Calcutta High Court
Smt. Dipali Biswas And Ors. vs Reserve Bank Of India And Ors. on 27 January, 2006
Equivalent citations: AIR2006CAL137, AIR 2006 CALCUTTA 137, 2006 AIHC NOC 273 (2006) 3 BANKJ 168, (2006) 3 BANKJ 168
Author: Sengupta
Bench: Sengupta
ORDER Sengupta, J.
1. This is an application for judgment upon admission, taken out by the plaintiffs in a suit for declaration that the plaintiffs are entitled to the amounts lying with the Reserve Bank of India, Kolkata and Allahabad Bank, Main Branch, Kolkata for payment of Rs. 60,00,000/- stated in paragraph 26 herein and such other amount or amounts as are found to be lying in the name of Shanti Biswas on discovery of assets and monies of Late Shanti Biswas.
2. The short fact of the case made out in the plaint is that the plaintiffs are the heirs and legal representatives of one Shanti Biswas, since deceased, who died intestate. The first plaintiff is the wife of the said deceased and the second plaintiff is the widow daughter of the deceased, third plaintiff is also the widow daughter of the deceased plaintiff.
3. According to the plaintiffs, the business was looked after by her husband on the strength of power of attorney, and from the income of the said business the late husband of the plaintiff No. 1 has diverted fund and invested during his lifetime in the 8 1/2% yielding interest Reserve Bank Bond. The said bond was procured in the joint name of the deceased and the defendant No. 2 'either or survivor' basis. The aforesaid facts are admitted. Similar investment was made in the defendant No. 3.
4. The amount invested in the said bond was around Rs. 60 lakhs. According to the plaintiffs, Late Shanti Biswas did not have his own individual income. It was the income, in real sense, of the business of the first plaintiff.
5. Shanti Biswas died as stated above. Now the question has come up in the suit as to whether the corpus lying in the Reserve Bank bond and the income fetched therefrom and other investment arc liable to be declared in favour of the plaintiffs or not in ordinary law or in succession. In view of death intestacy all assets are properties standing in the name of the said Shanti Biswas would have devolved automatically upon the plaintiffs in their equal shares.
6. In this suit interlocutory application has been taken out and necessary interim order of Injunction has been passed restraining second defendant from enjoying income from the aforesaid bond or other investment. In the affidavit-in-opposition filed in the said interlocutory application, the second defendant had stated on oath that:
4) The said sum of money belonged exclusively to Late Shanti Biswas. The plaintiff had or has no right or control over such amount of money. Late Shanti Biswas lost his trust and faith on the plaintiff. Accordingly no amount of money was kept in the name of the wife by late Shanti Biswas. I being one of the bond holder in all the said negotiable instruments is entitled to the sum of money as guaranteed in each of the bonds or securities the particulars of which are given herein above.
7. The plaintiffs have taken out this application describing the aforesaid statement and averment made on oath are to be admission and which is good enough to write a final judgment thereupon and to pass a decree accordingly.
8. Mr. Panja, learned Senior Advocate, while supporting this motion contends that the admission of beneficial ownership of the said corpus of investments of Reserve Bank of India and Allahabad Bank is unequivocal as the same did belong to Shanti Biswas. On the death of Shanti Biswas, the plaintiffs being the admitted heirs and legal representatives, falling under Class 1 of the Schedule of this Hindu Succession Act, 1956, are entitled to the exclusion of other heirs. The defendant No. 2 is the brother of the said deceased and by no stretch of imagination, he can inherit. The scheme mentioning "either or survivor" in the Bank Investment has no legal impact as far as rule of succession is concerned.
9. In support of his submission, he has relied on a decision of Supreme Court and also a decision of Kerala High Court . He contends that the words used 'either or survivor' in the Reserve Bank bond or Allahabad Bank bond do not confer any beneficial ownership of the corpus to the survivor. He is really the trustee of the entire fund on death of Shanti Biswas. As such, his contention and claim to this amount is wholly unjustified under the law.
10. Mr. Jayanta Mitra, learned Senior Advocate, ori the other hand contends that the suit has been filed for declaration that the plaintiffs are the owners of the aforesaid funds. If the statements made in the affidavit-in-opposition is carefully read and examined it will appear that no admission has been made by the defendant. No. 2 that the plaintiffs are the owners of the aforesaid funds rather it is stated that the defendant No. 2 on death of Shanti Biswas is the absolute owner of the aforesaid corpus of the bonds, securities and other investment. He further contends that the admission has to be accepted as a whole, it cannot be dissected nor can be truncated in order to get a judgment upon admission. If the statement is taken in its entirety, there is no admission at all. He is candid enough to say that the money really belonged to Shanti Biswas exclusively and he had no trust and confidence in his wife nor his daughters. As such the aforesaid bond was purchased in the name of both the persons on the basis of 'either or survivor'. He has drawn my attention to the relevant paragraphs of the aforesaid two judgments and submitted that the law laid down therein is clear enough to show that if no contrary is proved then presumption is that Shanti was the real owner of the fund but his client is in a position to prove that it was the desire and intention of the said deceased that after his death the entire money will come to the hands of his client and it absolutely belonged to him on his death, not as trustee.
11. I have considered the respective contention and rival contention of both the parties. Before I go into the aspect of the matter it would be apposite to reproduce the provisions of Order 12, Rule 6 of the Code of Civil Procedure. Which is as follows :
Judgment on admissions :- (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under Sub-rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the Judgment was pronounced.
12. On plain reading of the aforesaid provision, it is clear that while entertaining the application of this nature, the Court is not bound, to pass the judgment on admission, but the Court can pass such order or render such judgment as it thinks fit having regard to such admissions.
