Probate | Case Reference

Probate

High Court Division granted the probate as was prayed for, by the compromise petition and in the terms of the compromise.  

We are of the view is that 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 be granted on compromise and it is not permitted by law. Kanai Lal Roy vs Swaraswati Roy (Abu Sayeed Ahanuned. J) (Civil) IADC 505

After granting probate by the  competent Court if any question is raised in respect of an Will on the basis of which probate was granted and if in such case the Will is disturbed it shall make the probate revoked which is within the domain of the specially empowered Court and thereby a Civil Court under the Civil Courts Act shall have no jurisdiction to adjudicative/determine the same. The learned  District Judge or the District Delegate being empowered to deal with such matters is the only authority who can either grant or revoke the same. Moreover, when the District Judge or District Delegates being specially empowered by law granted probate of a Will after observing due process of law the same cannot be interfered with or declared null and void on the prayer of a person, not interested through the testator in the estate of the deceased testator, by filing a simple declaratory suit invoking jurisdiction under section 42 of the Specific Relief Act. So far the plaintiff's claim is concerned he is to prove that he is interested in the estate of the deceased testator through the testator and that also is to be proved before the appropriate Court having competent jurisdiction. [73 DLR (AD) (2021) 142]

Since granting of probate is a judgment in rem and binds not only the parties but also to the entire world any question relating to the Will after granting of "probate" cannot be looked into by any other civil court other than the court having competent jurisdiction ensured by the statue. In the other words, the probate court alone has exclusive jurisdiction and the civil Court on original side does not have jurisdiction even if consented to by the parties, to adjudicate upon the proof or validity of the Will propounded by the executrix once the probate is granted. In the instant case the suit instituted by the plaintiff was for declaration under section 42 of the Specific Relief Act for declaring the Will forged, fraudulent invalid etc, such step of the plaintiff is misconceived because so long the probate stands, the plaintiff is not entitled to any legal character or any right to property as required by section 42 of the Specific Relief Act. The Court of Joint District Judge, was to therefore incompetent to proceed with the hearing and determining the present suit. A suit filed in a Court incompetent under the provision of an Act is not maintainable. When the suit is not maintainable it is nothing but a futile exercise which should not be a allowed to proceed with. As such the trial Court as well as the High Court Division committed serious error of law in rejecting the application under Order VII, rule II of the Code of Civil Procedure. Thus we are of the view that the application under Order VII, rule 11 of the Coder was rightly filed by the defendant No.1, (appellant herein) and, as such, the trial Court as well as the High Court Division committed serious illegality in rejecting such application of the defendant appellant. [73 DLR (AD) (2021) 143]

Prayer for probate in respect of the will of her husband

In First Appeal (Probate) No. 246 of 1996, the said appeal was required to be disposed of on merit by the High Court Division for disposal in accordance with law in place of "The probate case. Kanai Lal Roy vs Swaraswati Roy alias ors. (Md. Ruhul Amin J(Civil) 3ADC 473

A Probate cannot be granted on compromise, if objected 

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 be granted on compro- mise and it is not permitted by law. Kanai Lal Roy vs Swaraswati Roy alias Srimati Swaraswati Roy (Md. Ruhul Amin JM(Civil) 2ADC 546

 

Probate and letter of Administration upon a will 

The possession of the bequeathed property having remained with the legatee it can be safely said that the will was acted upon. Government also could not show any law as to limitation of filing a case for issuance probate and letter of administration upon a will. Therefore, delay in filing the suit cannot be a material factor and illegality in granting probate and letter of administration. Govt. of Bangladesh vs Sree Sudhir Kumar Chakraborty (Abu Sayeed Ahammed JCivil) 2ADC 36

Will/ Probate- The beneficiaries of the Will did not come forward to challenge the order of the probate case. Although the defendants alleged that the probate case was false, they did not adduce any evidence or produce any witness to substantiate their claim. Moreover, the claim of the defendants that they purchased the property is contradicted by the plaint of the suit which they filed earlier wherein they claimed to be tenants in the property. Their subsequent attempt to amend the plaint to establish their claim of proprietary right over the property failed. Hence, the trial Court and appellate Court rightly decreed the suit. We do not find any illegality or impropriety in the impugned judgement and order of the High Court Division...... Ramesh Chandra Das VS= Gopal Chandra Majumder, [4 LM (AD) 321]