High Court of KeralaSingle Judge2019-02-11Writ petition dismissed.

Shiji Roshan v Bank of India Kakkanad Branch and others

Case / Petition Number:WP(C).No.5053/2018

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anu Sivaraman
Judgment Date: 2019-02-11
Court Decision / Holding: The writ petition is dismissed. The court held that because there is a dispute regarding the nomination and the ongoing Succession O.P., Section 45ZA cannot be invoked to defeat the rights of other legal heirs; the bank cannot release the funds until the disputes are resolved, and the parties must pursue their remedies in appropriate civil proceedings.
Final Disposition: Writ petition dismissed.

Parties to the Case

Appellants / Petitioners

Shiji Roshan

Respondents

Bank of India, Kakkanad Branch, Ernakulam, Airport Road, Cochin - 682010 (Rep. by its Manager)
The Branch Manager, Bank of India, Kakkanad Branch, Ernakulam, Airport Road, Cochin - 682010
Roshan, Azhakandara House, Ambady Mooola, Kakkanad P.O., Cochin-30
Roshny Syam, Ameyam House, Eramaloor P.O., Cherthala, Alappuzha-688524
Rakesh Kumar A.M., Ambady House, Kizhakkekara Road, NGO Quarters, Kakkanad-682030

Legal Representation & Advocates

Counsels for Petitioners

• Sri B. Pramod

Counsels for Respondents

• Sri J. Harikumaran
• Sri P.K. Ravisankar

Case Synopsis & Summary

Shiji Roshan filed WP(C) No.5053 of 2018 before the Kerala High Court, seeking directions to release funds held in fixed deposits and a savings bank account in the name of her father-in-law, Manilal, for which she asserts nomination in her favor as his daughter-in-law. The deposits evidenced by Exhibits P3 to P6 were allegedly to be released to the petitioner under Section 45ZA of the Banking Regulation Act, 1949, arguing that as nominee she is entitled to the monies, to be apportioned among legal heirs under the law of succession. Respondents 4 and 5 (the deceased’s other children) contested the nomination, asserting that Manilal was undergoing treatment and could not fully understand his actions; they have approached the Munsiff’s Court by filing Succession O.P. No.8 of 2018 for a succession certificate and have informed the bank of the dispute over the nomination. Respondents 1–2 relied on Section 45ZB of the Banking Regulation Act to contend that release to a nominee is for the benefit of all legal heirs and cannot occur while disputes exist. The petitioner relied on Apex Court and High Court authorities such as Vishin v. Vidya and Shipra Sengupta v. Mridul Sengupta (cited as 2009 SCC 680) and Anil Kumar K v. Ajith to argue that the nominee should receive funds for distribution among legal heirs. The court ultimately held that due to the ongoing dispute about the nomination and the Succession O.P., Section 45ZA cannot be used to bypass the objections of two legal heirs; the writ petition was dismissed and the parties were left to pursue remedies in proper civil proceedings.

Provisions of Law Cited

Banking Regulation Act, 1949 – Section 45ZABanking Regulation Act, 1949 – Section 45ZBIndian Succession Act, 1925 – Section 372

Legal Doctrines & Maxims

Non-obstante clause (Banking Regulation Act)
Nomination for distribution among legal heirs under the law of succession

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that under Section 45ZA of the Banking Regulation Act, 1949, the amounts in the deposits should be released to her as nominee, for distribution among legal heirs under the law of succession. She relies on Vishin v. Vidya and Anil Kumar K v. Ajith to support release to the nominee, arguing that the non-obstante clause enables release despite pending succession disputes.

