Tripura High Court
Sri Amal Sarkar vs Smt. Shila Sarkar (Deb) Alias Shila ... on 29 April, 2022
Author: Arindam Lodh
Bench: Arindam Lodh, S.G.Chattopadhyay
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HIGH COURT OF TRIPURA
AGARTALA
RFA No. 41 OF 2019
1. Sri Amal Sarkar,
S/o Late Lal Mohan Sarkar,
Village & P.O. - Gandhigram,
P.S. - Airport,West Tripura,
799012.
2. Sri Mihir Lal Sarkar alias Paritosh Sarkar,
S/o Late Lal Mohan Sarkar,
Village & P.O. - Gandhigram,
P.S. - Airport, West Tripura,
799012.
3. Sri Bimal Sarkar alias Bimal Kumar Sarkar,
S/o Late Lal Mohan Sarkar,
Village & P.O.- Gandhigram ,
P.S. - Airport, West Tripura,
799012.
4. Sri Shymal Sarkar,
S/o Late Lal Mohan Sarkar,
Village & P.O. - Gandhigram ,
P.S. - Airport, West Tripura,
799012.
---- Appellants/Defendant Nos.(1-4)
Versus
1. Smt. Shila Sarkar (Deb) alias Shila Sarkar,
D/o Late Lal Mohan Sarkar,
Village: Deochhara, P.S- Panisagar,
Sub-Division- Panisagar, North Tripura,
799260.
2. Smt. Lila Deb (Sarkar) alias Lila Sarkar (Deb),
D/o Late Lal Mohan Sarkar,
Village: Teliamura, P.S- Teliamura,
Khowai Tripura,799205.
3. Smt. Manju Sarkar (Dutta),
D/o Late Lal Mohan Sarkar,
Village: Badhargaht, P.S- AD Nagar,
West Tripura,799005.
---- Respondent/Plaintiffs.
4. Sri Ajit Sarkar, S/o Late Lal Mohan Sarkar, Village & P.O. - Gandhigram, P.S. - Airport, West Tripura, 799012.
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5. Sri Dilip Sarkar, S/o Late Lal Mohan Sarkar, Village & P.O. - Gandhigram, P.S. - Airport, West Tripura, 799012.
As per the Hon'ble Court's order dated 03.09.2020, passed in IA 2 of 2020, the name of Respondent no.6 is incorporated as-
6. Smt. Arati Sarkar (Talukder) D/o Late Lal Mohan Sarkar, R/o near the house of Ex MLA Sri Ratan Das, P.S- West Agaratla, West Tripura,799001.
---- Respondent/ Defendant Nos. (5-7).
(As per the Hon'ble court's order dated 12.03.2021 passed in IA No.03 of 2021 (Petition for direction), the name of Respondent No.7 has been deleted from the array of parties).
For Appellant(s) : Mr. SM Chakraborty, Senior Advocate, Ms. P. Chakraborty, Advocate, Ms. A Pal, Advocate, Mr. KK Paul, Advocate.
For Respondent(s) : Mr. A Sengupta, Advocate.
Date of hearing delivery of
Judgment and order : 29.04.2022
Whether fit for reporting : No
HON'BLE MR JUSTICE ARINDAM LODH
HON'BLE MR JUSTICE S.G.CHATTOPADHYAY
J U D G M E N T & O R D E R (O R A L)
(Arindam Lodh, J)
This is a first appeal filed under Section 96 of the Code of Civil Procedure, 1908, challenging the legality and validity of the judgment and decree dated 30.07.2019, passed by [3] learned Civil Judge (Sr. Division), Court No.1, Agartala, West Tripura in Title Suit No. (P) 42 of 2015.
