West Bengal Legislation

Testamentary and Intestate Jurisdiction of Calcutta High Court

The Rules of The High Court At Calcutta (Original Side), 1914

Index Page

CHAPTER XXXV

Testamentary and Intestate Jurisdiction

1- Non-contentious business.– Non-contentious business shall include the business of obtaining probate and letters of administration (with or without the will annexed, and whether general, special or limited) where there is No contention as to the right thereto, including the passing of probates and letters of administration through the Court in contentious case where the contest is terminated, and allex parte business to be taken in the Court in matters of testacy, and intestacy, Not being proceedings in any suit, and also the business of lodging caveats against the grant of probate or letters of administration.

2. Will to include codicil. – The word “will” in this Chapter includes a “codicil”.

3- Notice of application to whom to be given. – The Registrar shall give Notice of all applications for probate or letters of administration to the Secretary to the Board of Revenue. Such Notice shall be accompanied by a copy of the affidavit of valuation to be supplied by the petitioner, as provided in Rule 4, and certified by the Court to be the true copy of the original affidavit of valuation.

4. Application for probate or letters of administration, or a certificate. – (1) Every application for probate or for letters of administration with or without the will annexed shall be accompanied by –

(a) A certificate of the Registrar as to duty having been paid (Form No. 1) or a certificate of the Taxing Officer that No duty is payable (Forms Nos. 2, 2A and 3).

(b) A certificate of the Registrar that No intimation has been received by this Court from any other High Court or any District Court, of any grant of probate or letters of administration of the property and credits of the deceased with effect throughout the whole of Union of India (Form No. 4).

(c) A copy of the affidavit of valuation for the purpose mentioned in Rule 3.

(2) Every application for a certificate under section 376 of the Indian Succession Act shall be accompanied by a certificate of the Registrar that the fee payable under section 379 of the said Act has been paid. And also by a certificate of the Registrar that No intimation has been received by this Court from any other High Court or any District Court of any grant of probate or letters of administration of the property and credits or a succession certificate of the deceased with effect throughout the whole of the Union of India.

4A. Affidavit of valuation to be filed with application. – Except in a case where the Administrator-General is the applicant, with every application for grant of probate or letters of administration there shall be filed an affidavit of valuation in the Form set forth in Schedule III of the Court-fees Act, 1870.

4B. Postponement of payment of ad valorem fee till caveat disposed of. – In a case where a caveat has been filed prior to the presentation of the application for grant of probate or letters of administration, or where the applicant, on the presentation of such an application, prays in the first instance for the issue of a citation, the payment of the ad valorem fee payable on the valuation may be postponed till any caveat filed has been disposed of.

4C. Payment of postponed fee before application for decree or order for grant. – In all cases where the payment of the ad valorem fee has been postponed under the preceding rule, the applicant shall, before applying for an order or decree for the issue of the grant to him, produce to the Judge or Court, as the case may be, a certificate of the Registrar or. Taxing Officer, showing that the ad valorem fee has been paid, or is Not payable, as the case may be, as required by Rule 4A of this Chapter.

5. Proof of identity. – The Judge may, in cases where he deems it necessary, require proof, in addition to the usual statement required to be made in the petition, of the identity of the deceased or of the party applying for the grant.

5A. In all applications for probate, or .for letters of administration with the will annexed the petition shall state the names of the members of the family or other relatives upon whom the estate would have devolved in case of an intestacy together with their present place of residence.

6. Renunciation. – No person, who renounces probate of a will or letters of administration of the property of a deceased person in one character, shall, without the leave of the Judge, take out representation to the same deceased in another character.

7. Administration to a creditor. – In all applications by a creditor for letters of administration, it shall be stated particularly how the debt arose and whether the applicant has any and what security for the debt.

8. Production of deed, paper, etc. referred to in will. – Where a will contains a reference to any paper, memorandum, or other document of such a nature as to raise a question whether it ought Not to Form a constituent part of the will, such paper, memorandum or other document should be produced with a view to ascertain whether it is entitled to probate, and where Not produced, its Non-production must be accounted for. No paper, memorandum, or other document can Form part of a will unless it was in existence at the time when the will was executed.

