SUCCESSION ACT, 1925

(XXXIX OF 1925)

Section — 2(11)

Will — It is an
ambulatory document revocable at any moment—Nothing is transferred when it is
executed—Till the testator is alive nothing passes to the legatees.

Hiran Bala Mitra Vs. Jatindra Kumar Mitra, 3 BLD(HCD)211

Ref: A.I.R.1949(PC)151 —Cited.

Section — 2(11)

Will — It is an
ambulatory document revocable at any moment—Nothing is transferred when it is
executed—Till the testator is alive nothing passes to the legatees.

Hiran Bala Mitra Vs. Jatindra Kumar Mitra, 3 BLD(HCD)211

Ref: A.I.R.1949(PC)151 —Cited.

Section — 59

Testamentary capacity
of the testator — — Whether it is to be presumed from the proof of due
execution of the will—When it is found that the testator put his signature or
mark on the will then it shall be presumed that he knew the nature and effect
of his action — But this presumption is liable to he rebutted by proof of
suspicious circumstances surrounding the will — Even if the question of
testamentary capacity is not raised by the caveator yet the propounder is not
exonerated from the duty to prove that the testator had sound and disposing
mind and he had fully understood the nature and effect of executing the will —-
But the burden of proving that the will is the outcome of undue influence,
fraud, coercion or misrepresentation of facts is on those who attack the will.

Paresh Chandra Bhowinik Vs. iliralal Nath and another, 4BLD (AD) 99

Ref: AIR. 1946(PC) 156—Citecl.

Section — 63

Execution of a will—How
it is proved— Due execution of a will means not only that the testator executed
it by putting his signature or affixing his mark but also it requires that the
testator executed it in sound mind. fully knowing the nature and effect of his
action—It must be proved that the testator had testamentary capacity at the
time he put his signature or thumb impression on the will—It must he proved by
fulfilling the statutory requirements of the Evjdence Act and the Succession
Act—For proof of execution of a will the law requires at least two attesting
witnesses, each of whom has seen the testator sign his name or affix his mark
to the will — Evidence Act, 1872 (I of 1872), Ss. 67 and 68.

Paresh Chandra Bhowmik Vs. Hiralal Nath and another, 4 BLD (AD) 199

Section 63

Onus of the propounder
in probate of a will—Where a written will is sought to be proved it is
incumbent upon the propounder to prove that the will has been executed by the
testator by putting his signature or affixing his mark—He has also to prove
that the testator has executed it in sound and disposing mind, having full
knowledge of the nature and effect of his action in executing the will — In the
absence of any suspicious circumstances surrounding the making of the will, the
onus of the propounder is discharged if he fulfils the statutory provisions of
sections 67 and 68 and of the Evidence Act, besides the provisions of section
63 of the Succession Act—But if the will is clothed with suspicions, the
propunder carries an additional burden to dispel the suspicion to the
satisfaction of the judicial conscience of the Court — Evidence Act, 1 872 (1
of 1872), Ss. 67 and 68.

Palan Chandra Saha Vs. Kalpana Rani Saha and others, 7 BLD (HCD) 301

Ref; A.I.R. l959(SC)443; A.I.R.1962(SC) 567: A.I.R. I
964(SC)529; A.I.R. I 965(SC)354; A.l.R.l968 (SC) 1332; A.LR.1972 (SC) 2492:
A.l.R.l974 (SC) 1499; AJ.R.l977(SC)74; 36 DLR(AD) 156: 50C.W.N.895: A.I.R. I
946(PC) 156; — Cited.

Sections — 102, 222,
232, 235 and 268

Substitution —
Heirs of deceased plaintiff in a probate suit may be substituted — The
proceeding does not abate with the death of the executor — It is not a personal
action — A beneficiary under the will may continue the proceeding.

An executor when applied for a probate of the will asks the
Court for an order in his favour that the will is duly proved and to administer
the estate according to the provisions in the will. The object of the executor
is to propound the will for the benefit of those who take the interest of the
will. It is in substance not a personal action. In substance, probate means
copy of the will certified under the seal of the Court of a competent
jurisdiction that a grant of administration to the estate of the testator has
been made. In the absence of any executor an universal or residuary legatee can
apply for letters of administration and what the Court grants in such a case is
also a copy of the will certified under the seal of the Court stating that the
will is duly approved and an authority given to administer the estate of the
deceased according to the direction. In either of the case the purpose of the
grant is to administer the estate of the deceased according to the provision of
the will. A plain reading of sections 102, 23 and 235 lead to the conclusion
that the residuary legatee may also continue the proceeding and section 222
would not be an impediment to the continuation of the probate proceeding.

Khitindora Chandra Bhattacharya and another Vs. Jalanda Devi, 3 BLD
(AD) 245

Ref: 51 C.W.N. 917; A.I.R. 1930 (Patna) 618; A.I.R.
1963(Guzrat)32; 5 Cal 756; 39 Cal. 799 — Cited.

Section — 211

Part performance —
Plea of part performance (that the plaintiff has delivered possession of part
of the property) whether tenable in a probate proceeding? — Plaintiff will not
be without remedy for execution of decree (if it is made in her favour) —
Principle of part performance creates no real rights — It is estoppel between
the proposed transferee and the transferor which shall have no operation
against a third person — Transfer of Property Act, 1882 (IV of 1882), S. 53A.

Shubra Nandi Majumder Vs. Mrs. Begain Mahinuda Khatoon, 10 BLD (AD) 84

Ref: AIR. 1928(Madras)803; 56 C.W.N. 374(P.C.) — Cited.

Section — 213

Addition of party —
Executor’s right to institute suit before probate of will — Grant of probate of
will or other representation is not a condition precedent to the institution of
a suit by an executor — He can institute a suit in that character even though
he has not yet obtained probate — But he will not be entitled to a decree
unless probate is granted to him before passing of the decree — Code of Civil
Procedure, l908(V of 1908), Or. I Rule 10.

Most. Golbanu Vs. Sreemati Uma Rani Roy Clowdhury and ors., 6BLD (HCD)
256

Ref: I.LR. 38(Cal) 327; A.I.R. 1916(PC) 202; I.L.R. 37
(Bombay)158; I.L.R. 50(Cal) 49; AIR. 1932 (Bombay)13; AIR. 1942 (Patna) 120;
LL.R. 59 (Cal)911; A.I.R. 1931 (Nagpur) 181: A.I.R. 1932 (Oudh)85; 54
C.W.N.263—Cited

Section — 227

Probate — Its effect
— Upon production of the probate the title of the plaintiffs was clearly
established and they need not pray for declaration of title so long as the
probate remained valid — The judgment in the probate proceeding being a
judgment in rem will operate against the whole world.

