Application of Part
217. Save as otherwise provided by this Act or by any other law for the time being in force, all grants of probate and letters of administration with the will annexed and the administration of the assets of the deceased in cases of intestate succession shall be made or carried out, as the case may be, in accordance with the provisions of this Part.
Chapter I
OF GRANT OF PROBATE AND LETTERS OF ADMINISTRATION
To whom administration may be granted, where deceased is a Hindu, Muslim, Buddhist, Sikh, Jaina or exempted person
218. (1) If the deceased has died intestate and was a
Hindu, Muslim, Buddhist, Sikh or Jaina or an exempted person, Administration of his estate may be granted to any person who,
according to the rules for the distribution of the estate applicable in the case of such deceased, would be entitled to the whole or any part of such deceased's estate.
(2) When several such persons apply for such administration, it shall be in the discretion of the Court to grant it to any one or more of them.
(3) When no such person applied, it may be granted to a creditor of the deceased.
Where deceased is not a Hindu, Muslim, Buddhist, Sikh, Jaina or exempted person
219. If the deceased has died intestate and was not a person belonging to any of the classes referred to in section 218, those who are connected with him, either by marriage or by consanguinity, are entitled to obtain letters of administration of his estate and effects in the order and according to the rules hereinafter stated, namely:-
(a) If the deceased has left a widow, administration shall be granted to the widow, unless the Court sees cause to exclude her, either on the ground of some personal disqualification, or because she has no interest in the estate of the deceased.
Illustrations
(i) The widow is a lunatic or has committed adultery or has been barred by her marriage settlement of all interest in her husband's estate. There is cause for excluding her from the administration.
(ii) The widow has married again since the decease of her husband. This is not good cause for her exclusion.
(b) If the Judge thinks proper, he may associate any person or persons with the widow in the administration who would be entitled solely to the administration if there were not widow.
(c) If there is no widow, or if the Court sees cause to exclude the widow, it shall commit the administration to the person or persons who would be beneficially entitled to the estate according to the rules for the distribution of an intestate's estate:
Provided that, when the mother of the deceased is one of the class of persons so entitled, she shall be solely entitled to administration.
(d) Those who stand in equal degree of kindred to the deceased are equally entitled to administration.
(e) The husband surviving his wife has the same right of administration of her estate as the widow has in respect of the estate of her husband.
(f) When there is no person connected with the deceased by marriage or consanguinity who is entitled to letters of administration and willing to act, they may be granted to a creditor.
(g) Where the deceased has left property in Bangladesh letters of administration shall be granted according to the foregoing rules, notwithstanding that he had his domicile in a country in which the law relating to testate and intestate succession differs from the law of Bangladesh.
Effect of letters of administration
220. Letters of administration entitle the administrator to all rights belonging to the intestate as effectually as if the administration had been granted at the moment after his death.
Acts not validated by administration
221. Letters of administration do not render valid any intermediate acts of the administrator tending to the diminution or damage of the intestate's estate.
Probate only to appointed executor
222. (1) Probate shall be granted only to an executor appointed by the will.
(2) The appointment may be expressed or by necessary implication.
Illustrations
(i) A wills that C be his executor if B will not. B is appointed executor by implication.
(ii) A gives a legacy to B and several legacies to other persons, among the rest to his daughter-in-law C, and adds "but should the within-named C be not living I do constitute and appoint B my whole and sole executrix". C is appointed executrix by implication.
(iii) A appoints several persons executors of his will and codicils and his nephew residurary legatee, and in another codicil are these words, "I appoint my nephew my residuary legatee, to discharge all lawful demands against my will and codicils signed of different dates." The nephew is appointed an executor by implication.
Persons to whom probate cannot be granted
223. Probate cannot be granted to any person who is a minor or is of unsound mind nor to any association of individuals unless it is a company which satisfies the conditions prescribed by rules to be made by the Government in this behalf.
Grant of probate to several executors simultaneously or at different times
224. When several executors are appointed, probate may be granted to them all simultaneously or at different times.
Illustration
A is an executor of B's will by express appointment and C an executor of it by implication. Probate may be granted to A and C at the same time or to A first and then to C, or to C first and then to A.
Separate probate of codicil discovered after grant of probate
225. (1) If a codicil is discovered after the grant of probate, a separate probate of that codicil may be granted to the executor, if it in no way repeals the appointment of executors made by the will.
(2) If different executors are appointed by the codicil, the probate of the will shall be revoked, and a new probate granted of the will and the codicil together.
Accrual of representation to surviving executor
226. When probate has been granted to several executors, and one of them dies, the entire representation of the testator accrues to the surviving executor or executors.
Effect of probate
227. Probate of a will when granted establishes the will from the death of the testator, and renders valid all intermediate acts of the executor as such.
Administration, with copy annexed, of authenticated copy of will proved abroad
228. When a will has been proved and deposited in a Court of competent jurisdiction [* * *], whether within or beyond the limits of Bangladesh, and a properly authenticated copy of the will is produced, letters of administration may be granted with a copy of such copy annexed.
Grant of administration where executor has not renounced
229. When a person appointed an executor has not renounced the executorship, letters of administration shall not be granted to any other person until a citation has been issued, calling upon the executor to accept or renounce his executorship:
Provided that, when one or more of several executors have proved a will the Court may, on the death of the survivor of those who have proved, grant letters of administration without citing those who have not proved.
Form and effect of renunciation of executorship
230. The renunciation may be made orally in the presence of the Judge, or by a writing signed by the person renouncing, and when made shall preclude him from ever thereafter applying for probate of the will appointing him executor.
Procedure where executor renounces or fails to accept within time limited
231. If an executor renounces, or fails to accept an executorship within the time limited for the acceptance or refusal thereof, the will may be proved and letters of administration, with a copy of the will annexed, may be granted to the person who would be entitled to administration in case of intestacy.
Grant of administration to universal or residuary legatees
232. When-
(a) the deceased has made a will, but has not appointed an executor, or
(b) the deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before he has proved the will, or
(c) the executor dies after having proved the will, but before he has administered all the estate of the deceased,
an universal or a residuary legatee may be admitted to prove the will, and letters of administration with the will annexed may be granted to him of the whole estate, or of so much thereof as may be unadministered.
Right to administration of representative of deceased residuary legatee
233. When a residuary legatee who has a beneficial interest survives the testator, but dies before the estate has been fully administrated, his representative has the same right to administration with the will annexed as such residuary legatee.
Grant of administration where no executor, nor residuary lagatee nor representative of such legatee
234. When there is no executor and no residuary legatee or representative of a residuary legatee, or he declines or is incapable to act, or cannot be found, the person or persons who would be e1`ntitled to the administration of the estate of the deceased if he had died intestate, or any other legatee having a beneficial interest, or a creditor, may be admitted to prove the will, and letters of administration may be granted to him or them accordingly.
Citation before grant of administration to legate other than universal or residuary
235. Letters of administration with the will annexed shall not be granted to any legatee other then an universal or a residuary legatee, until a citation has been issued and published in the manner hereinafter mentioned, calling on the next-of-kin to accept or refuse letters of administration.
To whom administration may not be granted
236. Letters of administration cannot be granted to any person who is a minor or is of unsound mind, nor to any association of individuals unless it is a company which satisfies the conditions prescribed by rules to be made by the Govern-ment in this behalf.
Chapter II
OF LIMITED GRANTS
Grants limited in duration
Probate of copy or draft of lost will
237. When a will has been lost or mislaid since the testator's death, or has been destroyed by wrong or accident and not by any act of the testator, and a copy or the draft of the will has been preserved, probate may be granted of such copy or draft, limited until the original or a properly authenticated copy of it is produced.