2. Facts of the case, in brief, are that late Lal Mohan Sarkar (the predecessor of the plaintiff and defendants) and late Anil Chandra Sarkar were two brothers. Lal Mohan Sarkar was the original owner of the suit land described in Schedule A, measuring 2.62 acres, pertaining to old khatian No.538, 539 and Hal Khatian No. 1967/1, 1967/2, 1967/13 under Revenue Circle Mohanpur and B schedule land measuring 3.99 acres pertaining to Khatian No. 1966/1, 1966/2 under Mouja Gandhigram, whereas, both the brothers were the joint owners and possessors of the land described in Schedule C measuring 5 gandas pertaining to Khatian No.980/1 and 980/2 under the same Mouja Gandhigram. The said Lal Mohan Sarkar had first married to one Asha Lata Sarkar and out of that wedlock defendants no. 5, 6 and 7 namely, Ajit Kumar Sarkar, Dilip Sarkar and Arati Sarkar (Talukder) were born. After the death of his first wife, Lal Mohan Sarkar again married to Bela Sarkar (defendant no.8) and out of that wedlock all the plaintiffs and defendants no.1 to 4 were born. Lal Mohan Sarkar died on 18.09.1988 and thereafter, his brother, Anil Chandra [4] Sarkar also died. It was alleged by the plaintiffs that as per law of inheritance the legal heirs of Lal Mohan Sarkar was entitled for half of the land described in Schedule C and the legal heirs of Anil Chandra Sarkar was entitled for the other half.
3. It was also pleaded by the plaintiffs that the said legal heirs of Anil Chandra Sarkar transferred their share in favour of defendants no. 1 to 4 by executing a registered Sale Deed vide no.1-762, dated 11.02.1998. On 21.01.1998, the plaintiffs along with other co-sharers, i.e. the defendants no.2 to 8 executed one general registered Power of Attorney (POA) vide No.IV-97, Book No. IV, Volume No.1 and constituted defendant no.1, namely, Amal Sarkar, as the lawful attorney for management, sale, transfer and partition. of the suit land. As alleged by the plaintiffs, defendant no.1 sold one part of the suit land but did not give their shares. On 15.03.2013, plaintiff no.1 again executed another registered Power of Attorney (POA), vide No. IV-141, Book No.IV, Volume No.2 and constituted defendant no.1, namely, Amal Sarkar as lawful attorney for management, sale, transfer, partition of the suit land on behalf of said plaintiff no.1, namely Shila Sarkar.
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4. On the other hand, it was alleged by the defendants that during the lifetime of Lal Mohan Sarkar, he executed a Will vide No.III-22 dated 15.03.1986, bequeathing his property in favour of his sons and specifically mentioning that the plaintiffs are not entitled to any property left by their father. The plaintiffs asserted that the said Will was not valid in the eye of law as the same was executed in respect of the entire suit land measuring 6.05 acres owned by both Lal Mohan Sarkar and his brother, Anil Chandra Sarkar. The plaintiffs further stated that after the death of Anil Chandra Sarkar, defendants no. 1 to 4 purchased the share of Anil Chandra Sarkar from his legal heirs. Hence, the Will being valid, sale could not take place and both these instruments contradict each other. The plaintiffs also alleged that their assertion of the Will being invalid also got support from the fact that all the defendants and plaintiffs no. 2 and 3 executed power of attorney in respect of the suit land after the death of their father, late Lal Mohan Sarkar. On 10.04.2015, the plaintiffs demanded partition of the suit land, as the constituted attorney, namely Amal Sarkar (Defendant no.1) did not hand over their respective shares of the consideration money arising out of the [6] sale to the plaintiffs. Moreover, the plaintiffs requested the defendant no.1 to hand over the POAs, but he did not agree to return and tried to sell the suit land further. Hence, the Plaintiff no.1 filed an objection before the Sub-Registrar, Sadar on 22.04.2015 with a plea not to register any deed in respect of the suit land. Thereafter, the plaintiffs instituted a suit before the trial Court which was registered as Title Suit No.TS(P) 42 of 2015, praying for a decree of partition over the suit land and to declare that they along with the defendants are entitled to get equal share.
