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Due execution of 'Will'

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High Court Division
(Civil Appellate Jurisdiction)
Quazi Reza-ul Hoque J
JN Deb Choudhury J
Sukumar Nath and another ..............
Rupan Kanti Nath
and another..............
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.
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.

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