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2017 DIGILAW 973 (KER)

John K. Philip v. Treasury Officer

2017-07-03

P.B.SURESH KUMAR

body2017
JUDGMENT : 1. The father of the petitioner, late M.P. John, had executed a Will by which he bequeathed his movable properties including the money lying in deposit in his bank accounts, fixed deposits etc. in favour of the petitioner. Ext.P1 is the registered Will in favour of the petitioner. The father of the petitioner expired on 17.02.2017 and consequently, the Will came into existence on that day. Later, the petitioner came to know that certain amounts are lying in the Pensioner's Savings Bank Account of his father at Kumbanad Sub Treasury. The petitioner, therefore, made a claim for the said amounts on the strength of Ext.P1 Will. The application preferred by the petitioner in this connection was, however, rejected by the second respondent, the District Treasury Officer, as per Ext.P5 order stating that the amounts in the Savings Bank Account of the deceased father of the petitioner can be released only on production of the succession certificate. Ext.P5 is under challenge in this writ petition. 2. Heard the learned counsel for the petitioner as also the learned Government Pleader. 3. The specific case of the petitioner is that a succession certificate under Section 370 of the Indian Succession Act ('the Act') cannot be applied for and obtained in respect of a debt or security to which a right is required to be established by letters of administration or probate under Sections 212 or 213 of the said Act. It is his case that in so far as a Will has already been executed by the deceased, the competent authority is bound to release the amount to the legatee based on the Will. Relying on the relevant provisions contained in the Treasury Code, the learned counsel for the petitioner also submits that the provision therein in a case of this nature is only that the party concerned shall produce a probate or letters of administration for the Will. Relying on the relevant provisions contained in the Treasury Code, the learned counsel for the petitioner also submits that the provision therein in a case of this nature is only that the party concerned shall produce a probate or letters of administration for the Will. According to the learned counsel, by virtue of the provisions contained in the Indian Succession (Kerala Amendment) Act, 1996, Indian Christians are exempted from the provisions contained in sub-section (1) of Section 213 of the Act which provides that 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. In other words, as far as the legatees under the Wills executed by Indian Christians are concerned, according to the learned counsel, the competent authority have to act upon the Will. 4. As rightly pointed out by the learned counsel for the petitioner, a succession certificate cannot be applied for by the petitioner in respect of the debt referred to in the writ petition as the deceased had already executed a Will in respect of the same. Going by the provisions contained in Ext.P6 Treasury Code, what is required to be produced for release of the debts of the instant nature is a probate of the Will. The requirement to obtain probate for Wills does not apply to Indian Christians in the light of Indian Succession (Kerala Amendment) Act, 1996. In the circumstances, no authority can insist that the legatees under the Will have to obtain probate for the same, for the purpose of claiming the benefits under it. True, Will not being a compulsorily registrable document, the authorities have to act upon even on unregistered Wills, though the Will in the instant case is a registered one. In the circumstances, the authorities can also obtain an indemnity bond from the party concerned by way of abundant caution, to the effect that in the event of a rival sustainable claim, the loss caused to the authorities shall be recouped. In the circumstances, the authorities can also obtain an indemnity bond from the party concerned by way of abundant caution, to the effect that in the event of a rival sustainable claim, the loss caused to the authorities shall be recouped. In the said view of the matter, the writ petition is allowed, directing the respondents to release the amount lying in the Pensioners' Savings Bank Account bearing No.343 in the name of the deceased father of the petitioner, viz, M.P. John to the petitioner, on the petitioner executing an indemnity body as indicated in paragraph 4 above. This shall be done within one month from the date of receipt of a copy of this judgment.