Nannu Miah and others Vs.Bangladesh through the Deputy Commissioner and
others, 4 BLD (HD) 298

Ref: A.I.R. l916(PC)202; A.I.R. 1930 (Patna)6l8; I.L.R. 1914
(Bombay). Vol.38, page 427:21 DLR33I —Cited.

Section — 232

Enemy property —
Will executed before, and testator dying after, the property be

Came enemy property — Will becomes mop-erative — As the title
of the testator and legatee remains eclipsed, but not extinguished, suit for
grant of letters of administration cannot be dismissed, but shall remain stayed
so long the property remains a vested property.

Goutain Ran/an Sen and others Vs. Bangladesh and others, 1BLD(AD)126

Ref: IBLD(AD)1; —Cited.

Section 263

Revocation of probate
— Maintainability of application for revocation — Whether a person who failed
to add himself as a party in the probate proceeding can file a case for
revocation of the probate — He was debarred from seeing the proceeding for
grant of probate by the Probate Court itself — The Probate Court cannot be
allowed to say that the person had a remedy in the superior Court and having
not availed of that remedy, he is precluded from challenging the genuineness of
the will itself — No wrong can go without a remedy — A suitor cannot be
punished for the wrong done to him by the Court.

Afiza Khatun Vs. Taishi Ranjan Roy, 6 BLD(HCD)89

Ref: AIR. l944(PC)1 1; AIR. l952(Cal) 20; — Cited.

Sections — 265, 268,
272, 283 and 286

Probate Proceeding
— When it should be referred to the District Judge — The District Delegate may
upon an application for grant of probate or letter of administration, issue
citations calling upon all persons claiming to have any interest in the estate
of the deceased to come and see the proceedings — But it is only the District
Judge who can dispose of an objector’s application — With his appearance the
proceeding ceases to he non-contentious — — If the District Delegate then
proceeds with the case he will exceed his jurisdiction — Whether the party
opposing the proceeding has any locus standi or not will be decided not by him
but by the District Judge.

Kalpana Das Gupta Vs. Govt. of Bangladesh and another, 91BLD (HCD) 4

Ref: I BLD(Al))2 18 ;32DLR259:—Cited.Sections — 276 and 283

Abatement — A
proceeding for grant of letters of administration on the basis of a will does
not abate with the death of a person who appeared in the proceeding on general
citation. — Code of Civil Procedure, 1908 (V of 1908), Order XXII Rule 4

jatish Chandra Saha and others Vs. Biswanath Saha and another,
1BLD(HCD) 216

Section — 283

Probate proceeding—Court is only con- cerned with due
execution of the will and not with the question whether the testatory had title
to the property or whether he had any authority to otherwise deal with the
property

Sremati Charubala Sen Gupta being dead her substituted legatee

Paresh Chandra Sen Gupta Vs Abul Hashem and others, 1BLDAD) 218

Ref AIR l959 (Pat) 570 2IDLR331 — Cited.

Section — 283

Probate proceeding
— Addition of party— Person not
claiming interest in the property through the testator is not entitled to be
added as a party.

The interest in the estate of the testator within the meaning
of section 283 of the Act means an interest through the testator. A person who
claims outside or independently of the will or claims adversely to the testator
and disputes his right to deal with the property cannot be deemed to claim any
interest in the estate of the deceased. The crucial point in this case is
whether the respondents claim any interest in the estate through the testator,
and since they do not and cannot do so, they got no locus standi to be added as
a party to the probate proceeding — Code of Civil Procedure, 1908 (V of 1908),
Or I Rule 10.

Sreemati charubala Sen Gupta being dead her substituted legatee Paresh
chandra Deb Gupta Vs. Abul Hashem and others, 1 BLD (AD) 218.

Section —283(1)(C)

Probate proceeding —
Locus standi to be added as a party in such a proceeding — Claim of
plaintiff in a suit for specific performance of contract relating to the
testator’s property whether tenable?—The plaintiff is entitled to bring a suit
for redress of her grievance for breach of contract and she has already field a
suit for specific performance of contract—If she succeeds the suit will be
decreed and the decree will be excuted against the executor of the will—In the
present case the will does not disentitle her (plaintiff) to which she is
otherwise entitled — In such a position there is no compelling necessity for
adding her as a party in a succession pro- ceeding when the question is whether
she is entitled to citation, if at all

Shubra Nandi Majumder
Vs Mrs Be gum Mahmuda Khatoon, 10 BLD(AD)84

Ref AIR l959(Pat)570 2IDLR331 — CU Vol 1909 Page 263,49 CWN
713, Cited. A.I.R. 1972 Madras 212; A.I.R. 1928 (Mad) 803; 56 C.W.N. 374(P.C.)
— Cited.

Section — 299

Appeal from order of
District Judge — Whether an appeal lies against an order of the District
Judge rejecting objection against maintainability of a proceeding for
revocation of probate or letters of administration?— The criterion for decision
whether an order of the District Judge is appealable under section 299 of the
Succession Act or not is whether The order that was made by the District Judge
was made by virtue of the power conferred on him by the Act Any order made by a
District Judge is not appelable, it must be an order made by him by virtue of
the powers conferred by the Act — The scope and ambit of the section is
confined to only- those orders which are made by a District Judge by virtue of
his powers expressly conferred under the Act — Such order rejecting objection
against maintainability of a case to the revocation of probate or letters of
administration is not appealable.

Netai Chandra Datta Vs. Government of Bangladesh, 7BLD (HD) 187

Ref: (1894) I.L.R.21(Cal) 539; (1910)16 C.W.N.1099;
(1912)39Cal 563; A.I.R.1926 (Cal)1 80;(1 900)I.L.R.28Ca1. 149;20C.W.N.28
;A.I.R.l929(Cal) 733; A.LR.1929 (Rangoon) 109; A.I.R.1932 Allahabad 379;
A.1.R.1942 Bombay 276; A.I.R.1963 Kerala 188; A.I.R. 1965 Allahabad 211;
—Cited.

Section — 299

Probate proceeding
— Interlocutory order passed by the District Judge is appealable only if the
Code of Civil Procedure makes it an appealable order.

The true construction of section 299 of the Succession Act is
that in every case in which an appeal lies from an order under the Code of
Civil Procedure, an appeal shall also lie from an order made by the District
Judge in exercise of powers under the Succession Act. If an interlocutory order
is not appealable under the Code of Civil Procedure, then an interlocutory
order passed by the District Judge will also not be appealable. Section 299 not
only makes every order passed by a District Judge appealable to the High Court,
but also makes the appeal to be in accordance with the provisions of the Code
of Civil Procedure, applicable to appeals. The plain meaning of this section is
that all final orders passed by the District Jduge in exercise of powers
conferred upon him under the Succession Act are appealable, but an
interlocutory order passed by the District Judge will be appealable only if the
Code of Civil Procedure makes it an appealable order.

