Madras High Court
'Ram Chander Talwar & Another vs Devender Kumar Talwar & on 9 June, 2005
A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021
in C.S.No.362 of 2021
A.Nos.4663 & 4664 of 2021
and O.A.No.807 of 2021
in C.S.No.362 of 2021
Orders reserved 08.08.2022
Orders pronounced 30.09.2022
KRISHNAN RAMASAMY.,J.
These applications have been filed seeking for the following reliefs:-
a) for a direction to the respondents, their men, agents, employees, agents, servants, managers, permitted assigns, successors in interest and all other persons claiming through or under them or otherwise howsoever, to furnish details of the deposits, fixed deposits etc. including bank account number, fixed deposit details, date of the fixed deposits, withdrawals, adjustments, if any, etc. are made by and in the name of late Mr.P.M.Maruthai Chettiar, pending disposal of the suit;
b) for a direction to the respondents 1 to 7, their men, agents, employees, agents, servants, managers, permitted assigns, successors in interest and all other persons claiming through or under them or otherwise howsoever, to deposit 3/5th (1/5th for each of the legal heirs) of the monies already withdrawn by them from the deposits of late Mr.P.M.Maruthai Chettiar into this Hon'ble Court, as detailed in the Schedule to the Plaint and the affidavit, pending disposal of the suit;
https://www.mhc.tn.gov.in/judis 1 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021
c) for an interim injunction restraining the respondents 1 to 7, by themselves, their partners, men, servants, agents, representatives, assigns, successors in interest, licensees and/or all other persons acting on their behalf, from in any manner using/disbursing/distributing/appropriating the amounts of monies already withdrawn by them from the fixed deposits, made by late Maruthai Chettiar, as detailed in the schedule to the plaint and the affidavit, pending disposal of the suit.
2. The brief facts of the case are as follows:-
2.1. The applicants and 1st respondent are the sons and daughter of late Mr.Maruthai Chettiar, who passed away on 07.10.2019. The respondents 2 & 3 are the sons of 1st respondent and the respondents 4 to 7 are the surviving legal heirs of the predeceased daughter of late Mrs.Jeevarathinam.
The respondents 8 to 10 are the Banks who are formal parties in the present suit.
2.2. Mr.Maruthai Chettiar passed away intestate on 07.10.2019 and had some fixed deposits with the respondents 8 to 10 Banks to the tune of Rs.4,27,83,583/-. The respondents 1 to 3 were appointed as the nominees of the said fixed deposits. Immediately upon the death of late Mr.Maruthai https://www.mhc.tn.gov.in/judis 2 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 Chettiar, the respondents 1 to 3 approached the respondents 8 to 10 Banks for withdrawing the monies. Against such attempt by the respondents 1 to 3, the applicants herein filed a bare injunction suit before the City Civil Court, Chennai, in O.S.No.7775 of 2019. The learned Judge, VIII Assistant City Civil Court, Chennai, also granted an interim order of status quo on 25.10.2019, restraining the respondents 8 to 10 from releasing the deposit amounts to the respondents 1 to 3. Subsequently, the said order was vacated on 03.12.2019 after observing that the applicants are entitled to the amounts and that the respondents 1 to 3 only acted as Trustees of monies. Subsequently, the respondents 1 to 3 withdrew all the monies lying before the respondents 8 to 10 banks on 18.10.2019 and 19.10.2019 for themselves and they have not distributed the same to other legal heirs. In the light of the withdrawals made by the respondents 1 to 3, the suit filed in O.S.No.7775 of 2019 has virtually become infructuous and hence, the applicants/plaintiffs have withdrawn the said suit on 23.06.2022.
2.3. The present suit has been filed by the applicants seeking for partition of the fixed deposits which is more fully described in the suit schedule and to hand over 3/5th share amounting to Rs.2,56,70,150/- being the applicants' share together and to render true and proper accounts of all the https://www.mhc.tn.gov.in/judis 3 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 fixed deposits which stood in the name of Late Mr.Maruthai Chettiar as on date of his death and for permanent injunction to restrain the defendants from disbursing the monies already withdrawn by them.
3. Mr.R. Parthasarathy for M/s. Durga V. Bhatt, learned counsel appearing for the applicants would contend that the present suit is filed for partition, while the previous suit was filed for bare injunction to restrain the respondents 1 to 3 from withdrawing the amounts of the fixed deposits. Therefore, he would contend that the cause action arose for the present suit as well as O.S.No.7775 of 2019 are entirely different. The cause of action for filing the present suit is not based on the same cause of action which arose for the previous suit. Hence, both the suits are entirely different and not one and the same and hence, the present suit is maintainable.
