Calcutta High Court (Appellete Side)
Smt. Bharati Phulki & Anr vs Smt. Kamala Bala Das & Ors on 2 November, 2017
Author: Shivakant Prasad
Bench: Shivakant Prasad
1
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
Present:
The Hon'ble Justice Shivakant Prasad
SA 36 of 2002
Smt. Bharati Phulki & Anr.
-Vs-
Smt. Kamala Bala Das & Ors.
For the Appellants : Mr. Buddhadeb Ghosal
Mr. R.I. Sardar
For the Respondents : None appears
ar
Heard on : 02.11.2017
Judgment on : 02.11.2017
Shivakant Prasad, J.
The instant appeal is directed against a judgment and decree dated 18.8.2000 passed by learned 1st Court, Civil Judge (Senior Division), Howrah in Title Appeal No. 27of 1999 affirming the judgment and decree dated 30.1.1999 passed by learned 6th Court, Civil Judge (Junior Division), Howrah in Title Suit No. 10 of 1997.
The appeal is at the instance of the plaintiffs, inter alia, on the ground that the learned Courts below have failed to consider the principle relating to nominee that the nominee has no right to deny or deprive the rights of other lawful claimants as per the law of inheritance/succession and that the learned Courts below have erred in law in holding that if the decree is granted the same would effect the contractual right with the 2 bank for getting altogether that such contractual agreement with the bank cannot take away the right of the other claimants. Accordingly, the appellants have preferred second appeal for setting aside the judgment and decree passed by the learned Courts below.
The background of the case is that the plaintiffs' father Tarapada Das, having had left behind him his heirs, viz. his wife, his two daughters i.e. the plaintiff no. 1 and the defendant no. 2 and the minor son of his predecessor daughter i.e. the plaintiff no. 2 on his death on 14.9.1994, had deposited jointly with his wife i.e. the defendant no. 1 during his life time a sum of Rs. 17,000/- (Rupees Seventeen thousand only) with U.C.O Bank, Jagadishpur Branch, Howrah, a sum of Rs. 6900/- (Rupees Six thousand nine hundread only) with the said bank and another sum of Rs. 25,000/- (Rupees Twentyfive thousand only) with sub post office, Chanditala, Dist- Hooghly as fixed deposit. The mode of operation of the said deposits being "either or survivor". It is stated in the plaint that the said Tarapada Das, since deceased having had got the aforesaid amounts as his retirement benefits as the Railway employee. The plaintiff nos. 1 & 2 have one-fourth share each in the said deposited amounts morefully described in schedule "A", "B" and "C" to the plaint. It is alleged in the plaint that in spite of approach of the plaintiffs on several occasions to the said deposited amounts amongst the legal heirs of the said Tarapada Das, since deceased, in accordance with their respective share on the ground of the immediate need of the plaintiffs, the defendant nos. 1 and 2 have flatly refused to do so and that there is an apprehension of withdrawal of the said amounts by the defendant nos. 1 and 2 and hence this suit.
The defendants contested the suit in the Trail Court by filing a written statement describing that Tarapada Das also deposited a sum of Rs. 6,000/- in the F.D.R A/c in the U.C.O Bank, Jagadishpur Branch in the district of Howrah vide A/C No. 683979 in the joint name with the defendant no. 1. The defendants further submitted that the said Tarapada Das deposited the said sum for the safety and security of the defendant nos. 1 and 2. The plaintiffs have no right over the said amount, which is lying therein. The defendants further contended that during the life time Tarapada Das gave a lot of money in cash to the plaintiff no. 1 who is the elder sister of the defendant no. 1 and gave a lot of money to Partha Sarathi Das, the plaintiff no. 2. The father of the plaintiff no. 2, namely, Hritish Baran Das being the elder son-in-law of the defendant no. 1 have free ingress and egress in the house of the defendant no. 1 getting advantage that said Hritish Baran Das i.e. the father of the plaintiff no. 2 stolen those certificates from the almirah of the defendant no. 1 and for the same a criminal case 3 has been started in the name of the father of the plaintiff no. 2 before the 5th Court of the Judicial Magistrate, Howrah under Section 379 of the I.P.C and the same is pending.
However, the plaintiff had no right to claim any share in respect of the amount deposited in the said accounts lying with the bank and post office as mentioned in schedule A,B and C of the plaint. The defendant claimed that she had 16 annas right over the said amount and had right to withdraw the same by observing the rules and regulations of the bank as well as post office. The issues were framed by the learned Trial Court relating to maintainability and cause of action and as to whether the plaintiffs are entitled to the decree for declaration and decree for permanent injunction. The issues were taken up together by the learned Trial Court and accordingly dealt with by the First Appellate Court. It has been observed that sum of Rs. 17,000/- in the name of Tarapada Das and Malati Porel is lying with the U.C.O Bank, Jagadishpur Branch, as mentioned in schedule A of the plaint with the instruction that the said account can be operated by either or survivor. Further it was found that a sum of Rs. 25,000/- was deposited in a joint account being Savings Bank A/c no. 66300441, as mentioned in schedule C of the plaint, in the name of Tarapada Das and his wife Kamala Das with the sub-post office at Chanditala with the instruction to operate the said account by either or survivor.
