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Sri Amal Sarkar vs Smt. Shila Sarkar (Deb) Alias Shila ... on 29 April, 2022 cites

Musammat Biro vs Atma Ram on 1 February, 1937

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."
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