Dhirendra Chanda
Bardham Vs. Sin. Niroda Sundari Bardhan and others, 1 BLD (HCD)243

Ref: 1894 I.L.R. Cal 539; 18C.L.J. 612; 16 C.W.N. 1099: (1915)
28 LC. 578; AIR. 1920 (Cal) 459; AIR. 1926(Cal)180; AIR. 1929 (Cal)733; A..I.R.
1932 (Cal) 734: A.LR, 1942 Born 276: A.1.R. 1963 Ker 188; A.I.R. 1965(All)21 1;
A.LR.l930 Oudh 424—Cited.

Section — 371

Interpretation of statute
— Whether the Court will interfere when the matter raised becomes infructuous —
As the case was finally decided the matter relating to maintainability of the
case and the question of examination of the case and the question of
examination on commission stood infructuous long before the leave was granted —
The Appellate Division will not work in vain in deciding a question of law in a
dead matter.

Mrs. Ummeda Islam Khan Vs. Saiheuddin Khan (‘Minor) and others, 7BLD
(AD) 89. 

Succession
Act (XXXIX of 1925)

Void will

Will—Probate
court has the right to go into question of the validity of a will when a
bequest made by the will is void.

Braja Bala Saha Vs. Tarapada Saha (1959)11 DLR 40.

—Where a
bequest provided by a will is a void one by reason of its being contrary to law
or morality or opposed to public policy, the probate court can pronounce such a
bequest void or otherwise in accordance with the provisions of the Succession
Act. Ibid.

S.
2—’Probate’—Its meaning.

In substance
probate means copy of the will certified under the seal of a Court of competent
jurisdiction that a grant of administration to the estate of the Testator (vidc
the dcfmition of probate in section 2 of the Succession Act). In the absence of
an executor an universal or residuary legatee can apply for letter of administration.

Khitindra Chandra Bhattacharya Vs. Jalada Devi (1983) 35 DLR (AD)
102 (103).

S.
29(2)—Garo Customary Law— Succession amongst Garos—Customary Law of Garos, ii
can be held to fall within the expression used in sub sec.(2) of sec 29 of
Indian Succession Act.

Under the
Garo Customary Law, the plaintiffs were not entitled to succeed. The marriage
of the sister to the woman’s husband may take place after and not only during
his marriage with the first sister.

When the
second sister is married even after an interval from the death of the first
wife there would be under the Garo Customary Law a vesting of the whole
property in the new heiress.

Customary
Law of the Garos would fall within the expression used in sub-section (2) of
section 29 of the Indian Succession Act, viz., “any other law for the time
being in force.” Consequently, if the requisites were established which were
essential for proof of valid custom having the force of law, then a case of
succession among Garos whether non- Christian Garos or Christian Gams should
properly be decided by this Customary Law. 54 CWN (2 DR) 14.

S. 59—Person
capable of making wills

The
petitioner filed a certified copy of Death Register of Begumganj Municipality
to show that the petitioner’s father Satish Chandra Roy died at his house in
Noakhali as a Bangladeshi citizen in the year 1975. The Tahsildar’s report
simply shows that “sons of Satish Chandra are Indian Nationals’. Even if his
sons are Indian nationals this fact does not make him an enemy alien or his property
an enemy property under the Defense of Pakistan Rules Mere claim of the Asset.
Custodian that the property of the deceased testator is an enemy property in
respect of which an enemy property case was started in 1978 is not sufficient
for coming to a conclusion that the property is an enemy property. In these
circumstances the impugned order allowing addition of party cannot be
maintained but the matter may be further enquired into.

Niuya Gopal
Roy Barman Vs. Pran Gopal Nandi (1980) 32 DLR 11.

S. 63—Will—Deposition
of attesting witnesses to the document necessary to prove execution of a will.

Paresh
Chandra Bhowmick Vs. Hiralal Nath (1984)36 DLR (AD) 156.

—It must be
proved that the testator had full understanding as to know what exactly he was
doing by putting his signature or mark on the will— Presumption of law as to
execution. Ibid.

Ss. 102, 233
and 235—When
the first executor refused to act, the second executor could legitimately file
the petition for probate—Second executor being dead, his heirs being his
legatees can maintain a proceeding to obtain probate of the will.

Khitindra
Chandra Bhattacharya Vs. Jalada Devi (1983)35 DLR (AD) 102.

S. 191—Gift
made in contemplation of death—Gift is effective only if the donor
dies—Doctrine of ‘donatio mortis causa’.

The doctrine
of donatio mortis causa appears in
section 191 of our Succession Act. In accordance with section 191 gifts “made
in contemplation of death” are resumable by the donor if he survives and the
power to make such gifts is co-extensive with the power of testamentary
disposition. It is true that gifts “in contemplation of death” are gifts which
are to take effect in case the donor dies, but authority can be found in any
commentary for the proposition that although the donor does not say so the
presumption in the case of gifts made during apprehension of death is that they
are to take effect only in case of death.

Shamshad All
Vs. Hassan Shah PLD 1964 Supreme Court 143 = 16 DLR SC 330=1964 (2)PSCR 1
(Kaikaus,J).

S. 211—The
interest of an executor in the testator’s property is not an interest in land
and although properties worth more that Rs. 100/- had vested in executor under
section 211, the deed of appointment by which he appoints ‘S’ as executor in
his place could not be said to have created such an interest as would bring the
document under section 17(b) of the Registration Act and require registration.

Radha Kanta
Pal Vs. Swami Turiananda (1950) 2 DLR 265.

S.
211(I)—The words ‘as such’ in section 211(1) of the Act explained.

The words
‘as such’ indicate that the vesting of the property in the executor is limited
to the purpose of management only as the legal representative of the testator
and they do not in any way affect the beneficial interest in the property. The
beneficial interest vests in the persons named in the Will as beneficiaries and
not in the executor.

Nirode Baran
Paul Vs. Ahmed Meah (1970) 22 DLR 529.

S. 213—Suing
without filing the probate

Plaintiff
Sues as a sole legatee under a will without filing the probate but proves that
the probate had been taken for recovery of money due, on mortgage of debutter
property executed by some co-shebaits being in possession of specific portions
on division and managing that portion separately and independently and for the
benefit of the deity and for the preservation of the estate. The lower
appellate Court modified that decree of the trial Cowl with the direction that
in case of default of payment the plaintiff will be appointed receiver to the
estate and will realise his dues Out of the income of the estate which fell to
the share of the co-shebait defendants.

