Home Today's Paper Most Popular Video Gallery Photo Gallery
Subscription Blog Signin Register
Logo
Sunday, February 25, 2018 07:32:50 AM
Follow Us On: Facebook Twitter Twitter Twitter Twitter

Due execution of 'Will'

By
10th-Jun-2017       
Comments
Share your thought
Post a comment »
Read all () »

High Court Division
(Civil Appellate Jurisdiction)
Quazi Reza-ul Hoque J
JN Deb Choudhury J
Sukumar Nath and another ..............
..................................Appellants
vs
Rupan Kanti Nath
and another..............
.................................Respondent
Judgment
June 13th, 2017
Registration Act (XVI of 1908)
Section 17
Registration of instruments of gift of immoveable property is compulsory-In a probate case the Court is concerned with due execution of the 'Will' and not with the question whether the testator had title to the property or whether he had any authority to otherwise deal with the property. . ..... (12)
Succession Act (XXXIX of 1925)
Section 276
Principles of Hindu Law
Section 379
Petition for Probate-That a Hindu may give his property to, anyone he likes by executing a 'Will'. It has also, been settled in different cases that there is no bar in executing a 'Will' in favour of person. . ..... (15)
Sreemati Charubala Sen Gupta vs Abul Hashem 1981 BLD (AD) 218 = 33 DLR (AD) 254 and Makbul Hossain vs Sree Sibu Pada Dam, 40 DLR 120 ref.
AB Roy Chowdhury, Advocate-For the Appellants.
Subrata Chowdhury with Surojit Bhattacharjee with Jhuma Halder, Advocates-For the Respondent No.1.
Judgment
JN Deb Choudhury J : This first appeal has been filed against, judgment and decree dated 28-3-2010 passed by the learned Additional District Judge, Third Court, Chittagong, in Civil Suit No. 01 of 2006.
2. The respondent as petitioner filed Probate Miscellaneous Case No. 465 of 2005 on 13-9-2005 under Section 276 of the Succession Act, 1925 on stating that Manmohon Nath was issueless and on 10-5-1978 took the petitioner of the case as his adopted son on performing all religious ceremonies and on 30-12-1991 executed a registered 'Will' and appointed the petitioner as· the executor and in that 'Will' it has been stated that the petitioner will get the first schedule land, wife of the testator will get the second schedule land and the opposite party Nos. 1 and 2 will get the third schedule land. Manmohon Nath died on 23-1-2000 and accordingly on stating the aforesaid fact prayed for granting probate of the 'Will'.
3. The opposite party Nos. 1 and 2 of the probate miscellaneous case appeared in the case and filed written objection denying the case of the petitioner and accordingly on 18-7-2006 in view of Section 288 of the Succession Act, 1925, the concerned Judge transferred the case to the District Judge. On transfer the said proceeding registered as a civil suit and the same on transfer was heard by the learned Additional District Judge, Second Court, Chittagong.
4. The defendant Nos. 1 and 2 contested the suit on stating that Manmohon Nath never took the petitioner as his adopted son and after death of Manmohon Nath his wife Dayabala got the land of Manmohon Nath and after death of Dayabala the defendant Nos. 1 and 2 being the brother's sons got the lands of Manmohon Nath and claimed that the 'Will' being false, fabricated and collusive and accordingly, plaintiff is not entitled to get the probate of the 'Will' as prayed for.
5. Plaintiff examined 2 (two) witnesses including the plaintiff himself as P W 1 and one of the witness of the 'Will' as PW 2 and filed some documents which were marked as exhibit Nos. 1-10. The contesting defendants also examined 2 (two) witnesses including defendant No.2 as DW 1 and another witness  as D W 2 and filed some documents as 'exhibit Ka-Ga-3'.
6. The trial Court by the judgment and decree dated 28-3-2010 decreed the suit and granted probate of the 'Will'.
7. Being aggrieved, defendant Nos. 1 and 2, preferred the instant first appeal.
