IMPORTANT POINT
Ancillary Probate obtained under Section 228 of Succession Act has no connection to Section 5 of Act.

ORDER

This writ petition has been filed for a Mandamus seeking for a direction to the 3rd respondent to disburse the money lying in the Savings account of Rohan Sunil Gunawardhana with the 3rd respondent bank to the petitioner, within a time frame to be fixed by this Court.

2. The petitioner seeks for disbursement of the amount lying in the aforementioned bank account based on a letter of Probate issued by the District Court in Srilanka in respect of a Will executed in his favour along with his sibling by his father Late Rohan Sunil Gunawardhana. His father Rohan Sunil Gunawardhana is a Srilankan National and was maintaining a Savings Bank account with the 3rd respondent and he died on 30.03.2018. According to the petitioner, his father Rohan Sunil Gunawardhana had executed a Will in Srilanka in his favour on 17.08.2017 in which, he is a beneficiary of the Savings Bank account, which is the subject matter of this writ petition.

3. The petitioner and his sibling have obtained the Letter of Probate from the District Court, Mount-Lavinia, Srilanka on 13.12.2018 in their favour. Based on the Probate order issued by the District Court at Srilanka, the petitioner had given a representation to the 3rd respondent bank requesting for disbursement of the money lying in the account of Rohan Sunil Gunawardhana. Since the representation has not been considered favourably, the petitioner has filed this writ petition.

4. A counter affidavit has been filed by the 3rd respondent stating that the petitioner has been advised that, based on the foreign Probated Will, an application for grant of Letters of Administration has to be filed in the competent Indian Court under Section 228 of the Indian Succession Act, 1925 either by the Executor or the Beneficiaries. According to them only after obtaining the ancillary probate under Section 228 of the Indian Succession Act, 1925 in respect of the foreign Probated Will, the 3rd respondent will be in a position to disburse the amount lying to the credit of Late Rohan Sunil Gunawardhana.

5. According to the 3rd respondent, the request made by them to the petitioner is only in accordance with the 2nd respondent’s (Reserve Bank of India) Master Circular on Customer Services dated 01.07.2015 as the claim amount exceeds Rs.10,00,000/-.

6. Heard the submissions made by the learned counsel on either side.

7. The learned counsel for the petitioner would submit that the necessity to obtain an ancillary Probate under Section 228 of the Indian Succession Act, 1925 will not arise since Section 5 of the Indian Succession Act makes it clear that succession to the movable property of a person deceased is regulated by the law of the Country in which such person had his domicile at the time of his death. He would submit that the illustration (ii) of Section 5 also makes it absolutely clear that there is no necessity for the petitioner to obtain ancillary Probate in India.

8. The learned counsel for the petitioner in support of his contention relies upon a judgment of the Delhi High Court reported in 2021 SCC Online Del 3209 in the case of Dr. Sanjay Khanduja vs. Punjab National Bank and another.

9. Relying upon the aforesaid decision, he would submit that the grant of Probate by the foreign Court is a proceeding in rem and therefore, there is no necessity to obtain a separate ancillary Probate in an Indian Court under Section 228 of the Indian Succession Act, 1925. He would also submit, by relying upon the aforesaid decision, that as per the Hague Convention, abolishing of the requirement of legalisation for Foreign Public Documents, 1961 (Apostilled convention), there is no necessity to obtain an ancillary Probate from an Indian Court.

10. The learned counsel for the 3rd respondent would reiterate the contents of the counter affidavit filed by the 3rd respondent before this Court. She would submit that the petitioner will have to necessarily obtain an ancillary Probate under Section 228 of the Indian Succession Act, 192