SUCCESSION ACT, 1925

Section-63

Execution and attestation of will and scope of enquiry in a probate case.

In a probate case, the Court is required only to consider whether the will was duly executed by the testator and it was attested by witnesses. The Court cannot to into and decide any question relating to title in the disputed property.

ADC (Revenue) Vs. Arun Kumar Chakrahorty & Ors. 9BLT(HCD)-192

Section-283

Claiming interest in the estate of the testator.

The word ‘interest’ in Section-283 of the Act means interest through the testator. Therefore, one claiming independent of the will cannot be said to have an interest in the property of the testator. A person who claims outside the will or independent of the will and claims adversely to the testator and disputes his right to deal with the property, cannot claim any interest in the estate of the deceased.

ADC (Revenue) Vs. Arun Kumar Chakraborty &Ors. 9BLT(HCD)-192

 Section-388(4)

Authority— issue a succession certificate

Under Section 388(4) of the Succession Act, the District Judge is invested with the power to withdraw any proceedings under part X from any inferior Court, and may himself dispose of them or transfer them to another such Court within the local limits of his jurisdiction and having authority to dispose of the proceedings. By order dated 26.05.92 the learned District Judge transferred the case to the Court of the Subordinate Judge Arbitration Court at Dhaka who was for the first time found in appeal that he did not have such authority to dispose the case. For this
mistake of the learned District Judge, the petitioner cannot be held responsible nor his application would fail.

Muhaiminul Hassan Khan Vs. Md. Nurul Islam Khan & Ors. 10 BLT (HCD)-139.

Section-388(4)

We must consider the legal standing of a nominee or next of kin in such proceeding for succession certificate. It may be noted that any person may apply for the certificate but it is always expected that an heir of the deceased should make the application. A succession certificate is not the final adjudication of the question as to who is the next heir and as such, entitled to the estate of the deceased. Granting of a certificate merely clothed the holder with an authority only to recover the debts of the deceased and to give valid discharge. In law nomination or declaring one as the next of kin for official record does not operate as a transfer or assignment of the securities or debts, or more particularly the estate of the deceased. Similarly, aw decided in the case of Krishnamacharia v Vcnkatamma, ILR 36 Madras 214 and that oi” in re Estate of C V Nayagan. 1936 Rang 466, the Court is always empowered to grant a succession certificate to a minor on his application through his mother.

Muhaiminul Hassan Khan Vs. Md. Nurul Islam Khan & Ors. 10 BLT (HCD)-139.

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