court in Kirtan Sahu v. Thakur Sahu. (1972)38 Cut LT 82 = (AIR 1972 Orissa 1581 (FB) has held that an electoral roll being a public document is admissible in evidence and it is not necessary to prove the source of information on the basis whereof the facts stated in the roll were recorded, nor is it necessary that the person who prepared the electoral roll has to be examined in Court to prove the electoral roll. As a public document it is admissible under the provisions of Section 35 of the Evidence Act. No. exception can, therefore, be taken to the admission of Exhibit 1 in evidence, That apart, there is sufficient evidence on record which had been accepted by the Courts below to arrive at the conclusion that the plaintiff was married to Satva.;
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