4. The applicants 1 to 3, 1st respondent and late Mrs.Jeevarathinam are the legal heirs of late Mr.Maruthai Chettiar. The suit schedule deposits were made in the name of the said late Maruthai Chettiar. The respondents 1 to 3 were appointed only as nominees of the said deposits. Except as nominees, the respondents 1 to 3 will not have any right over the deposits. They would receive the deposits only as nominees in trust on behalf of themselves and on https://www.mhc.tn.gov.in/judis 4 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 behalf of other legal heirs. Therefore, they cannot become the absolute owner of the monies lying in the fixed deposits. The respondents 1 to 3 were only entitled to hold the money in trust as legal heirs of Late Maruthai Chettiar and are under an obligation to distribute among the legal heirs. In support of his contention, he placed reliance on Section 45-ZA(2) of the Banking Regulation Act, 1949 [Reserve Bank of India Circular bearing No.RBI/2004-05/490 dated 09.06.2005].
5. Maruthai Chettiar died intestate and hence, his properties devolved as per Section 8 of the Hindu Succession Act, 1956 upon his legal heirs. The applicants along with the respondents 1 and 4 to 7 are Class 1 legal heirs fall under Section 8 of the Hindu Succession Act, 1925, read with the schedule. Further, the learned counsel referred to Section 19 of the Hindu Succession Act and would submit that since there are more than two heirs, being Class 1 legal heirs, the applicants would take the property as 'tenants-in-common'. Hence, the learned counsel would submit that the respondents 1 to 3 who are acting as merely trustees, have a fiduciary duty to distribute the monies equally amongst all the Class 1 legal heirs.
https://www.mhc.tn.gov.in/judis 5 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021
6. Further, the learned counsel would submit that the nominees were holding the fixed deposits as trustees and they are duty bound to distribute the monies to all the beneficiaries of the trust, which is created by law under Chapter IX of the Indian Trust Act, 1882. The nominees are bound in a fiduciary character to protect the interests of other beneficiaries, by availing themselves of their character, gain for themselves any pecuniary advantage. In support of his contention, the learned counsel has relied on the following decisions rendered by the Hon'ble Supreme Court:
1. 'Ram Chander Talwar & another Vs. Devender Kumar Talwar & others reported in (2010) 10 SCC 671'.
2. 'Sarbati Devi & another Vs. Usha Devi reported in (1984) 1 SCC 424'.
3. 'Vishin N. Khanchandani & another Vs. Vidya Lachmandas Khanchandani & another reported in (2000) 6 SCC 724'.
4. 'Shakti Yezdani & others Vs. Jayanand Jayant Salgaonkar & others reported in (2017) 200CompCas143 (Bom)'.
5. 'Peirce Leslie and Co. Ltd. & others Vs. Miss Violet Oucherlong Wapshare & others reported in AIR 1969 SC 843'.
7. Per contra, Mr.R. Thiagarajan, learned counsel appearing for the respondents 1 to 3 would submit that the respondents 1 to 3 were nominated as nominees in respect of deposits by Late P.M.Maruthai Chettiar and by virtue of such nomination, the respondents 1 to 3 became the absolute https://www.mhc.tn.gov.in/judis 6 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 owners of the properties. The nomination was made only with the intention to transfer the entire assets after the demise of the original depositor in favour of the respondents 1 to 3. Since enough properties were already given to the applicants and the other legal heirs, Late Maruthai Chettiar only with an intention to part this amount to and in favour of the respondents 1 to 3 after his demise, he had consciously nominated the respondents 1 to 3 as trustees of the monies. Therefore, the applicants cannot claim this property as a joint family property. The applicants already filed a suit before the City Civil Court in O.S.No.7775 of 2019 for permanent injunction and the said suit was dismissed as withdrawn and in the earlier suit itself, the applicants could have sought for the relief as sought for in the present suit. But they failed to do so, hence, the suit is barred under Order II Rule 2 of CPC.
8. Therefore, it is contended that as the respondents 1 to 3 are the absolute owners of the movable property, viz., fixed deposits, filing of the present suit for partition is not maintainable, but the applicants could have filed a suit for declaration and sought for entitlement in respect of the fixed deposits. Further, he would contend that the applicants are not in joint possession of the property and thereby, the applicants are liable to pay Court fees under Section 37(1) of the Tamil Nadu Court fees and Suits Valuation https://www.mhc.tn.gov.in/judis 7 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 Act, 1955 wheres, the present suit is filed for the value in terms of Section 37(2) of the Act which is not correct. Further, he would also contend that the applicants should have also filed the suit for recovery of money and ought to have paid Court fee under Section 22 & 24 of the Act. In the present case, if the interim relief sought for in the application is granted, it would tantamount to granting the relief in the main suit. Therefore, he would contend that it is well settled in catena of judgments that no relief can be granted at interlocutory stage which would tantamount to granting a final relief and the Courts should slow in granting such interim relief. In support of such contention,he has relied on the following judgment:-
1. 'N.V.Srinivasa Murthy & others Vs. Mariyamma (Dead) by proposed Lrs & others reported in 2005 (1) SCR 411'.
