Vijayendran T. v. The Superintendent of Post Offices, The Post Master, LIC of India and Manager - Claims, LIC of India

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` WEDNESDAY, THE 9[TH] DAY OF AUGUST 2023 / 18TH SRAVANA, 1945 ``` ## **`WP(C) NO. 24268 OF 2022`** ## **`PETITIONER:`** ``` VIJAYENDRAN. T.,S/O.THANKAPPAN PILLAI, AGED 57 YEARS, AYILYAM, MYLAKKARA.P.O., KALLIKKAD, KATTAKKADA, THIRUVANANTHAPURAM, PIN- 695572. ``` ``` BY ADVS. D.SAJEEV LIGEY ANTONY ``` ## **`RESPONDENTS:`** - **`1 THE SUPERINTENDENT OF POST OFFICES OFFICE OF THE SUPERINTENDENT OF POST OFFICES, THIRUVANANTHAPURAM SOUTH DIVISION, THIRUVANANTHAPURAM, PIN-695023.`** - **`2 THE POST MASTER, POOJAPPURA POST OFFICE, POOJAPPURA, THIRUVANANTHAPURAM, PIN- 695012.`** - **`3 LIC OF INDIA, BRANCH NO.1, JEEVAN JYOTHI, P.B.NO.150, LIC BUILDING, RESIDENCY ROAD, KOLLAM, PIN-691001. REPRESENTED BY BRANCH MANAGER`** - **`4 MANAGER - CLAIMS, CLAIMS DEPARTMENT DIVISIONAL OFFICE, LIC OF INDIA, PATTOM, THIRUVANANTHAPURAM, PIN-695004.`** ``` LAL GEORGE R3 & R4 BY ADV.T.V.AJAYAKUMAR RIMJU P.H.(K/504/2014) ``` ## **`OTHER PRESENT:`** ``` DSG - S.MANU ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.08.2023, ``` ## **`THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** WP(C) no.24268 of 2022 2 ## **VIJU ABRAHAM, J.** **................................................................. W.P.(C) No.24268 of 2022 .................................................................** Dated this the 9[th] day of August, 2023 ## **JUDGMENT** Petitioner has approached this Court seeking the following reliefs: _i) Call for the records which leads to the passing of Exts.P9 and P10 communications by the 1[st] and 3[rd] respondents respectively directing the petitioner to obtain the probate of Ext.P1 Will for the purpose of releasing the amounts covered by Exts.P3 and P8 policy from the accounts maintained in the name of late Achuthananda Swami to the petitioner, and quash the same as illegal, arbitrary and against the mandates in Sections 213 and 57(a) and (b) of the Indian Succession Act, 1925, after issuing a writ of certiorari or other appropriate writ, direction or order;_ _ii) To issue a writ of mandamus or other appropriate writ, direction or order commanding the respondents to release the amount covered by Ext.P7 passbook and Ext.P8 LIC Policy No.713918368 taking into account of the specifications made in Ext.P1 Will executed by late Achuthananda Swami and from the accounts maintained by him, as expeditiously as possible;_ _iii) To grant such other reliefs, as deemed fit to be granted by this Court in the facts and circumstances of the above case._ WP(C) no.24268 of 2022 3 2. Petitioner is the sole beneficiary as per the Ext.P1 Will bearing No18/2021 Sub Registrar's Office, Ottasekharamangalam executed by one Achuthananda Swami, S/o Raman, resident of Thiruvananthapuram. By Ext.P1 Will the executor has bequeathed certain amounts which he has deposited in Palayam Branch of Kerala Bank, Poojappura Branch of Mudavanmugal Service Cooperative Bank, Poojappura Branch of State of India, Policy No.713918368 of LIC of India and the deposits in Poojappura Post Office. While so on 29.10.2021 the said Achuthananda Swami, testator of the Will, died while he was residing at the Karthika Tirunal Lekshmy Bai Old Age Home, Poojappura, Thiruvananthapuram and the petitioner was the person who was looking after the entire affairs of the executant while he was an inmate in the old age home. It is further submitted that the executant died without any children or other legal heirs to inherit his estates. After the death of Achuthanada Swami Ext.P3 application for settlement of the account was submitted before the 2[nd] respondent. Along with Ext.P3 application, the petitioner has produced the death certificate of the depositor, true copy of Ext.P1 Will, letter of indemnity by the