Probate Not Necessary For Wills Executed By Indian Christians And Muhammadans After State Amendment To Indian Succession Act: Kerala HC

The Kerala High Court on Monday (January 6) reiterated that in light of the State amendment made to Section 213(2) of the Indian Succession Act, a person nominated as an executor can establish their right over wills made by Muhammadans or Indian Christians without obtaining a probate. For context, Section 213 states that an executor of a Will can only establish his/her right after probate of the Will is granted by the competent Court. Probate is essentially a legal process declaring the validity of a Will and granting a right to administer the deceased's estate. However, the State amendment to the Act which came into force in 1997 inserted that “this section shall not apply in the case of Wills made by Muhammadans or Indian Christians”. In the present case, the Will belonged to the late Fr. George Valiaveetil, an Indian Christian. The deceased had deposits in the respondent bank. On Valiaveetil's death, an executor (petitioner) requested the bank to furnish the account details. However, the bank, in response, asked the petitioner to submit a copy of the probated Will. Challenging this, the petitioner filed this present writ petition.Justice C.S. Dias pointed out that the deceased died after Section 213 of the Succession Act (Kerala Amendment) Act, 1996, came into force. It also turned down the bank's argument that if the amount is paid to the petitioner then the bank will become answerable if another claimant emerges. The Court described such contention as “naïve and untenable'' considering the above provision of the Succession Act and its well-settled interpretations. To support this, the Court cited its previous decisions including Kurian @ Jacob v. Chellamma John and Others (2017 (5) KHC 257) wherein it observed: “42. Impact of the Amendment: Now, with the amendment, any bar against recognising the rights of an executor or a legatee under a Christian Will without his or her producing a probate has been done away with. In other words, a person nominated as an executor or a legatee under a Will executed by a deceased Christian can establish his rights under the Will without obtaining a probate”.The court said that if the bank's contention is accepted, it would render Section 213 of the Act redundant. However to allay the bank's fear and to do complete justice, the Court directed the petitioner to execute an indemnity bond in favour of the bank. It said:“If the contention of the Banks is accepted, it would render Section 213 of the Act redundant. Nonetheless, to allay the fears of respondents 2 and 3, I deem it appropriate to direct the petitioner to execute an indemnity bond in favour of the 3rd respondent bank, undertaking to indemnify respondents 2 and 3 in case any person raises any claim in respect of the deceased's deposits' released to the petitioner on the strength of the Will, which in turn will insulate the Banks and do complete justice to both sides.”Other the other hand, the Bank was also directed to release the concerned deposits of the deceased account. Based on these counts, the writ petition was allowed.Case Name: Smt. Ambily Jose V. Sub Registrar And Another., Citation: 2025 LiveLaw (Ker) 8Case No: WP(C) NO. 37711 OF 2024Click Here To Read/Download Order

Probate Not Necessary For Wills Executed By Indian Christians And Muhammadans After State Amendment To Indian Succession Act: Kerala HC

Gyanvi Khanna

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