The Bengal Wills and Intestacy Regulation, 1799

WILLS AND INTESTACY [ 1799 : Ben. Reg.5. BENGAL REGULATION 5 OF 1799 (THE BENGAL WILLS AND INTESTACY REGULATION, 1799)1 [3rd May 1799] A Regulation to limit the interference of the Zila * *2 Courts of Diwani Adalat in execution of wills and administration to the Estates of persons dying intestate. Preamble. 1. Doubts having been entertained to what extent, and in what manner, the Judge of the Zila * ** Courts of the Diwani Adalat in the Provinces of Bengal, Bihar, Orissa and Benares are authorised to interfere in cases wherein the inhabitants of the above Provinces may have left wills at their decease, and appointed executors to carry the same into effect, or may have died intestate leaving an Estate real or personal ; with a view to remove all doubts on the authority of the Zila ** 3 Courts in such cases, and 1 SHORT TITLE .- This short title was given by the Amending Act, 1897 (V of 1897), since repealed.

LOCAL EXTENT .- This Regulation was declared, by notifications under the Scheduled Districts Act, 1874 (XIV of 1874), section 3, to be in force in the following Districts namely :-- The Districts of Cachar (excluding North Cachar Hills), Darrang, Goalpara (excluding the Eastern Duars), Kamrup, Lakhimpur Nowgong, Sibsagar and Sylhet, vide Notification No. 713-L., dated 27th September, 1937. 2'The words "and City" which were repealed by Amending Act, 1891 (XII of 1891), are omitted. " The words "and City" which were repealed by the Repealing Act 1874 (XVI of 1874), are omitted. 1799: Ben. Reg.5.] WILLS AND INTESTACY to apply thereto, as far as possible, the principle * * 1 that in suits regarding succession and inheritance the Muhammadan laws with respect to Muhammadans, and the Hindu laws with regard to Hindus, be the general rules for the guidance of the Judges, the Vice-President in Council has passed the following Regulation, to be considered in force from the period of its promulgation in the above Provinces respectively.

*2, In all cases of a Hindu, Mussulman or other person Estates subject to the jurisdiction of the Zila * * 3 courts, having at his Hin dus, death left a will and appointed an executor or executors to carry Mu ha m - the same into effect, and in which the heir to the deceased may others not madans and not be a disqualified landholder subject to the superintendence being dis- of the Court of Wards * * * ** the executors so appointed are qual ifi e d to take charge of the Estate of the deceased, and proceed in the landholders. execution of their trust according to the will of the deceased and leaving will. the laws and usages of the country, without any application to the Judge of the Diwani Adalat or any other officer of [the Government]5 for his sanction ; and the Courts of Justice are prohibited to interfere in such cases , except on a regular complaint against the executors for a breach of trust or otherwise, when they are to take cognizance of such complaint in common with all others of a civil nature * * 6 IndiaCode $3.

In case of a Hindu, Mussulman, or other person subject Estates of to the jurisdiction of the Zila *7 Courts, dying intestate, but persons dy- leaving a son or other heir, who, by the laws of the country, may ing intestate. 1 The words and figures "prescribed in section 15 of Regulation IV, 1793, viz.," which were repealed by the Repealing Act, 1874 (XVI of 1874), are omitted. " So much of ss. 2 and 3 as restricts the interference of the Civil Courts in cases of inheritence by minors was repealed by Act XL of 1858 (Minors). The words "and City" which were repealed by the Repealing Act, 1874 (XVI of 1874), are omitted. . The words and figures "under Regulation X, 1793, or any other Regulation relative to the jurisdiction of the Court of Wards" which were repealed partly by the Repealing Act, 1874 (XVI of 1874), and partly by the Amending Act, 1903 (1 of 1903), are omitted.

= "The word "Government was substituted by the A. O. 1937 by the words "the Crown" ; "Crown" again has been substituted by A. O. 1950. " The rest of s. 2, which was repealed by the Repealing Act, 1874 (XVI of 1874), is omitted. " The words "or City" which were repealed by the Repealing Act, 1874 (XVI of 1874), are omitted. n 5, d cl WILLS AND INTESTACY [1799 : Ben. Reg.5. be entitled to succeed to the whole estate of the deceased, such heir, if of age and competent to take the possession and management of the Estate, or, if under age or incompetent and not under the Superintendence of the Court of Wards, his guardian or nearest of kin who by special appointment or by the law and usage of the country, may be authorized to act for him, is not required to apply to the Courts of Justice for permission to take possession of the Estate of the deceased as far as the same can be done without violence ;

