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.