Contentions of Respondents

Respondents contend that there is a dispute about the nomination and the right of succession, having filed Succession O.P. No.8/2018; under Section 45ZB, release to a nominee is for the benefit of all legal heirs, and with disputes unresolved, the bank cannot release funds. They rely on Ram Chander Talwar and Shipra Sengupta to argue that a nominee can only receive funds on behalf of heirs under the law of succession.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Vishin v. Vidya	2000 KHC 776	Positive	Cited to support that nomination should be understood in light of the law of succession; funds should be distributed to legal heirs.
Anil Kumar K v. Ajith and others	2012 (4) KHC 546	Mentioned Only	Cited to argue release to nominee; not adopted by court.
Ram Chander Talwar and another v. Devender Kumar Talwar and others	2010 (10) SCC 671	Mentioned Only	Cited to contend nominee can accept money only on behalf of legal heirs; not treated as binding authority in this case.
Shipra Sengupta v. Mridul Sengupta and others	2009 (10) SCC 680	Mentioned Only	Cited to assert that nomination, even if valid, is for distribution among legal heirs under the law of succession; not adopted as controlling authority.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY ,THE 11TH DAY OF FEBRUARY 2019 / 22ND MAGHA, 1940** ## **WP(C).No. 5053 of 2018** ## **PETITIONER:** **SHIJI ROSHAN AGED 38, W/O.ROSHAN, AZHAKANDARA HOUSE,AMBADYMOOLA, KAKKANAD.P.O., COCHIN - 30.** ## **BY ADV. SRI.B.PRAMOD** ## **RESPONDENTS:** |**1**|**BANK OF INDIA**| |---|---| ||**KAKKANAD BRANCH, ERNAKULAM, AIRPORT ROAD,COCHIN -**| ||**682 010, REP. BY ITS MANAGER.**| |**2**|**THE BRANCH MANAGER**| ||**BANK OF INDIA, KAKKANAD BRANCH,ERNAKULAM, AIRPORT**| ||**ROAD, COCHIN - 682 010.**| |***3**|**ROSHAN**| ||**AZHAKANDARA HOUSE, AMBADYMOOLA, KAKKANAD PO,**| ||**COCHIN-30.**| |***4**|**ROSHNY SYAM**| ||**AMEYAM HOUSE, ERAMALLOOR PO, CHERTHALA, ALAPPUZHA-**| ||**688524.**| |***5**|**RAKESH KUMAR A.M**| ||**AMBADY HOUSE, KIZHAKKEKARA ROAD, NGO QUARTERS,**| ||**KAKKANAD-682030.**| **BY ADVS. SRI.J.HARIKUMAR, SC, BANK OF INDIA SRI.J.HARIKUMAR SC BANK OF INDIA SRI.P.K.RAVISANKAR** *are impleaded as per order dated 34.2018 in I.A.No.5054/18 **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C).No.5053/18 2 ## **JUDGMENT** 1.This writ petition is filed seeking directions to respondents 1 and 2 to release the amounts held under the accounts evidenced by Exhibits P3 to P6 to the petitioner forthwith. The petitioner, who is the daughter-in-law of one A.R.Manilal claims to be the nominee in respect of the fixed deposits as well as savings bank account of her father-in-law Manilal. It is stated that her mother-in-law, Santha passed away on 10.10.2017 and Manilal, the survivor had executed a nomination in favour of the petitioner, his daughter-in- law. The contention of the petitioner is that in view of the provisions of Section 45ZA of the Banking Regulation Act, 1949 the amounts in the account are liable to be released to the petitioner, who is the nominee. Reliance is also placed on decisions of the Apex Court in **Vishin v. Vidya** [2000 KHC 776] and a Division Bench of this Court in **Anil Kumar K v. Ajith and others** [2012 (4) KHC 546] to contend that the amounts are to be released to the nominee, who inturn has to apportion the amounts among the legal heirs. W.P.(C).No.5053/18 3 2. A counter affidavit has been filed on behalf of respondents 4 and 5, who are the other children of Santha and Manilal contending that the nomination itself is under dispute, since Manilal was undergoing treatment for brain tumour and was unable to understand the consequence of his actions at the time when the nomination was allegedly executed. It is stated that the nominee is not a legal heir of the deceased and that respondents 4 and 5 had instituted Succession O.P. No.8 of 2018 before the Munsiff's Court, Ernakulam under Section 372 of the Indian Succession Act for a succession certificate with respect of the amounts covered by Exhibits P3 to P6. It is further contented that they have also informed the bank that since the nomination executed itself is under dispute, amounts may not be released to the petitioner. 3. The learned counsel for respondents 4 and 5 places reliance on a decision of the Apex Court in Ram **Chander Talwar and another v. Devender Kumar Talwar and others** [2010 (10) SCC 671] to contend that the nominee can accept the money only on behalf of the legal heirs, who are entitled to the amounts according to the rule of succession. W.P.