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Roshan Anthony Gunawardhana v/s Ministry of Finance, Government of India, New Delhi & Others

    W.P. No. 13181 of 2020
    Decided On, 29 August 2022
    At, High Court of Judicature at Madras
    By, THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE
    For the Petitioner: M.R. Gokul Krishnan, Advocate. For the Respondents: R1, M. Sathyan, ACGSC, R2, C. Mohan for M/S. King & Patridge, V. Aishwarya for M/S. R & Partners, Advocates.


Judgment Text
(Prayer: Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus, directing the 3rd respondent to pay the money of Late Rohan Sunil Gunawardhana lying in savings Account No.042-647230-006, HSBC Bank, Cathedral Road Branch, Chennai – 600 086 with up to date interest.)

1. This writ petition has been filed for a Mandamus seeking for a direction to the 3rd respondent to disburse the money lying in the Savings account of Rohan Sunil Gunawardhana with the 3rd respondent bank to the petitioner, within a time frame to be fixed by this Court.

2. The petitioner seeks for disbursement of the amount lying in the aforementioned bank account based on a letter of Probate issued by the District Court in Srilanka in respect of a Will executed in his favour along with his sibling by his father Late Rohan Sunil Gunawardhana. His father Rohan Sunil Gunawardhana is a Srilankan National and was maintaining a Savings Bank account with the 3rd respondent and he died on 30.03.2018. According to the petitioner, his father Rohan Sunil Gunawardhana had executed a Will in Srilanka in his favour on 17.08.2017 in which, he is a beneficiary of the Savings Bank account, which is the subject matter of this writ petition.

3. The petitioner and his sibling have obtained the Letter of Probate from the District Court, Mount-Lavinia, Srilanka on 13.12.2018 in their favour. Based on the Probate order issued by the District Court at Srilanka, the petitioner had given a representation to the 3rd respondent bank requesting for disbursement of the money lying in the account of Rohan Sunil Gunawardhana. Since the representation has not been considered favourably, the petitioner has filed this writ petition.

4. A counter affidavit has been filed by the 3rd respondent stating that the petitioner has been advised that, based on the foreign Probated Will, an application for grant of Letters of Administration has to be filed in the competent Indian Court under Section 228 of the Indian Succession Act, 1925 either by the Executor or the Beneficiaries. According to them only after obtaining the ancillary probate under Section 228 of the Indian Succession Act, 1925 in respect of the foreign Probated Will, the 3rd respondent will be in a position to disburse the amount lying to the credit of Late Rohan Sunil Gunawardhana.

5. According to the 3rd respondent, the request made by them to the petitioner is only in accordance with the 2nd respondent's (Reserve Bank of India) Master Circular on Customer Services dated 01.07.2015 as the claim amount exceeds Rs.10,00,000/-.

6. Heard the submissions made by the learned counsel on either side.

7. The learned counsel for the petitioner would submit that the necessity to obtain an ancillary Probate under Section 228 of the Indian Succession Act, 1925 will not arise since Section 5 of the Indian Succession Act makes it clear that succession to the movable property of a person deceased is regulated by the law of the Country in which such person had his domicile at the time of his death. He would submit that the illustration (ii) of Section 5 also makes it absolutely clear that there is no necessity for the petitioner to obtain ancillary Probate in India.

8. The learned counsel for the petitioner in support of his contention relies upon a judgment of the Delhi High Court reported in 2021 SCC Online Del 3209 in the case of Dr.Sanjay Khanduja vs. Punjab National Bank and another.

9. Relying upon the aforesaid decision, he would submit that the grant of Probate by the foreign Court is a proceeding in rem and therefore, there is no necessity to obtain a separate ancillary Probate in an Indian Court under Section 228 of the Indian Succession Act, 1925. He would also submit, by relying upon the aforesaid decision, that as per the Hague Convention, abolishing of the requirement of legalisation for Foreign Public Documents, 1961 (Apostilled convention), there is no necessity to obtain an ancillary Probate from an Indian Court.

10. The learned counsel for the 3rd respondent would reiterate the contents of the counter affidavit filed by the 3rd respondent before this Court. She would submit that the petitioner will have to necessarily obtain an ancillary Probate under Section 228 of the Indian Succession Act, 1925 and would submit that the said requirement is only as per the 2nd respondent's Master Circular dated 01.07.2015.

Discussion :-

11. The validity of Foreign Wills was adopted by various Nations at the Hague Convention on the conflicts of laws relating to the form of testamentary dispositions, 1961, to which India became a signatory in the year 2005. The main purpose of this Convention was to ensure that the formal validity of a testamentary disposition should be recognized by the laws of the contracting parties to the Convention, if such a testament satisfies the requirements which a testator could reasonably considered to be applicable.

12. As per the Hague Convention XI, a testamentary disposition or a Will, is valid if it complies with the internal law:

* Of the place where the testator made it, OR

* Of a nationality possessed by the testator, either at the time when he made the disposition, or at the time of his death, OR

* Of a place in which the testator had his domicile, either at the time when he made the disposition, or at the time of his death, OR

* Of the place in which the testator had his habitual residence either at the time when he made the disposition, or at the time of his death, OR

* Of the place where the immovable properties are situated.

13. For a Foreign Will to be enforced in India, apart from being executed as per the laws of such country, it has to be validated on a twofold basis. At the first stage, a Probate has to be obtained from the concerned Court or authority in the Foreign country; such order granting a Probate must contain the following observations by the concerned Court or authority:

* That the Testator has validly signed the Will and that there are no doubts/ suspicions/ uncertainties as to the signature of the Testator on the Will.