Probate of contents of lost or destroyed will
238. When a will has been lost or destroyed and no copy has been made nor the draft preserved, probate may be granted of its contents if they can be established by evidence.
Probate of copy where original exists
239. When the will is in the possession of a person residing out of [Bangladesh], who has refused or neglected to deliver it up, but a copy has been transmitted to the executor, and it is necessary for the interests of the estate that probate should be granted without waiting for the arrival of the original, probate may be granted of the copy so transmitted, limited until the will or an authenticated copy of it is produced.
Administration until will produced
240. Where no will of the deceased is forthcoming, but there is reason to believe that there is a will in existence, letters of administration may be granted, limited until the will or an authenticated copy of it is produced.
Grants for the use and benefit of others having right
Administration, with will annexed, to attorney of absent executor
241. When any executor is absent from [Bangladesh and there is no executor in Bangladesh] willing to act, letters of adminis-tration, with the will annexed, may be granted to the attorney or agent of the absent executor; for the use and benefit of his principal, limited until he shall obtain probate or letters of administration granted to himself.
Administration, with will annexed, to attorney of absent person who, if present, would be entitled to administer
242. When any person to whom, if present, letters of administration, with the will annexed, might be granted, is absent from [Bangladesh], letters of administration, with the will annexed, may be granted to his attorney or agent, limited as mentioned in section 241.
Administration to attorney of absent person entitled to administer in case of intestacy
243. When a person entitled to administration in case of intestacy is absent from [Bangladesh], and no person equally entitled is willing to act, letters of administration may be granted to the attorney or agent of the absent person, limited as mentioned in section 241.
Administration during minority of sole executor or residuary legatee
244. When a minor is sole executor or sole residuary legatee, letters of administration, with the will annexed, may be granted to the legal guardian of such minor or to such other person as the Court may think fit until the minor has attained his majority at which period, and not before, probate of the will shall be granted to him.
Administration during minority of several executors or residuary legatees
245. When there are two or more minor executors and no executor who has attained majority, or two or more residuary legatees and no residuary legatee who has attained majority, the grant shall be limited until one of them shall have attained his majority.
Administration for use and benefit of lunatic or minor
246. If a sole executor or a sole universal or residuary legatee, or a person who would be solely entitled to the estate of the intestate according to the rule for the distribution of intestates' estates applicable in the case of the deceased, is a minor or lunatic, letters of administration, with or without the will annexed, as the case may be, shall be granted to the person to whom the care of his estate has been committed by competent authority, or, if there is no such person, to such other person as the Court may think fit to appoint, for the use and benefit of the minor or lunatic until he attains majority or becomes of sound mind, as the case may be.
Administration pendente lite
247. Pending any suit touching the validity of the will of a deceased person or for obtaining or revoking any probate or any grant of letters of administration, the Court may appoint an administrator of the estate of such deceased person, who shall have all the rights and powers of a general administrator, other than the right of distributing such estate, and every such administrator shall be subject to the immediate control of the Court and shall act under its direction.
Grants for special purposes
Probate limited to purpose specified in will
248. If an executor is appointed for any limited purpose specified in the will, the probate shall be limited to that purpose, and if he should appoint an attorney or agent to take administration on his behalf, the letters of administration, with the will annexed, shall be limited accordingly.
Administration, with will annexed, limited to particular purpose
249. If an executor is appointed generally gives an authority to an attorney or agent to prove a will on his behalf, and the authority is limited to a particular purpose, the letters of administration, with the will annexed, shall be limited accordingly.
Administration limited to property in which person has beneficial interest
250. Where a person dies, leaving property of which he was the sole or surviving trustee, or in which he had no beneficial interest on his own account, and leaves no general representative, or one who is unable or unwilling to at as such, letters of administration, limited to such property, may be granted to the beneficiary, or to some other person on his behalf.
Administration limited to suit
251. When it is necessary that the representative of a person deceased be made a party to a pending suit, and the executor or person entitled to administration is unable or unwilling to act, letters of administration may be granted to the nominee of a party in such suit, limited for the purpose of representing the deceased in the said suit, or in any other cause or suit which may be commenced in the same or in any other Court between the parties, or any other parties, touching the matters at issue in the said cause or suit, and until a final decree shall be made therein and carried into complete execution.
Administration limited to purpose of becoming party to suit to be brought against administrator
252. If, at the expiration of twelve months from the date of any probate or letters of administration, the executor or administrator to whom the same has been granted is absent from [Bangladesh], the Court may grant, to any person whom
it may think fit, letters of administration limited to the purpose of becoming and being made a party to a suit to be brought against the executor or administrator, and carrying the decree which may be made therein into effect.
Administration limited to collection and preservation of deceased's property
253. In any case in which it appears necessary for preserving the property of a deceased person, the Court within whose jurisdiction any of the property is situate may grant to any person, whom such Court may think fit, letters of administration limited to the collection and preservation of the property of the deceased and to the giving of discharges for debts due to his estate, subject to the directions of the Court.
Appointment, as administrator, of person other than one who, in ordinary circumstances, would be entitled to administration
254. (1) When a person has died intestate, or leaving a will of which there is no executor willing and competent to act or where the executor is, at the time of the death of such person, resident out of [Bangladesh], and it appears to the Court to be necessary or convenient to appoint some person to administer the estate or any part thereof, other than the person who, in ordinary circumstances, would be entitled to a grant of administration, the Court may, in its discretion, having regard to consanguinity, amount of interest, the safety of the estate and probability that it will be properly administered, appoint such person as it thinks fit to be administrator.
(2) In every such case letters of administration may be limited or not as the Court thinks fit.
Grants with exception
Probate or administration, with will annexed, subject to exception
255. Whenever the nature of the case requires that an exception be made, probate of a will, or letters of administration with the will annexed, shall be granted subject to such exception.
Administration with exception
256. Whenever the nature of the case requires that an exception be made, letters of administration shall be granted subject to such exception.
Grants of the rest
Probate or administration of rest
257. Whenever a grant with exception of probate, or of letters of administration with or without the will annexed, has been made, the person entitled to probate or administration of the remainder of the deceased's estate may take a grant of probate or letters of administration, as the case may be, of the rest of the deceased's estate.
Grant of effects unadministered
Grant of effects unadministered
258. If an executor to whom probate has been granted has died, leaving a part of the testator's estate unadministered, a new representative may be appointed for the purpose of administering such part of the estate.
Rules as to grants of effects unadministered
259. In granting letters of administration of an estate not fully administered, the Court shall be guided by the same rules as apply to original grants, and shall grant letters of administration to those persons only to whom original grants might have been made.
Administration when limited grant expired and still some part of estate unadministered
260. When a limited grant has expired by efflux of time, or the happening of the event or contingency on which it was limited, and there is still some part of the deceased's estate unadministered, letters of administration shall be granted to those persons to whom original grants might have been made.
Chapter III
ALTERATION AND REVOCATION OF GRANTS
What errors may be rectified by Court
261. Errors in names and descriptions, or in setting forth the time and place of the deceased's death, or the purpose in a limited grant, may be rectified by the Court, and the grant of probate or letters of administration may be altered and amended accordingly.
Procedure where codicil discovered after grant of administration with will annexed
262. If, after the grant of letters of administration with the will annexed, a codicil is discovered, it may be added to the grant on due proof and identification, and the grant may be altered and amended accordingly.
Revocation or annulment for just cause
263. The grant of probate or letters of administration may be revoked or annulled for just cause.
Explanation.-Just cause shall be deemed to exist where-
(a) the proceedings to obtain the grant were defective in substance; or
(b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or
(c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance of inadvertently; or
(d) the grant has become useless and inoperative through circumstances; or
(e) the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect.