beneficiary, affidavit of the beneficiary, letter of disclaimer on affidavit and the relevant passbooks. Ext.P4 is the copy of the indemnity letter dated 22.04.2022 whereas Ext.P5 is the affidavit sworn to by the petitioner intimating that he is the sole beneficiary under Ext.P1 Will and Ext.P6 WP(C) no.24268 of 2022 4 is the copy of the letter of disclaimer in Form No.14 filed before the 2[nd] respondent. Ext.P7 is the copy of the passbook of the Account No.4237206686 of the Post Office, Poojappura. While so by Ext.P9 communication the request of the petitioner for settling the account in Post Office was rejected by the 1[st] respondent intimating that the petitioner has to probate the Will to settle the claim raised by him. The petitioner has also submitted similar application before the 4[th] respondent which was also rejected as per Ext.P10 order stating the very same reason that the Will is to be probated for settling the death claim of deceased Achuthananda Swami. Petitioner submits that the stand taken by the respondents in Exts.P9 and P10 is per se illegal and is in violation of the provisions of Sections 57 and 213 of the Indian Succession Act. Petitioner relies on the recent judgment of this Court in _**Dr.P.C.Beenakumari v. State of Kerala and others, 2021 SCC Online Ker.12730**_ . The operative portion of the said judgment reads as follows: _“.............Therefore, it is evident that the requirement of probating a Will is applicable to Wills and codicils made by Hindus who were subject to the jurisdiction of the Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Madras or Bombay._ _In the circumstances, the stand of the 2nd respondent that the amounts left behind late Gouri Amma and bequeathed to the petitioner cannot be paid to the petitioner without probating the Will, cannot be sustained. Respondents 2 to 4 are therefore directed to release to_ WP(C) no.24268 of 2022 5 _the petitioner the Treasury Savings Bank amount covered by Exts.P5 and P6 in the name of K.R. Gouri Amma.”_ 3. A detailed counter affidavit has been filed by respondents 1 and 2 wherein it is admitted that the executant of Ext.P1 Will was having a savings account in the post office and no nomination is seen registered in the said account. Even though in the counter affidavit it is admitted that there is no requirement to probate of the Will executed by a hindu in the State of Kerala as per the combined reading of Sections 57 and 213 of the Indian Succession Act, 1925, since large amount is required to be paid to the beneficiary under a Will which has not gone through the process of probate the Will should be subject to legal scrutiny and if the validity of the Will is in question, the remedy available to the petitioner is to obtain probate or declaration as to the validity. It is contended that the relation between the account holder and the petitioner is not known. It is also contended that the judgment in _**Dr.P.C.Beenakumari**_ ’s case supra is not applicable in the facts of the present case inasmuch as the said writ petition was filed by the daughter of the younger sister of the depositor 4. A counter affidavit has been filed on behalf of the 3[rd] respondent also wherein it is stated that while Ext.P8 policy was issued on the life of late Swami Achuthananda Maharaj he had WP(C) no.24268 of 2022 6 nominated one Pragnyat Lalwani as the nominee under the policy and later changed the nomination in favour of one Swami Kaivalyananda, who is stated to be his brother (monk). It is also stated that since Swami Kaivalyananda has been shown as the nominee, Ext.R3(b) letter was issued to him. To the same a lawyer notice was sent by the nominee along with Ext.R3(c) HOLOGRAM WILL dated 05.04.2013 stated to have been executed by late Swami Achuthananda in favour of Swami Kaivalyananda and thus there is a contention that now there are two Wills and accordingly there is a dispute. 