Held: (a)
Section 213 of the Act is no bar when it is proved that probate in fact has
been taken, though it has not been proved.

(b)
Mortgage by co-shebaits defendants is valid even though not executed by other
co-shebaits as it is found to be for the benefit of the deity and for the
preservation of the estate.

That
the other co-shebaits are not interested in the mortgage because of the
division and that the debutter itself is not in any way prejudiced by the order
because of the appointment of the receiver and the direction made.

Bireswar
Ghose Vs. Kumar Vade Kanta Singha Ray (1950) 2 DLR 67

—Bar of
section when applies

The bar of
section 213 of the Act does not apply unless, whether he is the plaintiff or
the defendant., a person seeks to establish any right as executor legatee, but
if he seeks to establish such a right, i.e. cannot succeed unless he proves the
grant of p. abate or letters of administration.

Bindu Bala
De Vs. Rebati Mohan De (1952) 4 DLR 293.

—To defeat
the claim of natural heirs to the property of deceased person the claimant must
prove that at the moment the succession opened the property vested in him under
a will. Ibid.

S. 214(1)—Execution of
decree—Judgment- debtor dying after obtaining decree—Legal representatives
should obtain succession certificate as envisaged in s.214(l), Succession Act,
before proceeding with execution—Outright dismissal of execution application
made by legal representative, for want of succession certificate, neither
desirable nor necessary—Execution Courts should give time to legal
representatives of deceased decree-holder to obtain succession certificate.

Mst. Khatija
Begum Vs. Haji Gulzar Ahmed (1961) 21 PLD (Karachi) 141.

S. 214(1)(6)—Decree-holder
dying during the pendency of an execution case— Heirs can proceed with the
execution case without taking out a succession certificate.

An
application filed by the heirs of a deceased decree-holder in a pending
execution case for proceeding with the execution case cannot be said to be an
application for execution of the decree, but it is an application to allow the
heirs to proceed with the pending execution case, that is to say, the execution
case which had already been started by the decree- holder in his life time.

Though
clause (b) of sub-section (1) of section 214 of the Succession Act applies to a
case where the heirs of the original decree-holder, after his death, file an
application for execution of the decree it has got no application where the
application for execution of this decree had already been started by the
decree-holder who died during the pendency of the execution case, and his heirs
and legal representatives ask leave of the court to continue with the execution
case without filing any succession certificate.

Jogendra
Kishore Sarkar Vs. Gajendra Kr. Nandi (1960) 12 DLR 232.

S.
218—Applicant abandoning application for grant of Letters of
Administration—Court cannot pursue the application—Conduct of applicant may
operate as estoppel.

It cannot be
said that if an applicant abandons, or withdraws from the prosecution of an
application filed by him for grant of a Letter of Administration, the Court is
still bound to proceed with the same and bring it to a conclusion on judicial
determination of the points involved or that’ an instrument executed by the
applicants as consideration for such abandonment or withdrawal and
acknowledging therein either the factum or the validity of a transfer by an
agent (such as guardian) or limited owner of some interest to which they are
entitled or have a right to succeed in future is illegal. On the other hand, it
appears to be well settled that although both the transfer and the agreement to
transfer a reversionary interest are void, yet a reversioner may be estopped
from claiming the reversion by this conduct if he has consented to an
alienation by a widow or other limited heir.

Sishu Bala
Ghose Vs. Profulla Chandra Mondal PLD 1962 Dacca 490=13 DLR 307 (Sikandar Ali, J).

S. 228—Attorney
of executor—May apply under the section

There is
nothing in section 228 of the Act to dcbar an attorney of the absent executor
to apply for Letters of Administration with copy of the authenticated copy of
the will annexed.

Sir Roger
Thomas. In the matter of, PLD 1962 (WP) Karachi 744 (Inamullah, J.)

Ss. 228,
241, 291—Scope of sections 228 and 241 discussed.

Section 228
does not make provision for the grant of administration to an agent or
attorney, while section 241 assumes production by the attorney of the original
will. The two sections are intended to apply in very different circumstances,
the former where the will has been proved and the latter where it has not been
proved at all. The Court while acting under section 228 would grant Letters of Administration
without further proof of the will, while under section 241 the will has to be
proved.

Sir Roger
Thomas. In the matter of, PLD 1962 W.P. Karachi 744 (Inamullah, J).

S. 230—The
Succession Act does not empower an executor to renounce except in the manner
provided in section 230 or by applying for revocation of the grant under
section 263.

Swami
Turianandha Vs. Dinesh Chandra (1955) 7 DLR (FC) 156.

—Under
section 230 an executor may renounce orally in the presence of the Judge or by
a writing by himself and on such renunciation being made the executor is
precluded from ever thereafter applying for probate of the will. Ibid.

—The section
is capable of the construction that after the grant there is no power left in
the executor to renounce. Ibid.

Ss. 230 and
263—Applies to
cases of renunciation before a grant of probate. Section 230 refers to cases
where the renunciation is before the grant of the probate. Ibid.

Secs. 232
and 237—Will in the custody of a testator and is not found on his death—Presumption.

Where a will
is shown to have been in the custody of a testator and is not found on his
death, the presumption arises that the will has been destroyed by the testator
for the purpose of revoking it. No general rule can be laid down as to the nature
of evidence which would be required to rebut the presumption. 54 CWN (DR 2)
99.

—The
expression. since the testator’s death’ occurring in section 237 qualifies only
the word ‘mislaid” in the section having no reference to the word ‘lost.
Consequently section 237 applies to cases where the will was lost during the
life-time of the testator. 54 CWN (DR2) 99.

—‘Will’ in
section 232 means disposition rather than the original will, otherwise in no
case where the will is not in existence, universal or residuary legatee can
apply. 54 CWN (DR2) 99.

S. 263—The
Succession Act does not empower an executor to renounce except in the manner
provided in section 230 or by applying for revocation of the grant under
section 263.

Swami
Tunananda Vs. Dinesh Chandra (1955) 7 DLR (FC) 156.

—The section
is capable of the construction that after the grant there is no power left in
the executor to renounce. Ibid.

—If a person
having taken the probate wishes to relieve himself of the responsibilities of
the office of executor for a valid reason, he can only do so by asking the
court to revoke the grant in his favour under section 263.   Ibid.

—There is
nothing in section 263 to warrant the inference that it applies only where the
whole grant has to be revoked and that it is not applicable to cases where one
of the several executors to whom the probate was originally granted has become
of unsound mind or too old to act or has left the country.   Ibid.