13. The statement made in the affidavit-in-opposition on oath is no doubt an admission, which can be taken note of by the Court in entertaining this application as the statement has been made in writing. It is the settled position of law that the admission must be unequivocal and unconditional and the statement which is purported to be described an admission, must be taken as a whole, it cannot be dissected or bifurcated. But as I have already observed that the judgment and order must be according to the nature of the statement made. So while analysing the statement, I find second defendant has said that the said Shanti was the exclusive owner of the fund, but the plaintiffs' claim that the fund really belonged to the business of the first plaintiff is not admitted. I think these issues are required to be tried on evidence.
14. Had Shanti been alive perhaps no order could be passed. But in view of death of Shanti, taking the face value of the aforesaid statement, Shanti was admittedly to be the owner of the corpus of the fund of the said bond. On his death intestacy the properties must have devolved upon the heirs and legal representatives, namely, the plaintiffs herein. But in case of a bond, with the scheme of 'either or survivor', the succession will not be automatic in accordance with the Rule of Succession. It has to be examined what is the implication in law in case of investment with the words 'either or survivor'. The judgment upon admission is to be passed taking note of the relief claimed in the plaint also. There has been no admission on the part of the defendant No. 2 that the plaintiffs are the owners of the said corpus and it is clear from the latter portion of the admission which is quoted as follows :
I being one of the bond holder in all the said negotiable instruments is entitled to the sum of money as guaranteed in each of the bonds or securities the particulars of which are given hereinabove.
15. Hon'ble Supreme Court in its decision cited by Mr. Panja, had examined and ruled on legal implication of "either or survivor" :
23. In Guran Ditta v. Ram Ditta ILR 55 Cal 944 : AIR 1928 PC 172, the Judicial Committee held that the deposit made by a Hindu of his money in a bank in the joint names of himself and his wife, and on the terms that it is to be payable to either or the survivor, does not on his death constitute a gift by him to his wife. There is a resulting trust in his favour in the absence of proof of a contrary intention, there being in India no presumption of an intended advancement in favour of a wife. The same view was expressed by the Judicial Committee in Pandit Shambhu Nath Shivpuri v. Pandit Pushkar Nath .
16. In the decision of the Kerala High Court relied on by Mr. Panja the learned single Judge of that Court while relying on the Supreme Court decision observed in paragraph 6 as follows :
From the above discussion the following propositions emerge :
(i) A deposit made by a Hindu of his money in the joint names of himself and his wife or any other person, on the terms that it is payable to either or survivor, does not on his death constitute a gift by him to the other person.
(ii) In such a case without any declaration of trust, there is a resulting trust in favour of the depositor in the absence of any contrary intention or unless it can be proved that an actual gift of the amount was intended.
(iii) The principle of English Law that a gift to a wife is presumed, where money belonging to the husband is deposited at a Bank in her name or where a deposit is made, in the joint names of both husband and wife has no application in India. In other words, there is no presumption in India of an intended advancement as there is in England.
(iv) The burden of proving a contrary intention or gift is on the person who seeks to rebut the resulting trust in favour of the person who makes the deposit.
(v) This burden could be discharged either by proving that there was a specific gift or that the owner of the money had a general intention to benefit the claimant and that it was in pursuance of that intention that he made the deposit in the claimant's name or transferred the deposit to the joint names of himself and the claimant.
(vi) In the absence of such proof the amount under the deposit will form part of the owner's estate on his death and will be partible among the heirs.
17. Therefore, going by the aforesaid enunciation of law and having regard to the statement and counter-statement made in this petition on affidavit, I think it would be unsafe for the Court to pass judgment on the statement as claimed by the plaintiffs/ petitioners in the summons, for it has been stated in the admission that on death the money will go to the survivor, namely, Shri Jaga Biswas. According to me, mere statement will not do. There must be some proof in addition thereto. No such proof has been adduced. There has been a resulting trust on death of Shanti Biswas regarding above fund can be presumed, but such presumption is rebuttable and this can be reubtted with proof either oral or documentary or both, at the time of trial of the suit. If, without giving an opportunity to the second defendant to prove that on death of Shanti, investment was given to him absolutely by Shanti and to rebut the said presumption, I straightway pronounce judgment in favour of the plaintiffs as asked for will not be justice to the cause. There may be two situations - (i) the money on death of Shanti will be held by Jaga as trustee to distribute amongst the heirs, or (ii) on death of Shanti the money will come to him absolutely as a gift. It is very difficult to understand the mind of Shanti at this stage without any evidence. But at the same time, the plaintiffs should not be deprived of the enjoyment of the money, and some measure has to be adopted at this interlocutory stage so that both parties' interest are protected, as the provision of Order 12, Rule 6 empowers the Court to pass such order as it thinks fit.
18. Accordingly, I direct the Reserve Bank of India to make over the half yearly interest amount payable in favour of the plaintiffs on the plaintiffs' furnishing jointly or severally bank guarantee(s) of the equivalent amount in favour of the Registrar, original side on each occasion. If such bank guarantee(s) is/are furnished the plaintiffs will be entitled to enjoy the interest so to be fetched from the aforesaid bonds. This/these bank guarantee(s) shall remain valid in the event furnished, by way of periodical renewal till the disposal of the suit. In default of furnishing bank guarantee(s) there will be no order on this application. In case of non-renewal, bank guarantee(s) is/are to be encashed and invested in short term fixed deposit in Standard Chartered Bank, Church Lane Branch and keep the same renewed till the disposal of the suit.
19. It is made clear that operation of this order will have prospective effect.
20. This application is thus disposed.
21. All parties concerned are to act on a signed copy of the operative portion of this judgment and order.