2. 'R.Chendilvel Vs. G.Damodaran reported in AIR 2015 MAD 96'.
3. 'Coffee Board Vs. Ramesh Exports Pvt. Ltd. reported in 2014 (6) SCC 424'.
4. 'Dr.Amit Kumar Vs. Dr.Sonila & others reported in 2019 (12) SCC 718'.
5. 'Pramod Kumar & others Vs. Zalak Singh & others reported in 2019 (6) SCC 621'.
6. 'State Bank of India Vs. Gracure Pharmaceuticals Ltd. reported in 2014 (3) SCC 595'
7. 'Virgo Industries (Eng.) P. Ltd. Vs. Venturetech Solutions P. Ltd.
reported in 2013 (1) SCC 625'.
https://www.mhc.tn.gov.in/judis 8 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021
8. Venkataraja & others Vs. Vidyane Doureradjaperumal (D) Thr. Lrs & others reported in 2014 (14) SCC 502'.
9. 'Vurimi Pullarao Vs. Vemari Vyankata Radharani & others reported in 2020 (14) SCC 110'.
10. 'Dr.M.Thirunavukarasu Vs. Indian Psychiatric Society Tribunal & others reported in 2008 (2) CTC 51'.
11. 'The Director General of Police Central Reserve Police Force New Delhi & others Vs. P.M.Ramalingam reported in 2009 (1) SCC 193'.
12. 'Percept D'Mark (India) Pvt. Ltd. Vs. Zaheer Khan & others reported in 2006 (4) SCC 227'.
13. 'State of U.P. & others Vs. Desh Raj reported in 2007 (1) SCC 257'.
14. 'Bank of Maharashtra Vs. Race Shiping and Transport Co. Pvt. Ltd.
& others reported in 1995 (3) SCC 257'.
15. 'Anumati Vs. Punjab National Bank reported in 2004 (85) SCC 498'.
16. 'Sawarni Vs. Inder Kaur & others reported in 1996 (6) SCC 223'.
17. 'Muhammad Hussain Vs. Shaik Muhammad Malumiar reported in AIR 1936 MAD 525'.
18. 'Sarabati Devi & others Vs. Usha Devi reported in 1984 (1) SCC 424'.
19. 'Vishin N.Kanchandani & others Vs. Vidya Lachmandas Khanchandani & others reported in 2000 (6) SCC 724'.
9. This Court has given its anxious consideration to the submissions made by the learned counsel appearing for the applicants as well as the learned counsel appearing for the contesting respondents 1 to 3 and perused the available records and case laws placed before this Court. https://www.mhc.tn.gov.in/judis 9 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021
10. The present dispute is revolving around the entitlement of the fixed deposits of Late Maruthai Chettiar. In the present case, it is not in dispute that the legal heirs of late Maruthai Chettiar are the applicants, 1 st respondent and one late Jeevarathinam.
11. P.M.Maruthai Chettiar passed away intestate on 07.10.2019. During his life time, he had invested monies as fixed deposits with the respondents 8 to 10 Banks to the tune of Rs.4,82,00,367/-. The applicants state that Late P.M. Maruthai Chettiar had the following deposits and advances in his name as per his statement of accounts/returns filed for the assessment year 2018-2019, at the time of his demise:
Deposits & advances Amount
TMBL Fixed Deposit Rs.61,18,170/-
TMBL Fixed Deposit Rs.31,92,395/-
Lakhsmi Vilas Bank Rs.17,54,892/-
Lakhsmi Vilas Bank Rs.81,07,400/-
Lakhsmi Vilas Bank Rs.1,68,050/-
Lakhsmi Vilas Bank Rs.14,19,298/-
Lakhsmi Vilas Bank Rs.46,080/-
Lakhsmi Vilas Bank Rs.17,11,142/-
Kumbakonnan Mutual Rs.37,62,112/-
Benefit Fund
Kumbakonnan Mutual Rs.65,41,950/-
Benefit Fund
https://www.mhc.tn.gov.in/judis
10
A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021
in C.S.No.362 of 2021
Kumbakonnan Mutual Rs.64,18,799/-
Benefit Fund
Kumbakonnan Mutual Rs.89,60,074/-
Benefit Fund
Total Rs.4,82,00,367/- (Rupees
Four Crores Eighty Two
Lakhs Three Hundred and
Sixty Seven Only)
12. The value of above fixed deposits as per the returns filed for the assessment year as on date of his demise, was to the tune of Rs.4,27,83,583/.