Illustrations
(i) The Court by which the grant was made had no jurisdiction.
(ii) The grant was made without citing parties who ought to have been cited.
(iii) The will of which probate was obtained was forged or revoked.
(iv) A obtained letters of administration to the estate of B, as his widow, but it has since transpired that she was never married to him.
(v) A has taken administration to the estate of B as if he had died intestate, but a will has since been discovered.
(vi) Since probate was granted, a later will has been discovered.
(vii) Since probate was granted, a codicil has been discovered which revokes or adds to the appointment of executors under the will.
(viii) The person to whom probate was, or letters of administration were, granted has subsequently become of unsound mind.
Chapter IV
OF THE PRACTICE IN GRANTING AND REVOKING PROBATES AND LETTERS OF ADMINISTRATION
Jurisdiction of District Judge in granting and revoking probates, etc.
264. (1) The District Judge shall have jurisdiction in granting and revoking probates and letters of administration in all cases within his district.
(2) Except in cases to which section 57 applies, no Court shall, where the deceased is a Hindu, Muslim, Buddhist, Sikh or Jaina or an exempted person, receive applications for probate or letters of administration until the Government has, by a notification in the official Gazette, authorised it so to do.
Power to appoint Delegate of District Judge to deal with non-contentious cases
265. (1) The [Supreme Court], may appoint such judicial officers within any district as it thinks fit to act for the District Judge as Delegates to grant probate and letters of administration in non-contentious cases, within such local limits as it may prescribe:
[* * *]
(2) Persons so appointed shall be called "District Delegates".
District Judge's powers as to grant of probate and administration
266. The District Judge shall have the like powers and authority in relation to the granting of probate and letters of administration, and all matters connected therewith, as are by law vested in him in relation to any civil suit or proceeding pending in his Court.
District Judge may order person to produce testamentary papers
267. (1) The District Judge may order any person to produce and bring into Court any paper or writing, being or purporting to be testamentary, which may be shown to be in the possession or under the control of such person.
(2) If it is not shown that any such paper or writing is in the possession or under the control of such person, but there is reason to believe that he has the knowledge of any such paper or writing, the Court may direct such person to attend for the purpose of being examined respecting the same.
(3) Such person shall be bound to answer truly such questions as may be put to him by the Court, and, if so ordered, to produce and bring in such paper or writing, and shall be subject to the like punishment under the Penal Code, in case of default in not attending or in not answering such questions or not bringing in such paper or writing, as he would have been subject to in case he had been a party to a suit and had made such default.
(4) The costs of the proceeding shall be in the discretion of the Judge.
Proceedings of District Judge's Court in relation to probate and administration
268. The proceedings of the Court of the District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances of the case permit, by the
Code of Civil Procedure, 1908.
When and how District Judge to interfere for protection of property
269. (1) Until probate is granted of the will of a deceased person, or an administrator of his estate is constituted, the District Judge, within whose jurisdiction any part of the property of the deceased person is situate, is authorised and required to interfere for the protection of such property at the instance of any person claiming to be interested therein, and in all other cases where the judge considers that the property incurs any risk of loss or damage; and for that purpose, if he thinks fit, to appoint an officer to take and keep possession of the property.
(2) This section shall not apply when the deceased is a Hindu, Muslim, Buddhist, Sikh or Jaina or an exempted person, nor shall it apply to any part of the property of Bangladesh Christian who has died intestate.
When probate or administration may be granted by District Judge
270. Probate of the will or letters of administration to the estate of a deceased person may be granted by a District Judge under the seal of his Court, if it appears by a petition, verified as hereinafter provided, of the person applying for the same that the testator or intestate, as the case may be, at the time of his decease had a fixed place of abode, or any property, moveable or immoveable, within the jurisdiction of the Judge.
Disposal of application made to Judge of district in which deceased had no fixed abode
271. When the application is made to the Judge of a district in which the deceased had no fixed abode at the time of his death, it shall be in the discretion of the Judge to refuse the application, if in his judgement it could be disposed of more justly or conveniently in another district, or, where the application is for letters of administration, to grant them absolutely, or limited to the property within his own jurisdiction
Probate and letters of administration may be granted by Delegate
272. Probate and letters of administration may, upon application for that purpose to any District Delegate, be granted by him in any case in which there is no contention, if it appears by petition, verified as hereinafter provided, that the testator or intestate, as the case may be, at the time of his death had affixed place of abode within the jurisdiction of such Delegate.
Conclusiveness of probate or letters of administration
273. Probate of letters of administration shall have effect over all the property and estate, moveable or immoveable, of deceased [* * *] and shall be conclusive as to the representative title against all debtors of the deceased, and all persons holding property which belongs to him, and shall afford full indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate or letters of administration have been granted:
Provided that probates and letters of administration granted-
(a) by High Court Division, or
(b) by a District Judge, where the deceased at the time of his death had a fixed place of abode situate within the jurisdiction of such Judge, and such Judge certifies that the value of the property and estate affected beyond the limits of [Bangladesh], does not exceed ten thousand Taka,
shall, unless otherwise directed by the grant, have like effect throughout Bangladesh.
[* * *]
Transmission to High Court Division of certificate of grants under proviso to section 273
274. (1) Where probate or letters of administration ha or have been granted by High Court Division, or District Judge with the effect referred to in the proviso to section 273, the High Court Division, or District judge shall send a certificate thereof to the following Courts, namely:-
(a) when the grant has been made by High Court Division, to each of the; [District Courts];
(b) when the grant has been made by a District Judge, to the High Court Division [* * *].
(2) Every certificate referred to in sub-section (1) shall be made as nearly as circumstances admit in the form set forth in Schedule IV, and such certificate shall be filed by the High Court Division receiving the same.
(3) [Omitted by section 3 and 2nd Schedule of the
Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)].
Conclusiveness of application for probate or administra-tion if properly made and verified
275. The application for probate or letters of administration, if made and verified in the manner hereinafter provided, shall be conclusive for the purpose of authorising the grant of probate or administration; and no such grant shall be impeached by reason only that the testator or intestate had no fixed place of abode or no property within the district at the time of his death, unless by a proceeding to revoke the grant if obtained by a fraud upon the Court.
Petition for probate
276.(1) Application for probate or for letters of administration, with the will annexed, shall be made by a petition distinctly written [* * *] in the language in ordinary use in proceedings before the Court in which the application is made, with the will or, in the cases mentioned in sections 237, 238, and 239, a copy, draft, or statement of the contents thereof, annexed, and stating-
(a) the time of the testator's death,
(b) that the writing annexed is his last will and testament,
(c) that it was duly executed,
(d) the amount of assets which are likely to come to the petitioner's hands, and
(e) when the application is for probate, that the petitioner is the executor named in the will.
(2) In addition to these particulars, the petition shall further state,
(a) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and
(b) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.
(3) [Omitted by section 3 and 2nd Schedule of the
Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973).]
In what cases translation of will to be annexed to petition. Verification of translation by person other than Court translator
277. In cases wherein the will, copy or draft, is written in any language other [* * *] than that in ordinary use in proceedings before the Court, there shall be a translation thereof annexed to the petition by a translator of the Court, if the language be one for which a translator is appointed; or, if the will, copy or draft, is in any other language, then by any person competent to translate the same, in which case such translation shall be verified by that person in the following manner, namely:-
"I (A. B.) do declare that I read and perfectly understand the language and character of the original, and that the above is a true and accurate translation thereof."
