Nalu Nayak And Others vs Apindra Nayak And Others on 23 October, 2017

HIGH COURT OF ORISSA: CUTTACK

RR.S.A. No.259 of 2007

From the judgment and decree dated 28.2.2007 and 13.03.2007
respectively passed by Sri S.K. Pradhan, learned District Judge,
Mayurbhanj, Baripada in R.F.A. No.60 of 2004 confirming the
judgment and decree dated 31.8.2004 and 20.9.2004 respectively
passed by Shri A.K. Mohapatra, learned Civil Judge (Sr. Divn.),
Karanjia in T.S. No.6 of 2003.
———-
Nalu Nayak and others …………….. Appellants

—versus–
Apindra Nayak and others ……………… Respondents

For Appellants : Mr. Budhiram Das, Advocate
For Respondents : Mr. S.K. Dash, Advocate

JUDGMENT

P R E S E N T:

THE HON’BLE DR. JUSTICE A.K. RATH

—————————————————————————-
Date of Hearing :13.10.2017 │ Date of Judgment:23.10.2017

—————————————————————————-
Dr. A.K. Rath, J. This is a defendants’ appeal against confirming
judgment.

02. 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
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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.

03. 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.

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04. 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.

05. 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 ?”

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

07. 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.

08. Per contra, Mr. S.K.Dash, learned counsel for the
respondents submitted that the scheduled tribes are not Hindus. The
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Indian Succession Act, 1925 is not applicable to the scheduled
tribes. He further contended that Dhara married to the daughter of
Chaitan eighty years back. The suit was instituted in the year 2003.
The Indian Succession Act was enacted in the year 1925. Thus the
provision of Indian Succession Act does not apply. According to him,
under the custom prevailing in the society oral gift was permissible.
He further contended that Indian Succession Act, Hindu Adoption
and Maintenance Act and Hindu Marriage Act do not apply to the
scheduled tribes. He relied on the decision of the apex Court in the
case of Madhu Kishwar and others vs. State of Bihar and others, AIR
1996 SC 1864.

09. The Indian Succession Act, 1925 (in short, the ‘Act’) was
enacted to consolidate the law applicable to intestate and
testamentary succession. Part VI of the Act deals with testamentary
succession. Sec.63(a) of the Act postulates that the testator shall
sign or shall affix his mark to the Will, or it shall be signed by some
other person in his presence and by his direction. On a bare perusal
of Sec.63(a) of the Act, it is clear that the testator shall sign or shall
affix his mark to the Will, or it shall be signed by some other person
in his presence and by his direction. This section further provides
that a Will is required to be attested by two or more witnesses. The
words “shall sign or shall affix his mark to the Will” mean that a Will
must be in writing. The same view was taken in Sunita Shivdasani
(supra). The Act does not contemplate an oral Will.

10. There is no pleading that Dhara married to the daughter
of Chaitan before coming into force of the Indian Succession Act.
Neither any custom was pleaded nor evidence adduced by the
plaintiffs to show that oral Will was permissible. Though feeble
attempt was made by the learned counsel for the respondents that
scheduled tribes are not Hindus and as such Indian Succession Act
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does not apply to them, but then no authority was placed before this
Court. Both the courts below fell into patent error of law in brushing
aside the provisions of the Indian Succession Act. The finding of the
learned trial court that Chaitan might have bequeathed the land in
favour of his son-in-law Dhara is perverse. Schedule ‘B’ property
was purchased by the plaintiff nos.1 to 3. The defendants have no
semblance of right, title and interest over the same.

11. The case Madhu Kishwar and others vs. State of Bihar
and others (supra) is distinguishable on facts. In the said case, the
apex Court had the occasion to consider the provisions of Hindu
Succession Act, 1956 and Chota Nagpur Tenancy Act, 1908.

12. As a sequel to the above discussion, the judgments and
decrees of the courts below with regard to schedule ‘A’ property are
set aside. The plaintiffs are the absolute owner in possession of ‘B’
schedule property. The substantial questions of law are answered
accordingly.

13. The appeal is allowed in part. No costs.

……………………………….

Dr. A.K. Rath,J.

Orissa High Court, Cuttack
The 23rd October, 2017/Basanta

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