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Judgment
This Writ Petition is filed questioning the inaction of respondent no.3-State Bank of India, Main Branch, Visakhapatnam, in releasing the share of the petitioner in FCNR Deposit and other investments of N.S.Chalapathi Rao.
The case of the petitioner, in brief, is that she is one of the four sisters of late N.S.Chalapati Rao, who was a Non-Resident-Indian. The said N.S.Chalapati Rao died on 04.05.2003 by executing a Will during his lifetime on 05.12.1995 bequeathing all his FCNR (Foreign Currency Non-Resident) deposits and investments to his son and four sisters. As per the said Will, 2/3rd of his assets were bequeathed to his son and remaining 1/3rd share shall equally be distributed among four sisters. That when her elder sister, Mrs.R.Saroja, approached the bank claiming her share, the bank advised her to obtain succession certificate or have the Will probate by the Court and accordingly, the said Mrs.R.Saroja approached the Court, obtained Succession Certificate, produced it before the Bank and got her share of Rs.19 lakhs released. Thereafter, the petitioner and other sisters approached the bank for withdrawal of their respective shares as per the Will, the Bank declined for want of production of another succession certificate, even though the succession certificate produced by one of the legatees of the Will is very much available with the bank. Though not necessary, however, as required by the bank, the petitioner approached the Court with an application for succession certificate. But the Court rejected the application on the ground that the said petition is not maintainable in view of testamentary disposition made by the deceased and hence the said application was withdrawn by the petitioner. Thereafter, the petitioner sent legal notice dated 28.12.2009 to the bank for release of her share, for no response she approached the Consumer Forum, which was dismissed observing that the matter is not in the nature of deficiency of service and suggested the petitioner to approach Civil Court. Subsequently, the petitioner filed application before the Banking Ombudsman on 14.07.2011, which was closed observing that Banking Ombudsman is not the appropriate Forum to adjudicate the matters of succession and inheritance. Despite numerous representations of the petitioner and other legatees and the written representation of Sri S.Narahari Nath, one of the designated executors of the Will, there was no response. The action of respondent no.3 Bank being a custodian of the FCNR deposits, in not releasing the share of the petitioner is illegal, arbitrary, unlawful and violates the fundamental rights guaranteed under Articles 14, 19 & 21 of the Constitution. Hence, the Writ Petition.
The respondent Bank filed counter affidavit denying the material averments of the petition and further contending that the succession certificate obtained by her sister Smt. Ravipalli Saroja do not confer any authority on the petitioner in determining her right of share or entitling to withdraw her share from the deposits of late Sri N.S.Chalapati Rao. Since the petitioner has neither obtained a succession certificate nor been granted probate in her favor, the respondent bank did not release the amounts claimed by her and if the petitioner wants to claim her rights under the testamentary disposition, the Will has to be probated by the competent court to determine her share. The Consumer forum came to the conclusion that it cannot determine the genuineness of the Will and the rights of the legatees and the proper forum is to approach the Civil Court and the petitioner who remained silent for nine (09) long years, now approached this Court by this Writ petition. There are no merits in the Writ Petition and the same deserves dismissal.
Heard Sri Sarang J. Afzulpurkar, learned counsel for petitioner, and Sri K.B.Ramanna Dora, learned Standing Counsel for respondent bank.
Sri Sarang J.Afzulpurkar, learned counsel for petitioner, while reiterating the contents of the writ affidavit would contend that the bank having been in possession of the succession certificate obtained by one of the legatees of the Will ought to have released the share of the amount of the petitioner lying in FCNR deposits. He would further contend that the succession O.P. filed by the petitioner was rejected on the ground that the same is not maintainable in view of testamentary disposition made by the depositor, that the Consumer Forum dismissed the Consumer Case filed by the petitioner on the ground that there is no deficiency of service and Banking Ombudsman closed the complaint stating that it is not the appropriate Forum to adjudicate the matters of succession and inheritance. He would further contend that despite numerous representations made by the petitioner and legatees of the Will and the written intimation given by one of the designated executors of the Will the bank did not release the amount in utter violation of the fundamental rights guaranteed under the Constitution. Accordingly, prayed to allow the writ petition.
On the other hand, Sri K.B.Ramanna Dora, learned Standing Counsel for respondent bank justified the action of the bank in withholding the amount for want of production of the succession certificate or probate order of the Will. That the Writ Petition lacks merits and the same deserves dismissal. Accordingly, prayed to dismiss the writ petition.
Perused the material available on record and considered the submissions made by learned counsel for the parties.