8. Mr AB Roy Chowdhury, the learned Advocate for the appellants submits that the plaintiff failed to prove that he was taken as adopted son by Manmohon Nath. He next submits that the 'Will' has also not been proved. Mr Roy with emphasis submits that the instrument of adoption not being registered in view of Section 17 of the Registration Act, 1908, it cannot be said that the adoption was a valid one and the trial Court without considering all these aspects most erroneously decreed the suit and accordingly, prayed for setting-aside the same on allowing the appeal.
9. Mr Subrata Chowdhury with Mr Surojit Bhattacharjee, the learned Advocates appearing for the plaintiff-respondent submits that the 'Will' was executed during the life time of Manmohon Nath and he himself got the 'Will' registered and the plaintiff on examining the witness of the 'Will' as PW 2 proved the 'Will'. He next submits that documents relating adoption were filed and proved and were  marked as exhibit Nos. 1 and 2. Mr Chowdhury next on referring to exhibit No.5 submits that the defendant Nos. 1 and 2 while transferring some land in favour of the plaintiff on 27-2-2000 specifically stated the name of the plaintiff as Rupon Kanti Nath, son of Manmohon Nath and as such, he submits that there is no scope on part of the defendants to deny the fact of adoption. He next submits that the trial Court upon proper consideration of the respective cases rightly decreed the suit. In support of his submissions he relied upon some decisions, reported in 40 DLR 120, 1981 BLD (AD) 218 and accordingly, prays for dismissal of the appeal.
10. We have heard the learned Advocates for both sides and gone through the plaint, written statement, depositions and exhibits along with the impugned judgment and decree of the trial Court.
11. It appears that the suit land admittedly belonged to Manmohon Nath and said Manmohon Nath was issueless. The 'Will' for probate in the instant case as per the plaintiffs case was executed and registered by the said Manmohon Nath on 30-12-1991. By the said 'Will', Manmohon Nath desired that the property of schedule 1 will be devolved upon Rupon Kanti Nath the plaintiff of the suit and the property as described in the second schedule will be devolved upon his wife Dayabala and the property of third schedule will be devolved upon defendant Nos. 1 and 2 of the suit.
12 . In a probate case the Court is concern with due execution of the 'Will' and not with the question whether the testator had title to the property or, whether he had any authority to otherwise deal the property.
13. On perusal of the registered 'Will' dated 30-12-1991 it appears that execution of the said 'Will' has been attested by 3 (three) witnesses namely Hori Krishno Nath, Kazi Nazrul Islam and Ainun Bepari.
The said 'Will' has been presented for registration by the executant Manmohon Nath himself.
14. It appears from the written statement filed by the defendant Nos. 1 and 2, that their main contention is that the very adoption took by Manmohon Nath was not inaccordance with the Hindu Law. It further appears from the written statement that their next contention is that Manmohon Nath transferred almost all of his share. Regarding adoption of the plaintiff as son by Manmohon Nath the plaintiff filed exhibit Nos. I, 2 and 5 amongst those exhibit Nos. 1 and 2 were the documents regarding adoption and exhibit No. 5 is the deed of sale executed by the defendant Nos. 1 and 2 in favour of the plaintiff on 27-2-2000 and in that registered sale deed the name of the purchaser shown as Rupon Kanti Nath son of Manmohon Nath, the plaintiff of the suit.
15. In our country while dealing with personal law of Hindu the text book of "Principles of Hindu Law" by Sir Dinshah Fardunji Mulla (DF Mulla), editions till 1946, considered as an authority and in section 379 of the book, it has been made clear that a Hindu may give his property to, anyone he likes by executing a 'Will'. It has also, been settled in different cases that there is no bar in executing a 'Will' in favour of person in view of that it is not so much important, whether the plaintiff was an adopted son of Manmohon Nath or not) Plaintiff in order to prove his case examined 2 (two) witnesses including plaintiff as P W 1 and one attesting witness namely Hori Krishno Nath as P W 2 and defendant Nos.  1 and 2 also examined 2 (two) witnesses Including defendant No.2 as DW 1.