5. DOCUMENTS RELIED BY PLAINTIFFS In support of their claim the plaintiffs relied on the following documents before the trail court:-
I. Certified copy of old khatians bearing no. 537, 538 and 439 marked as Exbt.1(Series).
II. Certified copy of present khatians bearing no. 980/1, 980/2, 1967/1, 1967/2 and 1967/3 marked as Exbt.2(Series).
III. Certified copy of registered WILL bearing no. III-22 dated 15.03.1986, marked as Exbt.3.
IV. Certified copy of registered sale deed no.1-762 dated 11.02.1998 marked as Exbt.4. V. Certified copy of general [7] power of attorney bearing no. IV-97 dated 21.01.1998, marked as Exbt.5.
V. Certified copy of registered general power of attorney bearing no. IV-141 dated 15.03.2013, marked as Exbt.6.
6. The defendants no.1 to 4 had contested the suit by way of filing a common written statement wherein they had stated that the suit is not maintainable for non-joinder of parties and barred by the principles of estoppels, waiver, etc. Moreover, the defendants stated that during the lifetime of Lal Mohan Sarkar and his brother Anil Ch. Sarkar, they sold their joint property, which is described in the Schedule C of the plaint. The claim of the defendants is that the plaintiffs unreasonably incorporated that joint property(Schedule C) in this present suit. Moreover, the defendants stated that during his lifetime, their father had executed a Will vide No. III-22 dated 15.03.1986 bequeathing his property in favour of his sons, wherein it was specifically mentioned that the plaintiffs are not entitled to any property left by their father. The defendants also raised the issue of limitation, stating that the plaintiffs should have come within three years seeking cancellation of the said Will. The defendants further [8] stated that the property left by their father was in regard to the joint property of their father and uncle and the said property had been amicably partitioned and the legal heirs of Anil Ch. Sarkar abandoned their shares .They also further stated that the plaintiffs and they themselves sold out the said property and the consideration money was equally distributed amongst parties of both sides. They admitted that the plaintiffs had constituted defendant no.1 as their lawful attorney and on the strength of the said POA he sold part of the joint property distributing the amount amongst them. The defendants also admitted that the second power of attorney was executed by plaintiff no.1. The defendants further mentioned that in the Will their father clearly stated that the plaintiffs are not entitled for any properties left by him. It was stated that the POAs executed by the plaintiff no.1 was wrongly recorded in the corresponding Khatian. During the sale of those properties, the said POAs were executed. Subsequently, they filed a case for deletion of the name of plaintiff no.1 from the said Khatian.
6.1. In their subsequent written statement, the defendants stated that in the Will, at page No.10, one condition was [9] incorporated in which the testator (Lal Mohan Sarkar) intended that, if the marriage of his daughters were given out by conducting sale of his properties, none of his daughters will be entitled for any properties left by him. The defendants stated that in compliance with that condition plaintiffs no.1 and 2 were given marriage after the death of Lal Mohan Sarkar and the expenditure was borne from the personal savings of the answering defendants and also by selling part of the properties left by their father.
In that written statement, the defendants stated that the POAs were executed to represent the plaintiffs and to create Khatian as per the Will, etc. They categorically stated that the Will was executed 30 years prior and on the strength of that Will, the suit land got mutated in favour of the answering defendants, but wrongly included the name of plaintiff no.1 in the finally published Khatian. To rectify the same, the present defendants filed an application under Section 95 of the TLR & LR Act, which was numbered as Rev. Case No.374 of 2015, pending before the D.M & Collector.
6.2. Lastly, they raised the issue that the plaintiffs sought to cancellation of the registered Will by way of amendment of the [10] plaint for which they were required to file a separate declaratory suit. In addition, they claimed that the suit was initially filed for partition and subsequently, cancellation of Will was added by way of amendment. But, for the newly added relief, no further court fee is paid and the suit is not properly valued and hence, prayed for its dismissal.