Petition for letters of administration
278. (1) Application for letters of administration shall be made by petition distinctly written as aforesaid and stating-
(a) the time and place of the deceased's death;
(b) the family or other relatives of the deceased, and their respective residences;
(c) the right in which the petitioner claims;
(d) the amount of assets which are likely to come to the petitioner's hands;
(e) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and
(f) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.
(2) [Omitted by section 3 and 2nd Schedule of the
Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973).]
Addition to statement in petition, etc., for probate or letters of administration in certain cases
279. (1) Every person applying to any of the Courts mentioned in the proviso to section 273 for probate of a will or letters of administration of an estate intended to have effect throughout Bangladesh, shall state in his petition, in addition to the matters respectively required by section 276 and section 278, that to the best of his behalf no application has been made to any other Court for a probate of the same will or for letters of administration of the same estate, intended to have such effect as last aforesaid.
or, where any such application has been made, the Court to which it was made, the person or persons by whom it was made and the proceedings (if any) had thereon.
(2) The Court to which any such application is made under the proviso to section 273 may, if it thinks fit, reject the same.
Petition for probate, etc., to be signed and verified
280. The petition for probate or letters of administration shall in all cases be subscribed by the petitioner and his pleader, if any, and shall be verified by the petitioner in the following manner, namely:-
"I (A. B.), the petitioner in the above petition, declare that what is stated therein is true to the best of my information and belief."
Verification of petition for probate by one witness to will
281. Where the application is for probate, the petition shall also be verified by at least one of the witnesses to the will (when procurable) in the manner or to the effect following, namely:
"I (C. D.), one of the witnesses to the last will and testament of the testator mentioned in the above petition, declare that I was present and saw the said testator affix his signature (or mark) thereto (or that the said testator acknowledged the writing annexed to the above petition to be his last will and testament in my presence)."
Punishment for false averment in petition or declaration
282. If any petition or declaration which is hereby required to be verified contains any averment which the person making the verification knows or believes to be false, such person shall be deemed to have committed an offence under section 193 of the Bangladesh Penal Code.
Powers of District Judge
283. (1) In all cases the District Judge or District Delegate may, if he thinks proper,-
(a) examine the petitioner in person, upon oath;
(b) require further evidence of the due execution of the will or the right of the petitioner to the letters of administration, as the case may be;
(c) issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration.
(2) The citation shall be fixed up in some conspicuous part of the court-house, and also in the office of the Collector of the district and otherwise published or made known in such manner as the Judge or District Delegate issuing the same may direct.
(3) [Omitted by section 3 and 2nd Schedule of the
Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973).]
Caveats against grant of probate or administration
284. (1) Caveats against the grant of probate or administration may be lodged with the District Judge or a District Delegate.
(2) Immediately on any caveat being lodged with any District Delegate, he shall send copy thereof to the District Judge.
(3) Immediately on a caveat being entered with the District Judge, a copy thereof shall be given to the District Delegate, if any, within whose jurisdiction it is alleged the deceased had a fixed place of abode at the time of his death, and to any other Judge or District Delegate to whom it may appear to the District Judge expedient to transmit the same.
Form of caveat
(4) The caveat shall be made as nearly as circumstances admit in the form set forth in Schedule V.
After entry of caveat, no proceeding taken on petition until after notice to caveator
285. No proceeding shall be taken on a petition for probate or letters of administration after a caveat against the grant thereof has been entered with the Judge or District Delegate to whom the application has been made or notice has been given of its entry with some other Delegate, until after such notice to the person by whom the same has been entered as the Court may think reasonable.
District Delegate when not to grant probate or administration
286. A District Delegate shall not grant probate or letters of administration in any case in which there is contention as to the grant, or in which it otherwise appears to him that probate or letters of administration ought not to be granted in his Court.
Explanation.-"Contention" means the appearance of any one in person, or by his recognize agent, or by a pleader duly appointed to act on his behalf, to oppose the proceeding.
Power to transmit statement to District Judge in doubtful cases where no contention
287. In every case in which there is no contention, but it appears to the District Delegate doubtful whether the probate or letters of administration should or should not be granted, or when any question arises in relation to the grant, or application for the grant, of any probate or letters of administration, the District Delegate may, if he thinks proper, transmit a statement of the matter in question to the District Judge, who may direct the Delegate to proceed in the matter of the application, according to such instructions as to the Judge may seem necessary, or may forbid any further proceeding by the District Delegate may, if he thinks proper transmit a statement of the matter in question to the District Judge, who may direct the Delegate in relation to the matter of such application, leaving the party applying for the grant in question to make application to the Judge.
Procedure where there is contention, or District Delegate thinks probate or letters of administration should be refused in his Court
288. In every case in which there is contention, or the District Delegate is of opinion that the probate or letters of administration should be refused in his Court, the petition, with any documents which may have been filed therewith, shall be returned to the person by whom the application was made, in order that the same may be presented to the District Judge, unless the District Delegate thinks it necessary, for the purposes
of justice, to impound the same, which he is hereby authorised to do; and, in that case, the same shall be sent by him to the District Judge.
Grant of probate to be under seal of Court
289. When it appears to the District Judge or District Delegate that probate of a will should be granted, he shall grant the same under the seal of his Court in the form set forth in Schedule VI.
Grant of letters of administration to be under seal of Court
290. When it appears to the District Judge or District Delegate that letters of administration to the estate of a person deceased, with or without a copy of the will annexed, should be granted, he shall grant the same under the seal of his Court in the form set forth in Schedule VII.
Administration-bond
291. (1) Every person to whom any grant of letters of administration, other than a grant under section 241, is committed, shall give a bond to the District Judge with one or more surety or sureties, engaging for the due collection, getting in, and administering the estate of the deceased, which bond shall be in such form as the Judge may, by general or special order, direct.
(2) When the deceased was a Hindu, Muslim, Buddhist, Sikh or Jaina or an exempted person
(a) the exception made by sub-section (1) in respect of a grant under section 241 shall not operate;
(b) the District Judge may demand a like bond from any person to whom probate is granted.
Assignment of administration-bond
292. The Court may, on application made by petition and on being satisfied that the engagement of any such bond has not been kept, and upon such terms as to security, or providing that the money received be paid into Court, or otherwise, as the Court may think fit, assign the same to some person, his executors or administrators, who shall thereupon be entitled to sue on the said bond in his or their own name or names as if the same had been originally given to him or them instead of to the Judge of the Court, and shall be entitled to recover thereon, as trustees for all persons interested, the full amount recoverable in respect of any breath thereof.
Time for grant of probate and administration
293. No probate of a will shall be granted until after the expiration of seven clear days, and no letters of administration shall be granted until after the expiration of fourteen clear days from the day of the testator or intestate's death.
Filing of original wills of which probate or administration with will annexed granted
294. (1) Every District Judge, or District Delegate, shall file and preserve all original wills, of which probate or letters of administration with the will annexed may be granted by him, among the records of his Court, until some public registry for wills is established.
(2) The Government shall make regulations for the preservation and inspection of the wills so filed.
Procedure in contentious cases
295. In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the
Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant.
Surrender of revoked probate or letters of administration
296. (1) When a grant of probate or letters of administration is revoked or annulled under this Act, the person to whom the grant was made shall forthwith deliver up the probate or letters to the Court which made the grant.
(2) If such person wilfully and without reasonable cause omits so to deliver up the probate or letters, he shall be punishable with fine which may extend to one thousand Taka or with imprisonment for a term which may extend to three months, or with both.
Payment to executor or administrator before probate or administration revoked
297. When a grant of probate or letters of administration is revoked, all payments bona fide made to any executor or administrator under such grant before the revocation thereof shall, notwithstanding such revocation, be a legal discharge to the person making the same; and the executor or administrator who has acted under any such revoked grant may retain an reimburse himself in respect of any payments made by him which the person to whom probate or letters of administration may afterwards be granted might have lawfully made.
