Sections-2 (c) & 5

The then President on 5.9.90 six Temporary Taxes Appellate Tribunal Benches were created only for 2 years to dispose of pending cases quickly — on the basis of a competitive examination and interview and after observing all formalities of quota system for freedom fighters, districts and women, the writ petitioners were appointed temporarily for a period of 2 years at Temporary Benches of the Taxes Appellate Tribunal. Their appointment was to last upto 14.1.92 — on 7.12.91 writ petitioners were informed by a notice from the Taxes Appellate Tribunal that there was no possibility of continuing their services beyond 14.1.92 — But though their posts were abolished due to abolition of Temporary Benches, yet additional equivalent posts were created in the reorganized Six Permanent Taxes Appellate Tribunal Benches —The contention of the writ petitioners is that they are Surplus Public Servants — Held: The writ petitioners posts and services communed from their respective dates of appointment and ended with the expiry of 14.1.92. These posts were never abolished for the purpose of administrative reorganisation and the writ petitioners do not fall within the meaning in section 2(c) — we hold that they had no right to be absorbed under Section 5.

The Secretary Ministry of Finance Vs. Nasrin Banu & Ors. 4BLT(AD)-40

The Succession Act, 1925

Probate — although there is a will but unless and until it is proved in accordance with law, on the face of objection raised by any interested party (herein the appellant) a Probate cannot he granted on compromise and it is not permitted by law.

Kanai Lam Roy Vs. Swaraswati Roy & Ors 13 BLT (AD) 23


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 go into and decide any question relating to title in the disputed property.

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

Section-211 (1)

Suit on the basis of will but not on the basis of heirship or inheritance under the provisions of sec. 211 (1) of the Act the executor or the Administrator for probate of a deceased person is his legal representative for all purposes—the principle of specific plea of ouster.

Jagendra Nath Vs. Amulya Chandra Sarker 1BLT (AD)-38

Section -263

The application for revocation is liable to be rejected on the ground of delay

Where a person comes to Court after a long lapse of time and knowledge, the Court will not re-open the grant unless he offers reasonable explanation of the delay. The delay on the part of the respondent in applying for i-evocation amounts to a waiver and acquiescence, and the Court may in its discretion refuse revocation of the grant.

Namita Rani Biswas & Ors Vs. Rabindra Nath Majhi & Ors 15 BLT (HCD)493


Even a slightest interest in the property— LocusStandi;

A person who has an interest in the estate of the deceased is entitled to enter caveat and oppose the grant of probate or Letter of Administration, is entitled to apply for revocation. – As the respondent had no interest in the property of the testator he was not entitled to a special citation be served at the time of issuing the grant. We hold that the grant does not displace any right to which the respondent would otherwise be entitled.

Namita Rani Biswas & Ors Vs. Rabindra Nath Majhi & Ors 15 BLT (HCD)493


Section 263 gives discretion to the Court in the matter of revocation of the. grant, which must be judicially exercised, and since it is a discretionary power, revocation may be refused in a particular case notwithstanding the existence and proof of ‘just cause’. A ‘just cause’ under this provision may exist apart from the invalidity of the will and if there is a valid subsisting will which is either proved or admitted, it will be useless to revoke the grant even if just cause has been established.

Namita Rani Biswas & Ors Vs. Rabindra Nath Majhi & Ors 15 BLT (HCD)493

Section —370

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

Aloke Nath Dey Vs Government of Bangladesh. 13BLT(’AD)97


Whether brother and/or mother are entitled to citation.

Citation is required for fair play. 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
& Ors. Vs. Mira Rani Dutta & Ors. 12 BLT (HCD)287

Section —372

In the instant case before us neither Haladhar Chandra Dey nor any of his heirs deposited the ornaments with the Bangladesh Bank. The iron safe contained the ornaments was taken from the shop MIS H. Dey Jewelers owned by Haladhar Chandra Dey and deposited with the Bangladesh Bank by a Magistrate, First Class, It was therefore a debt by the Bangladesh Bank to Haladhar Chandra Dey or his heirs and the heirs could apply for grant of succession certificate for those ornaments.

Aloke Nath Dey Vs Government of Bangladesh. 13 BLT (AD)97


Although in the facts and circumstances the ornaments recovered from H. Dey Jewelers and kept with the Bangladesh Bank is a debt, ought to be returned to the real owners, it appears from the power of attorney that Aloke Nath Dey as the heir Haladhar Chandra Dey is not the only claimant to the ornaments and as such the granting of succession certificate in his favour for the entire jewellery by the District Delegate, Khulna in Miscellaneous Case No.121 of 1997 was illegal.

Aloke Nath Dey Vs Government of Bangladesh. 13 BLT(AD)97


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 -283 Clause-(c)

Application for adding as a party in the probate case — Admittedly petitioner is not an heir of the testator and he may be a co-sharer in the property under the Will, but for this he cannot claim to have any interest in the estate of the deceased and so to come and see the proceedings before granting of probate as prescribed in the aforesaid clause (c). Decision of the Appellate Division is to the effected that the word “interest” in section 283 of the Succession Act means interest from the testator and that if a person claims independently of the Will cannot be said to have interest in the probate case relied on 35 DLR (AD)

Chandi Proshad Dhar Vs. Bibha Rani Dhar & Ors. 5BLT (HCD)-116


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 transected 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


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 Venkatamma, ILR 36 Madras 214 and that of 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.