and the Courts of Justice are restricted from interference in such cases, except a regular complaint be preferred * * * *1 If there he more heirs 4. If there be more heirs than one to the Estate of a person than one to dying intestate, and they can agree amongst themselves in the Estate intestate. of appointment of a common manager, they are at liberty to take possession, and the Courts of Justice are restricted from interference, without a regular complaint, as in the case of a single heir ; IndiaC what cases Judge But if the right of succession to the Estate be disputed between may appoint several claimants, one or more of whom may have taken posses- for care and sion, the Judge, on a regular suit being preferred by the party adminis- out of possession, shall take good and sufficient security from the tration management party or parties in possession for his or their compliance with the of Estate of Judgment that may be passed in the suit ;

or, in default of such intestate. security being given within a reasonable period, may give possession, until the suit may be determined, to the other claimant or claimnats who may be able to give such security , declaring at the same time that such possession is not in any degree to affect the right of property at issue between the parties, but to be considered merely as an administration to the Estate for the benefit of the heirs who may on investigation be found entitled to succeed thereto. 1. The words "when they are to proceed thereupon according to the general Regulations,' which were repealed by the Amending Act, 1903 (I of 1903), are omitted. 1799 : Ben Reg. 5.] WILLS AND INTESTACY 15. In the event of none of the claimants to the estate of a person dying intestate being able to give the security required by the preceding section, and in all cases wherein there may be no person authorized and willing to take charge of the landed estate of a person deceased, the judge within whose jurisdiction such estate may be situated (or in which the deceased may have resided, or the principal part of the estate may lie, in the events of its being situated within two or more jurisdictions) is authorized to appoint an administrator for the due care and management of such estate, until, in the former case, the suit depending between the several claimants shall have been determined, or in the latter case, until the legal heir to the estate, or other person entitled to receive charge thereof as executor, administrator or otherwise, shall attend and claim the same ;

when, if the judge be satisfied that the claim is well founded, or if the same be established after any inquiry that may appear necessary, the administrator appointed by the Court shall deliver over the estate to him, with a full and just account of all receipts and disbursements during the period of his administration. viaCode 16. In all instances of an administrator being appointed Security to under this Regulation, he is, previous to entering upon the execu- be tion of his office, to give good security for the faithful discharge allowances taken from and of his trust in a sum proportionate to the extent thereof ; and the paid to judge appointing him is authorized to fix for him (subject to the administra- approbation of the Court of Sadar Diwani Adalat, to whom a tors. report is to be made in such instances) an adequate personal allowance to be paid out of the proceeds of the estate, and to be a percentage thereupon, after deducting the expenses of management.

Ss 5 and 6 have been modified by the Bengal Attached Estates Management Regulation, 1827 (V of 1827), post. 42 WILLS AND INTESTACY [1799: Ben. Reg. 5. Procedure in 7. The Judges of the Zila * * 1 Courts, on receiving cases of per- information that any person within their respective jurisdiction sons dying intestate has died intestate leaving personal property, and that there is no leaving per- claimant to such property, are to adopt such measures as may be sonal proper- necessary for the temporary care of the property, and to issue an ty to which, advertisement in the current languages of the country requiring there is no claimant. the heir of the deceased, or any person entitled to receive charge of his effects, to attend for this purpose. Such advertisement to be published on the spot where the property was found, at the Diwani Adalat cutcherry of the zila * * 1, and if ascertainable at the dwelling place of the deceased * * # 2;

after which, should any person attend and satisfy the judge of his title to the property, or to receive charge thereof as executor, administrator or otherwise, the same is to be delivered up to him, on repayment of any necessary expense incurred in the care of it. e Should no claim be preferred within the twelve months next ensuing, an inventory of the property and report of the circumstances of the case is to be transmitted to the Board of Revenue, or, in Assam, to the [state] " Government for its] orders. 8. Nothing in this Regulation \for its Of RU Saving jurisdiction of Court of Wards. understood to limit or alter the jurisdiction of the Court of Wards + in the appointment of managers or guardians for * * 3 disqualified landholders, ** 6 or in any case wherein a special power may be vested in the Court of Wards.

** ? "The words "or City" which were repealed by the Repealing Act, 1874 (XVI of 1874), are omitted. "The words "or, if the deceased were an European, in the Calcutta Gazette" which were repealed by the Amending Act, 1903 (I of 1903), are omitted. These words were substituted by the Decentralization Act, 1914 (IV of 1914), for the words "Local Government" for "its," which by the Amending Act, 1903 (1 of 1903), Schedule II, had been substituted for the words "Governor General in Council" for "his". The term "Local Government" was substituted by the term "Provincial Government" by the Adaptation Order, 1937. For the present law as to the Court of Wards in Assam, see the Court of Wards Act, 1879 (Ben. Act 1X of 1879), post. . . . The word "the" the words and figures "described in Regulation X, 1793," and the words "by the above or any other Regulation, respectively, which were repealed by the Repealing Act, 1874 (XVI of 1874 are omitted.

· Substituted for the word "Provincial" by A. O., 1950. ul fo N