13. The main contention of Mr.R.Thiagarajan, learned counsel for the respondents 1 to 3 was that Late Maruthai Chettiar appointed his daughter, 2nd and 3rd respondents, who are none other than his grandsons as nominees for the fixed deposits made with the respondents 8 to 10 banks. Based on the nomination, the respondents 1 to 3 claim that they are the absolute owners of the movable property. On the other hand, the applicants submitted that merely based on the nomination, the nominees of the fixed deposits cannot claim absolute right over the property since they are holding the deposits in trust for themselves and on behalf of the other legal heirs and thereby, they are duty bound to distribute the same to the other legal heirs. These deposits will include the other assets of the deceased. In order to resolve this issue of https://www.mhc.tn.gov.in/judis 11 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 nomination, it is just and necessary to examine the objects and reason and also the purpose of the said objects and reasons for appointing the nominees with reference to the provisions of the Banking Regulation Act, 1949. The fixed deposits made by Late P.M.Maruthai Chettiar are governed by the provisions of Section 45-Z(A)(2) of the Banking Regulation Act, 1949. It would be apposite to extract Section 45-ZA(2) of the Banking Regulations Act, 1949 which reads as follows:-
“[45ZA. Nomination for payment of depositors’ money:
(1) .... .... ....
(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.”
14. A bare reading of Section 45ZA of the Banking Regulation Act, 1949 as reproduced above shows that any depositor with a bank may https://www.mhc.tn.gov.in/judis 12 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 nominate a person in a prescribed manner, who, in the event of death of depositor would be entitled to return of the money by the bank. The section also makes it clear that the payment made by bank in accordance with the provisions of the section shall constitute a full discharge to the bank of its liability in respect of the deposit.
15. In a decision reported in 2010(10) SCC 671 in the matter between Ram Chander Talwar & Anr, Vs. Devender Kumar Talwar & Ors. wherein the Hon'ble Supreme Court of India while interpreting Sec.45ZA(2) of Banking Regulation Act has held as follows:
“Sec.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 Sec.45 ZA(2) would, therefore, form part of the estate of the deceased depositor and devolve https://www.mhc.tn.gov.in/judis 13 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 according to the rule of succession to which the depositor may be governed.”
16. In the matter of "Shipra Sengupta Vs. Mridul Sengupta & Ors." (2009) 10 SCC 680, the Hon'ble Supreme Court of India has held as under:
“19. In view of the clear legal position, it is made abundantly clear that the amount in any head can be received by the nominee, but the amount can be claimed by the heirs of the deceased in accordance with law of succession governing them. In other words, nomination does not confer any beneficial interest on the nominee.”
17. Therefore, it is settled law that though the above provision 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 of the deceased, however, the nomination does not confer any beneficial interest on the nominee and does not make him as owner of the monies and that all the monies receivable by the nominee by virtue of Sec.45 ZA(2) would form part of the estate of the deceased depositor and devolve according to the rule of succession to which the depositor may be governed.
18. Further, the Reserve Bank of India issued a circular bearing https://www.mhc.tn.gov.in/judis 14 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 No.RBI/2004-05/490 dated 09.06.2005 for settlement of claims in respect of deceased depositors, wherein, Clause 2(A)(c) deals with regard to the nomination receipt of the money by the nomination and the same is extracted hereunder:-
“2(A)(c) It has been made clear to the survivor(s)/nominee that he would be receiving the payment from the bank as a trustee of the legal heirs of the deceased depositor, i.e., such payment to him shall not affect the right or claim which any person may have against the survivor(s)/nominee to whom the payment is made.”
19. A reading of the above would clear that the nominee would be receiving the payment from the bank only as a trustee of the legal heirs of the deceased depositor. Therefore, any such payment to the nominee shall not affect the right or claim which any person may have against the survivor/nominee to whom the payment is made. A conjoint reading of Section 45-ZA(2) of the Banking Regulation Act, 1949 and the above Circular of the Reserve Bank of India, would make it clear that the nominee has a exclusive right to receive the money lying in the account of the deceased depositor. He would receive the money in trust on behalf of himself and on behalf of other legal heirs who are entitled to succeed the https://www.mhc.tn.gov.in/judis 15 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 estate of the deceased. The money received by the nominee would form part of the estate of the deceased depositor and devolve according to the rule of succession to which the depositor may be governed.
20. In the present case, the applicants are the legal heirs of the deceased Maruthai Chettiar and it is an undisputed fact. Therefore, by virtue of the above provision, this Court is of the view that the applicants are entitled to have share in the fixed deposits of Late Maruthai Chettiar as legal heirs. The monies received by the respondents 1 to 3 from the banks, only as trustees and they are liable to maintain the accounts and once they receive the money from the Bank as nominees, it would form a part of the estate of the deceased. Certainly, the respondents 1 to 3 alone are not entitled to claim any exclusive right and enjoy the fixed deposits absolutely by themselves as owners depriving the rights of the other legal heirs.