7. The defendants no.5 and 6 filed a separate joint written statement, whereby they raised the issue of maintainability, improper valuation, barred by limitation, etc. In addition to that the defendants stated that deceased Lal Mohan Sarkar had first married to one Asha Lata Sarkar and out of that wedlock the answering defendants and defendant no.7 were born. Said Asha Lata Sarkar suddenly died due to which he again married to one Bela Sarkar i.e., defendant no.8. They claimed that after the death of their father, they came to know about the registered Will in which their father bequeathed 10 gandas, 15 gandas and another 10 gandas to defendants no.5 to 7 respectively. Defendant no.8 got 46 shataks and rest 9.81 acres was bequeathed to defendants no. 1 to 4 & 8 and all the three plaintiffs jointly. However, there was a condition that if the [11] marriage of the plaintiffs was held during the lifetime of Lal Mohan Sarkar or after his death and if the expenditure of their (plaintiffs) marriage was borne by his sons, then the plaintiffs would not be entitled for any share on his properties. Now, as stated by the defendants, Lal Mohan Sarkar died on 18.09.1988 and the marriage of the plaintiffs was held after his death, but no financial assistance was extended by defendants no. 1 to 4. In fact, they claimed that they paid the expenditure incurred during the marriage of the plaintiffs. On the above stated ground the answering defendants also prayed for cancellation of the Will under discussion and prayed to decree the suit partitioning it amongst the parties.
7.1. Defendant no.7 was the remaining offspring of deceased Lal Mohan Sarkar and his first wife. She simply repeated what is stated by her two full-blooded brothers, i.e. defendants no. 5 and 6.
7.2. Defendant no.8 is the second wife of deceased Lal Mohan Sarkar. She stated that she gave birth to four sons and three daughters. The daughters are the plaintiffs of this suit and her sons are defendants no. 1 to 4. She also stated about the Will [12] and distribution of properties in favour of herself and that of her children as stated by defendants no. 5 and 6. She repeated about the condition of the Will stating that her sons i.e. defendants no.1 to 4 did not pay the expenditure incurred while the marriage of her daughters took place. Defendant no.8 lastly prayed for cancellation of the Will and decree of partition amongst them.
8. DOCUMENTS RELIED BY DEFENDANTS In support of their claim the defendants relied on the following documents before the trial court:-
I. Certified copy of old khatians bearing no. 1966/1 and 1966 /2 marked as Exbt.A(i) and A(ii).
II. Certified copy of khatians bearing no. 1967/1, 1967/2 and 1967/3 marked as Exbt.B(i), B(ii) and B(iii).
III. Certified copy of khatian bearing no. 980/1 marked as Exbt.C. IV. Original copy of registered WILL bearing no. III-22 dated 15.03.1986 marked as Exbt.D. V. Original copy of death certificate and survival certificate of Lt. Lal Mohan Sarkar marked as Exbt.E(i) and E(ii).
VI. Original copy of registered general power of attorney bearing no. IV-141 dated 15.03.2013 marked as Exbt. F. Along with these documents the defendants exhibited the signature of the testator of the WILL and also the signature of one attesting witness.
9. After exchange of pleadings, learned trial court framed the following issues:
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"(i) Is the suit maintainable in its present form and nature?
(ii) Has the plaintiff any cause of action to file the instant suit?
(iii) Is the suit land joint property of the parties to this suit? If so, is the suit land liable to be partitioned ?
(iv) What should be the quantum of share of each party to this suit?
(v) Is the plaintiff entitled to a decree, as prayed for?
(vi) What other relief / reliefs the plaintiff is entitled?
(vii) Whether the WILL bearing no. III-22 dated 15.03.1986 and the sale deed vide no. 1-762 dated 11.02.1998 are liable to be canceled? If so, whether the plaintiff is entitled to get a declaration in this respect?"
10. We have gone through the judgment of learned court below passed in T.S (P) 42 of 2015. Learned trial court after hearing the parties to the lis and considering the evidence and materials on record, decided issue nos. IV, V and VI against the plaintiff. Issue nos. I, III and VII were decided in favour of the plaintiffs. Ultimately, the suit of the plaintiffs was partly allowed with following order:-
"In the result, the suit of the plaintiffs is decreed partly holding that they are entitled for a decree declaring the WILL b/no III-22 dated 15.03.1986 to be void and liable to be cancelled. But at the same time they are found to be not entitled for a decree declaring the Sale deed b/no 1-762 dated 11.02.1998 to be void. The [14] plaintiffs are also found to be not entitled for a decree of partition and perpetual injunction."