It is further submitted that all the money deposited in the joint name of the respondent no. 1 & 2 belongs to Tarapada who had no intention to give or gift the same to the survivor and the survivor was merely a trustee who had the right to operate the account and to withdraw the money under the law and in absence of proof there was a specific gift or that the owner of the money had a general intention to benefit the claimant. In the absence of such proof, amount under deposits will form part of the owner's estate and on his death it will be partible amongst the heirs. It is submitted that the provisions are designed only to regulate the easy operation of the account and the payment of money and do not touch the rights inter se among the depositors of right to interfere. Where it is a case of joint account in a bank and the amount is payable to either or survivor the nature of the case is treated as an exception to the general rule. This is because though be will in this case devised the entire assets of the deceased testator in favour of the appellant, inasmuch as the account was joint and the amount outstanding to its credit was payable to either or survivor. The appellant as between the bank and herself would be entitled to draw the same in her own right.
It has been observed in a decision in the case of Dalavayi Nagarajamma Vs. State Bank of India & Ors., reported in AIR 1961 Andhra Pradesh 320, where it has been held that "It is therefore clear from a 4 perusal of this judgment that the burden of proof lies upon the wife or daughter or any person in whose name the deposit is jointly taken to prove that a gift was intended or made. The mere fact that it is taken in the joint names does not lead to the conclusion that a gift was made to the other person. Evidence might be let in to the effect that where a deposit is made in the joint names of A and B by A who had advanced the money, he had made a gift to B. The intention might be manifested in various ways. A might intimate to the bank authorising or writ to B that the fixed deposit amount standing in their joint names had been gifted to or might be taken by B exclusively. A might show in his income tax returns or wealth tax returns that the deposit amount had been gifted to B and that it belongs to B alone and pay gift tax.
In all such cases, it will be clear that a conditional gift had been made that on the death of A, B would be exclusively entitled to the amount. But, if B in whose favour the gift is made happens to predecease A, it might be legitimate to hold that the gift that was made being conditional by reason of the express terms of the deposit receipt that it is payable to either or survivor, the amount reverts to A and he becomes the legal owner thereof and is entitled to payment."
The said cited decision finds affirmation in a decision of the same party by a Division Bench decision reported in AIR 1962 Andhra Pradesh 260. Where it has been held that "A deposit by a Hindu of his money in a bank in the joint names of himself and his wife or another person and on terms that it is payable to either or survivor does not on his death constitute a gift by him to the latter. There is a resulting trust in his favour in the absence of proof of a contrary intention, there being no presumption of intended advancement in favour of the other person. Therefore, on his death the amount so deposited is payable to his heirs as his absolute property : AIR 1928 PC 172 and AIR 1945 PC 10 and AIR 1942 Mad 351, Foll."
The learned Trail Court has held that "the surviving joint account-holder, the defendant nos. 1 & 2 are entitled to draw the money in their own right. Whether that money deposited in the accounts due payable to 'either or survivors' the money belonged to the estate of the person who originally supplied the money?". It was the submission before the learned Appellate Court on behalf of the respondent that the joint account was opened with the intention that either of the joint account holders or survivors would be able to operate the said account and under the terms and conditions of the said joint account of fixed deposit, the respondent had every right to operate the said account either by withdrawing the money from the said account or depositing, as the case may 5 be, as the said joint account was opened not because of the convenience alone, but with prosumed intention to benefit the survivors. This was the contention on behalf of the respondent that the surviving member or the nominee has the right to withdraw the money from the accounts in which the money has been deposited but that does not mean that the nominee or the member or the joint account holder of the account has the absolute right to take money as his own.
Learned counsel for the appellants has next referred to the decision in the case of Smt. Sarbati Devi and Anr. Vs. Smt. Usha Devi, reported in AIR 1984 SC 346 wherein it has been held, that -"A mere nomination made under Section 39 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 in accordance with the law of succession governing them."
In the cited decision the short question which arises for consideration before the Apex Court was whether a nominee of a life insurance policy under Section 39 of the Insurance Act, 1938 (Act No. IV of 1938) on the assured dying intestate would become entitled to the beneficial interest in the amount received under the policy to the exclusion of the heirs of the assured. It was held that the summary of the relevant provisions of Section 39 establishes clearly that the policy holder 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 he law of succession applicable to him. Such succession may be testamentary or intestate. There is no warrant for the position that Section 39 of the Act operates as a third kind of succession which is styled as a 'statutory testament'. The provision in sub-section (6) of Section 39 which says that the amount shall be payable to the nominee or nominees does not mean that the amount shall belong to the nominee or nominees. The language of Section 39 is not capable of altering the course of succession under law."
