Introduction:

The Kerala High Court, on January 6, 2025, reiterated that under the Kerala amendment to Section 213(2) of the Indian Succession Act, 1925, an executor of a Will created by Muhammadans or Indian Christians can establish their rights without obtaining probate. This was clarified in the case of Smt. Ambily Jose v. Sub Registrar and Another (WP(C) No. 37711 of 2024). The case arose when the executor of the late Fr. George Valiaveetil’s Will, an Indian Christian, challenged a bank’s refusal to provide account details of the deceased without a probated Will. Justice C.S. Dias upheld the petitioner’s right, emphasizing that the 1996 Kerala Amendment exempts such Wills from the requirement of probate, while also safeguarding the bank’s concerns by directing the petitioner to execute an indemnity bond.

Arguments of Both Sides:

The petitioner, the executor of the Will left by Fr. George Valiaveetil, approached the Kerala High Court after the bank refused to provide account details and release the deceased’s deposits without a probated Will. The petitioner argued that the Will did not require probate under the Kerala Amendment to Section 213(2) of the Indian Succession Act, which explicitly excludes Wills executed by Muhammadans and Indian Christians from this requirement. Citing previous judicial precedents, the petitioner contended that the bank’s refusal was legally untenable and caused undue hardship.

On the other hand, the respondent bank argued that releasing the funds without a probated Will could expose it to legal liability in case another claimant emerged. The bank contended that requiring a probated Will was a safeguard to protect itself against future claims. It emphasized that it acted prudently to avoid potential litigation, as there could be disputes over the deceased’s estate if the Will’s authenticity was challenged later.

Court’s Judgment:

The Kerala High Court, presided over by Justice C.S. Dias, delivered a detailed judgment emphasizing the clear implications of the Kerala Amendment to Section 213(2) of the Indian Succession Act. The Court observed that the amendment, introduced in 1996, categorically exempts Wills executed by Muhammadans and Indian Christians from the requirement of probate. The Court noted that Fr. George Valiaveetil’s death occurred after the amendment came into force, making the bank’s demand for a probated Will legally unsustainable.

Justice Dias referred to precedents such as Kurian @ Jacob v. Chellamma John and Others (2017 (5) KHC 257), where it was held that the amendment eliminates any bar against recognizing the rights of an executor or legatee under a Christian Will without probate. The Court described the bank’s contention as “naïve and untenable,” stating that accepting such a stance would render Section 213 of the Act redundant.

However, recognizing the bank’s concerns about potential legal liability if another claimant emerged, the Court adopted a balanced approach. It directed the petitioner to execute an indemnity bond in favour of the bank, indemnifying it against any claims arising in the future regarding the deceased’s deposits. The Court emphasized that this measure would ensure justice for both parties while safeguarding the bank from potential risks.

The judgment also addressed broader issues, emphasizing that the Kerala Amendment seeks to simplify the legal process for executors and legatees of Wills made by Indian Christians and Muhammadans. By removing the requirement for probate, the amendment facilitates the administration of estates, reflecting the legislative intent to minimize procedural hurdles. The Court reiterated that judicial interpretations of the amendment have consistently upheld this objective, and the present case was no exception.

Based on these observations, the High Court allowed the writ petition, directing the respondent bank to release the deceased’s deposits to the petitioner. The Court’s judgment reaffirmed the legal rights of executors under the amended provisions of the Indian Succession Act while addressing the practical concerns of financial institutions.