Power to refuse letters of administration
298. Notwithstanding anything hereinbefore contained, it shall, where the deceased was a Muslim, Buddhist or exempted person, or a Hindu, Sikh or Jaina to whom section 57 does not apply, be in the discretion of the Court to make an order refusing, for reasons to be recorded by it in writing, to grant any application for letters of administration made under this Act.
Appeals from orders of district Judge
299. Every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court Division in accordance with the provisions of the
Code of Civil Procedure, 1908, applicable to appeals.
Concurrent jurisdiction of High Court Division
300. (1) The High Court Division shall have concurrent jurisdiction with the District Judge in the exercise of all the powers thereby conferred upon the District Judge.
(2) Except in cases to which section 57 applies, [the High Court Division], in exercise of the concurrent jurisdiction hereby conferred over any local area [shall not], where the deceased is a Hindu, Muslim, Buddhist, Sikh or Jaina or an exempted person, receive applications for probate or letters of administration until the Government has, by a notification in the official Gazette, authorised it so to do.
Removal of executor or administrator and provision for successor
301. The High Court Division may, on application made to it, suspend, remove or discharge any private executor or administrator and provide for the succession of another person to the office of any such executor or administrator who may cease to hold office, and the vesting in such successor of any property belonging to the estate.
Directions to executor or administrator
302. Where probate or letters of administration in respect of any estate has been granted under this Act, the High Court Division may, on application made to it, give to the executor or administrator any general or special directions in regard to the estate or in regard to the administration thereof.
Chapter V
OF EXECUTORS OF THEIR OWN WRONG
Executor of his own wrong
303. A person who intermeddles with the estate of the deceased, or does any other act which belongs to the office of executor, while there is no rightful executor or administrator in existence, thereby makes himself an executor of his own wrong.
Exceptions.-(1) Intermeddling with the goods of the deceased for the purpose of preserving them or providing for his funeral or for the immediate necessities of his family or property, does not make an executor of his own wrong.
(2) Dealing in the ordinary course of business with goods of the deceased received from another does not make an executor of his own wrong.
Illustrations
(i) A uses or gives away or sells some of the gods of the deceased, or takes them to satisfy his own debt or legacy or receives payment of the debts of the deceased. He is an executor of his own wrong.
(ii) A, having been appointed agent by the deceased in his lifetime to collect his debts and sell his goods, continues to do so after he has become aware of his death. He is an executor of his own wrong in respect of acts done after he has become aware of the death of the deceased.
(iii) A sues as executor of the deceased, not being such. He is an executor of his own wrong.
Liability of executor of his own wrong
304. When a person has so acted as to become an executor of his own wrong, he is answerable to the rightful executor or administrator, or to any creditor or legatee of the deceased, to the extent of the assets which may have come to his hands after deducting payments made to the rightful executor or administra-tor, and payments made in due course of administration.
Chapter VI
OF THE POWERS OF AN EXECUTOR OR ADMINISTRATOR
In respect of causes of action surviving deceased and debts due at death
305. An executor or administrator has the same power to sue in respect of all causes of action that survive the deceased, and may exercise the same power for the recovery of debts as the deceased had when living.
Demands and rights of action of or against deceased survive to and against executor or administrator
306. All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Penal Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.
Illustrations
(i) A collision takes place on a railway in consequence of some neglect or default of an official, and a passenger is severely hurt, but not so as to cause death. He afterwards dies without having brought any action. The cause of action does not survive.
(ii) A sues for divorce. A dies. The cause of action does not survive to his representative.
Power of executor or administrator to dispose of property
307. (1) Subject to the provisions of sub-section (2), an executor or administrator has power to dispose of the property of the deceased, vested in him under section 211, either wholly or in part, in such manner as he may think fit.
Illustrations
(i) The deceased has made a specific bequest of part of his property. The executor, not having assented to the bequest, sells the subject of it. The sale is valid.
(ii) The executor in the exercise of his discretion mortgages a part of the immoveable estate of the deceased. The mortgage is valid.
(2) If the deceased was a Hindu, Muslim, Buddhist, Sikh or Jaina or an exempted person, the general power conferred by sub-section (1) shall be subject to the following restrictions and conditions, namely:
(i) The power of an executor to dispose of immoveable property so vested in him is subject to any restriction which may be imposed in this behalf by the will appointing him, unless probate has been granted to him and the Court which granted the probate permits him by an order in writing, notwithstanding the restriction, to dispose of any immoveable property specified in the order in a manner permitted by the order.
(ii) An administrator may not, without the previous permission of the Court by which the letters of administration were granted,
(a) mortgage, charge or transfer by sale, gift, exchange or otherwise any immoveable property for the time being vested in him under section 211, or
(b) lease any such property for a term exceeding five years.
(iii) A disposal of property by an executor or administrator in contravention of clause (i) or clause (ii), as the case may be, is voidable at the instance of any other person interested in the property.
(3) Before any probate or letters of administration is or are granted in such a case, there shall be endorsed thereon or annexed thereto a copy of sub-section (i) and clauses (i) and (iii) of sub-section (2) or of sub-section (1) and clauses (ii) and (iii) of sub-section (2), as the case may be.
(4) A probate or letters of administration shall not be rendered invalid by reason of the endorsement or annexure required by sub-section (3) not having been made thereon or attached thereto, nor shall the absence of such an endorsement or annexure authorise an executor or administrator to act otherwise than in accordance with the provisions of this section.
General powers of administration
308. An executor or administration may, in addition to, and not in derogation of, any other powers of expenditure lawfully exercisable by him, incur expenditure
(a) on such acts as may be necessary for the proper care or management of any property belonging to any estate administered by him, and
(b) with the sanction of the High Court Division, on such religious, charitable and other objects, and on such improvements, as may be reasonable and proper in the case of such property.
Commission or agency charges
309. An executor or administrator shall not be entitled to receive or retain any commission or agency charges at a higher rate than that for the time being fixed in respect of the Administrator General by or under the
Administrator General's Act, 1913.
Purchase by executor or administrator of deceased's property
310. If any executor or administrator purchases, either directly or indirectly, any part of the property of the deceased, the sale is voidable at the instance of any other person interested in the property sold.
Powers of several executors or administrators exercisable by one
311. When there are several executors or administrators, the powers of all may, in the absence of any direction to the contrary, be exercised by any one of them who has proved the will or taken out administration.
Illustrations
(i) One of several executors has power to release a debt due to the deceased.
(ii) One has power to surrender a lease.
(iii) One has power to sell the property of the deceased whether moveable or immoveable.
(iv) One has power to assent to a legacy.
(v) One has power to endorse a promissory note payable to the deceased.
(vi) The will appoints A, B, C and D to be executors, and directs that two of them shall be a quorum. No act can be done by a single executor.
Survival of powers on death of one of several executors or administrators
312. Upon the death of one or more of several executors or administrators, in the absence of any direction to the contrary in the will or grant of letters of administration, all the powers of the office become vested in the survivors or survivor.
Powers of administrator of effects unadministered
313. The administrator of effects unadministered has, with respect to such effects, the same powers as the original executor or administrator.
Powers of administrator during minority
314. An administrator during minority has all the powers of an ordinary administrator.
Powers of married executrix or administratrix
315. When a grant of probate or letters of administration has been make to a married woman, she has all the powers of an ordinary executor or administrator.
Chapter VII
OF THE DUTIES OF AN EXECUTOR OR ADMINISTRATOR
As to deceased's funeral
316. It is the duty of an executor to provide funds for the performance of the necessary funeral ceremonies of the deceased in a manner suitable to his condition, if he has left property sufficient for the purpose.
