IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

CIVIL REVISION NO. 3718 OF 2018

In the matter of:

An application under Section 115(1) of the Code of

Civil Procedure, 1908.

AND

In the matter of:

Binoy Krishno Sharma, son of late Balai Chandra Sharma alias Balaram Sharma of Village- Stapara, Post Office- Hazrahati, Upazila- Salikha, District- Magura, At present: Residing at Pashu Hospital Para, Magura Town, Post Code No. 7600, Upazila and District- Magura.

.... Petitioner -Versus-

Md. Keramat Ali, son of late Ashraf Ali Munshi and others.

....Opposite-parties

Mr. Goutam Kumar Roy with

Ms. Anjuman Ara Begum, Advocates

... For the petitioner

Mr. Mohammad Shafiqul Islam, Advocate

....For the opposite-party no. 1

Heard on 23.10.2024 and 27.10.2024. Judgment on 27.10.2024.

Present:

Mr. Justice Md. Mozibur Rahman Miah

And

Mr. Justice Md. Bashir Ullah

Md. Mozibur Rahman Miah, J:

At the instance of the plaintiff in Testamentary Suit No. 02 of 2015, this rule was issued calling upon the opposite-party nos. 1-3 to show cause as to why the order no. 15 dated 25.07.2018 passed by the learned District Judge as well as District Delegate, Magura in the said suit adding the opposite-party nos. 1-3 as defendant nos. 3-5 to the suit on allowing application filed for addition of party should not be set aside and/or such other or further order or orders be passed as to this court may seem fit and proper.

At the time of issuance of the rule, all further proceeding of the said Testamentary Suit was stayed for a period of 6(six) months which was lastly extended on 03.04.2019 till disposal of the rule.

The salient facts so figured in the instant revisional application are:

The present petitioner as plaintiff filed the aforesaid suit seeking probate and letter of administration over the property described in the schedule of the plaint so left by the testators, Sree Rabindra Nath Sharma and Sree Shuvash Chandra Sharma. When the suit was being proceeded, the present opposite-party nos. 1-3 filed an application for adding them as party stating inter alia that, they got the property in R.S. Plot No. 256 as of successor of their father, Aftab Ali Munshi and they have been enjoying title and possession over the same which is subject matter of the property included in the Will. The said application was taken up for hearing by the learned District Judge, Magura and vide impugned order dated 25.07.2018 allowed the same adding the applicants as defendant nos. 3-5. It is at that stage, the plaintiff filed the instant revision and obtained the rule and order of stay.

Mr. Goutam Kumar Roy along with Ms. Anjuman Ara Begum, the learned counsels appearing for the petitioner upon taking us to the impugned order at the very outset submits that, no reason has been assigned while allowing the application for addition of party is a non- speaking order.

The learned counsel in this regard has placed his reliance to the decision reported in 1981 BLD (AD) 218 and submits that, in a testamentary suit seeking probate and letter of administration, there has been no scope for a 3rd party to claim any property described in a Will until and unless, such claim is made through testators but in the instant case, admittedly no such claim has been made by the opposite-party nos. 1-3 in their application for addition of party and on that very sole ground, the learned counsel finally prays for making the rule absolute by setting aside the impugned order.

On the contrary, Mr. Mohammad Shafiqul Islam, the learned counsel appearing for the opposite-party no. 1 finds it difficult to refute the said legal assertion made by the learned counsel for the petitioner which has been settled by our Appellate Division in fortifying section 283 of the Succession Act, 1925 rather submits that, an observation can be made by this Hon’ble court so that the opposite-party nos. 1-3