Let us now test the genuineness of the Will and testator's mind set in execution of such Will for disposition of his estate in the manner it was done by sitting in the arm chair of the testator in the light of the guidelines given by the Hon'ble Supreme Court as mentioned above. We find from the evidence on record that Nilkrishna Paul had strained relationship with his sons namely Sankar and Bimal Paul. It is apparent from the evidence of the contesting defendant/respondent that Sankar Paul had love marriage and since the time of his marriage he had been living in separate mess. They did not take any information with regard to their mother and the testator. DW1 further admitted that his brothers (the appellants) used to look after the business of his father on and from 1979.
Since these two sons separated themselves from the testator's family and they did not maintain any relationship with the testator during his lifetime and further they withdrew themselves from assisting their father in carrying on the father's business, the testator(father) did not give any part of his property to these two sons by mentioning the reasons for their exclusion in his disposition, which appears to us very reasonable for a father, who was deprived and/or neglected by his own sons. On reading the evidence of the DW.1, we find that the contesting parties failed to prove that the reasons which were mentioned by the testator in Will for their exclusion from inheritance by testamentary succession were not correct. They could not prove that they did not separate themselves from the family of the testator since the time of their marriage and they took all necessary care for their father and the other members of his family in the manner as ordinarily a father expects from his son. In the absence of such proof, we have no hesitation to hold that the testator was not unreasonable in his disposition of his estate in the manner as it was done by him in his Will.
Secondly, it is apparent from the evidence of DW1 that he used to reside in separate mess since 1979. It is also apparent from his evidence that the business of his father had been managing by the appellants since 1979. It has been elicited in the cross examination of PW1 that Bimal got married out of his own and without the consent of the testator. That goes to show that the testator was definitely not happy because of such marriage of Bimal. Thus, sufficient reasons were given for exclusion of other sons by the testator. Accordingly, such dispositions in the Will cannot be said to be suspicious circumstances to reject the testamentary application.
Kolkata High Court (Appellete Side)
Sri Birendranath Paul @ Barendra ... vs Sri Sankar Paul @ Kali Krishna Paul on 26 June, 2015
Author: Jyotirmay Bhattacharya
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