—A provision
in will giving to each of the executors an unqualified power of resigning and
nominating with the consent of the majority of the executors is contrary to the
provisions of the Act.   Ibid.

—The clause
conferring that power could be valid only if it means that the resigning or
renouncing executor before nominating his successor has to obtain from the
court a revocation of the grant in his favour.   Ibid.

—Executor
when desires to be relieved.

If an
executor desires to be relieved from the legal status of an executor and
expresses a desire to withdraw, the only course open to him is to make an
application to the court under section 263, Explanation (d). Until an order for
revocation has been passed by the court he will continue in law to hold the
status and fill the office of the executor.

Radha Kanta
Pal Vs. Swami Turiananda (1950) 2 DLR 265.

Probate—Revocation—Just
cause.

Old age or
insanity of executor, or that the executor had left the country—Provisions in
will giving unqualified power to executor to resign and nominate a substitute,
held, contrary to provisions of Act— Proper procedure—First to get revocation
and then applying for a fresh probate.

Section 263
provides that the grant of probate or letters of administration may be revoked
or annulled by the Court for just cause. Among the instances of just cause
mentioned in that section is the case where a grant has become useless and
inoperative through circumstances.

Swami
Turiananda Vs. Radha Kanta Pal PLD (1955 (FC) 145.

—Creditors
application praying for revocation of probate—When his interest on account of
his loan not affected—No maintainable—If probate obtained on false
representation—He can ask for revocation.

A
creditor-simpliciter cannot be said to have a locus standi to pray for
revocation of the probate for it would be the duty of whoever is the grantee to
pay debts first, and his interest cannot be affected by any dispossession made
by the deceased.

But when it
is alleged by a creditor that the grant was obtained by means of untrue
allegation or by making false suggestion or by concealing from the court
something material to the case and when such fraudulent suggestion or
concealment would put the creditor in jeopardy such creditor would be entitled
to ask for revocation of a probate.

Mohd.
Majibur Rahman Mia Vs. Naresh Chandra Guha (1979) 31 DLR 213.

Ss. 263-265—The
District Delegate has no jurisdiction to entertain and to proceed with the
proceeding for revocation of the probate.

There is no
dispute that the will was allegedly executed by the testator and a probate
thereof was granted by the District Delegate. The application for revocation of
the will has been filed before the District Delegate. Now the question is
whether the District Delegate has jurisdiction to entertain the petition and
grant revocation prayed for before him. Section 265 provides for High Court
powers to appoint Delegate of District Judge to deal with non- contentious
cases.

Mohammad
Chand Mia Vs. Barista Krishna Kunda (1979) 31 DLR 97.

S. 264(2)—Deceased
Muslim—Issue of Letters of Administration—Court Fees Act Sec. 19-H. Delay in
verification of value—Effect.

The High
Court has jurisdiction to grant Letters of Administration in a case where the
deceased was a Muslim.

The grant of
letters of administration need not be delayed because of the omission on the
part of Collector to furnish the requisite information under section 19-H of
the Court-fees Act.

PLR
(1960) 1 (WP) 499.

S. 270—District
Judge can grant probate of Will if person executing it had fixed residence or
property within his jurisdiction.

Gour Chandra
Saha Vs. The Vicei Chairman, (1969) 21 DLR 535.

S. 283—Title to
property to be decided in a title suit and not in a proceeding for grant f
probate.

Md. Jalil
Ansari Vs. Surendra Nath Basu (1969) 21 DLR 331.

—Person not
interested in the estate of the deceased testator—Cannot claim to be a party in
a proceeding for obtaining a probate.

The
petitioner calls in question an order of the District Judge allowing the Deputy
Commissioner to be made a party in a proceeding under section 283 of the
Succession Act.

Held: If the
contention of the Deputy Commissioner is correct and the entries in the
record-of- rights are incorrect, he is to seek remedy under the appropriate
law. The present proceeding is with regard to the granting of probate on the
basis of the will. Persons who claim interest in the property through the
deceased are the persons who will be affected by the grant of the probate.
Therefore, the Deputy Commissioner is not a person who can claim to be a party
in the proceeding.

Md. Abdul
Jalil Ansari Vs. Surendra Nath Basu (1969) 21 DLR 331.

—The word’
interest’ in s. 283 means interest through the testator—One claiming
independently of the ‘will’ cannot be said to have an interest in the property.

Sreernati
Charubala Sen Gupta Vs. Abul Hashem & ors. (1981) 33 DLR (AD) 254.

S. 295—Person
opposing the grant of probate or letters of administration is to be too pleaded
as defendant.

Priya Bala
Majumdar Vs. Na1int Mohan Majumdar (1956) 8 DLR 109.

S. 299—District
Judge’s decision is subject to appeal to the High Court but not that of the
District

Delegate who
has to deal only with non-contentious matters falling under sections 286-288.

It will
appear from a reading of the provisions of sections 286, 287 and 288 that a
District Delegate cannot finally dispose of a contentious petition for probate
and that even in the case of a non- contentious petition in case of doubt; he
has to seek directions of the District Judge. He cannot also reject a
non-contentious petition for probate.

Samir Kumar
Chowdhury Vs. Sachindra Chandra Chowdhury (1968) 20 DLR 766.

S. 301—An
application for removal of an executor under section 301 of the Act does not
lie where the administration was complete and had come to an end.

Sachindra
Ch. Guha Vs. Naresh ananda Sarasati (1958)10 DLR 534.

—Capacities
of an executor and of a trustee are distinct and separate and have different
legal consequences flowing from them. The true function of an executor ceases
when funeral and testamentary expenses, debts and legacies have been satisfied
and the surplus, if any, have been invested upon the trusts of the will, for,
thereafter the executor sheds his character as an executor and becomes a
trustee in the proper sense of that term.

When the
legal estate, if devised absolutely to the legatee, is transferred to the
legatee, there is nothing left to administer and the administration is then
deemed to have come to an end.

Once an
executor always an executor is a correct maxim, for his functions of the
executor are confined to the execution of the will.   Ibid.

— In the
present case, having regard to the provision of the will the court held that
the intention of the testator was to set up a sole shebait and two or three
other persons as supervisors over the said sheban, and this function of acting
as a supervisor shebait was a function which was distinct and separate from
that of an “executor”.

Although in
the latter portion of the will the testator has used the words “executor for
the purpose of supervision” and “executor supervisor”, the word “executor” in
the context does not mean an executor in the strict sense of the term.