9. Citation to rightful parties. – On an application for letters of administration, unless otherwise ordered, a citation shall issue to all persons having a right to take the grant prior or equal to that of the applicant, unless such persons have signified their consent to the application.

10. Citations on application by creditor. – Where letters of administration are applied for by a creditor, a special citation shall be issued to the widow, if any, and to the next-of-kin provided they shall be resident within the jurisdiction or have any known agent or agents resident within the jurisdiction, and to the Administrator-General of West Bengal, and a general citation shall be issued to all persons claiming to have any interest in the estate of the deceased.

11. Citation where deceased is a woman of the town. – Where letters of administration of the estate of a deceased woman of the town are applied for, a special citation shall be issued to the Solicitor to the State of West Bengal. Where properties in States other than West Bengal are disclosed in the Affidavit of Assets, a special citation shall be issued to the Legal Remembrancer of the State or States where the property or properties may be situate.

12. Direction in citation to show cause on a certain day. – All citations shall, unless otherwise ordered, direct the persons cited to show cause on the fourth day from the day of service where the parties to be cited reside within the town of Calcutta, or on such day certain as the Judge shall direct where they reside outside Calcutta; and, where they canNot be served in the manner provided for service of process, may be served by the insertion as an advertisement in such local newspapers as may be directed, of a Notice in Form No. 5.

13. Grants limited to State of West Bengal. – All grants of probate or letters of administration (with or without the will annexed) other than grants under the Administrator-General’s Act shall, unless otherwise ordered, be drawn up by the Registrar with effect within the State of West Bengal.

14. Grants throughout Union of India. – In all cases under the Indian Succession Act, in which it is sought to obtain a grant of probate or letters of administration (with or without the will annexed) to have effect throughout Union of India, or under the Administrator-General’s Act with effect throughout any or all of the States other than the State of West Bengal such grant must be expressly asked for, and it must be shown where the assets are situated.

15. One or more sureties to the bond required. – Every person to whom a grant or letters of administration, other than a grant under section 212 of the Indian Succession Act is committed, shall give a bond to and in the name of the Chief Justice with one or more sufficient sureties to be approved by the Registrar. Such bond shall in all cases be prepared in the office of the Registrar (Forms Nos. 6 and 7) and shall, unless otherwise ordered by the Court or a Judge, be given in the amount of the full value of the property for which the grant is to be made.

16. Guarantee Society as surety. – A Guarantee Society, duly approved of by the Full Court, may be accepted as surety upon its joining in a bond with the Administrator or Administrators in either Form No. 8 or Form No. 9 and in cases where the bond is in excess of the limit mentioned hereunder in like Forms as nearly as may be with such variation as the circumstances of the case may require.Under Rule 16 the following Guarantee Companies have been approved by the Court. AgainSt each Company is stated the amount up to which bonds are accepted.

Name of the Company Limit

1- National Insurance Co. Ltd 40 Lakhs
2. The Oriental Fire and General Insurance Co. Ltd. 5 Lakhs
3. The New India Assurance Co. Ltd. 5Lakhs
4. Mercantile Bank Ltd. 4 Lakhs
5. Mercantile Bank (Agency) Pvt. Ltd. 1 Lakhs
6. Dalhousie Holdings Ltd. 3 Lakhs 60 thousands
7. United India Fire and General Insurance Co. Ltd. 40 Lakhs

16A. Leave may be given by a Judge to a Guarantee Society to enter into a bond in excess of its limit mentioned under the preceding rule on such terms, if any, as the Judge in his absolute discretion thinks fit. Such leave may be obtained on an application made by the Guarantee Society by letter addressed to the Registrar. The letter shall be placed by the Registrar before a Judge for orders, and the order of the Judge shall be conveyed to the Society by a letter from the Registrar.