21. A similar issue came up for consideration before the Hon'ble Supreme Court in the case of 'Smt.Sarbati Devi & another Vs. Smt.Usha Devi' reported in '(1984) 1 SCC 424' with regard to the nominee's interest in the LIC policy. The Hon'ble Supreme Court held as under:
“We approve the views expressed by the other High https://www.mhc.tn.gov.in/judis 16 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 Courts on the meaning of Section 39 of the Act and told that a mere nomination made under Section 39 of the Act does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured. The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them.”
22. Similarly, in the case of 'Vishin N.Kanchandani & others Vs. Vidya Lachmandas Khanchandani & others' reported in '2000 (6) SCC 724' while dealing with the issue in regard to the entitlement of the nominee towards the National Savings Certificate, the Hon'ble Supreme Court has held as under:
“Whether the nominee specified in the National Savings Certificate, on the death of its holder, becomes entitled to the sum due under the certificate to the exclusion https://www.mhc.tn.gov.in/judis 17 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 of all other persons, or whether the amount of the certificate can be retained by him for the benefit of the legal heirs of the deceased-is the sole question required to be adjudicated by us in this appeal by special leave.”
23. In all the above three decisions, wherein, the Hon'ble Supreme Court dealt to three different issues, one is pertaining to the nominees appointed by the deposit holder in respect of his deposits made before the Bank; second one is pertaining to the nominees appointed by the LIC holder in respect of his insurance policy and third one is pertaining to the nominees appointed by the Certificates holder in respect of National Saving Certificates and categorically held that the nominees are not entitled to claim absolute right or ownership over the properties of the deceased depositor since the same would form part of the estate of the deceased depositor and devolve according to the rule of succession to which the depositor may be governed. Therefore, in the present case also, I have no hesitation to hold that the respondents 1 to 3 appointed as nominees by the Late Maruthai Chettiar in respect of his fixed deposits, are to be treated and they are entitled only receive the monies of the fixed deposits and they are bound to distribute the monies to all the beneficiaries of the Trust since after the death of the depositor, the property would form part of the estate of the deceased deposit https://www.mhc.tn.gov.in/judis 18 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 and devolved upon all the legal heirs of the deceased.
24. At this juncture, it would be apt to extract Sections 19 & 88 of the Indian Trusts Act, 1882 which read as follows:-
“19.Accounts and information.—A trustee is bound (a) to keep clear and accurate accounts of the trust- property, and (b), at all reasonable times, at the request of the beneficiary, to furnish him with full and accurate information as to the amount and state of the trust-property.
“88. Advantage gained by fiduciary.—Where a trustee, executor, partner, agent, director of a company, legal advisor, or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage, or where any person so bound enters into any dealings under circumstances in which his own interests are, or may be, adverse to those of such other person and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained.”
25. The above provisions would explicit that a trustee is bound to keep clear and accurate accounts of the trust- property, at the request of the beneficiary, to furnish him with full and accurate information as to the amount and state of the trust-property and that a trustee or an agent bound in https://www.mhc.tn.gov.in/judis 19 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 a fiduciary character to protect the interest of the principal and the former would hold the property for the benefit of the member of the person on whose behalf, he acted as an agent.
26. Having regard to the above, at no stretch of imagination, the nominees can claim any absolute right over the properties of the deceased depositor based on the nomination in respect of fixed deposit receipts, but on the other hand, the nominees are only entitled to receive the deposits and the said deposits would devolve upon all persons who are entitled to succession under law. In short, the nominees are nothing but holding the deposits for themselves and on behalf of the other legal heirs of the deceased depositor as well.
27. The provisions relating to nominations under the various enactments have been consistently interpreted by the Hon'ble Apex Court by holding that the nominee does not get absolute right or title to the property subject matter of the nomination. The reason is by its very nature, when a share holder or a deposit holder or an insurance policy holder makes a nomination during his life time, he does not transfer his interest in favour of the nominee. It is always held that the nomination does not override the law https://www.mhc.tn.gov.in/judis 20 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 in relation to testamentary or intestate succession. The provisions regarding nomination are made with a view to ensure that the estate or the rights of the deceased subject matter of the nomination are protected till the legal representatives of the deceased take appropriate steps. The policy- holder/depositor continues to hold interest in the policy during his lifetime and the nominee acquires no sort of interest in the policy during the lifetime of the policy-holder. If that is so, on the death of the policy-holder, the amount payable under the policy becomes part of his estate which is governed by the law of succession applicable to him. Such succession may be testamentary or intestate.
