Full Text
EX.P.NO. 124of2013 GYANESH SINGH Decree Holder
Through: Mr. Yakesh Anand with Ms. Prachi Gupta and Mr. Nimit Mathur, Advocates.
Through: Mr. Ashish Sindhu with Mr. Dhruv Wahi and Mr. BrijeshChaudhary, Advocate for JD
No. 2/HSBC.
ORDER
1. This is an execution petition filed by the Decree Holder ('DH'), Mr. Gyanesh Singh, seeking a direction to the Judgment Debtor ('JD') No. 2, Hongkong and Shanghai Banking Corporation Limited ('HSBCL') for release/transfer the amount of fixed deposits and the amounts kept in the saving account and/or any other amount lying in the name of the deceased father Mr. Gopal Narain Singh, of the Petitioner in his favour along with interest accrued thereon till the date ofactual payment. Ex. p. 124 of2013 pf,g^ I gfs 2013:DHC:7991 u
2. Learned counsel for the parties have been heard.
3. The objection raised by JD No. 2, HSBCL, is based on Section 228 of the Indian Succession Act, 1925 ('Succession Act'), which reads as under: "228. Administration, with copy annexed, ofauthenticated copy ofwill 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 maybe granted witha copy of suchcopy annexed."
4. Learned counsel for the JD No. 2 states that notwithstanding the fact that the Will of the father of the DH has been probated in the United Kingdom ('UK') and a decree obtained from the competent court of that country, it is required to be endorsed either by the Indian court or a separate proceeding should be instituted under the above provision by the DH for obtaining letters of administration vis-a-vis the properties in India.
5. Learnedcounsel for the DH on the otherhandpoints out that as far as the savings accounts oftheTestator maintained withJDNo.2 areconcerned, the JD No. 2 had no difficulty in transferring the amounts thereinto the account Ex. P. 124of2013 Page 2of[5] of the DH maintained with JDNo.2. It is only as regards the fixed deposits in the name of the Testator HSBCL that HSBCL insisted on an order from an Indian Court. He refers to an email sent by the HSBCL advising that he should file an execution petition before the Court in India under Section 44A of the Code of Civil Procedure, 1908 ('CPC'). Learned counsel for the DH adds that the decree passed by the U.K. Court includes the properties in India and, therefore, there is no need to institute a separate proceeding in India for the remaining properties in India.
6. The above submissions have been considered.
7. The Court is of the view that Section 44A of the CPC and Section 228 of the Succession Act, can be harmonised. Where the decree granting probate has been passed by Court of competent jurisdiction in a country with whom there are reciprocal arrangements, as between the UK and India in this case, there will be no need for separate proceedings to be instituted in India for grant of letters of administration. The foreign decree can straightaway be executed. As far as the present case is concerned it is seen that the Court in UK has in fact granted probate of theWill asa whole without making a Ex, p. 124of2013 Page 3 of[5] distinction as to the location ofthe properties belonging to the estate ofthe deceased. The operative portion of the decree refers to the gross and net value ofthe properties in UK. However, that does not mean that the probate is confined to those properties and not the properties in India.
8. Once the competent court in the UK has granted probate of the entire Will, then it will beopen tothe beneficiary under the Will to invoke Section
44 Aofthe CPC to seek execution ofthe decree in so far as the one part of the estate, as mentioned in the Will, is located in India. Consequently, the objection raised by the JD No. 2 that the decree passed by the court in the UKgranting probate of the Will ofthe deceased cannot by itselfbe executed is hereby overruled.
9. The second objection is as regards theterritorial jurisdiction oftheCourt. It is pointed out that account held by the Testator was with a branch of HSBCL in Gurgaon.
10. There is no doubt that HSBCL also has a branch in New Delhi.
HSBCL has nopersonal interest inthe matter. This objection is of a technical nature and is really to no purpose. Instead ofasking the Petitioner to again file a Ex. p. 124of2013 Page 4of[5] fresh execution petition in another Court, it would serve the purpose if the DH furnishes an indemnity bond to the JD No. 2 against a claim raised against HSBCL in future by anyone in regard to the accounts and fixed deposits held by the Testator with HSBCL.
11. In that view of the matter, an order passed directing the JD No. 2 to transfer to the account of the DH maintained with it, the amounts in the saving bank accounts and the fixed deposits in the name of the Testatorwith the HSBCL together with interest accrued thereon to the DH subject to the DH furnishing an indemnity bond in the format required by JD N0.2/HSBCL within the time stipulated for that purpose. The above exercise be completed within a period ofsix weeks from today.
12. The execution petition is disposed of in the above terms. Order be given dasti.
S.MURALIDHAR, J AUGUST 13,2013 Rk