Kerala High Court
Thara vs Linda Cherian on 24 October, 2024
CRP NO. 344 OF 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA, 1946
CRP NO. 344 OF 2024
AGAINST THE JUDGMENT DATED 15.06.2024 IN CMA NO.21 OF 2023 OF
ADDITIONAL DISTRICT COURT -II (SPECIAL), KOTTAYAM
ARISING OUT OF THE ORDER DATED 15.02.2023 IN OP(SUC) NO.18 OF 2021
OF PRINCIPAL SUB COURT, KOTTAYAM
REVISION PETITIONER/APPELLANT/1ST RESPONDENT:
THARA
AGED 51 YEARS
D/O.LATE P.V.CHERIAN, KURUVELLIL HOUSE, PARIYARAM P.O.,
THOTTAKKADU VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM
DISTRICT, PIN - 686539
BY ADVS.
MANJU ANTONEY
R.ANAS MUHAMMED SHAMNAD
RESPONDENTS/RESPONDENTS/PETITIONER/RESPONDENTS 2 TO 4:
1 LINDA CHERIAN
AGED 53 YEARS
W/O.LATE P.V.CHERIAN, VILLA 37, PULLUKATTU, MANNA MEADOWS,
PEROOR P.O., PEROOR VILLAGE, KOTTAYAM DISTRICT, PIN - 686637
2 MANJU
AGED 48 YEARS
D/O.LATE P.V.CHERIAN, PULLUKATTU HOUSE MALAM P.O., MANARKADU
VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN - 686019
CRP NO. 344 OF 2024
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3 PRIYA
AGED 45 YEARS
D/O.LATE P.V.CHERIAN, THARAKAN VEETIL, POTHENPURAM P.O.,
PAMPADY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT,, PIN -
686502
4 FEDERAL BANK LIMITED
RAJAKKAD BRANCH, PATHIPPALLIL BUILDING, MAIN ROAD, RAJAKKAD,
IDUKKI DISTRICT, REPRESENTED BY ITS MANAGER., PIN - 685566
BY ADVS.
AKHIL VIJAY
P.PAULOCHAN ANTONY P
AKASH CHERIAN THOMAS
SREEJITH K.(K/380/2005)
THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON
24.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRP NO. 344 OF 2024
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ORDER
1. The Revision Petitioner is the first respondent and the
respondents are the petitioner and the respondents 2 to 4 in
O.P. (Succession) No.18/2021 on the files of the Sub Court,
Kottayam.
2. Parties are referred according to their status before the Trial
Court.
3. The 1st respondent/petitioner sought a Succession Certificate
with respect to an amount of Rs.62,54,651/- belonged to her
deceased husband, P.V. Cherian, which is lying in Fixed Deposit
with the 4th respondent - Federal Bank. The petitioner in the
O.P. is the second wife of P.V.Cherian and the respondents
Nos.1 to 3 are the daughters of P.V.Cherian in his first marriage.
According to the petitioner, she is entitled to get 1/3rd of the
above deposit as the wife of the deceased. She filed the O.P.
under Section 372 of the Indian Succession Act to get
Succession Certificate with respect to her share of the amount.
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The said prayer was opposed by the first respondent stating
that she is the nominee of the said deposit as per the
nomination given by P.V.Cherian and she alone is entitled to get
the said amount.
4. The Trial court passed an order granting Succession Certificate
in the name of the petitioner with respect to her 1/3rd share in
the above deposit. It is also ordered that respondents 1 to 3
shall be jointly entitled to get 2/3rd share out of the said deposit
and that the respondents shall be entitled to get a Succession
Certificate in their name with respect to their respective shares
in the above deposit on payment of court fee.
5. The first respondent filed appeal before the District Court as
C.M.A.No.21/2023 and the same was dismissed confirming the
order passed by the Trial court. This Revision is filed
challenging the order passed by the Trial Court, which is
confirmed by the Appellate Court.
6. I heard the learned counsel for the Revision Petitioner and the
learned counsel for the first and third respondents.
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7. The learned counsel for the Revision Petitioner contended that,
when a nomination is there with respect to the deposit, the
Original Petition filed under Section 372 of the Indian
Succession Act for getting Succession Certificate is not
maintainable. The deceased father of respondents 1 to 3 had
made his mind clear while making the nomination that the first
respondent alone shall be entitled to the amount under the said
deposit. When the Nomination is there the first respondent can
withdraw the amount on the strength of such nomination and
she does not require a Succession Certificate for withdrawing
the said amount. But the Trial Court directed the first
respondent also to pay court fee for getting Succession
Certificate.
8. The said arguments of the learned counsel for the Revision
Petitioner are defended by the learned counsels for the first
and third respondents, contending that the right of the
nominee is only to withdraw the amount, and he is liable to
distribute the same among the legal heirs. The law is well
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settled by the decisions of the Hon'ble Supreme Court and this
Court starting from Sarbati Devi v. Usha Devi [(1984) 1 SCC
424]. The deceased had executed a Will and this deposited
amount was not included in the said Will. If the deceased had
any intention to give this particular deposit to the first
respondent alone, the deceased would have included the said
amount in the Will declaring that the said amount shall belong
to the first respondent. The learned counsel for the third
respondent submitted that the third respondent is the power of
attorney holder of the second respondent and the second and
third respondents have paid court fee for getting Succession
Certificate with respect to their share.
9. The contention of the learned counsel for the Revision
Petitioner that the Original Petition is not maintainable on
account of the nomination of the deceased in favour of the first
respondent is not sustainable. Section 370 of the Indian
Succession Act provides the circumstances under which the
Succession Certificate can be obtained by a person. As per
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Section 372(3) of the Indian Succession Act, an Application for
a Succession Certificate can be made in respect of a portion of
the debt due to the deceased. The petitioner has made the
Application with respect to her share of the Deposit. The
nomination in favour of the 1st respondent could not be said to
be a ground to deny Succession Certificate with respect to the
share of the Deposit of the petitioner. When a legal heir
apprehends that it would be difficult for him to realize his share
from the Nominee after the withdrawal of the deposit by the
Nominee, he can file an Application for Succession Certificate
with respect to his share of the deposit without waiting for the
Nominee to withdraw the deposit and pay her share.
10. With regard to the right of the nominee, it is well settled by
the aforesaid decision of Sarbati Devi's case (supra) and later
decisions of the Hon'ble Apex Court and this Court that the
right of the nominee is only to withdraw the amount lying under
the deposit and he is liable to distribute it among the legal heirs
according to their entitlement as per the law of inheritance.
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The nominee has no right to appropriate the amount to himself.
11. It is true that the Trial court has ordered that the respondents
shall be entitled to get a Succession Certificate in their name
only on payment of the court fee. When a nomination is there
in the name of the first respondent for withdrawing the
deposited amount, the first respondent does not require a
Succession Certificate to withdraw the deposit. Since the
Succession Certificates with respect to the sharers of the other
legal heirs of the deceased are ordered by the Trial Court, the
first respondent can withdraw only her share of the deposited
amount on the strength of the nomination given by the
deceased, and for that Succession certificate is not required for
her. In that view of the matter, I do not find any error or
illegality in the orders passed by the Trial Court as well as the
First Appellate Court. With the aforesaid observations, the Civil
Revision Petition is dismissed.
Sd/-
M.A.ABDUL HAKHIM
SHG/xx JUDGE