Inventory and account
317. (1) An executor or administrator shall, within six months from the grant of probate or letters of administration, or within such further time as the Court which granted the probate or letters may appoint, exhibit in that Court an inventory containing a full and true estimate of all the property in possession, and all the credits, and also all the debts owing by any person to which the executor or administrator is entitled in that character; and shall in like manner, within one year from the grant or within such further time as the said Court may appoint, exhibit an account of the estate, showing the assets which have come to his hands and the manner in which they have been applied or disposed of.
(2) The [Supreme Court] may prescribe the form in which an inventory or account under this section is to be exhibited.
(3) If an executor or administrator, on being required by the Court to exhibit an inventory or account under this section, intentionally omits to comply with the requisition, he shall be deemed to have committed an offence under section 176 of the Penal Code.
(4) The exhibition of an intentionally false inventory or account under this section shall be deemed to be an offence under section 193 of that Code.
Inventory to include property in any part of Bangladesh in certain cases
318. In all cases where a grant has been made of probate or letters of administration intended to have effect throughout Bangladesh, the executor or administrator shall include in the inventory of the effects of the deceased all his moveable and immoveable property situate in Bangladesh, and the value of such property [* * *] shall be separately stated in such inventory, and the probate or letters of administration shall be chargeable with a fee corresponding to the entire amount or value of the property affected thereby wheresoever situate within Bangladesh.
As to property of, and debts owing to, deceased
319. The executor or administrator shall collect, with reasonable diligence, the property of the deceased and the debts that were due to him at the time of his death.
Expenses to be paid before all debts
320. Funeral expenses to a reasonable amount, according to the degree and quality of the deceased, and death-bed charges, including fees for medical attendance, and board and lodging for one month previous to his death, shall be a paid before all debts.
Expenses to be paid next after such expenses
321. The expenses of obtaining probate or letters of administration, including the costs incurred for or in respect of any judicial proceedings that may be necessary for administering the estate, shall be paid next after the funeral expenses and death-bed charges.
Wages for certain services to be next paid, and then other debts
322. Wages due for services rendered to the deceased within three months next preceding his death by any labourer, artisan or domestic servant shall next be paid, and then the other debts of the deceased according to their respective priorities (if any).
Save as aforesaid, all debts to be paid equally and rateably
323. Save as aforesaid, no creditor shall have a right of priority over another; but the executor or administrator shall pay all such debts as he knows of, including his own, equally and rateably as far as the assets of the deceased will extend.
Application of moveable property to payment of debts where domicile not in Bangladesh
324. (1) If the domicile of the deceased was not in Bangladesh, the application of his moveable property to the payment of his debts is to be regulated by the law of Bangladesh.
(2) No creditor who has received payment of a part of his debt by virtue of sub-section (1) shall be entitled to share in the proceeds of the immoveable estate of the deceased unless he brings such payment into account for the benefit of the other creditors.
(3) This section shall not apply where the deceased was Hindu, Muslim, Buddhist, Sikh or Jaina or an exempted person.
Illustration
A, dies, having his domicile in a country where instruments under seal have priority over instruments not under seal leaving moveable property to the value of 5,000 Taka, and immoveable property to the value of 10,000 Taka, debts on instruments under seal of the amount of 10,000 Taka, and debts on instruments not under seal to the same amount. The creditors holding instruments under seal receive half of their debts out of the proceeds of the moveable estate. The proceeds of the immoveable estate are to be applied in payment of the debts on instruments not under seal until one-half of such debts has been discharged. This will leave 5,000 Taka which are to be distributed rateably amongst all the creditors without distinction, in proportion to the amount which may remain due to them.
Debts to be paid before lgacies
325. Debts of every description must be paid before any legacy.
Executor or administrator not bound to pay legacies without indemnity
326. If the estate of the deceased is subject to any contingent liabilities, an executor or administrator is not bound to pay any legacy without a sufficient indemnity to meet the liabilities whenever they may become due.
Abatement of general legacies
327. If the assets, after payment of debts, necessary expenses and special legacies, are not sufficient to pay all the general legacies in full, the latter shall abate or be diminished in equal proportions, and, in the absence of any direction to the contrary in the will, the executor has no right to pay one legatee in preference to another, or to retain any money on account of a legacy to himself or to any person for whom he is a trustee.
Non-abatement of specific legacy when assets sufficient to pay debts
328. Where there is a specific legacy, and the assets are sufficient for the payment of debts and necessary expenses, the thing specified must be delivered to the legatee without any abatement.
Right under demonstrative legacy when assets sufficient to pay debts and necessary expenses
329. Where there is a demonstrative legacy, and the assets are sufficient for the payment of debts and necessary expenses, the legatee has a preferential claim for payment of his legacy out of the fund from which the legacy is directed to be paid until such fund is exhausted and if, after the fund is exhausted, part of the legacy still remains unpaid, he is entitled to rank for the remainder against the general assets as for a legacy of the amount of such unpaid remainder.
Rateable abatement of specific legacies
330. If the assets are not sufficient to answer the debts and the specific legacies, an abatement shall be made from the latter rateably in proportion to their respective amounts.
Illustration
A has bequeathed to B a diamond ring valued at 500 Taka, and to C a horse, valued at 1,000 Taka. It is found necessary to sell all the effects of the testator; and his assets, after payment of debts, are only 1,000 Taka. Of this sum [Taka 333.33] are to be paid to B, and [Taka 666.67] to C.
Legacies treated as general for purpose of abatement
331. For the purpose of abatement, a legacy for life, a sum appropriated by the will to produce an annuity, and the value of an annuity when no sum has been appropriated to produce it, shall be treated as general legacies.
Chapter VIII
OF ASSENT TO LEGACY BY EXECUTOR OR ADMINISTRATOR
Assent necessary to complete legatee's title
332. The assent of the executor or administrator is necessary to complete a legatee's title to his legacy.
Illustrations
(i) A by his will bequeaths to B his Government paper which is in deposit with the [Sonali Bank]. The Bank has no authority to deliver the securities, nor B a right to take possession of them, without the assent of the executor.
(ii) A by his will has bequeathed to C his house in Dhaka in the tenance of B. C is not entitled to receive the rents without the assets of the executor or administrator.
Effect of executor's assent to specific legacy
333. (1) The assent of the executor or administrator to a specific bequest shall be sufficient to divest his interests as executor or administrator therein, and to transfer the subject of the bequest of the legatee, unless the nature or the circumstances of the property require that it shall be transferred in a particular way.
(2) This assent may be verbal, and it may be either express or implied from the conduct of the executor or administrator.
Illustrations
(i) A horse is bequeathed. The executor requests the legatee to dispose of it, or a third party proposes to purchase the horse from the executor, and he directs him to apply to the legatee. Assent to the legacy is implied.
(ii) The interest of a fund is directed by the will to be applied for the maintenance of the legatee during his minority. The executor commences so to apply it. This is an assent to the whole of the bequest.
(iii) A bequest is made of a fund to A and after him to B. The executor pays the interest of the fund to A. This is an implied assent to the bequest to B.
(iv) Executors die after paying all the debts of the testator, but before satisfaction of specific legacies. Assent to the legacies may be presumed.
(v) A person to whom a specific article has been bequeathed takes possession of it and retains it without any objection on the part of the executor. His assent may be presumed.
Conditional assent
334. The assent of an executor or administrator to a legacy may be conditional, and if the condition is one which he has a right to enforce, and it is not performed, there is no assent.