17. Procedure where such Society has Agents. – Where such a Guarantee Society is represented by Agents, the document or documents authorising the latter to act on behalf of the Society shall in the first instance be submitted to and approved of by the Full Court and whenever a bond is sent to them for signature, it must be accompanied by a letter in Form No. 10 and the Agents shall sign a reply in Form No. 11.

18. Filing of annual balance sheet of such Society. – Every such Society shall each year file with the Registrar a copy of the Society’s annual balance sheet duly audited, which copy shall be verified by the affidavit of the Agent or principal officer and be submitted by the Registrar to the Full Court.18A. Repealed with effect from 1st June, 1933.

18B. Repealed with effect from 1st June, 1933.

19. Attestation of bonds. – The execution of administration bonds by persons other than a Guarantee Society shall be attested by the Registrar or Master or, where executed outside the Court House, by the Registrar or Master or such gazetted officer as may be Nominated by the Registrar for that purpose.

20. Certificate under section 274 of the Indian Succession Act. – With every certificate to be sent to a High Court, under the provisions of section 274 of the Indian Succession Act, or section 20 of the Administrator-General’s Act, the Registrar shall send a copy of so much of the schedule of the property and credits of the deceased as relates to the estate within the jurisdiction of such Court.

21. Amendment of grant to extend to Union of India. – A grant with effect within the State of West Bengal (a) under the Indian Succession Act, or (b) under the Administrator-General’s Act, may be amended so as to extend its effect in case (a) throughout the Union of India or in case (b) throughout any or all of the other States. The application shall be on petition supported by a further affidavit of valuation in the Form set out in Schedule III to the Court Fees Act with such variations as the circumstances may require, and on payment of the probate duty payable in respect thereof, and in case of grant of letters of administration with or without the will annexed, on the petitioner giving a further bond, the grant may be amended accordingly.

22. Register of grant, etc. – Only the grant, and the will, if any, shall be copied in the registers. Where the will is in any vernacular or foreign language, the official translation only shall be copied.

23. Exemplification or official copy. – An exemplification or official copy under the signature of the Registrar and the seal of the Court, of a grant so entered in the register, or of a will in respect of which a grant has issued may be obtained on payment of the prescribed fees.

24. Caveat. – Any person intending to oppose the issuing of a grant of probate or letters of administration must either personally or by his Advocate acting on the Original Side file a caveat in the Registry in Form No. 12. Notice of the filing of the caveat shall be given by the Registrar to the petitioner or his Advocate acting on the Original Side. (Form No. 13).

25. Affidavit in support of caveat. – Where a caveat is entered after an application has been made for a grant of probate or letters of administration with or without the will annexed, the affidavit or affidavits in support shall be filed within eight days of the caveat being lodged, Notwithstanding the long vacation. Such affidavit shall state the right and interest of caveator, and the grounds of the objections to the application.

26. Notice to caveator to file affidavit. – Where an application for grant of probate or letters of administration with or without the will annexed is presented after a caveat has been filed, the Registrar shall forthwith issue Notice to the caveator, calling upon him to file his affidavit or affidavits in support of his caveat within eight days from the service of such Notice.

27. Consequence of Not filing affidavit. – Where the caveator fails to file any affidavit in support of his caveat in compliance with rule 25 or in compliance with the Notice issued under rule 26, the caveat may be discharged by an order to be obtained on summons.

28. Procedure on affidavit being filed. – Upon the affidavit in support of the caveat being filed (Notice whereof shall immediately be given by the caveator to the petitioner), the proceedings shall, by order of a Judge upon application by summons be numbered as a suit in which the petitioner for probate or letters of administration shall be the plaintiff, and the caveator shall be the defendant, the petition for probate or letters of administration being registered as and deemed a plaint filed against the caveator, and the affidavit filed by the caveator being treated as his written statement in the suit. The procedure in such suit shall, as nearly as may be, be according to the provisions of the Code. (Forms Nos. 14 and 15).