The will
contained a clause that Ramanath Das and Ashutosh Dhar should contribute Rs.
30/- p.m. It was thereupon urged that until and unless the executors made
proper arrangements for setting up an annuity fund for this purpose it could
not be said that they had as executors completed the execution of the will:

Held:
Administration under the will does not include the performance of injunctions
or directions which have nothing whatever to do with the estate of the
deceased. This was not a disposition of the estate by him and, as such, it was
not a part of the administration of the estate of the deceased which an
executor had to perform.   Ibid.

S. 306—Section 306
of the Act applies to executors and administrators of the deceased and not the
heirs representing the estate of the deceased. PLR (1960)1 (WP) 412.

—‘Personal
injury’—Decree in favour of the injured man for such injury—Death of the
injured man while an appeal against decree was pending—Heirs entitled to get
the decreetal amount and defend the appeal.

When a suit
is instituted by an injured person and a decree is obtained by him the cause of
action merges into the decree and the amount instead of being unhiquidated
becomes an ascertained sum and heritable.

In the
present case the plaintiff instituted the suit for compensation on account of
injury caused to the plaintiff by a running truck and obtained a decree against
the defendant. As against the decree the defendant filed an appeal and during
the pendency of the appeal the plaintiff died and thereupon the legal
representatives of the plaintiff entered their appearance in support of the
decree. It was however contended that the injury being personal to the
plaintiff the cause of action for damages cannot survive after the death of the
plaintiff.

Held: The cause of action of the plaintiff after the passing of the
decree merged in the decree which was heritable, transferable and enforceable
by the heirs of the plaintiff and as such, merely because the plaintiff died
during the pendency of the appeal the suit cannot abate.

Pakistan Vs.
Mrs. Siddika Khanum (1966)18 DLR 69.

S.311—Will—Executor—in
the absence of any direction to the contrary, powers of all executors may be
exercised by any of them.

Abul Kashem
Vs. Sk. Kosimuddin (1974) 26 DLR 173.

S.317(3)—Non-submission
of accounts and non-exhibition of inventory—District Judge suo moto cannot make
them grounds for revocation of the probate, when they were not taken exception
of by any of the interested persons.

Nirod Baran
Pal Vs. Nipar Bala Pal (1956)8 DLR 235.

Ss. 332,
333—Assent of the legatee— Does not create title—Title vests in the legatee on
the death of testator even prior to his assent.

Sections 332
and 333, Succession Act (XXXIX of 1925) do not mean that the legatee has till
his assent acquired no interest or right in the legacy. The right, even though
an inchoate right until assent, is nevertheless an interest created by the will
itself and the assent is only a perfecting act for the security of the
executor. The assent thus creates no new title, for, the title vests in the
legatee from the moment of the death of the testator, in the case of a
specified bequest, under section 104 of the Succession Act, and it cannot,
therefore, be said that till the executor has signified his assent the legatee
has no interest whatsoever in the subject matter of the legacy.

Jassumal Vs.
Central Govt. Reh. Deptt. PLD 1961 Supreme Court 21)6=1961 (1) PSCR 123=13 DLR
SC 177. (Hamoodur Rahman, J).

S.
372(3)—Certificate can be granted in respect of a portion of a debt.

A
certificate can be granted in respect of a portion of a debt or debts due to
the deceased creditor and, therefore, in the discretion of the Court two or
more certificates can be granted in respect of a debt due to the deceased.

Mrs. Sufia
Khanam Vs. Abdul Huq Khan (1968)20 DLR 450.

S.383—High Court
has no powers to interfere merely because it differs, however profoundly, from
conclusions of subordinate Court upon questions of fact or law—Administrative
Civil Judge dismissing petition under s. 383, Succession Act, 1925, having
found it negative as regards alleged fraudulent nature of proceedings or making
of false suggestion or concealment of something material—

Held:
Administrative Civil Judge having jurisdiction has decided question of fact
raised before him, whether rightly or wrongly—Interference by High Court in
revision under s. 115 CPC in circumstances refused.

Noor
Mohammad Vs. Namdar (1969) 21 PLD 205.

S.
388(2)—Proviso, Appeal against an order passed by a Judge lies to the District
Judge and not to the High Court.

It has been
provided in the proviso to subsection (2) of section 388 of the Succession Act
that an appeal against an order by a Judge who has been empowered by the
Provincial Government to discharge the function of District Judge in the matter
of succession certificate shall lie to the District Judge and it has further
been provided that it shall not lie to the High Court, It is therefore clear
that the appeal directly filed in the High Court-is misconceived and not
maintainable.

Mrs. Safia
Khanam Vs. Abdul Huq Khan (1968) 20 DLR 450.

Succession
to property—Custom, Force of.

(Custom in
Punjab)—Custom that devolution of property has a preference over the personal
law of the parties, is limited to the ancestral property only and not to
non-ancestral property and in case of latter, the governing law is the personal
law.

Mst. Qaiser
Khatoon Vs. Mvi. Abdul Khaliq (1973) 25 DLR (SC) 104.

SUCCESSION
ACT, 1925

Section—23

Consanguinity

It
provides that nothing in this part shall apply to intestate or testamentary
succession to the property of any Hindu, Muslim, Buddhist, Sikh, Jaina or
Parsi.

A
sisters son or a cousin sisters son is a relation by consanguinity within three
degrees of the donor. Such a transfer is not pre emptible.

Shamsul
Islam and others Vs. Badiar Zaman alias Bablu and another, 15 BLD (AD) 243.

Ref:
Sale Mohammad Vs. Mosammat Ayesha Khatoon Choudhurani, 20 DLR 376; Tamizunnessa
Vs. Umar Ali, 18DLR 572- Cited.

Sêction—211(1)

The
executor or administrator of a deceased person, whether is his legal
representative for all purposes and all the property of a deceased person vests
in him as such.

The
executor or administrator, as the case may be, of a deceased person is his
legal representative for all purposes and all the property of the deceased
person vests in him as such.

Sree
Jogendra Nath alias Gobinda Sarker V. Amulya Chandra Sarker & ors., 13 BLD (AD)
160.

Section—213

Section
213 of the Succession Act is a bar to any right claimed by any person under a
Will whether as a plaintiff or as a defendant unless probate or letters of
administration of the Will has been obtained. In this view of the matter the
decision reported in 7 BLD,244 was not relied upon.

Subhra Nandi
Majumder Vs Amar Prasad Bhattachariee and others, 17 BLD (HCD) 227.

Ref:
7 BLD 244 -Not relied upon AIR 1916 (PC) 202; A.I.R. 1962(SC) 147—Cited.