28. With regard to the submission made by the learned counsel for the respondents 1 to 3 that the suit is barred under Order II Rule 2 of CPC is concerned, the cause of action in O.S.No.7775 of 2019 filed before the City Civil Court, Chennai, is different when compared with that of the cause of action arose in respect of the present suit. The above suit was filed for bare injunction based on the mere apprehension by the plaintiffs therein. The present suit is filed post withdrawal of the money lying in the fixed deposits. The cause of action in both the suits is different, inasmuch as the cause of action for injunction suit is based on apprehension of withdrawal of the fixed https://www.mhc.tn.gov.in/judis 21 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 deposits being made by the respondents 1 to 3 and the cause of action for the partition suit is, regarding the right conferred upon the petitioners/plaintiffs being the legal heirs of the deceased Maruthai Chettiar to his estate since he died intestate and the petitioners/plaintiffs are claiming respective shares in accordance with succession.
29. The legal heirs of the deceased are entitled to file the partition suit at their wish at any point of time. A bar under Order II Rule 2 of CPC would apply only in the event any subsequent suit filed based on the very same cause of action. The cause of action for filing the suit before the City Civil Court was based on the apprehension of the withdrawal of monies being made by the respondents/defendants. The cause of action, i.e. apprehension of withdrawal in the earlier suit is not the same cause of action for filing the present suit for partition. It is the entitlement of the legal heirs of the deceased depositor and they can file the suit at any point of time. It cannot be imputed or compelled to the legal heirs. They ought to have claimed the partition in the suit filed for permanent injunction which was filed based on the apprehension of the withdrawal of the deposits. The co-sharer of the property shall hold the property on behalf of him and on behalf of other co- sharers until the other co-sharer of the property makes a separate claim. https://www.mhc.tn.gov.in/judis 22 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 Thus, the co-sharers of the properties can file the suit at any point of time against any illegal alienation. By virtue of filing of such suit, one cannot compel and say that they are supposed to file a suit of partition and failure of which, the suit is barred by Order II Rule 2 of CPC.
30. As stated above, the cause of action arose in the suit for permanent injunction vis-a-vis the cause of action in the suit for partition are entirely different and therefore, I am of the considered view that in the present case, the bar under Section Order II Rule 2 of CPC to file the present suit does not arise.
31. Another issue also is raised on behalf of the respondents that the petitioners ought to have filed the suit for declaration and seek right of entitlement in respect of the fixed deposits and that since the petitioners are not in joint possession of the property, they are liable to pay Court fee under Section 37 (1) and for they ought to have filed the suit for recovery of money and in such event, the petitioners are liable to pay Court fee under Sections 22 & 24 of Tamil Nadu Court Fees and Suits Valuation Act, 1955.
32. It is pertinent to note that the petitioners have filed the suit for https://www.mhc.tn.gov.in/judis 23 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 partition of the movable property by the petitioners being the legal heirs of the deceased depositor Late Maruthai Chettiar and hence, the issue regarding declaration as contended by the respondents, does not arise and further, the respondents by virtue of nomination, had withdrawn the monies and failed to act as trustees on behalf of the other legal heirs and also failed to distribute the shares equally to the petitioners, which prompted the petitioners to come forward with the present suit for partition rightly. If at all the respondents dispute the legal heirship of the petitioners, then the issue of declaration would arise. In the present suit, there is no dispute with regard to the legal heirship of the petitioners with late Maruthai Chettiar. The respondents 1 to 3 being nominees got the possession of the movable property even on behalf of the other legal heirs, viz., the petitioners/plaintiffs. The petitioners, being the legal heirs of the deceased depositor, are also entitled to their respective shares in the said property. The possession of the co-owners is treated as possession of the other co-owners as well. Mere continuation in the possession of the co-owner does not suffice to set up a pre-ouster. The possession of co-owners will also be referable to lawful title. Therefore, the applicants have rightly sought for partition of the fixed deposits since the question of declaration seeking right of entitlement does not arise amongst Class 1 legal heirs. As stated above, the respondents 1 to 3 were in joint https://www.mhc.tn.gov.in/judis 24 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 possession of the fixed deposits and are deemed to be holding the same in the form of a trust which is created by an authorisation of law. The possession of one co-owner is presumed to be on behalf of all the co-owners in view of the unity of title and possession. In such a case, only in a suit for partition, relief can be sought for the equal distribution of the property. Therefore, the question of Court fee under Section 37(1) of the Tamil Nadu Court Fees and Suits Valuation, 1965 does not arise. In the present case, the Court fee was paid under Section 37(2) of the Tamil Nadu Court Fee and Suits Valuation Act, 1965, which reads as follows:-
“37. Partition suits (1) In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiff's share.
(2) In a suit for partition and separate possession of joint family property or property owned, jointly or in common, by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates:--
When the plaint is presented to --
(i) a District Munsif's Court. Rupees one hundred.
(ii) the City Civil Court, Rupees one hundred, if the https://www.mhc.tn.gov.in/judis 25 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 Chennai or a Sub-Court or a value of plaintiffs share is District Court. rupees thirty thousand or less;
rupees five hundred, if it is above rupees thirty thousand but below rupees one lakh; and rupees seven hundred and fifty, if the value is rupees one lakh and above.
