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Alien Mehta (project manager)     30 May 2012

Need help!!!

Hi
My father had few MSS/ Senior citizen FD in Post office. He expired, giving nomination to a distant relative. My father is left with wife and 2 sons.

Can you suggest a way where the legal heirs get those MSS and FDs or it will go to to the nominee.

secondly, in case the distant relative is ready to sign on any paper and return the money. But we have doubt that he may change after getting the money from Post office. Currently we have given notice to Post office to freeze the account. Is there any document we can get him signed so that he cannot take that money.


Learning

 9 Replies

Saurabh..V (Law Consultant)     30 May 2012

@Author

 

The nominee is entitled for the full money and you don't have right on this.

 

However if you can get nominee's signature on stamp paper, get it attested by Notary and while this document is made, get it also signed by 4 witnesses. You'll get your money back for sure.

 

All the best!

 

PS: Why you filed this under Family Law Section? This is a Civil Matter!

 

//peace

/Saurabh..V


(Guest)

@Saurabh in case there is  no nominee then what is the scenario.

Saurabh..V (Law Consultant)     30 May 2012

@Rajendra

 

In case of FD generally the banks take it in writing about your nominee. So only case would be that if in case nominee also dies. In this case, the property shall be deemed to be as a self-acquired property and shall be inherited by his legal heirs as per laws of inheritance.

 

//peace

/Saurabh..V

1 Like

Adv. Chandrasekhar (Advocate)     30 May 2012

In law it is clearly settled that Nominee is a facilitator who draws the money from the source and distribute it amongst legal heirs.  If you are a legal heir as per Hindu Succession Act, you are entitled to the share as prescribed by law.  What you have to do to get your share is to file a petition for succession certificate making the nominee, concerned post office / bank where the money is deposited and all other legal heirs as respondents and all the legal heirs will get succession certificate.  On the basis of the certificate, the deposited amount will be disbursed.  The nominee does not have absolute right on such deposits.  If he is also one of the legal heirs, he is entitled to get his share.

Tajobsindia (Senior Partner )     30 May 2012

@ Author

Saurabh is right. Futher to nomination and in case there was no nomination of deceased a/c then read further the Rules


The Post Office RD / FD / MSS Rules in cas eof nominee and no nomination states as follows;


DEPOSITS BELONGING TO THE ESTATE OF DECEASED PERSONS


4. Nomination by depositor:
- (1) Notwithstanding anything contained in any law for the time being in force, or in any disposition whether testamentary or otherwise, by a depositor in respect of his deposit, where any nomination made in the prescribed manner purports to confer on any person the right to receive the deposit on the death of the depositor, the nominee shall, on the death of the depositor, become entitled to the exclusion of all the other persons, to be paid the deposit, unless the nomination is varied or cancelled in the prescribed manner.

(2) Any nomination referred to in sub-section (1) shall become void if the nominee predeceases or where there are two or more nominees all the nominees predecease the depositor.

(3) Where the nominee is a minor, it shall be lawful for the depositor to appoint in the prescribed manner any person to receive the deposit in the event of his death during the minority of the nominee.


4A. Payment on death of depositor:
- (1) If a depositor dies and there is in force at the time of the death of the depositor a nomination in favour of any person, the deposit shall be paid to the nominee

(2) Where the nominee is a minor, the deposit shall be paid -

(a) in any case where a person has been appointed to receive it under sub-section (3) of section 4, to that person; and

(b) where there is no such person, to the guardian of the minor for the use of the minor.

(3) Where a deposit is payable to two or more nominees and either or any of them is dead, the deposit shall be paid to the surviving nominees.

(4) If the depositor dies and there is no nomination in force at the time of his death and probate of his will or letters of administration of his estate or succession certificate granted under the Indian Succession Act, 1925 [39 of 1925] is not, within three months of the death of the depositor, produced to the Secretary of the Government Savings Bank in which the deposit is, then:-

(a) if the deposit does not exceed such limit as may be prescribed, the Secretary may pay the same to any person appearing to him to be entitled, to receive it or to administer the estate of the deceased; and

(b) within the limit prescribed under clause (a), any officer employed in the management of Government Savings Bank who is empowered in this behalf by a general or special order of the Central Government, may, to the extent to which he is empowered by a general or special order of the Central Government, may, to the extent to which he is empowered by such order and subject to any person appearing to him to be entitled to receive it or to administer the estate.

(5) Nothing contained in this section shall be deemed to require any person to accept payment of a deposit which is a Time Deposit, before it has become due.
[Rule 4 amended vide Gazette of India Extraordinary No. 69 dated 04.9.1985)


5. Payment to be a discharge:- (1) Any payment made in accordance with the foregoing provisions of this Act shall be a full discharge from all further liability in respect of the money so paid.


(2) Saving of right of executor:-
But nothing herein contained precludes (prevent) any executor or administrator, or other representative of the deceased, from recovering from the person receiving the same the amount remaining in his hands after deducting the amount lf all debts or other demands lawfully paid or discharged byhim in due course of administration.


(3) Saving of right of Creditor:
- And any creditor or claimant against the estate of the deceased may recover his debt or claim out of the money paid under this Act to any person, and 6 Security for due administration:- The Secretary of any such Bank or any officer empowered under sub-section (4) of section-4A may take such security as he thinks necessary from any person to whom he pays any money under sub-section (4) of Section –4A for the due administration of the money so paid, and he may assign the said security to any person interested in such administration.

 

7. Power of administer oath:-

(1) For the purpose of ascertaining the right of the person claiming to be entitled as aforesaid, the Secretary of any such bank or any officer empowered under sub-section 4 of Section-4A may take evidence on oath or affirmation according to the law for the time being in force relating to oaths and affirmations.


(2) Penalty for false statement:- Any person who, upon such oath or affirmation, makes any statement which is false and which he either knows or believes to be false or does not believe to be true shall be deemed guilty of an offence under section 193 of the Indian Penal Code (45 of 1860).


8. Deposit when excluded in computing court fees:- Where the amount of the deposit belonging to the estate of a deceased depositor does not exceed three thousand rupees, such amount shall be excluded in computing the fee chargeable under the Court Fees Act, 1870 (7 of 1870) on the probate or letter of administration, or succession certificate (if any), granted in respect of his property.


Provided that the person claiming such probate or letters of certificate shall exhibit to the Court authorised to grant the same a certificate of the amount of the deposit in any Government Savings Bank belonging to the estate of the deceased. Such certificate shall be signed by the Secretary of such Bank, and the court shall receive it as evidence of the said amount.

seema (advocate)     31 May 2012

 

The Right of successors prevails over Nominee & Joint Account Holder

 

Posted on 10 September 2011 by raj kumar makkad https://www.lawyersclubindia.com/img/online.gif

 

Court

Supreme Court of India

 

Brief

Indian Succession Act, 1925 - Sections 4, 6, 7, 8(2) and 278; Banking Regulation Act, 1949 - Sections 45ZA; Banking Companies (Nomination) Rules, 1985 - Rule 2(1)-The money lying deposited in the account of the original depositor should be distributed among the claimants in accordance with the Succession Act of the respective community and the nominee cannot claim any absolute right over it. Section 45ZA(2) merely puts the nominee in the shoes of the depositor after his death and clothes him with the exclusive right to receive the money lying in the account. It gives him all the rights of the depositor so far as the depositor's account is concerned. But it by no stretch of imagination makes the nominee the owner of the money lying in the account. It needs to be remembered that the Banking Regulation Act is enacted to consolidate and amend the law relating to banking. It is in no way concerned with the question of succession.Supreme Court of India

 

Citation

Ram Chander Talwar & another Vs. Devender Kumar Talwar & others Civil Appeal NOS.1684 OF 2004 Hon'ble Judge(s): AFTAB ALAM, R.M. LODHA Date of Judgment: October 06, 2010

 

Judgement

O R D E R
AFTAB ALAM, J.

Heard counsel appearing for the appellants.

Appellant no.1, who was the nominee in the bank account held by his deceased mother claims full rights over the money lying in the account, to the exclusion of the respondent who is none else than his full brother. The claim is based on section 45 ZA of the Banking Regulation Act, which according to him, makes the nominee of the depositor the sole beneficiary, vested with all the rights of sole depositor. Mr. Swetank Shantanu, counsel appearing for the appellants, strenuously argued that by virtue of sub-section 2 of section 45 ZA, the nominee of the depositor, after the death of the depositor acquires all his/her rights to the express exclusion of all other persons and, therefore, the respondent can not lay any claim to the money in the account or in regard to the articles that might be lying in the bank locker held by their deceased mother.

The submission is quite fallacious and is based on a complete misconception of the provision of the Act. Sub-section 2 of the 45ZA, reads as follows:-

45ZA xxx xxx xxx xxx

(2) Notwithstanding anything contained in any other law for the time being in force or in any disposition, whether testamentary or otherwise, in respect of such deposit, where a nomination made in the prescribed manner purports to confer on any person the right to receive the amount to deposit from the banking company, the nominee shall, on the death of the sole depositor or, as the case may be, on the death of all the depositors, become entitled to all the rights of the sole depositor or, as the case may be, of the depositors, in relation to such deposit to the exclusion of all other persons, unless the nomination is varied or cancelled in the prescribed manner.
xxx xxx xxx xx (emphasis added)

Section 45ZA(2) merely puts the nominee in the shoes of the depositor after his death and clothes him with the exclusive right to receive the money lying in the account. It gives him all the rights of the depositor so far as the depositor's account is concerned. But it by no stretch of imagination makes the nominee the owner of the money lying in the account. It needs to be remembered that the Banking Regulation Act is enacted to consolidate and amend the law relating to banking. It is in no way concerned with the question of succession.
All the monies receivable by the nominee by virtue of section 45 ZA(2) would, therefore, form part of the estate of the deceased depositor and devolve according to the rule of succession to which the depositor may be governed.

We find that the High Court has rightly rejected the appellant's claim relying upon the decision of this Court in V.N. Khanchandani & Anr. v. V.L. Khanchandani & Anr., (2000) 6 SCC 724. The provision under Section 6(1) of the Government Saving Certificate Act, 1959 is materially and substantially the same as the provision of Section 45ZA(2) of the Banking Regulation Act, 1949, and the decision in V.N. Khanchandani applies with full force to the facts of this case.
We find no merit in this appeal. It is, accordingly, dismissed.




Tags :- right successors prevails nominee & joint account holder 

seema (advocate)     31 May 2012

 

 

Nomination and Succession: The Importance of the Statutory Language

 

The Bombay High Court in Harsha Nitin Kokate v. The Saraswat Co-operative Bank has held that the position of a nominee under Section 109A of the Companies Act, 1956 is not merely that of a trustee for the estate of the deceased, but “on the death of the share holder, the nominee would become entitled to all rights in the shares to the exclusion of all other persons…” Until now, the law in relation to nomination was controlled by the decision of the Supreme Court delivered in the context of Section 39 of the Insurance Act, Sarabati Devi v. Usha Devi. This judgment had then been cited by various High Courts in a non-insurance context. Kokate appears to restrict Sarbati Devi to insurance law only; and holds that Section 109A of the Companies Act lays down a different principle…

 

The underlying reasoning of the High Court was based on the text of Section 109A of the Companies Act. The Supreme Court in a matter concerned with Section 45ZA of the Banking Regulation Act, 1949, has however reached a different conclusion. The Court, in Ram Chander Talwar v. Devender Kumar Talwar, Civil Appeal 1684 of 2004, (2010) 159 Comp Cas 646 (SC), has held:

 

Section 45ZA(2) merely puts the nominee in the shoes of the depositor after his death and clothes him with the exclusive right to receive the money lying in the account. It gives him all the     rights      of   the    depositor      so    far    as  the depositor's account is concerned. But it by no stretch       of   imagination      makes      the   nominee     the owner of the money lying in the account. It needs     to       be    remembered       that       the    Banking Regulation Act   is   enacted    to   consolidate       and amend the law relating to banking. It is in no way concerned with the question of succession…

 

The question which then arises is whether this would mean that the reasoning in Kokate is no longer good law. The answer to this turns on whether there is a material difference between the relevant sections. 

 

The Supreme Court in Talwar’s case was concerned with Section 45ZA(2) of the Banking Regulation Act, which states:

 

(2) Notwithstanding anything contained in any other law for the time being in force or in any disposition, whether testamentary or otherwise, in respect of such deposit, where a nomination made in the prescribed manner purports to confer on any person the right to receive the amount of deposit from the banking company, the nominee shall, on the death of the sole depositor or, as the case may be, on the death of all the depositors, become entitled to all the rights of the sole depositor or, as the case may be, of the depositors, in relation to such deposit to the exclusion of all other persons, unless the nomination is varied or cancelled in the prescribed manner.

 

The Bombay High Court in Kokate’s case was concerned with Section 109A(3) of the Companies Act, 1956, which states:

 

(3) Notwithstanding anything contained in any other law for the time being in force or in any disposition, whether testamentary or otherwise, in respect of such shares in, or debentures of, the company, where a nomination made in the prescribed manner purports to confer on any person the right to vest the shares in, or debentures of, the company, the nominee shall, on the death of the shareholder or holder of debentures of the company or, as the case may be, on the death of the joint holders become entitled to all the rights in the shares or debentures of the company or, as the case may be, all the joint holders, in relation to such shares in, or debentures of the company to the exclusion of all other persons, unless the nomination is varied or cancelled in the prescribed manner.

 

It is arguable that there is a material distinction in the sections – the Banking Regulation Act merely speaks of a “right to receive” and grants “all the rights of the sole depositor”. On the other hand, the Companies Act speaks of a “right to vest” and grants “all the rights in the shares”. Indeed, a large part of the reasoning of the Bombay High Court was based on the meaning of the word “vest”, which is present in Section 109A(3) of the Companies Act but is absent from Section 45ZA(2) the Banking Regulation Act. Consequently, it is submitted that the reasoning of the Bombay High Court continues to be good in law; and the ultimate result must depend on the specific language used in the particular statutes; and no general principle can be drawn to describe the effect of all nominations irrespective of the relevant statute. 

 


Attached File : 840951144 succession doc..doc downloaded: 121 times

seema (advocate)     31 May 2012

i fully agree with mr Chandu ji

Alien Mehta (project manager)     31 May 2012

Thanks Chandu ji, Saurabh and Seema for the valuable guidance. This really helps!!!

Regards

Alien Mehta


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