Section—275

Conclusiveness
of Probate or Letters of Administration

Grant
of probate is the proof of the validity of a will. So after granting of probate
and after the disposal of the revocation case there is no scope to determine
whether the will in question was executed by the testator and it is genuine or
not.

Sree Sree
Narayan Chakra Bigraha Vs Niranjan Bhattacharjee, 17 BLD (HCD) 167

Section—276

Application
for Probate or Letters of Admission

When
there is no executor to apply for grant of probate of the will, any surviving
legatee is entitled to apply for grant of letters of administration in respect
of the properties covered by the will. There is no provision in the Succession
Act that a legatee cannot apply for grant letters of administration when there
is no executor to apply for grant of probate. The court can grant letters of
administration even in respect of part of the property covered by the will.

Moktar
Hossain Vs. Budhi Bala Dashi, 15 BLD (HCD) 38.

Section—276

Probate or
Letters of Administration

In
a suit for probate or letters of administration the Court is to grant probate
or letters of administration if it finds that the will was duly executed by the
testator and he was in a state of mind competent to exercise his testamentory
powers. In this case 3 witnesses were examined by the plaintiff who proved the
execution and attestation of the Will. The trial Court without discussing the
evidence of the witnesses dismissed the suit by merely comparing the signatures
of the executor by naked eyes. The learned Judge ought to have discussed the
evidence of the witnesses before coming to any sweeping conclusion. On
consideration of the evidence of the witnesses the High Court Division accepted
the execution and attestation of the Will and granted probate.

Sree Pratik
Bandhu Roy Vs. Sree Alok Bandhu Roy 16 BLD (HCD) 445.

Sections—286,
287 and 288

Reading
the provisions of section 286, 287 and 288 of the Succession Act, particularly
the explanation of a word “contention” mentioned in section 286 of the Act, it
is reasonable to hold that a District Delegate shall cease his hands under
section 286 as soon as a contention as to the grant of probate or letters of
administration is raised in any case. Even in the case of a non-contentions petition,
in case of any doubt, the District Delegate has to seek directions of the
District Judge. He cannot, however, reject a non-contentions petition for
probate or letters of administration as has been done in the instant case in
violation of section 288 of the Succession Act. The caveat or respondent
claiming through the testator has no difficulty in contesting the probate
proceeding.

Haripada
Ghose and another Vs. Gopal Chandra Ghose, 15 BLD (AD) 140.

Ref:
Kalpana Das Gupta Vs. Govt. of Bangladesh and another, 40 DLR 373; Charubala
Sen Vs. Abul Hashem, 33DLR(AD) 254; Shubra Nandi Majumder Vs. Begum Mahmuda
Khatoon, 42 DLR(AD) 133; Samir Kumar Vs. Sachindra Chandra, 20 DLR (1968)
766—Cited.

Sections—295
and 299

Code of
Civil Procedure, 1908 , Section—115(1)

In
a case for granting probate or letters of administration before the District
Judge, the proceeding shall take as nearly as may be, in the form of a regular
suit according to the provisions of Code of Civil Procedure. Every order made
by the District Judge by virtue of the power shall be subject to appeal to the
High Court Division and accordingly the revision is incompetent.

Anuj
Chowdhury and others Vs. Sailendra Kishore Chowdhury and others, 19 BLD (HCD) 379.

Ref:
AIR 1963 Kerala 188—distinguishable

Section—383

Revocation
of certificate

A
person seeking revocation of certificate granted by a competent Court must have
some interest, immediate or remote, in the property of the testator. In the
absence of such a right he is not entitled to seek revocation of a certificate.

Arabinda
Sarker Vs. Bimalendu Bhowmick and others, 16 BLD(AD) 18

Ref.
A.I.R. 1978 Calcutta 140—Cited.

Section—388 Sub-section
(2)

Sub-section
2 of Section 388 of the Succession Act provides that where any Court inferior
in grade to a District Judge is vested with the power to exercise the function
of a District Judge, such a Court will be deemed to be a District Judge. But
proviso to the said Sub-section also provides that from any order passed by
such an inferior Court, appeal lies to the District Judge.

Dudu Miah
and others Vs. Sikandar Au and others, 14 BLD(HCD)228

SURPLUS
PUBLIC SERVANTS ABSORPTION ORDINANCE, 1985

(XXIV OF
1985)

Section—2(e)
Surplus Public Servants

According
to Section 2(e) of the Ordinance Surplus Public Servant means a public servant
whose post is abolished by the Government for the purpose of administrative
reorganisation or who, being a servant of the erstwhile Government of Pakistan,
joined the Government of Bangladesh on repatriation or escaping or defecting
from Pakistan, or any other public servant the responsibility of whose
absorption has been taken by the Government.

Lt. Col.
(Retd) Nazimuddin Ahmed Vs. Bangladesh and others, 15 BLD (AD) 179.

Sections—5
and 6

Section
5 of the Ordinance laid down the principles in accordance with which a surplus
public servant is to be absorbed in any particular post while Section 6
provides that the seniority, pay and pension of a Surplus Public Servant shall,
on his absorption in a post, be determined in accordance with the principles
laid down by the Government from time to time. Inspite of some amount of
dubiousness on the part of the Government as regards the absorption of the
respondent, the Appellate Division found it to be just and proper to extend the
benefit of doubt in favour of the respondent. A double standard treatment meted
out to different employees by the executive Government is deprecated.

The Director
General, NSJ Vs. Md. Sultan Ahmed, 16 BLD (AD) 76.

Succession
Act [XXXIX of 1925]

Section 28 (with 1st Schedule)—

Pre­-emption—Relations
by consanguinity—The donor’s daughter’s sons are not relations by consanguinity
within three degrees of the donor. They cannot therefore, get the protection of
clause (c) of sub—section (I 0) of sections 96 of the State Acquisition &
Tenancy Act. The Court below committed error of law in their decisions
occasioning failure of justice in holding otherwise.

Mir
Amanullah vs Mohammad Sharif 44DLR228.

Section 211—

The
respondent is not without any remedy for the execution of the decree in case of
a suit for specific performance of contract as the executor is a legal
representative for all purposes.

Shubra Nandi
Majumder vs Begum Mahmuda Khatoon 42 DLR (AD) 133.

Section 213—

Section 213
of the Succession Act does not debar the executor or legatee from instituting a
suit. It precludes him from obtaining a decree until a probate/letter of
administration of the will is granted.

Most.
Golbanu vs Sreemati Uma Rani Roy Chowdhury 38 DLR 175.

Section 213—

The decision
reported in 1987 BLD 244 that the executrix of the Will of the deceased
appellant is entitled to prosecute the appeal as substituted appellant in place
of the deceased appellant before she obtains probate of the Will cannot be
agreed with.

