Patricia Prabha Edwin v. State Bank of India and The Branch Manager, State Bank of India, Thampanoor Branch

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 21[ST] DAY OF AUGUST 2023 / 30TH SRAVANA, 1945** ## **WP(C) NO. 25445 OF 2023** ## **PETITIONER:** PATRICIA PRABHA EDWIN AGED 44 YEARS D/O. THRESIA MARY FLORA, MOSQUE LANE, KESAVADASAPURAM, THIRUVANANTHAPURAM, PIN - 695004 BY ADVS. SUMAN CHAKRAVARTHY PRABHU VIJAYAKUMAR BREJITHA UNNIKRISHNAN ## **RESPONDENTS:** 1 STATE BANK OF INDIA REPRESENTED BY ITS CHIEF MANAGER ADMINISTRATIVE OFFICE, SANGAMAM BUILDING GAS HOUSE JUNCTION, THIRUVANANTHAPURAM, PIN - 695001 2 THE BRANCH MANAGER STATE BANK OF INDIA, THAMPANOOR BRANCH, 1ST FLOOR, RAMAKRISHNA BUILDING, ARISTO JUNCTION, THAMPANOOR, THIRUVANANTHAPURAM, PIN - 695001 BY ADVS. SRI.JITHESH MENON, SC, SBI SRI.JAWAHAR JOSE – R1 & R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.25445 OF 2023 2 **P.V.KUNHIKRISHNAN, J. -----------------------------W.P.(C) No.25445 of 2023 ---------------------------------------------Dated this the 21[st] day of August, 2023** ## **JUDGMENT** ## The above writ petition is filed with the following prayers: _“i) To issue a writ of mandamus or any other appropriate writ order or direction commanding the respondent to release the amount in_ _(i) FD Account No.32723058689 for an amount of Rs.7,09,060/- with maturity value of Rs.9,26,094/- in State Bank of India, Manorama Road, Aristo Junction, Thiruvananthapuram._ _(ii) FD Account No.100639855886 for an amount of Rs.6,31,278/- with maturity value of Rs.8,24,481/- in State Bank of India, Manorama Road, Aristo Junction, Thiruvananthapuram covered by Ext P1 Will with interest and such other amounts covered by Ext P1 Will lying with the_ WP(C) NO.25445 OF 2023 3 _respondents, to the petitioner as expeditiously as possible within such time to prescribed this Hon'ble Court._ _(iii) To pass any such or further orders as the petitioner may seek and this Hon'ble Court deem fit to grant considering the facts and circumstances of the case._ _vi) To dispense with the filing of English translation of the vernacular documents produced along with the Writ Petition.”[SIC]_ 2. Petitioner is the sole legal heir of Thresia Mary Flora whose brother Rev.Fr. J.M Patriacis @ John Maria Patriacis had executed Ext.P1 registered Will. When the petitioner’s mother approached the District court for probating the Will, the same was declined vide Ext.P2 order stating that, in the light of the Division Bench Judgment of this Court reported in **Kurian @ Jacob Vs. Chellamma John and others** [2017 (5) KHC 257], no probating is necessary. Thereafter, petitioner’s mother expired on WP(C) NO.25445 OF 2023 4 26.03.2021. The petitioner approached the respondents for releasing the amount covered by Ext.P1 will. The petitioner was asked to execute indemnity bond, letter of disclaimer, Affidavit etc., which she did and provide indemnity bond of her husband worth Rs.1 Crore. The legal heirship certificate, death certificate were also produced. However the respondent took a stand that orders from the Court is required. Hence this writ petition is filed. 3. Heard the learned counsel appearing for the petitioner and the learned Standing counsel appearing for the respondents. 4. Counsel appearing for the petitioner relied on the judgment of this Court in **John K. Philip (Dr.) v. Treasury Officer, Kumbanad and another** [2017 (4) KHC 561] and submitted that probate of Will as WP(C) NO.25445 OF 2023 5 well as succession certificate is not necessary. The Standing counsel appearing for the respondents takes me through the counter affidavit filed by the respondents and opposed the submission. The counsel also takes me through proviso to Section 370 of the Indian Succession Act, 1925. 5. This Court considered the contentions of the petitioner and the Standing counsel appearing for the respondents. This Court also perused the judgment in **John K. Philip** 's case (supra). It will be better to extract the relevant portion of the above judgment: _“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_ WP(C) NO.25445 OF 2023 6 _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 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.”_ WP(C) NO.25445 OF 2023 7 6. In the light of the above judgment, I am of the considered opinion that the contention of the respondents that the Will is to be probated will not sustain. Moreover, Section 370 is also not applicable in the light of the dictum laid down by this Court in **John K. Philip** 's case (supra). But the petitioner should execute an indemnity bond as indicated in paragraph No.4 of the above judgment in **John K. Philip** 's case (supra). In the light of the observations in the above judgment, succession certificate is also not necessary. Therefore, this writ petition is disposed of with the following directions: i. The respondents are directed to disburse the two Fixed Deposit amounts standing in the credit of the deceased Fr.J.M. Patricius to the petitioner on production of indemnity bond as WP(C) NO.25445 OF 2023 8 stated in paragraph No.4 of the judgment in **John** **K. Philip** 's case (supra), without insisting for succession certificate and probating of the Will. ii. Petitioner will also file an affidavit before the respondents stating that there is no subsequent Will after Ext.P1 Will. DM Sd/- **P.V.KUNHIKRISHNAN JUDGE** WP(C) NO.25445 OF 2023 9 ## **APPENDIX OF WP(C) 25445/2023** PETITIONER EXHIBITS EXHIBIT -P1 A TRUE COPY OF THE REGISTERED WILL NO.255/2004 DATED 27.10.2004 EXHIBIT -P2 A TRUE COPY OF THE ORDER DATED 25.09.2020 IN O.P(PROBATE) NO.232/2019 BY THE ADDITIONAL DISTRICT JUDGE-III, THIRUVANANTHAPURAM EXHIBIT -P3 A TRUE COPY OF THE LETTER DATED 13.03.2023 OF THE CHIEF MANAGER (LAW) EXHIBIT -P4 A TRUE COPY OF THE LEGAL HEIRSHIP CERTIFICATE DATED 25.09.2021 EXHIBIT -P5 A TRUE COPY OF THE LETTER DATED 21.07.2023 FROM THE 2ND RESPONDENT RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE