The Delhi High Court has held that a duly probated Will by a Foreign Court of competent jurisdiction is a conclusive proof of the legal character throughout the world. The Court held that the only requirement for claiming rights in India under a probate granted by a Foreign Court would be to file an apostilled copy of the judgment of the Foreign Court1.
Under the facts of the case before the Court, the Petitioner (situated in Canada) was appointed as an executor and trustee of the last Will and testament of deceased testator. The Will was duly probated by the Superior Court of Justice at Ottawa vide its order dated 05.07.2019. The testator held a Savings Bank Account with the Respondent i.e., State Bank of India. The request of the Petitioner to have access to the Savings Bank Account of the testator was rejected by the Respondent Bank which demanded that apart from apostilled judgment of probate granted by the Foreign Court, letters of administration should be also obtained from a Court in India under the Indian Succession Act, 1925. The Respondent Bank relied upon a circular dated 30.09.2019 which mandated for letters of administration notwithstanding probate having been granted by a Foreign Court of competent jurisdiction.
Negativing the argument of the Respondent Bank, the High Court held that the Judgment of the Foreign Court granting probate is a conclusive proof of the legal character of the Petitioner (i.e., executor of the Will of the testator), throughout the world. The High Court noted Section 41 of the Indian Evidence Act, 1872 which stipulates that final judgment of a competent Court in the exercise of probate, which confers upon any person any legal character, is a conclusive proof. Applying the principles of Section 41 of the Evidence Act, the High Court while relying upon another judgment of the Delhi High Court in Dr. Sanjay Khanduja v. Punjab National Bank and Another2 reaffirmed the view that the word “Court” in Section 41 would not be liable to be construed as being restricted to a domestic Court and therefore also includes a Foreign Court of a competent jurisdiction.
The High Court also noted that the Respondent Bank did not dispute the competence or jurisdiction of the Superior Court (i.e., Foreign Court) which granted probate of the Will nor did the bank raised any objection with regard to the procedure followed by the Foreign Court being not in conformity with the law applicable in India. Therefore, the Court invoked Section 13 of the Code of Civil Procedure, 1908 (i.e., the code) and also relied upon the judgment of the Supreme Court in Alcon Electronics Pvt. Ltd. v. Celem S.A. of FOS 34320 Roujan, France and Another3. The Supreme Court in Alcon Electronics (supra) held that a foreign judgment which has become final and conclusive between the parties is not impeachable either on facts or law except on limited grounds enunciated under Section 13 of the Code and it is to reciprocal advantage of the Courts of all nations to enforce foreign rights as far as practicable. Further, taking note of the obligations in terms of the 1961 Hague Convention, the High Court has also held that an apostilled document is liable to be treated as a legalised document in India by all concerned including banks. Thus, the Respondent Bank was directed to allow the Petitioner to have access of the savings Bank Account of the testator upon submission of duly apostilled copy of the Will and judgment of probate.
It is a matter of fact that the India is a member of the Hague Apostille Convention, 1961 and in terms of the same an apostilled document of any member country is entitled to be treated as a legalised document in India by all concerned, in accordance with the international obligation under the Hague Apostille Convention. In this regard, the Ministry of External Affairs vide its Notification dated 18th November, 20204 has also directed all institutes, organisations, and establishments to treat a duly apostilled document of a member country as a legal document in India. An apostilled document from a member country is as legal and valid as any other attested or legalised document executed in India. Hence, no institutions, banks or any other establishments can raise a demand to obtain letters of administration from Indian Courts in respect of a Will which is duly probated by the Foreign Court of competent jurisdiction.
1. W.P.(C) No. 5619 of 2021 BMO Trust Company v. State Bank of India and another, Judgment dated 15.03.2022
2. 2021 SCC OnLine Del 3209
3. (2017) 2 SCC 253
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