5. Heard both sides. 6. Petitioner relies on Ext.P12 judgment which specifically held that Ext.P1 Will need not be probated and without probating the Will could be acted upon. So on the strength of Ext.P12 it is the contention of the petitioner that he is entitled for the amount in deposit with respondents 1 and 3. But, it is to be noted that in the counter affidavit filed by respondents 3 and 4 it is stated that the nominee for the amount due from the LIC one Swami Kaivalyananda has issued a lawyer notice dated 26.02.2022 along with a copy of the hologram Will dated 05.04.2013 stated to have been executed by late Swami Achuthananda Maharaj in favour of Swami Kaivalyananda and the copy of the said hologram Will dated 05.04.2013 executed in favour of Swami Kaivalyananda. On the basis of the same it is WP(C) no.24268 of 2022 7 contended by respondents 3 and 4 that now there are two Wills received by them executed by late Swami Achuthananda Maharaj, one in favour of Swami Kaivalyananda and the other in favour of the petitioner and accordingly there is a dispute. In view of the same the claim could not be settled in favour of the petitioner. Similar objection has been raised by respondents 1 and 2 in their counter affidavit wherein it is stated the petitioner was directed to probate the Will so that no issues crop up in future. In view of the fact that there are two Wills in respect of the same claim, executed in favour of the petitioner as well as one Swami Kaivalyananda, admittedly it is a disputed question which cannot be adjudicated in a writ proceedings. So, reserving the right of the petitioner to adjudicate his claim before a competent civil court, the writ petition is dismissed. It is made clear that if the petitioner chooses to approach the Civil Court to adjudicate the claim, the time during which this writ petition was pending before this Court will be excluded while calculating the period of limitation. Sd/- **VIJU ABRAHAM** cks WP(C) no.24268 of 2022 8 ## **`APPENDIX OF WP(C) 24268/2022`** ``` PETITIONER EXHIBITS ``` - `Exhibit P1 TRUE PHOTOCOPY OF THE REGISTERED WILL NO.18/2021 DATED 18.02.2021 EXECUTED BY ACHUTHANADA SWAMI.` - `Exhibit P2 TRUE COPY OF THE DEATH CERTIFICATE DATED 16.11.2021 ISSUED BY THE THIRUVANANTHAPURAM CORPORATION.` - `Exhibit P3 TRUE COPY OF THE APPLICATION FILED FOR THE SETTLEMENT OF THE ACCOUNT OF THE DECEASED DEPOSITOR ACHUTHANADA SWAMI.` - `Exhibit P4 TRUE COPY OF THE LETTER OF INDEMNITY DATED 22.04.2022 EXECUTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.` - `Exhibit P5 TRUE COPY OF THE AFFIDAVIT DATED 06.05.2022 EXECUTED BY THE PETITIONER.` - `Exhibit P6 TRUE COPY OF THE LETTER OF DISCLAIMER IN FORM NO.14 FILED BEFORE THE 2ND RESPONDENT.` - `Exhibit P7 TRUE COPY OF THE PASSBOOK OF THE ACCOUNT NO.4237206686 OF THE POST OFFICE, POOJAPPURA.` - `Exhibit P8 TRUE COPY OF THE CERTIFICATE IN RESPECT OF POLICY NO.713918368 DATED 25.03.2004.` - `Exhibit P9 TRUE COPY OF THE COMMUNICATION DATED 31.05.2022 ISSUED BY THE 1ST RESPONDENT.` - `Exhibit P10 TRUE COPY OF THE COMMUNICATION DATED 10.01.2022 ISSUED BY THE 3RD RESPONDENT.` - `Exhibit P11 TRUE COPY OF THE REPLY NOTICE DATED 05.07.2022 ISSUED BY THE 1ST` WP(C) no.24268 of 2022 9 ``` RESPONDENT. ``` ``` Exhibit P12TRUE COPY OF THE JUDGMENT DATED 09.11.2021N IN WPC NO.20015 OF 2021 ``` ``` RESPONDENT EXHIBITS ``` ``` Exhibit R1(b)True copy of the POSB (CBS) Manual Rule No.172 ``` ``` Exhibit R1(a)True copy of the SB Order No. 31/2020 dated 28.08.2020 ``` ``` EXT.R3(a)TRUE PHOTOSTAT COPY OF CHANGE OF NOMINATION DATED 1.03.2013 ``` ``` EXT.R3(b) TRUE PHOTOSTAT COPY OF THE LETTER DATED 15.02.2022 SENT TO THE NOMINEE ABOUT THE WILL EXECUTED BY THE PETITIONER IN THE NAME OF THE PETITIONER ``` ``` EXT.R3(c)TRUE PHOTOSTAT COPY OF THE HOLOGRAM WILL DATED 05.04.2013 EXECUTED IN FAVOUR OF SWAMI KAIVALYANANDA ```