11. Being aggrieved by and dissatisfied with the aforesaid judgment and decree, the defendant-appellants no.1 to 4 have preferred the instant first appeal before this court.
12. Heard Mr. S.M. Chakraborty, learned senior counsel assisted by Ms. P. Chakraborty, Ms. A Pal and Mr. K.K. Paul, learned counsels appearing for the appellants. Also heard Mr. A. Sengupta, learned counsel appearing for the respondents.
13. We have perused the evidence and the judgment passed by learned trial court. It is found that the learned trial court had disbelieved the documents i.e. the Will bearing No.III-22 and the Sale Deed vide no.1-762, which were exhibited. It is noticed that those documents being introduced by the defendants as evidence were held not to be proved in accordance with the provisions of the Evidence Act and Indian Succession Act. Learned trial Judge has held thus:-
"To find out an answer to the first issue it is found that both the plaintiffs and the defendants have relied upon khatian no. 1966/1, 1966/2, 1967/1, 1967/2 and 1967/3. On perusal of the said khatians it [15] is found that the khatian bearing no. 537, 538 and 439 are the old khatians in the name of the deceased predecessor of the parties namely Lal Mohan Sarkar. The new computerized khatians bearing no. 980/1, 980/2 are also in the name of Lt. Lal Mohan Sarkar. However, khatians bearing no. 1967/1, 1967/2 and 1967/3 are in the name of the defendants and plaintiff no. 1 Shila Sarkar. On perusal of the above said khatians it is found that the suit land is the joint property of the parties and is classified as Tilla, Chara and vIti class of land which is liable to be partitioned. Now, comes the vital question of whether the WILL in question is liable to be canceled. The vital contention raised by the defendants is that this is originally a suit for partition and by amendment the plaintiffs cannot claim cancellation of the WILL. In this regard, it is observed that the amendment was allowed by a detailed order which was not put into question before the Revisional Court by the defendants.
However, in regard to this I have gone through the judgment reported in Abdul Rehman & Anr vs Mohd.Ruldu & Ors. 2012 STPL(LE) 46885 SC. The following paragraph may be reproduced as hereunder :- It is true that originally the appellants have approached the trial Court with a prayer for permanent prohibitory injunction restraining respondents no . 1-3 herein from forcible and illegal dispossession of the appellants herein from the land in dispute. Respondents No.1to3 herein (Defendants no. 1-3 therein) filed written statement wherein they specifically alleged that they have stepped into the shoes of Ramzanan and Smt. Bashiran and Rashidan on the basis of the sale deeds dated 25.08.2003. It is the claim of the appellants that the above said Ramzanan and Smt. Bashiran and Rashidan have no concern with the ownership of the land in dispute and no right to alienate the suit land to the defendants or anybody else. In view of the [16] stand taken by the defendants in their written statement, in the application filed under Order VI Rule 17 of the Code, the appellants have specifically raised that the alleged sale deed nos. 1810 and 1811 dated 25.08.2003 in favour of defendants no. 1-3 executed by Ramzanan and Bashiran and Rashidan are liable to be set aside. With the above said observation the Hon'ble Court has allowed the amendment application. The above suit was filed initially for perpetual injunction but subsequently, on filing of written statement the plaintiffs sought amendment and included the prayer for setting aside one registered sale deed. The said amendment was allowed to be within the purview of legal principles. Hence it is observed that though originally it was a suit for partition but by amendment the plaintiffs can claim cancellation of the WILL under discussion. Regarding proof of the WILL, at the very onset it requires mention, that the defendants rely on the above deed and being the propounder of the WILL, the onus lie on them to prove it. In discharge of the said onus the defendants have produced the original copy of the WILL and DW1 Amal Sarkar being the son of the testator Lt. Lal Mohan Sarkar has identified the hand-writing and signature. Furthermore, the defendants have adduced the evidence of defendant no. 8 Bela Rani Sarkar who is the wife of Lt. Lal Mohan Sarkar. Said defendant no. 8 has also identified the signature of Lt. Lal Mohan Sarkar on the WILL. In addition the defendants adduced the evidence of one Nani Gopal Deb who happens to be one of the attesting witness of the WILL and has identified his own signature on the said WILL. Keeping in mind the above evidence as adduced by the defendants, I have gone through the following judgments which enumerates the way of proving an instrument of WILL. In H. Venkatachala lyengar v. B.N. Thimmajamma & Ors., [1959] Supp. 1 SCR 426 it was observed that it is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial [17] pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Section 67 and 68, Evidence Act are relevant for this purpose. Under Section 67 if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Section 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Section 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by Will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This Section also requires that the Will shall be attested by two or more witnesses as prescribed. Thus, the question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. In the same judgment it was further observed that although the mode of proving a will did not ordinarily differ from that of proving any other document, nonetheless it requires an element of [18] solemnity in the decision on the question as to whether the document propounded is proved as the last will and testament of departed testator. Where there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before the will could be accepted as genuine. Where there are suspicious circumstances, the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator.