16. The PW 1 stated in his examination-in chief that,
“আমার দত্তক পিতা মনমোহন নাথ, তাহার জীবদ্দশায় ৩০-১২-১৯৯১ ইংরেজী তারিখে সম্পাদিত ও রেজিস্ট্রিকৃত একটি উইল করিয়া দিয়াছেন। উক্ত উইল আদালতে দাখিল করিয়াছি। সেই উইল নথিতে আছে।”
১৭. ঞযব চড ২ ংঃধঃবফ রহ যরং বীধসরহধঃরড়হ-রহ-পযরবভ ঃযধঃ,
“তিনি জীবনমানে ৩০-১২-১৯৯১ইং তারিখে একটি উইল সম্পাদন করিয়া দিয়াছিলেন। ঐ উইল লেখা ও সম্পাদনের সময় আমি উপ¯ি'ত ছিলাম। ঐ উইল আমি সাক্ষী হিসেবে সহি করিয়াছিলাম। অপরাপর সাক্ষীগণ আমার উপ¯ি'তিতে উইল স্বাক্ষর প্রদান করিয়াছিল। ঐ উইল সঠিক ও যথার্থ উইল। তাহা রেজিস্ট্রি করিয়াছিল। এই সেই উইল (প্রদর্শনী-১১) উহাতে এই আমার স্বাক্ষর প্রদর্শনী-১১/১।”
18. While DW 1 stated in his examination-in-chief that , “মনমোহন তৎ প্রাপ্ত প্রায় সম্পত্তি হস্তান্তর করিয়া দিয়াছে। ওয়ারিশ সূত্রে আমরা সমুদয় জমি পাইয়াছি। আমাদের নামে ঐ জমি খরিদ করিয়াছি। "ধহফ ফঁৎরহম পৎড়ংং-বীধসরহধঃরড়হ ংঃধঃবফ ঃযধঃ,
“আমার দাদা উইল দিয়াছে কিনা তাহা আমি জানি না। তাহা রেজিস্ট্রার্ড ইউল কিনা জানি না। উইলকে লেখক ও সাক্ষী হিসাবে যাহার নাম আছে তাহাদের সাথে আমাদের কোন শত্রুতা আছে কিনা জানি না।
আমি ও আমার ভাই শকুমার নাথ ২৭-২-২০০০ তারিখে বাদী রুপন কান্তি নাথের নিকট কতেক জমি হস্তান্তর করিয়াছি।.....
বাদী কে উইল করিবার কারণে আমাদের আপত্তি রহিয়াছে।”
১৯.    উড ২ ফঁৎরহম পৎড়ংং-বীধসরহধঃরড়হ ংঃধঃবফ ঃযধঃ,
“অত্র মামলা প্রবেট মামলা ৩০-১২-২৯৯১ তারিখে রেজিস্ট্রার্ড উইলের প্রসংগে কথাবার্তা সম্পাদন ইত্যাদি বিষয়ে আমি কিছু জানি না। ..............
উইল ভুক্ত জায়গাা মধ্যে কতেক জায়গা বাবদ ২৪-১১-০৮ তারিখে বিবাদী সুকুমার ও নারায়ন হইতে একটি কবলা নিয়াছি।”
20. It has been held in a case of Sreemati Charubala Sen Gupta being dead her substituted legatee Paresh Chandra Deb Gupta vs Abul Hashem, reported in 1981 BLD (AD) 218 = 33 DLR (AD) 254 that,
"But in a proceeding for the probate of a Will what the court is required to see is whether the Will is duly executed and if there is evidence to this effect the Court will grant the -probate. It is not the concern of the probate court to decide whether the testator had tide to the property or whether he had any authority to otherwise deal with the property."
21. It has been held in a case of Md Makbul Hossain vs Sree Sibu Pada Dam, reported in 40 DLR 120 that,
"We are unable to accept the contention of the learned Advocate for the petitioners. In a probate proceeding under the Succession Act the Court is required only 10 consider whether the will is duly executed and it is not the concern of the Court to decide whether the testator had title to the property. On consideration of evidence if it is found that the will is genuine and duly executed, the Court cannot refuse to grant probate of the Will."
22. In view of the above facts and circumstances 'of the case and in view of the settled principle as decided by the Apex Court so also by this Division, we are of the view that the plaintiff abled to prove that Manmohon Nath duly executed and registered the 'Will' On 30-12-1991 and the said 'Will' has been attested by 3 (three) witnesses and one of them has been examined as PW 2.
23. Accordingly, we do not find substance in the arguments of the learned Advocate for the appellants and find substance in the arguments of the learned Advocate for the respondent No. l.
24. In the result, the appeal  is dismissed.
25.The impugned judgment and decree dated 28-3-2010 passed by the learned Additional District Judge, Third Court, Chittagong, in Civil Suit No. 01 of 2006, is hereby affirmed.
26. Send back the lower court's record along with a copy of this judgment to the court concern. The concerned section is further directed to send back the original copy of the registered "Will" dated 30-12-1991 to the concerned court.