* That the Will is executed by a person competent to make the Will and is free from fraud, coercion and undue influence;

* That the Will was attested by two witnesses, each of whom has seen the Testator sign the Will; OR If the Will was signed in the absence of the witnesses, each of the witnesses has received from the Testator, a personal acknowledgment of the Testator’s signature;

* That at least one witness has signed the Will in the presence of the Testator;

* That the original Will was submitted and has been retained by the Court or authority in the Foreign country and a Certified Copy thereof is to be issued to the applicant/ beneficiary.

14. The authenticated/ probated copy of the Will and the Final Order obtained from the Foreign Court are required to be apostilled and an Apostille Certificate is required to be obtained from a competent authority under the Apostille Convention (Convention abolishing the requirement of legalisation for foreign public documents, 1961). India is also a signatory to this Convention also.

15. In the second stage, an Application for grant of an Ancillary Probate [also known as Resealing of Probate under English Law] is required to be filed before the concerned Court in India, along with the authenticated copy of the Will and the Final Order obtained from the Foreign Court. The necessity to obtain an ancillary Probate is clear from a conjoint reading of Sections 213, 228 and 270 of the Indian Succession Act, 1925.

16. An Application for Ancillary Probate or Letters of Administration can be challenged by interested parties such as other Legal Heirs, on the well-established principle: "A foreign judgment would not be conclusive if it refuses to recognise the applicable law of India or is in breach of any law in force in India". A number of Courts in India have refused the grant of Ancillary Probate or the grant of Letters of Administration, relying upon this cardinal rule. In certain cases, an Ancillary Probate has also been refused on the grounds that the Foreign Court did not have jurisdiction or that the Probate was obtained by fraud/ misrepresentation or was not obtained based on merits.

17. Sections 213, 228 and 270 of the Indian Succession Act, 1925 are extracted hereunder:

"213. Right as executor or legatee when established.

—(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in [India] has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.

[(2) This section shall not apply in the case of wills made by Muhammadans [or Indian Christians], and shall only apply—

(i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the classes specified in clauses (a) and (b) of section 57; and

(ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such wills are made within the local limits of the [ordinary-original civil jurisdiction] of the High Courts at Calcutta, Madras and Bombay, and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits.]

"228. Administration, with copy annexed, of authenticated copy of Will proved abroad:-

When a Will has been proved and deposited in a Court of competent jurisdiction situated beyond the limits of the State, whether within or beyond the limits of [India] and a properly authenticated copy of the Will is produced, letters of administration may be granted with a copy of such copy annexed."

"270. When probate or administration may be granted by District Judge.—Probate of the will or letters of administration to the estate of a deceased person may be granted by a District Judge under the seal of his Court, if it appears by a petition, verified as hereinafter provided, of the person applying for the same that the testator or intestate, as the case may be, at the time of his decease had a fixed place of abode, or any property, moveable or immoveable, within the jurisdiction of the Ridge."

18. Section 5 of the Indian Succession Act deals with intestate succession and does not deal with testamentary succession. Therefore, it has no applicability for the facts of the instant case which involves Probate of a foreign will which is a testamentary succession. Further, Section 5 falls under Part II of the Indian Succession Act. Section 4 of the Act makes it clear that Part II shall not apply if the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina. Part II of the Act comprises of Sections 4 to 19 and its applicability is restricted only to the circumstances mentioned in those Sections. Since Sections 4 to 19 does not deal with testamentary succession, it has no bearing to the facts of the instant case. Ancillary Probate obtained under Section 228 of the Indian Succession Act which falls under Part IX, Chapter I has no connection to section 5 of the Act. Section 5 of the Indian Succession Act reads as follows:

"5. Law regulating succession to deceased person’s immovable and movable property, respectively.—

(1) Succession to the immovable property in India of a person deceased shall be regulated by the law of India, wherever such person may have had his domicile at the time of his death.

(2) Succession to the movable property of a person deceased is regulated by the law of the country in which such person had his domicile at the time of his death."

19. Even under the apostille Convention (Convention abolishing the requirement of legalisation for foreign public documents, 1961), the authenticated / Probated copy of the Will and the final order obtained from the Foreign Court are required to be apostilled and an apostille Certificate is required to be obtained from a competent authority in the Country where the Will has been probated. In the case on hand, such an apos

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tille Certificate has not been obtained by the petitioner. Therefore, the Judgement of the Delhi High Court in the case of Dr.Sanjay Khanduja vs. Punjab National Bank and another reported in 2021 SCC Online Del 3209 has also got no bearing to the facts of the present case. 20. The third respondent bank is bound by the regulations of the Reserve Bank of India which has issued the Master Circular on customer services dated 01.07.2015 which requires Probate order by a Court of competent Jurisdiction in India, in case the amount exceeds Rs.10,00,000/-. Only based on the said circular, the third respondent bank has insisted the petitioner to obtain an Ancillary Probate from a competent Court in India. 21. On the ground of laches also, this writ petition does not deserve any merit. The petitioner has obtained foreign probate order on 13.12.2018, whereas the present writ petition has been filed only on 30.08.2020. If the petitioner had filed an original petition seeking for ancillary probate before the learned Single Judge of this Court exercising testamentary jurisdiction, by now he may have obtained an ancillary probate. Having chosen a wrong forum, the relief sought for by the petitioner cannot be granted. 22. For the foregoing reasons, this Court does not find any merit in this Writ Petition. Accordingly, this Writ Petition is dismissed. No costs.
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