In the present case in hand, suspicious circumstance is found to be present especially when the defendant no.1 having full knowledge of the WILL, allowed the plaintiffs to constitute him a lawful attorney and consecutively two power of attorneys were executed in his favour. On perusal of both the power of attorneys it is found that they were executed in respect of the suit land and it is admitted by the defendant no. 1 that on the strength of said power of attorneys he sold some part of the suit land and distributed the sale proceed amongst the plaintiffs and the defendants. In simple words the power of attorneys being admitted requires no further proof and it establishes that the defendant no. 1 on the strength of those two power of attorneys (in short POAs) has sold part of the suit land. This gives rise to serious suspicion regarding execution of the WILL in question. In answer to this contention the defendants stated that the name of plaintiff no. 1 has got recorded wrongly in the khatian due to which the power of attorneys were executed. In this regard, it is found that the first POA was executed on 21.01.1998 but the correction of revenue record was applied in the year 2015. This creates further more suspicion and it is upon the defendants to remove the said suspicious circumstances. During argument Ld. Counsel Sri Paul appearing for the defendants projected that the WILL was executed in the year 1986 and is a 30 year old document. Hence, as per section [19] 90 of the Evidence Act presumption can be drawn it to have been proved. WILL is stated to be the last wish of any deceased person which got reduced into writing. During proof of such WILL the person executing it could not be found available. Hence, in regard to proof of WILL section 90 cannot be considered. However, it is settled that section 90 is not a mandatory provision of law but only is directory. As a general rule if a document is produced before a court, it execution must be proved by a witness and if the document is required by law to be attested, its attested must also be proved by some witness. Circumstances may arise when the document are produced in the court long after they have executed and the time elapsed between the execution and the production of the document in the court may be so long that all the person in whose presence the document was executed night have died. If the method of proof according to the above general rule is strictly followed documents will remain unproved. The power under section 90 is only discretionary and not compulsory. In Bharpur Singh & Ors vs Shamsher Singh (2009)3 SCC 687 it was opined as follows :- The provisions of Section 90 of the Indian Evidence Act keeping in view the nature of proof required for proving a Will have no application. A Will must be proved in terms of the provisions of Section 63(c) of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. In the event the provisions thereof cannot be complied with, the other provisions contained therein, namely, Sections 69 and 70 of the Indian Evidence Act providing for exceptions in relation thereto would be attracted. Compliance with statutory requirements for proving an ordinary document is not sufficient, as Section 68 of the Indian Evidence Act postulates that execution must be proved by at least one of the attesting witness, if an attesting witness is alive and subject to the process of the Court and capable of giving evidence. Hence, coming back to the earlier discussion it is to be found out [20] whether the defendants could remove all the suspicious circumstances in proof of due execution of the WILL. Before proceeding further let us have a look on some of the judgments given in this context by Hon'ble Supreme Court and High Courts on this issue of proof of WILL. In Prakash Soni vs Deepak Kumar (2017) 9 SCC 332 it was held that - The Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. Since there are many suspicious circumstances narrated above, and as we are satisfied that the dispositions made in the alleged will may not be as a result of testator's free will and mind. Way back in 1939 in Harimati Debi and Another v Anath Nath Roy Choudhury, AIR 1939 Cal 535 the Hon'ble Calcutta High Court had held that burden of proving an unregistered Will sought to be propounded after a lapse of more than 20 years is on the propounders by removing all manner of doubt and suspicion which are likely to arise, by convincing evidence. It was further held that the burden of proving a Will in solemn form is cast upon the propounders. Where an unregistered Will is sought to be propounded after the lapse of more than 20 years it is required that all manner of doubt