Tariff
Add Rate

News Archive

Inside The New Nation

International »

New strikes hit Syria enclave after UN delays truce vote


AFP, Beirut  :Air strikes and rocket fire hit the Syrian rebel enclave of Eastern Ghouta for a seventh straight day on Saturday after the United Nations again delayed a vote on a ceasefire.The Damascus government launched a devastating bombardment of the enclave just outside the capital last Sunday that has ...

Editorial »

More vigilance at Rohingya camps against human traffickers


Aid workers have identified 32 victims of human trafficking so far at Rohingya camps in Cox's Bazar and also reported lack of access to basic services and self-reliance opportunities - especially for women and girls increasing the risk of trafficking. If such risks were assessed from the very beginning when ...

Sports »

Canadian Prime Minister Justin Trudeau takes part in a hockey event with Hayley Wickenheiser (not pictured) and the Indian women's national ice hockey team at the Canadian High Commission of Canada in New Delhi, India on Saturday.


Sports »

Medalist in the men's parallel giant slalom (from right) South Korea's Lee Sangho (silver), Switzerland's Nevin Galmarini (gold) and Slovenia's Zan Kosir (bronze) pose during their medals ceremony at the 2018 Winter Olympics in Pyeongchang, South Korea on Saturday.


Entertainment »

Sunny Leone on her Tamil film debut: I'm beyond excited to start shooting


Former adult film actress Sunny Leone made a swift move into the Hindi film industry in 2012. And now the Indo-Canadian actress is all set to make her debut in a Tamil film. She says south Indian films would help her grow as a person and an actress. Sunny, whose ...

City »

Poet Abdul Hai Shikder along with others holds the copies of a book titled 'Aroni' written by Latiful Khabira at its cover unwrapping ceremony in the city's Suhrawardy Udyan on Saturday.


Editorial »

Indian Army Chief`s allegation means complicity of government of Bangladesh


REMARKS by Indian Army Chief, Gen. Bipin Rawat on Thursday that a 'planned influx' of people from Bangladesh into India's north-east is underway as part of a proxy war by Pakistan with support from China, so to keep the area disturbed. Moreover, he also said migration from Bangladesh are happening ...

Sports »

Bronze medalist in the women`s Big Air snowboard Synnott Zoi Sadowski of New Zealand, poses during the medals ceremony at the 2018 Winter Olympics in Pyeongchang, South Korea on Thursday.


.

Entertainment »

Priyanka Chopra terminates contract with Nirav Modi, not suing him yet


Priyanka Chopra has decided to cut ties with billionaire diamond trader Nirav Modi's brand following the news about the alleged banking fraud carried out by him. "In the light of recent allegations, Priyanka Chopra has chosen to terminate her contract with the Nirav Modi brand," a spokesperson of Priyanka, who ...

City »

BNP Standing Committee Member Barrister Moudud Ahmed speaking at a protest rally organised by Khaleda Zia Mukti Parishad at the Jatiya Press Club on Friday demanding release of BNP Chairperson Begum Khaleda Zia.


.

International »

Ex-Trump campaign associates face more charges


AP, Washington  :Dramatically escalating the pressure and stakes, special counsel Robert Mueller filed additional criminal charges Thursday against President Donald Trump's former campaign chairman and his business associate.The filing adds allegations of tax evasion and bank fraud and significantly increases the legal jeopardy facing Paul Manafort, who managed Trump's campaign ...

Front Page »

Amnesty accuses President Trump of HR violations


Human rights group Amnesty International has accused Donald Trump of "hateful" politics and of being a threat to human rights. "President Trump takes actions that violate human rights at home and abroad," the group said. Amnesty put Mr Trump in the same group as the leaders of Egypt, Russia, China, ...

Editorial »

Serving people not making money must be the motto


PHYSICIANS must provide treatment, President Abdul Hamid said to common people at affordable cost so that no one remained deprived of receiving treatment for lack of money. He made the call while addressing the third convocation of Bangabandhu Sheikh Mujib Medical University in the city on Monday. He has also ...

Sports »

Karolina Pliskova of Czech Republic celebrates after she beats Carla Suarez Navarro of Spain during the Dubai Duty Free Tennis Championship in Dubai, United Arab Emirates on Wednesday.


Entertainment »

Alicia Vikander loves `big adventure films`


Oscar-winning actress Alicia Vikander said she loves "independent and arthouse" cinema, but is also attracted towards the big adventure films.The actress, who will be soon seen as Lara Croft in the forthcoming film 'Tomb Raider', also shared that she found training and muscle-building exercise for the role, empowering. "My mother, ...

 
Items that you save may be read at any time on your computer, iPad, iPhone or Android devices.
 
Are you new to our website? Do you have already an account at our website?
Create An Account Log in here
Email this news to a friend or like someone
Email:
Write a comment to this news