28A. When an application for grant of Probate or Letter of Administration is registered as a suit, a Notice (Form No. 15) shall be given to the plaintiff fixing the date and the time for assessment by the Stamp Reporter of the fee payable under the proviso to item No. 1(g) of Schedule II to the West Bengal Court-fees Act, 1970. After such fees are assessed either by the Stamp Reporter or under the provisions of section 5 of the West Bengal Court-fees Act, 1970, as the case may be, a Notice (Form No. 16) shall be given to the plaintiff to pay the same within the time to be fixed by the Registrar. If the fee so assessed, is Not paid within the time fixed by the Registrar, the matter will be placed before the Court for necessary orders. When the fee so assessed is paid and the plaintiff undertakes to pay such further fees as may be found payable in the event of the valuation given by the plaintiff in the affidavit of assets being found to be less than the proper value as may be determined under section 28 or under section 31(6) of the Court-fees Act, 1970, the Registrar shall issue a certificate (Form No. 17) that the Court fee payable under the said proviso has been paid.

29. Notice to prove will in solemn Form. – The party opposing a will may, with his affidavit, give Notice to the party setting up the will that he merely insists upon the will being proved in solemn Form of law, and only intends to cross-examine the witnesses produced in support of the will, and he shall thereupon be at liberty to do so, and shall Not, in any event, be liable to pay the costs of the other side, unless the Court shall be of opinion that there was No reasonable ground for opposing the will.

30. Trial of preliminary issue. – The Court may, on the application of the petitioner by summons to the caveator before making the order mentioned in Rule 28, direct the trial of an issue as to the caveator’s interest. Where, upon the trial of such issue, it appears that the caveator has No interest, the Court shall order the caveat to be discharged, and may order the issue of probate or letters of administration, as the case may be.

31. Where value of estate under Rs. 2,000, Court-fee Not to be charged. – Where the gross value of the estate as shown in the affidavit of valuation does Not exceed Rs. 2,000 No Court-fees shall be charged, provided the petitioner undertakes to pay to the State of West Bengal, or other party entitled thereto, the fees of Court in case the estate shall thereafter be found to be of greater gross value than Rs. 2,000.

32. Where estate undervalued how Court-fees may be recovered. – It shall be lawful for the Court on the application of the Advocate-General or of any person claiming to be entitled to the fees payable under an undertaking given in accordance with Rule 31, to call upon the executor or administrator liable under the undertaking, to pay such fees, and upon the hearing of the application to discharge the same, or to make an order absolute for the payment of such fees, together with such order touching the costs of the application as it shall see fit, and every such order shall be enforceable in the same manner as any other order of Court whereby any party is directed to pay money or costs.

33. Practice. – In cases Not provided for by this Chapter, or by the rules of procedure laid down in the Indian Succession Act, or the Administrator-General’s Act, or the Code, the practice and procedure of the Probate Division of the High, Court of Justice in England shall be followed so far as they are applicable and not inconsistent with this Chapter and the said Acts.

34. Name, etc. of petitioner and caveator in petition and caveat. – The name, true place of abode, description, and occupation, if any, of the petitioner, shall be given in the petition and of the caveator in the caveat.35. Deleted.

36. Notice of probate or letters of administration to Collector. – Wherever a grant of probate or letters of administration is made and it appears, either from the application or is otherwise brought to the Notice of the Court, or the Registrar, that any revenue-paying estate or share of such estate situate outside Calcutta is included in the estate of the deceased in respect of which the grant is made, the Registrar shall Notify the grant to the Collector of the District in which such estate or part of an estate is situated.

37. These rules how far inapplicable to the Administrator-General. – Nothing in the rules in this Chapter shall apply to application or acts to be done by the Administrator-General, in so far as they conflict with the provisions of the Administrator-General’s Act.37A. In the rules of this Chapter, the word ‘Registrar’ includes the Registrar-in-Insolvency.

38. Form. – The Forms to which reference is made in this Chapter are those in Appendix M.