Subhra Nandi
Majumder vs. Amar Prasad Bhattacharjee and others 49 DLR 227.

Sections 237, 238 & 239—

The original
‘Will’ need not be annexed with the application for probate in respect of cases
mentioned in sections 237, 238 and 239 of the Act. In cases of non-availability
of the original ‘Will’ a draft copy or statement of the contents thereof may be
annexed.

Durga Rani
Sutradhar vs Paresh Chandra Sutradhar 55 DLR 600.

Section 263—

Dismissal of
an application by a person made under Order I, rule 10, CPC to be added as a
party in a probate proceeding does not deprive the party of its right to apply
for revocation of grant of probate under section 263 of Succession Act (the
petitioner).

Azifa Khatun
vs Tulshi Ranjan Roy 37 DLR 268.

Sections 265, 272 and 286—

Proceedings
of the District Judge and the District Delegate in respect of grant of probate
and Letters of Administration are not the same. District Delegates appointed
under section 265 can grant probate and Letters of Administration only “in
non-contentious issues”. Power of District Delegate under sections 265,
272 and 286 of the Act is strictly confined to non-contentious issues.

Kalpana Das
Gupta vs Bangladesh 40 DLR 373.

Section 268—

When
proceeding ceases to be non-contentious, the District Delegate has to stop the
proceeding.

Kalpana Das
Gupta vs Bangladesh 40 DLR 373.

Section 276—

In our
country an application for probate or letters of administration is governed by
the old law i.e. the Limitation Act, 1908, and there is no bar of limitation in
applying for the grant of probate or letters of administration or revocation
thereof.

Mokta
Hossain vs Budhi Bala Dashi 48 DLR 202.

Section 276—

In a suit
for probate or letters of administration all that the Court is to see is that
if the Will in question is a genuine one and then the Court is required to see
if the testator had disposing mind at the time of execution of the Will.

Moktar
Hossain vs Budhi Bala Dashi 48 DLR202.

Section 283—

In a probate
proceeding the Court is required to consider whether the will was duly executed
and it is not the concern of the Court to decide whether the testator had title
to be a testator—A person who claims outside or independently of the will or
claims adversely to the testator and disputes his right to deal with the
property cannot be deemed to claim any interest in the estate of the
deceased—An interest in the estate of the testator means an interest through
the testator.

Md Makbul
Hossain vs Sree Sibu Pada Dam 40 DLR 120.

Section 283—

An
objector’s application, when he appears in response to the citations under
section 283, can only be disposed of by the District Judge and not by the
District Delegate.

Kalpana Das
Gupta vs Bangladesh 40 DLR 373.

Section 283—

The
respondent who has been allegedly in possession of the disputed properties
through a contract is not entitled to citation at all.

Shubra Nandi
Majumder vs Begum Mahmuda Khatoon 42 DLR (AD) 133.

Section 283 Clause (c)—

If a person
claims independently of the Will he cannot be said to have interest in the
probate case.

Chandi
Proshad Dhar vs Bibha Rani Dhar & ors. 50 DLR 355.

Section 286—

Explanation—Meaning
of “Contention”. In the Explanation to section 286 it has been
provided that “contention” means the appearance of anyone in person
or by his recognised agent or by a pleader duly appointed to act on his behalf,
to oppose the proceeding.”

Kalpana Das
Gupta vs Bangladesh 40 DLR 373.

Sections 286 & 288—

A District
Delegate shall cease his hands under section 286 as soon as a contention as to
the grant of probate or letters of administration is raised in any case and the
matter shall be returned to the District Judge in — accordance with the
provisions of section 288.

Haripada
Ghose and another vs Gopal Chandra Ghose 47 DLR (AD) 164.

Section 288—

Authority of
the District Delegate in disposing of cases in which there is contention.

Section 288
of the Succession Act provides, inter alia, that in every case in which there
is ·contention, the petition and documents shall be returned to the applicant
for presentation to the District Judge. Alternatively the District Delegate is
authorised to impound the same for the purposes of justice and shall send the
same to the District Judge.

Kalpana Das
Gupta vs Bangla­desh 40 DLR 373.

Sections 290, 295 & 299—

Every order
including an interlocutory order passed by a District Judge in a Probate
proceeding is subject to appeal and as such this revisional application is
incompetent.

Anuj Choudhury
& others vs Sailendra Kishore Chowdhury and others 51 DLR 460.

Section 371—

The District
Judge will grant a certificate under this section when the deceased ordinarily
resided within his jurisdiction. In a case where the deceased has no fixed
place of residence the District Judge will grant the certificate if· any part
of the property of the deceased could be found within his jurisdiction.

Ummida Khan
vs Salahuddin Khan 37 DLR 117.

Section 371—

Section 371
states only “ordinarily resided” and not permanently resided.

For a
District Judge to entertain a petition under section 371 of the Succession Act,
the deceased ought to have ordinarily resided within the local jurisdiction of
the District Judge granting certificate at the time of his death. The term
residence, as it appears in this section, was not qualified by the word
permanent residence. It only speaks of ordinarily resident. A person may have a
permanent residence at Dhaka but yet may ordinarily be a resident of some other
place at the time of his death, where he might have gone before his death for
the purpose of his business and was residing there.

Ummida Khan
vs Salahuddin Khan 37 DLR 117.

Section 372—

The Court is
always empowered to grant a succession certificate to a minor on his application
through his mother.

Muhaiminul
Hasan Khan vs Md Nurul Islam Khan and others 54 DLR 156.

Section 372—

Having
considered the definition of ‘debt’ and the decided cases where ornaments were
lying with the Bank could be considered as ‘debt’, and as such the ornaments
lying with the Bangladesh Bank being recovered from Ms H Dey Jewellers are a
‘debt’ which could be claimed by its owners.

Aloke Nath
Dey vs Government of Bangladesh represented by the Deputy Commissioner 56 DLR
(AD) 66.

Section 372—

A succession
certificate could only be granted in presence of or with the knowledge of the
members of the family or in their absence other near relatives left by the
deceased.

Prodip Kumar
Dutta & anr vs Mira Rani Dutta and another 56 DLR 571.

Section 383—

A person
seeking revocation of certificate granted by a competent Court must have some
interest, immediate or remote, in the property of the testator.

Arabinda
Sarker vs Bimalendu Bhowmik 48 DLR (AD) 182.

Section 388(2)—

Where any
Court inferior to a District Judge is vested to exercise function of District
Judge such inferior Court is to be deemed ·a District Judge but an appeal from
his order shall lie to the District Judge.

Dudu Miah vs
Sikandar Ali 46 DLR 386.