The record discloses that Mrs.R.Saroja, one of the legatees of the Will said to have been executed by Sri N.S.Chalapathi Rao and one of the four sisters of the petitioner, obtained succession certificate in S.O.P.No.1314/2004 regarding her share, submitted the same to the bank and had withdrawn her share of the FCNR deposits lying with the respondent no.3 bank.
A perusal of the order dated 09.01.2007 passed in S.O.P.No.1314 of 2004 by the then learned IV Additional District & Sessions Judge, Visakhapatnam shows that one of the sisters of the petitioner viz., Smt. Ravipalli Saroja filed the said petition making the petitioner as respondent no.2, her other sisters, son and divorced wife of the legatee (R11 & R15) as parties besides the State Bank of India (R14). As per the contents of the said Will, copy of which was filed along with this writ affidavit, the testator of the Will blessed with a son and thereafter he divorced his wife and his son was living with his divorced wife in USA. In the said proceedings, the Will executed by brother of the petitioner was marked as Ex.A1 and one of its attestor was examined as P.W.2. The order would disclose that respondent nos.1 to 10 reported no objection, where as the son and divorced wife of the testator remained ex parte and did not choose to contest the said S.O.P.No.1314/2004. It would further disclose that the case of the petitioner was duly established by her evidence orally as well as documentary and the oral evidence of P.W.2, who is the attestor of the will under Ex.A1. Therefore, it is evident that in SOP filed by one of the legatees, the Will, through which the petitioner is also claiming release of her share, was held to be proved after getting its attestor examined.
Section 370 of the Indian Succession Act, 1925 refrains the courts from issuing a succession certificate for any debt or security that requires a right to be proved through probate or letters of administration.
Letters of administration are formal legal documents issued by a probate court that authorize an appointed person (the administrator) to manage and distribute a deceased person's estate when they die without a valid will or even though a will exists, but it names no executor, or the named executor cannot or refuses to act. However, Probate can be issued when a valid will exists and names an active executor.
Therefore, section 370 of the Indian Succession Act proscribes the Court from issuing Succession Certificate in case of testamentary disposition by the deceased. Accordingly, the petitioner by getting a memo filed got the Succession O.P. dismissed as not pressed.
By Repealing and Amending Act, 2025, Parliament deleted Section 213 of the Indian Succession Act, thereby probate is no longer mandatory anywhere in India to establish rights under a Will, even in Mumbai, Chennai, or Kolkata where it was previously required.
As could be seen from copy of the Will, it was executed at Visakhapatnam and the FCNR deposits are lying in State Bank of India, Main Branch, Visakhapatnam. Earlier to the amendment also obtaining probate of a Will was not mandatory in Andhra Pradesh. Under the former Section 213 of the Act, mandatory probate applied only if a Will was executed within the original civil jurisdiction of the High Courts of Bombay, Madras, or Calcutta, or if the immovable property was located within Mumbai, Chennai, or Kolkata and Andhra Pradesh fell completely outside these specific Presidency town jurisdictions.
From the above, it is evident that applying for and getting a Succession Certificate in view of the scheme of the Act, more particularly in view of Section 370 of the Indian Succession Act is impermissible and probate of Will is not mandatory for the State of Andhra Pradesh.
It is relevant here to note that the petitioner's attempts to obtain a succession certificate for her share failed, as the said petition was withdrawn on the ground that the depositor had made a testamentary disposition. Similarly, her subsequent efforts to redress her grievances through the Consumer Forum and the Banking Ombudsman did not fructify as they declined to grant relief stating that “there was no deficiency of service” and “outside the purview” respectively. Therefore, the petitioner remained unsuccessful in all her attempts to get her share released due to technical grounds rather than on merits.
It is apt here to note that executor of the Will died in the year 2003. One of the legatees of the Will got her share released by producing the succession certificate obtained from competent Court by propounding the Will and getting it established by examining one of its attestors. The other legatees of the Will reported no objection and wife and son of the executor remained ex parte, further one of the administrators of the Will addressed a letter to the bank for release of the share of the petitioner. It is also significant here to note that the bank did not bring to the notice of this Court any adverse claim made inter se the legatees or wife and son of the executor of the Will till date even after lapse of twenty three (23) long years since the date of death of the executor.
Considering the above peculiar facts and circumstances of the case, the age of the petitioner at 76 years when the writ petition was filed in the year 2019 and there is no active dispute or challenge to the Will this far; this Court is inclined to direct the respondent no.3-bank to release the share entitled to by the petitioner by obtaining indemnity bond.
In the above view of the matter, this writ petition is disposed of as indicated above. There shall be no order as to costs.
Pending miscellaneous petitions, if any, shall stand closed.