JUDGMENT :

A.K. Rath, J.

This is a defendants’ appeal against confirming judgment.

2. The respondents as plaintiffs instituted T.S. No.6 of 2003 in the court of the learned Civil Judge (Sr. Divn.), Karanjia for declaration of title, recovery of possession and permanent injunction impleading the appellants as defendants. The case of the plaintiffs is that Dhara Naik was the common ancestor of plaintiffs and proforma defendant nos.7 and 8. He was the son-in-law of Chaitan Naik. After marriage, he resided in the house of Chaitan as illatom son-in-law. As per custom, Chaitan had bequeathed some lands orally in favour of Dhara including schedule ‘A’ land. Dhara was in possession of the same till his death. Dhara had also acquired other properties. He constructed a house thereon and resided with his family members. Being illiterate, he could not take steps to record the land in his name during 1930-31 settlement bequeathed by his father-in-law. During current settlement of the year 1982-83, the suit land was wrongly recorded in the name of the father of the defendant nos.2, 4 to 6. Dhara died fifty years back leaving behind his three sons. There was partition of the properties between his sons orally. In the said partition, item no.1 of the schedule ‘A’ property fell to the share of the father of plaintiff nos.1 to 3. Item no.2 of the schedule ‘A’ property fell to the share of father of plaintiff nos.4 and 5. The sons of Dhara could not take steps for recording their lands in settlement operation. It was further pleaded that plaintiff nos.1 to 3 purchased ‘B’ schedule land from one Purna Chandra Pradhan by means of a registered sale deed dated 6.6.1997 for a valid consideration. The land was mutated. While the matter stood thus, plaintiff nos.1 to 3 filed P-F.I. Case No.221 of 1998 before the Tahasildar, Karanjia for identification of the land of their father. The defendant nos.1 to 6 forcibly occupied the land and dispossessed the plaintiff nos.1 to 3 taking advantage of recording the land in their favour. Thereafter, plaintiff no.1 instituted T.S. No. 5 of 1999 for demarcation of the land through a civil court commissioner. He withdrew the suit with a leave to file a fresh suit. After withdrawal, they demarcated the land by an Amin. With this factual scenario, they instituted the suit.

3. The defendants filed written statement denying the assertions made in the plaint. The specific case of the defendants is that schedule ‘A’ land was never bequeathed by Chaitan in favour of Dhara. They are in possession of ‘B’ schedule property.

4. On the interse pleadings of the parties, learned trial court struck six issues. Both parties led evidence, oral and documentary, to substantiate their cases. The suit was decreed. The defendants unsuccessfully challenged the judgment and decree of the learned trial court before the learned District Judge, Mayurbhanj, Baripada in R.F.A. No.60 of 2004, which was eventually dismissed.

5. The second appeal was admitted on the following substantial questions of law.

“1. Whether it is permissible on the part of a Hindu to bequeath property by oral will after coming into force of the Indian Succession Act (Act No.39 of 1925) ?

2. Whether the courts below are justified in decreeing the suit in the absence of any will executed by Chaitanya Naik in favour of Dhara Naik ?

3. Whether the finding of the learned trial court that Chaitanya Naik might have bequeathed some lands in favour of his son-in-law Dhara Nayak is based on no evidence and as such the judgments are vitiated ?”

6. Heard Mr. B. Das, learned counsel for the appellants and Mr. S.K. Dash, learned counsel for the respondents.

7. Mr. B. Das, learned counsel for the appellants submitted that Chaitan had not bequeathed any property in favour of Dhara Naik. The Will can be made by a written document. Indian Succession Act, 1925 does not contemplate an oral Will. He relied on the decision in the case of Sunita Shivdasani v. Geeta Gidwani and another, AIR 2007 Delhi 242