Illustrations
(i) A bequeaths to B in his lands of Sultanpur, which at the date of the will, and at the death of A, were subject to a mortgage for 10,000 Taka. The executor assents to the bequest, on condition that B shall within a limited time pay the amount due on the mortgage at the testators' death. The amount is not paid. There is no assent.
(ii) The executor assents to a bequest on condition that the legatee shall pay him a sum of money. The payment is not made. The assent is nevertheless valid.
Assent of executor to his own legacy
335. (1) When the executor or administrator is a legatee, his assent to his own legacy is necessary to complete his title to, in the same way as it is required when the bequest is to another person, and his assent may, in like manner, be expressed or implied.
(2) Assent shall be implied if in his manner of administering the property he does any act which is referable to his character of executor or administrator.
Illustration
An executor takes the rent of a house or the interest of Government securities bequeathed to him, and applies it to his own use. This is assent.
Effect of executor's assent
336. The assent of the executor or administrator to a legacy gives effect to it from the death of the testator(i) A legatee sells his legacy before it is assented to by the executor. The executor's subsequent assent operates for the benefit of the purchaser and completes his title to the legacy.
Illustrations
(i) A legatee sells his legacy before it is assented to by the executor. The executor's subsequent assent operates for the benefit of the purchaser and completes his title to the legacy.
(ii) A bequeaths 1,000 Taka to B with interest from his death. The executor does not assent to his legacy until the expiration of a year from A's death. B is entitled to interest from the death of A.
Executor when to deliver legacies
337. An executor or administrator is not bound to pay or deliver any legacy until the expiration of one year from the testator's death.
Illustration
A by his will directs his legacies to be paid within six months after his death. The executor is not bound to pay them before the expiration of a year.
Chapter IX
OF THE PAYMENT AND APPORTIONMENT OF ANNUITIES
Commencement of annuity when no time fixed by will
338. Where an annuity is given by a will and no time is fixed for its commencement, it shall commence from the testator's death, and the first payment shall be made at the expiration of a year next after that event.
When annuity, to be paid quarterly or monthly first falls due
339. Where there is a direction that the annuity shall be paid quarterly or monthly, the first payment shall be due at the end of the first quarter or first month, as the case may be, after the testator's death; and shall, if the executor or administrator thinks fit, be paid when due, but the executor or administrator shall not be bound to pay it till the end of the year.
Dates of successive payments when first payment directed to be made within a given time or on day certain: death of annuitant before date of payment
340. (1) Where there is a direction that the first payment of an annuity shall be made within one month or any other division of time from the death of the testator, or on a day certain, the successive payments are to be made on the anniversary of the earliest day on which the will authorises the first payment to be made.
(2) If the annuitant dies in the interval between the times of payment, an apportioned share of the annuity shall be paid to his representative.
Chapter X
OF THE INVESTMENT OF FUNDS TO PROVIDE FOR LEGACIES
Investment of sum bequeathed, where legacy, not specific, given for life
341. Where a legacy, not being a specific legacy, is given for life, the sum bequeathed shall at the end of the year be invested in such securities as the [Supreme Court] may by any general rule authorise or direct, and the proceeds thereof shall be paid to the legatee as the same shall accure due.
Investment of general legacy, to be paid at future time: disposal of intermediate interest
342. (1) Where a general legacy is given to be a paid at a future time, the executor or administrator shall invest a sum sufficient to meet it in securities of the kind mentioned in section 341.
(2) The intermediate interest shall form part of the residue of the testator's estate.
Procedure when no fund charged with, or appropriated to, annuity
343. Where an annuity is given and no fund is charged with its payment or appropriated by the will to answer it, a Government annuity of the specified amount shall be purchased, or, if no such annuity can be obtained, then a sum sufficient to produce the annuity shall be invested for that purpose in securities of the kind mentioned in section 341.
Transfer to residuary legatee of contingent bequest
344. Where a bequest is contingent, the executor or administrator is not bound to invest the amount of the legacy, but may transfer the whole residue of the estate to the residuary legatee, if any, on his giving sufficient security for the payment of the legacy if it shall become due.
Investment of residue bequeathed for life, without direction to invest in particular securities
345. (1) Where the testator has bequeathed the residue of his estate to a person for life without any direction to invest it in any particular securities, so much thereof as is not at the time of the testator's decease invested in securities of the kind mentioned in section 341 shall be converted into money and invested in such securities.
(2) This section shall not apply if the deceased was a Hindu, Muslim, Buddhist, Sikh or Jaina or an exempted person.
Investment of residue bequeathed for life, with direction to invest in specified securities
346. Where the testator has bequeathed the residue of his estate to a person for life with a direction that it shall be invested in certain specified securities, so much of the estate as is not at the time of his death invested in securities of the specified kind shall be converted into money and invested in such securities.
Time and manner of conversion and investment
347. Such conversion and investment as are contemplated by sections 345 and 346 shall be made at such times and in such manner as the executor or administrator thinks fit; and, until such conversion and investment are completed, the person who would be for the time being entitled to the income of the fund when so invested shall receive interest at the rate of four percent. per annum upon the market-value (to be computed as at the date of the testator's death) of such part of the fund as has not been so invested:
Provided that the rate of interest prior to completion of investment shall be six per cent. per annum when the testator was a Hindu, Muslim, Buddhist, Sikh or Jaina or an exempted person.
Procedure where minor entitled to immediate payment or possession of bequest, and no direction to pay to person on his behalf
348. (1) Where, by the terms of a bequest, the legatee is entitled to the immediate payment or possession of the money or thing bequeathed, but is a minor, and there is no direction in the will to pay it to any person on his behalf, the executor or administrator shall pay or deliver the same into the Court of the District Judge, by whom or by whose District Delegate the probate was, or letters of administration with the will annexed were granted, to the account of the legatee, unless the legatee is a ward of the Court of Wards.
(2) If the legatee is a ward of the Court of Wards, the legacy shall be paid to the Court of Wards to his account.
(3) Such payment into the Court of the District Judge, or to the Court of Wards, as the case may be, shall be a sufficient discharge for the money so paid.
(4) Money when paid in under this section shall be invested in the purchase of Government securities, which with the interest, thereon, shall be transferred or paid to the person entitled thereto, or otherwise applied for his benefit, as the Judge or the Court of Wards, as the case may be, may direct.
Chapter XI
OF THE PRODUCE AND INTEREST OF LEGACIES
Legatee's title to produce of specific legacy
349. The legatee of a specific legacy is entitled to the clear produce thereof, if any, from the testator's death.
Exception.A specific bequest, contingent in its terms, does not comprise the produce of the legacy between the death of the testator and the vesting of the legacy. The clear produce of it forms part of the residue of the testator's estate.
Illustrations
(i) A bequeaths his flock of sheep to B. Between the death of A and delivery by his executor the sheep are shorn or some of the ewes produce lambs. The wool and lambs are the property of B.
(ii) A bequeaths his Government securities to B, but postpones the delivery of them till the death of C. The interest which fails due between the death of A and the death of C belongs to B, and must, unless he is a minor, be paid to him as it is received.
(iii) The testator bequeaths all his four per cent. Government promissory notes to A whom he shall complete the age of 18. A, if he completes that age, is entitled to receive the notes, but the interest which accrues in respect of them between the testator's death and A's completing 18, form part of the residue.
Residuary legatee's title to produce of residuary fund
350. The legatee under a general residuary bequest is entitled to the produce of the residuary fund from the testator's death.
Exception.-A general residuary bequest contingent in its terms does not comprise the income which may accure upon the fund bequeathed between the death of the testator and the vesing of the legacy. Such income goes as undisposed of.
Illustrations
(i) The testator bequeaths the residue of his property to A, a minor, to be paid to him when he shall complete the age of 18. The income from the testator's death belongs to A.