Learned counsel for the appellants has further referred to the decision in the case of Vishin N. Khanchandani and Anr. Vs. Vidya Lachmandas Khanchandani, reported in (2006)6 SCC 724 wherein, the question raised was 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 of all other persons, or whether the amount 6 of the certificate can be retained by him for the benefit of the legal heirs of the deceased - is the sole question which was adjudicated by the Hon'ble Apex Court and the Hon'ble Apex Court observed in the following lines:-
"12. The submission made on behalf of the appellants has no substance in view of sub-section(2) of Section 8 and the Statement of Objects and Reasons necessitating the passing of the Act. Sub-section (1) of Section 8 provides that if any payment is made in accordance with the provisions of the Act to a nominee, the same shall be a full discharge from all further liabilities in respect of the sum so paid. Section 7 of the Act provides that after the death of the holder of the savings certificates, payment of the sum shall be made to the nominee, if any, and sub-section(1) of Section 8 declares that such payment shall be a full discharge from all further liabilities in respect of the sum so paid. However, sub-section (2) of Section 8 specifies that the payment made to the nominee under Section (1) shall not preclude any executor or administrator or the legal representative of the deceased holder of a savings certificate from recovering from the person receiving the same under Section 7; the amount remaining in the nominee's hand after deducting the amount of all debts or other demands lawfully paid or discharged by him in the due course of administration. In other words though the nominee of the National Savings Certificates has a right to be paid the sum due on such savings certificates after the death of the holder, yet he retains the said amount for the benefit of the persons who are entitled to it under the law of succession applicable in the case, however, subject to the exception of deductions mentioned in the sub-section.
13. In the light of what has been noticed hereinabove, it is apparent that though the language and phraseology of Section 6 of the Act is different from the one used in Section 39 of the Insurance Act, yet the effect of both the provisions is the same. The Act only makes the provisions regarding avoiding delay and expense in making the payment of the amount of the National Savings Certificates, to the nominee of the holder, which has been considered to be beneficial both for the holder as also for the post office. Any amount paid to the nominee after valid deductions becomes the estate of the deceased. Such an estate devolves upon all persons who are entitled to succession under law, custom or testament of the deceased holder. In other words, the law laid down by this Court in Sarbati Devi Case holds the field and is equally applicable to the nominee becoming entitled to the payment of the amount on account of National Savings Certificates received by him under Section 6 read with Section 7 of the Act who in turn is liable to return the amount to those in whose favour the law creates a beneficial interest, subject to the provisions of sub-section (2) of Section 8 of the Act." 7
Learned counsel for the appellant has lastly referred to a decision in the case of Bishnupada Panda Vs. The National Insurance Company Limited & Ors., reported in 2006(2) CLJ (Cal) 662. Where it has been held "By virtue of the nomination, the nominee did not become the owner of the money. But the Insurance Company could not refuse the payment to the nominee unless the heirs of the deceased obtained an order of injunction against the nominee from withdrawing the money. It, however, the duty of the nominee to pay the amount to the heirs for unnecessarily withholding the money, the heirs have been deprived of the interest payable on the amount and at the same time, the Insurance Company has been benefited by its illegal act." Accordingly direction was given to the Insurance Company making liable to pay interest on the insured at the rate of 8% from the date of demand of the claim to the nominee.
The appellants as plaintiffs before the Trial Court filed the suit for declaration that the plaintiffs are entitled to their respective share of the estate of Tarapada Das in respect of properties described in schedule A, B and C of the plaint and also prayed for decree for permanent injunction against the defendant nos. 1 & 2 from withdrawing the money.
Having regard to the principle as laid down in the above cited decisions and having gone through the judgment of the Appeal Court below, which affirmed the decision of the learned Trial Court in Title Suit No. 10 of 1997, this Court is of the view that the nominee can only receive the money deposited in the bank but cannot claim to be an absolute owner. The money deposited with the original account should be distributed to the claimants in accordance with the rule of Succession, although under the provision of Banking Regulation Act, the nominee, after the death of the testator, may have exclusive right to receive the amount lying in the account. Therefore, the moneys in the account as mentioned in schedule A, B and C devolves according to the Rule of Succession. Admittedly, Tarapada Das and Kamala Das left behind their daughter Maya Das (since deceased) who left behind the plaintiff no. 2/Partha Das, the plaintiff no. 1/Bharati Phulki and Malati Porel. Malati Porel is the nominee of the deposited amount in the name of Tarapada Das in the bank as well as in the post office happens to be the defendant no. 2. So after collection of the money and receipt of the money so deposited in the said account, it is obligation on the part of the defendant no. 2 to distribute the amount proportionately amongst the plaintiffs and herself being the legal heirs of deceased Tarapada Das and Kamala Das. 8
Accordingly, the judgment and decree dated 18.8.2000 passed by learned 1st Court, Civil Judge (Senior Division), Howrah in Title Appeal No. 27of 1999 affirming the judgment and decree dated 30.1.1999 passed by learned 6th Court, Civil Judge (Junior Division), Howrah in Title Suit No. 10 of 1997 is set aside.
S.A 36 of 2002 is thus allowed, however, without any order as to costs.
Lower Court records be sent down at once.
Urgent photostat certified copy of this order, if applied for, be given to the parties on usual undertaking.
(Shivakant Prasad, J.)