(iii) The High Court. Rupees one thousand.
33. In the present case, the suit was filed for partition and the applicants have paid the Court fee under Section 37(2) whereas, the payment of Court fee under Section 37(1) would only arise in a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiff's share. In the present case, the question of exclusion of the possession of such property does not arise for the simple reasons that the petitioners/plaintiffs are in joint possession along with the respondents 1 &
3. The respondents 1 & 3 who are also the legal heirs, are deemed to be in possession of other legal co-heirs as well. Therefore, the property in joint possession in respect of which, the Court fee has been paid rightly in terms of Section 37(2) of the Act. As regards the contention that Court fee under Sections 22 and 24 of the Act has to be paid since the petitioners sought for https://www.mhc.tn.gov.in/judis 26 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 recovery of money is concerned, since this Court held that the respondents possess the property on behalf of the entire body of co-owners, the question of filing a suit for recovery of money does not arise.
34. At this juncture, the Hon'ble Supreme Court in the case of 'B.R. Patil Vs. Tulsa Y. Sawkar & others' reported in '2022 SCC OnLine SC 240' has held as follows:
“24. The possession of a co-owner however long it may be, hardly by itself, will constitute ouster. In the case of a co- owner, it is presumed that he possesses the property on behalf of the entire body of co-owners. Even non- participation of rent and profits by itself need not amount to ouster. The proof of the ingredients of adverse possession are undoubtedly indispensable even in a plea of ouster. However, there is the additional requirement in the case of ouster that the elements of adverse possession must be shown to have been made known to the co-owner. This is apparently for the reason that the possession of a co-owner is treated as possession of other co- owners. While it may be true that it may not be necessary to actually drive out the co-owner from the property as noticed in Mohd. Zainulabudeen (since deceased) by lrs. v. Sayed Ahmed Mohideen and Others4, mere continuance in the possession of a co-owner does https://www.mhc.tn.gov.in/judis 27 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 not suffice to set up a plea of ouster. The possession of the co-owner will also be referable to lawful title. The possession of the appellant even of the ground floor of the building on the land in question, was entirely in accord with his right as a co-owner.....
27. The very essence of adverse possession and therefore ouster lies in a party setting up a hostile title in himself.
The possession of a co-owner is ordinarily on his behalf and also on behalf of the entire body of the co-owners. In the case of an ouster, the co-owner must indeed have the hostile animus. He must assert a title which is not referable to lawful title. Though the learned counsel for the appellant points out that this possession started prior to 1977 in that the appellant was residing with his father in item No.3 house from somewhere in the early seventies and he continued to reside after his father’s death in the year 1977, when Shri R.M. Patil died in the year 1977, his possession in 1977, was clearly referable to lawful title as a co-owner entitled to inherit under Section 8 of the Hindu Succession Act, 1956. Obviously, he cannot be permitted to set up adverse possession or ouster in the year 1977. As far as the letter which is addressed in 1991 and reply to the letter and suit being beyond 12 years from the date of his reply, again we are of the view that he cannot be permitted to succeed for more reasons than one. In the first place, we have already noticed that this https://www.mhc.tn.gov.in/judis 28 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 is a case where he is setting up ouster qua only one of the co-owners. Secondly, as it turns out contrary to the submission of the appellant, Mr. S. N. Bhat, learned senior counsel for the respondents points out the appellant was not in exclusive possession of the entire property. The appellant was in possession as even found by the Trial Court only of the Ground Floor. The second plaintiff is found to be in possession of the First Floor and what is more a decree stands granted by the Trial Court in her favour. In fact, even the perusal of the letter relied upon by him in the year 1991 which we have referred to, does not as such reflect the assertion of the hostile title different from that of a co-owner. In substance, what is sought to be stated is that the first plaintiff who is his sister had been given property including jewellery and therefore she does not have a right. He does not proclaim himself to be the absolute owner of the property in his own right.”
35. The Hon'ble Supreme Court in the case of 'Neelavathi & others Vs. N. Natarajan & others' reported in '(1980) 2 SCC 247' has held as follows in para 8:-
....... “8. It will be seen that the court fee is payable under S. 37(1) if the plaintiff is “excluded” from possession of the property. The plaintiffs who are sisters of the defendants, https://www.mhc.tn.gov.in/judis 29 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 claimed to be members of the Joint Family, and prayed for partition alleging that they are in joint possession Under the proviso to S.6 of the Hindu Succession Act, 1956 (Act 30 of 1956) the plaintiffs being the daughters of the male Hindu who died after the commencement of the Act, having at the time of the death an interest in the Mitakshara co-parcenary property, acquired an interest by devolution under the Act. It is not in dispute that the plaintiffs are entitled to a share. The property to which the plaintiffs are entitled is undivided ’joint family property!’; though not in the strict sense of the term. The general principle of law is that in the case of co-
owners, the possession of one is in law possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that. he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession. Before the plaintiffs could be called upon to pay court fee under S. 37(1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been "excluded" from joint possession to which they are entitled in law. The averments in the plant that the https://www.mhc.tn.gov.in/judis 30 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 plaintiff could not remain in joint possession as he was not given any income from the joint family property would not amount to his exclusion from possession. We are unable to read into the plaint a clear and specific admission that the plaintiff had been excluded from possession.”