and suspicion which are likely to arise should be removed by them. However, in the present case the WILL is registered. Be it mentioned that a WILL is not a document compulsorily registrable. In K.R. Rajalakshmi Devi (Deceased) vs. K.R. Chandrasekhar 1998 (3) KarLJ 634 the judgment delivered by the same Hon'ble Court in Sanjiva @ Sanjiva Bkandary v Vasantha and Others, has been discussed whereby it was held that ..... The cumulative effect of the suspicious circumstances surrounding the execution of the Will such [21] as the active participation, unnatural disposition, suppression of the Will for 20 years, the conduct of the propounder of the Will must be taken and then apply the test whether in the circumstances of the case the judicial conscience of the Court is satisfied that the propounder has dispelled all clouds of suspicion with which the execution of the Will is shrouded with". In Kalyan Singh v Smt. Chhoti and Others ,1990 AIR 396 the decision is on the point of genuineness and proof of a Will and further on the point of failure of plaintiff to remove suspicious circumstance by placing satisfactory evidence on record. The Supreme Court in the said decision held as follows: A Will is one of the most solemn documents known to law. The executant of the Will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the Court to establish genuineness and authenticity of the Will. It must be stated that the factum of execution and validity of the Will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the Court is not confined only to their testimony and demeanour. It would be open to the Court to consider circumstances brought out in the evidence or which from the nature and contents of the documents itself. It would be also open to the Court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party. In the present case in hand, the suspicious circumstance may be summarized as:-
i. In spite of having knowledge of the WILL power of attorney on two occasions was executed once jointly by the plaintiffs and later on only by plaintiff no. 1.[22]
ii. In both the cases defendant no. 1 was constituted to be the lawful attorney in whose favour the WILL along with others was executed.
iii. Even after having knowledge that the name of plaintiff no.
1 is recorded in the corresponding khatian, the defendants applied for its correction only in the year 2015.
iv. The power of attorneys are admitted to be executed and that on the strength of those POAs defendant no. 1 actually has sold part of the suit land and admittedly distributed the sale proceeds amongst the plaintiffs also. The above narrated circumstances creates doubt as to the execution of the WILL especially when the defendants produced it on filing of the suit for the first time in the year 2015 whereas it was executed in the year 1986 i.e. 30 years ago. In the present context there is one judgment delivered by the Privy Council which fits into the situation prevailing. The Privy Council in Mr.Biro v Atma Ram &Ors., AIR 1937 PC 10 1 had an occasion to consider an analogous case where the wife was practically disinherited and there was unexplained delay in producing the will in public. There the alleged will by a testator gave only a life estate to his daughter who was the only child and who was to get some property at her marriage. The bulk of the estate was vested in the widow of the testator and three other women, namely, his mother, his step-mother and his paternal aunt. These women though entitled under the Hindu Law only to maintenance, were made joint owners equally with the widow of the testator. None of the devisees could get the estate partitioned or alienate it for necessity. It was however, provided that the lady, who survived the other three devisees, would become the absolute owner of the estate. The widow of the testator would not get her [23] husband's estate, if she predeceased any of her codevisees. The will was not produced until 22 years after its execution though there were occasions to produce it, had it been in existence. Considering these circumstances, the Privy Council observed (at 104): "It is most unlikely that a person having a wife and a minor unmarried daughter, who should be the objects of his affection, would make a will which would practically disinherit them. That the testament is unnatural and runs counter to the ordinary sentiments of persons, having a status in society similar to that of Harbans Lal, cannot be seriously disputed." The above judgment opined that the WILL produced after 22 years to be clouded with suspicion and accordingly did not rely on the said WILL. In the present case, another facet also requires to be considered