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2025 Supreme(Ker) 19
IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.S. DIAS, J.
AMBILY JOSE – Petitioner
Versus
SUB REGISTRAR, ERNAKULAM – Respondent
W.P. (C) No. 37711 of 2024
Decided On : 06-01-2025
Advocate Appeared:
For the Petitioners: JOHN VARGHESE, AYISHA T.S.
For the Respondents: LEO GEORGE, DEEPA NARAYANAN
IMPORTANT POINT
Executors and legatees under Wills made by Indian Christians are not required to obtain probate to establish their rights, as per the amended Section 213 of the Indian Succession Act.
Headnote:
(A) Indian Succession Act, 1925 - Section 213 (Kerala Amendment) Act, 1996 - Executors and legatees under a Will made by Indian Christians are no longer required to obtain probate to establish their rights - The insistence of banks to probate the Will before releasing deposits is unwarranted. (Paras 4, 6, 7, 8)
(B) The court held that the executor has the duty to distribute the deceased's property and assets to the legatees under the Will without the need for probate. (Paras 9, 10)
Facts of the case:
The petitioner, as executor of the Will of Fr. George Valiaveetil, sought the release of the deceased's deposits from the bank, which required probate contrary to the amended law. (Paras 1, 3)
Findings of Court:
The court allowed the writ petition, directing the banks to release the deceased's deposits based on the Will, subject to an indemnity bond. (Paras 11, 12)
Issues: The main issues were whether the banks could insist on probate for the release of deposits under the amended law and the rights of the executor and legatees. (Paras 6, 10)
Ratio Decidendi: The court ruled that the amendments to Section 213 remove the necessity for probate for Wills made by Indian Christians, allowing executors to establish rights without probate. (Paras 7, 8)
Result: Writ petition allowed.
JUDGMENT :
C.S. DIAS, J.
1. The petitioner is the executor of Ext.P3 registered Will executed by the late Fr. George Valiaveetil. He died on 08.07.2024. The deceased has deposits in the 3rd respondent bank. The testator has bequeathed his properties, assets and deposits in favour of the petitioner and other legatees as per the Will. On the testator's death, the petitioner submitted Ext.P4 letter to the 3rd respondent informing them that he is the executor of the Will and requesting them to furnish the account details of the deceased. In response to the letter, the 3rd respondent has directed the petitioner to submit the death certificate of the deceased and a copy of the probated Will. As per the guidelines of the Reserve Bank of India, all scheduled Banks are bound to settle claims of the deceased depositors within 15 days from their death. In the light of the amendment to Section 213 (2) of the Indian Succession Act, the insistence of the respondents to probate the Will is unwarranted. Ext.P5 reply is illegal and arbitrary. Hence, the writ petition.
2. Heard; the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents 2 and 3 banks.
3. Ext.P3 is a registered Will of Fr. George Valiaveettil. He was an Indian Christian. Ext.P1 death certificate proves that he died on 08.07.2024.
4. It is contextual to refer to Section 213 of the Indian Succession (Kerala Amendment) Act, 1996, which came into force with effect from 08.03.1997, and it reads as follows:
“213. Right as executor or legatee when established:
(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.
(2) This section shall not apply in the case of Wills made by Muhammadans or Indian Christians, or and shall only apply:
(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of section 57.
(ii) in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such Wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immoveable property situated within those limits.”
5. The testator was an Indian Christian, and he died after the coming into force of Section 213 of the Succession Act (Kerala Amendment) Act, 1996.
6. The apprehension of the learned counsel for the respondent banks is that if the amounts under the deposits are paid to the petitioner on the strength of Ext.P3 Will before it is probated, the Banks may become answerable if any person stakes a claim over the deceased’s money. The above contention is naïve and untenable because of the provisions of the Succession Act and its well-settled interpretations.
7. In interpreting Section 213 of the Succession Act (Kerala Amendment) Act, 1996, a Bench of this Court in Lilly George v. Francina James and Others, 2008 (2) KHC 926 held as follows:
“6. We shall now deal with the last contention that as the Will has not been probated the bar under S.213 of Indian Succession Act will apply. The Indian Succession Act was amended with effect from 14/03/1997. Ext. A1 will was executed on 28/02/1985. The testator passed away on 30/08/2000. In Syndicate Bank v. Soji Chacko, 1998 KHC 313, P.K. Balasubramanyan (J.) (as his Lordship then was) considered the effect of amendment to S.213 of the Indian Succession Act, 1925, by the Indian Succession Act (Kerala Amendment) Act which came into force on 14/03/1997. The learned Judge held that from the date of the amendment, the need for obtaining a probate or letters of administration of a Will executed by