36. Therefore, the law laid down by the Hon'ble Apex Court in the above decisions, will squarely be applicable in the present case as the petitioners/plaintiffs have rightly paid the Court fee under Section 37(2) of the Act.
37. Lastly, the learned counsel for the respondents/defendants would contend that the Court cannot grant an interim relief which would be tantamount to granting a final relief itself.
38. The Hon'ble Supreme Court in the case of 'Deoraj versus State of Maharashtra & others' reported in '(2004) 4 SCC 697', has held as under in para 12:
“Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of main https://www.mhc.tn.gov.in/judis 31 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of case totally in favour of the applicant may persuade the Court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the Court may put the parties on such terms as may be prudent.”
39. A mere reading of the above para would clear that in relevant cases, the Court can grant interim relief where if satisfied that withholding of https://www.mhc.tn.gov.in/judis 32 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing and at the end the Court would not be able to vindicate the cause of justice. In the present case, the suit was filed for partition and whereas the interim reliefs sought for by the petitioners are, to direct the respondents to furnish details of all the deposits that were made by the deceased depositor Late P.M.Maruthai Chettiar and also to deposit 3/5th share of the monies already withdrawn by them from the said deposits only before this Court and the same will be distributed only upon the final adjudication and therefore, this Court is of the view that granting of the said interim reliefs would not tantamount to granting the final relief itself and therefore, I do not find any find substance in the contention raised by the learned counsel for the respondents.
40. In view of the above facts and circumstances of the case, this Court is of the view that the petitioners/plaintiffs have made out a prima facie case and the balance of convenience is also in favour of the petitioners/plaintiffs. In the event of declining the grant of interim reliefs as sought for in the present petitions by this Court, the respondents who are in possession of monies having withdrawn from the banks in respect of the fixed deposits of https://www.mhc.tn.gov.in/judis 33 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 the deceased deposit, over which, being the legal heirs of the deceased depositors, the petitioners/plaintiffs have also share, there would be every likelihood of the respondents/defendants utilizing the same exclusively for themselves and there would be difficulty to recover the same from the respondents, which would certainly cause irreparable loss to the petitioners/plaintiffs and the very purpose of filing the suit would be defeated and on the other hand, no prejudice would be caused to the respondents/defendants if they are directed to deposit 3/5th share before this Court till the outcome of the suit.
41. Having regard to the case laws cited on behalf of the petitioners/plaintiffs, this Court is of the view that the case laws referred to on behalf of the respondents, are not relevant for consideration to the facts of the present case.
42. In the light of the above discussion, the present petitions are allowed with the following interim orders/directions:
a) The respondents, their men, agents, employees, agents, servants, managers, permitted assigns, successors in interest and all other persons claiming through or under them, https://www.mhc.tn.gov.in/judis 34 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 are directed to furnish details of the deposits, fixed deposits etc. including bank account number, fixed deposit details, date of the fixed deposits, withdrawals, adjustments, if any, etc., which were made by and in the name of late Mr.P.M.Maruthai Chettiar, pending disposal of the suit;
b) the Respondents 1 to 7, their men, agents, employees, agents, servants, managers, permitted assigns, successors in interest and all other persons claiming through or under them, are directed to deposit 3/5th (1/5th for each of the legal heirs) of the monies already withdrawn by them from the deposits of late Mr.P.M.Maruthai Chettiar before this Court, as detailed in the Schedule to the plaint, within a period of one week from the date of receipt of a copy of this order;
c) There shall be an order of interim injunction, restraining the respondents 1 to 7, their partners, men, servants, agents, representatives, assigns, successors in interest, licensees and/or all other persons acting on their behalf, from in any manner using/disbursing/distributing/ appropriating the amounts already withdrawn by them from the fixed deposits made by late Maruthai Chettiar, as detailed in the schedule to the plaint;
30.09.2022 Sni https://www.mhc.tn.gov.in/judis 35 A.Nos.4663 & 4664 of 2021and O.A.No.807 of 2021 in C.S.No.362 of 2021 KRISHNAN RAMASAMY.,J.
Sni Pre delivery common order in A.Nos.4663 & 4664 of 2021 and O.A.No.807 of 2021 in C.S.No.362 of 2021 30.09.2022 https://www.mhc.tn.gov.in/judis 36