(C).No.5053/18 4 4. The learned counsel appearing for respondents 1 and 2 contend that a dispute has been raised as against the nomination by respondents 4 and 5, who are the legal heirs of the deceased. It is stated that the filing of the Succession O.P. has also been intimated to the bank by respondents 4 and 5 and the bank is unable to release the amounts due to the petitioner. Relying on the provisions of Section 45ZB of the Banking Regulation Act, it is contended that the release of amounts to the nominee is only for the benefit of all the legal heirs and since a dispute has been raised by the legal heirs with regard to the right of succession to the amounts held in account as also to the validity of the nomination executed, it is contented that the amounts cannot be released unless the dispute is settled between the parties. The decision of the Apex Court in **Vishin v. Vidya (supra)** and in **Shipra Sengupta v. Mridul Sengupta and others** [(2009)10 SCC 680] are relied on to contend that a nomination, even if duly made, can only be for the purpose of accepting amounts to be distributed among the legal heirs in accordance with the applicable law of succession. W.P.(C).No.5053/18 5 5.The learned counsel for the petitioner would submit that the provisions of the Banking Regulation Act contains a _non obstante clause_ and that the amounts are liable to be released to the nominee in terms of the provisions therein. Once the amounts are released, it is for the legal heirs, claiming right over the amounts, to file an appropriate suit for the recovery of amounts from the nominee by proving their claim. It is submitted that the filing of a Succession O.P. cannot have the effect of interdicting the release of the amounts due to the nominee in accordance with law. 6.I have considered the contentions advanced on all sides. The petitioner claims to be a nominee on the strength of a nomination executed by her father-in-law shortly before his death. Respondents 4 and 5 have not only filed a Succession O.P claiming rights over the amounts held in deposit, but have apparently also raised a dispute as to the validity of the nomination itself on the ground that the deceased, who executed the nomination, was incapable of understanding the consequences of his action. In the above view of the matter, I W.P.(C).No.5053/18 6 am of the opinion that the provisions of Section 45ZA of the Banking Regulation Act cannot be pressed into service to contend that the amount is to be released to the petitioner, disregarding the objections raised by two of the three legal heirs. I notice from the pleadings on record that the objection is not only with regard to the claim of respondents 4 and 5 to the amounts held in deposit, but a dispute has also been raised as to the validity of the nomination itself. In the above factual circumstances, I am of the opinion that the contention that the amounts are due to be released to the petitioner disregarding the disputes raised by respondents 4 and 5 cannot be accepted. The reliefs sought for in the writ petition, therefore, cannot be granted. It is for the parties to work out their remedies in appropriate civil proceedings. The writ petition fails and the same is accordingly dismissed. Sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.5053/18 7 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: TRUE COPY OF THE DEATH CERTIFICATE OF MANILAL ISSUED BY THE TRIKKAKKARA MUNICIPALITY DATED 20.12.2017.** **EXT.P2: TRUE COPY OF THE DEATH CERTIFICATE OF SANTHA ISSUED BY THE TRIKKAKKARA MUNICIPALITY DATED 10.10.2017.** **EXT.P3: TRUE COPY OF THE F.D. RECEIPT IN RELATION TO F.D. A/C.NO.851245110000883.** - **EXT.P4: TRUE COPY OF THE F.D. RECEIPT IN RELATION TO F.D.A/C.NO.851245110001374.** **EXT.P5: TRUE COPY OF THE F.D.RECEIPT IN RELATION TO F.D. A/C.NO.851245110001260.** - **EXT.P6: TRUE COPY OF THE RELEVANT PAGES OF THE PASS BOOK IN THE SB ACCOUNT MAINTAINED BY MANILAL AND HIS WIFE SANTHA.** - EXT.P7 TRUE COPY OF THE DISCHARGE SUMMARY DATEDE 22.11.2017 ISSUED FROM THE AMRITHA INSTITUTE OF MEDICAL SCIENCE, ERNAKULAM - EXT.P8 TRUE COPY OF THE DISCHARGE SUMMARY DATED 28.11.2017 ISSUED FROM THE AMRITHA INSTITUTE OF MEDICAL SCIENCE ERNAKULAM - EXT.P9 TRUE COPY OF THE WILL DATED 13.7.2017 - EXT.P10 TRUE COPY OF THE AGREEMENT DATED 30.10.2017 EXECUTED BETWEEN THE MANILAL AND THE 4TH RESPONDENT - EXT.P11 TRUE COPY OF THE AGREEMENT DATED 23.8.2017 W.P.(C).No.5053/18 8 ## **RESPONDENT'S EXHIBITS:** **EXHIBIT R4(A)** **EXHIBIT R4(B)** TRUE COPY OF THE DISCHARGE SUMMARY ISSUED BY AMRITA INSTITUTE OF MEDICAL SCIENCES AND RESEARCH CENTRE, PONEKKARA, ERNAKULAM. TRUE COPY OF THE S.O.P.8 OF 2018 BEFORE THE MUNSIFF'S COURT, ERNAKULAM. True copy PS to Judge