that the WILL is admitted to be a conditional WILL. In this regard, the evidence of DW8 i.e. mother of the parties to the suit deserves discussion. Defendant no. 8 is her written statement admitted execution of the WILL but stated that it is one of the condition of the WILL that if marriage of the plaintiffs was held during the lifetime of the testator or after his death if the expenditure in that case borne by his sons from second marriage i.e. defendants no. 1 to 4, only in that case the plaintiffs will not get any share over the property left by him. She further stated that the marriages of the plaintiffs took place after the death of Lal Mohan Sarkar and defendants no. 1 to 4 did not bear the expenditure of such marriage. She supported the suit of the plaintiffs and prayed for a decree of partition. However, she deposed as DW2 stating altogether a different story stating that the marriage of plaintiff no. 3 was given during the lifetime of her husband and the remaining plaintiffs were given in [24] marriage after his death the expenditure of which was borne by defendants no. 1 to 4. However, she also admitted execution of power of attorney and that the legal heirs of Anil Chandra Sarkar transferred their entire share in favour of the plaintiffs and defendants no. 1 to 4 and she herself. She also admitted that the sale proceed obtained on the strength of POA executed by the plaintiffs was distributed amongst all of them. The said evidence of DW2 is totally beyond her pleading as in her W/S she stated that the condition of the WILL was not fulfilled due to which the plaintiffs are entitled for a decree of partition but in her evidence she stated that the said condition was fulfilled. Her evidence being in contrary to her pleading cannot be considered and outright discarded . Having discussed the above situation it gets clear that the WILL purported to be executed by the testator is a conditional WILL and there is no cogent evidence on record as to the fulfillment of such condition. The defendants in one end is admitting execution of POAs by the plaintiffs and sale of part of the suit land distributing the proceed amongst themselves and on the other end is denying the share of the plaintiffs on the basis of the WILL in question. Presently, this Court is not going into the discussion of fulfillment of the condition of the WILL as its execution is not free from suspicion as per the above discussion. To sum up this Court is of the opinion that the defendants could not remove the suspicious circumstance roaming around the execution of the WILL bearing no. III-22 dated 15.03.1986 and accordingly, is liable to be declared canceled. The plaintiffs are found to be entitled for a decree of declaration in this respect." [25]
14. According to us, the reasoning to arrive at the findings on the issue of execution of the questioned Will had been well dealt with by the learned trial Judge. We find no error of facts and law in the aforesaid findings as arrived at by learned Civil Judge. The learned trial Judge has correctly interpreted the law as regards the way of proving an instrument of Will and cancellation of Sale deed.
15. It is surfaced that the defendants had introduced certified copy of the sale deed and it was not produced in original which was produced in the form of secondary evidence as contemplated under Section 65 of the Evidence Act. Before introducing such document as secondary evidence, it is the mandatory obligation to the parties introducing such secondary evidence so as to satisfy the foundational facts for which he is forced to introduce the secondary evidence in place of primary evidence, i.e. in the instant case, the defendants have to satisfy the court about the foundational facts for which he could not produce original copy of the sale deed in terms of Section 65 of the Evidence Act. Furthermore, under Section 66 of Indian Evidence Act, a notice must be served to the opposite party in case of bringing secondary evidence in proof of a particular fact in issue. In the instant case, the defendants failed to meet the requirements of Sections 65 and Section 66 of the Evidence Act.
16. The offshoot of the aforesaid discussions is that the learned trial Judge neither has committed any error in interpreting [26] the provisions of the Evidence Act nor in appreciating the evidence adduced on facts by the parties to the lis. Accordingly, having found no infirmity with the judgment and decree passed by learned Civil Judge, Sr. Division, West Tripura, Agartala, as stated here-in-above, the instant appeal deserves to be dismissed, and accordingly, the appeal stands dismissed.
Send down the LCRs.
JUDGE JUDGE Puspita/Rohit