(ii) The testator bequeaths the residue of his property to A when he shall complete the age of 18. A, if he completes that age, is entitled to receive the residue. The income which has accrued in respect of it since the testator's death goes as undisposed of.
Interest when no time fixed for payment of general legacy
351. Where no time has been fixed for the payment of a general legacy, interest begins to run from expiration of one year from the testator's death.
Exception.-(1) Where the legacy is bequeathed in satisfaction of a debt, interest runs from the death of the testator.
(2) Where the testator was a parent or a more remote ancestor of the legatee, or has put himself in the place of a parent of the legatee, the legacy shall bear interest from the death of the testator.
(3) Where a sum is bequeathed to a minor with a direction to pay for his maintenance out of it, interest is payable from the death of the testator.
Interest when time fixed
352. Where a time has been fixed for the payment of a general legacy, interest begins to run from the time so fixed. The interest up to such time forms part of the residue of the testator's estate.
Exception.-Where the testator was a parent or a more remote ancestor of the legatee, or has put himself in the place of parent of the legatee and the legatee is a minor, the legacy shall bear interest from the death of the testator, unless a specific sum is given by the will for maintenance, or unless the will contains a direction to the contrary.
Rate of interest
353. The rate of interest shall be four per cent. per annum in all cases except when the testator was a Hindu, Muslim, Buddhist, Sikh or Jaina or an exempted person in which case it shall be six per cent. per annum.
No interest on arrears of annuity within first year after testator's death
354. No interest is payable on the arrears of an annuity within the first year from the death of the testator, although a period earlier than the expiration of that year may have been fixed by the will for making the first payment of the annuity.
Interest on sum to be invested to produce annuity
355. Where a sum of money is directed to be invested to produce an annuity, interest is payable on it from the death of the testator.
Chapter XII
OF THE REFUNDING OF LEGACIES
Refund of legacy paid under Court's orders
356. When an executor or administrator has paid a legacy under the order of a Court, he is entitled to call upon the legatee to refund in the event of the assets proving insufficient to pay all the legacies.
No refund if paid under voluntarily
357. When an executor or administrator has voluntarily paid a legacy, he cannot call a legatee to refund in the event of the assets proving insufficient to pay all the legacies.
Refund when legacy has become due on performance of condition within further time allowed under section 137
358. When the time prescribed by the will for the performance of a condition has elapsed, without the condition having been performed, and the executor or administrator has thereupon, without fraud, distributed the assets; in such case, if further time has been allowed under section 137 for the performance of the condition, and the condition has been performed accordingly, the legacy cannot be claimed from the executor or administrator, but those to whom he has paid it are liable to refund the amount.
When each legatee compellable to refund in proportion
359. When the executor or administrator has paid away the assets in legacies, and he is afterwards obliged to discharge a debt of which he had no previous notice, he is entitled to call upon each legatee to refund in proportion.
Distribution of assets
360. Where an executor or administrator has given such notices as the [Supreme Court] may, by any general rule, prescribe or, if no such rule has been made, as the High Court Division would give in an administration suit, for creditors and others to send in to him their claims against the estate of the deceased, he shall, at the expiration of the time therein named for sending in claims, be at liberty to distribute the assets, or any part thereof, in discharge of such lawful claims as he knows of, and shall not be liable for the assets so distributed to any person of whose claims he shall not have had notice at the time of such distribution:
Provided that nothing herein contained shall prejudice the right of any creditor or claimant to follow the assets, or any part thereof, in the hands of the persons who may have received the same respectively.
Creditor may call upon legatee to refund
361. A creditor who has not received payment of his debt may call upon a legatee who has received payment of his legacy to refund, whether the assets of the testator's estate were or were not sufficient at the time of his death to pay both debts and legacies; and whether the payment of the legacy by the executor or administrator was voluntary or not.
When legatee, not satisfied or compelled to refund under section 361, cannot oblige one paid in full to refund
362. If the assets were sufficient to satisfy all the legacies at the time of the testator's death, a legatee who has not received payment of his legacy, or who has been compelled to refund under section 361, cannot oblige one who has received payment in full to refund, whether the legacy were paid to him with or without suit, although the assets have subsequently become deficient by the wasting of the executor.
When unsatisfied legatee must first proceed against executor, if solvent
363. If the assets were not sufficient to satisfy all the legacies at the time of the testator's death, a legatee who has not received payment of his legacy must, before he can call on a satisfied legatee to refund, first proceed against the executor or administrator if he is solvent; but if the executor or administrator is insolvent or not liable to pay, the unsatisfied legatee can oblige each satisfied legatee to refund in proportion.
Limit to refunding of one legatee to another
364. The refunding of one legatee to another shall not exceed the sum by which the satisfied legacy ought to have been reduced if the estate had been properly administered.
Illustration
A has bequeathed 240 Taka to B, 480 Taka to C, and 720 Taka to D. The assets are only 1,200 Taka and, if properly administered, would give 200 Taka to B, 400 Taka to C, and 600 Taka to D. C and D have been paid their legacies in full, leaving nothing to B. B can oblige C to refund 80 Taka, and D to refund 120 Taka.
Refunding to be without interest
365. The refunding shall in all cases be without interest.
Residue after usual payments to be paid to residuary legatee
366. The surplus or residue of the deceased's property, after payment of debts and legacies, shall be paid to the residuary legatee when any has been appointed by the will.
Transfer of assets from Bangladesh, to executor or administrator in country of domicile for distribution
367. Where a person not having his domicile in Bangladesh has died leaving assets both in Bangladesh and in the country in which he had his domicile at the time of his death, and there has been a grant of probate or letters of administration in Bangladesh with respect to the assets there and a grant of administration in the country of domicile with respect to the assets in that country, the executor or administrator, as the case may be, in Bangladesh, after having given such notices as are mentioned in section 360, and after having discharged, at the expiration of the time therein named, such lawful claims as he knows of, may, instead of himself distributing any surplus or residure of the deceased's property to persons residing out of Bangladesh who are entitled thereto, transfer, with the consent for the executor or administrator, as the case may be, in the country of domicile, the surplus or residue to him for distribution to those persons.
Chapter XIII
OF THE LIABILITY OF AN EXECUTOR OR ADMINISTRATOR FOR DEVASTATION
Liability of executor or administrator for devastation
368. When an executor or administrator misapplies the estate of the deceased, or subjects it to loss or damage, he is liable to make good the loss or damage so occasioned.
Illustrations
(i) The executor pays out of the estate an unfounded claim. He is liable to make good the loss.
(ii) The deceased had a valuable lease renewable by notice which the executor neglects to give at the proper time. The executor is liable to make good the loss.
(iii) The deceased had a lease of less value than the rent payable for it, but terminable on notice at a particular time. The executor neglects to give the notice. He is liable to make good the loss.
Liability of executor or administrator for neglect to get any part of property
369. When an executor or administrator occasions a loss to the estate by neglecting to get in any part of the property of the deceased, he is liable to make good the amount.
(i) The executor absolutely releases a debt due to the deceased from a solvent person, or compounds with a debtor who is able to pay in full. The executor is liable to make good the amount.
(ii) The executor neglects to sue for a debt till the debtor is able to plead that the claim is barred by limitation and the debt is thereby lost to the estate. The executor is liable to make good the amount.
Illustrations
(i) The executor absolutely releases a debt due to the deceased from a solvent person, or compounds with a debtor who is able to pay in full. The executor is liable to make good the amount.
(ii) The executor neglects to sue for a debt till the debtor is able to plead that the claim is barred by limitation and the debt is thereby lost to the estate. The executor is liable to make good the amount.
