’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).

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.

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.

State Acquisition and Tenancy Act, 1950
Sub-section 10 of section 96 And
Succession Act, 1925
Section 28:
Section 28 of the Indian Succession Act, 1925, provides mode of computing of degrees of kindred in the manner set forth in the table of kindred set out in schedule 1. From the table of schedule 1, annexed with the counter affidavit, it is evident that brother-in-law is not a relation within three degrees by consanguinity. Pre-emptee opposite party no.1 being not a relation within three degrees by consanguinity of the donor is not entitled to get protection of Sub-section 10 of section 96 of the State Acquisition and Tenancy Act. ...Sree Paresh Chandra Pramanik vs Md. Mokbul Hossain & ors, (Civil), 7 SCOB [2016] HCD 64 ....View Full Judgment

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

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.

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 Evidence 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

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.

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

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.

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.

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. [Para-9] Jagendra Nath Vs. Amulya Chandra Sarker 1 BLT (AD)-38.

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

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.

The Code of Civil Procedure, 1908
Order 7, Rule 11
The Succession Act, 1925
Section 213 r/w sec. 57, 58
Mohammedan law
Section 117
It is now well settled that when on the face of the plaint, it is found that the suit is barred by any law or is foredoomed and if it is allowed to be proceeded with, it will amount to an abuse of the process of the Court, the Court is empowered to reject the plaint in exercising its inherent power.
The High Court Division without considering the pertinent legal issue that the provisions of Succession Act and Mohammedan law the probate case is not maintainable, passed the impugned judgment simply holding that without taking evidence, the dispute between the parties cannot be resolved, and as such committed serious error of law and the impugned judgment is liable to be set aside. .....Jahanara Begum =VS= Hazi Nizamuddin, (Civil), 2024(1) [16 LM (AD) 582] ....View Full Judgment

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

Objection at the belated stage–
The Appellate Division observed that after examination of 4 witnesses, Ganendra Roy filed a fresh written objection which was accepted by the learned District Judge on 09.04.1997. Against the said order dated 09.04.1997, the petitioner filed the aforesaid appeal.The High Court Division by the impugned judgment and order dismissed the appeal. Then the plaintiff-petitioners filed this petition before Appellate Division from the judgment and order of the High Court Division, it appears that it held that the plaintiff had not been prejudiced due to the acceptance of the written objection. It is the discretion of the learned District Judge either to allow the written objection or to reject it. Since the petitioner had not been prejudiced any way, that is, the discretion had been exercised judicially, Appellate Division does not find anything to interfere with the judgment and order of the High Court Division. .....Pollob Kumer Dev =VS= Ganendra Nath Roy, (Civil), 2016-[1 LM (AD) 189] ....View Full Judgment

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.

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

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.

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

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.

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.

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.

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.

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.

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

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.

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

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.