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Krushanadas Nagindas Bhate Vs. Bhagwandas Ranchhoddas and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberA.F.O.D. No. 777 of 1966
Judge
Reported inAIR1976Bom153
ActsEvidence Act, 1872 - Sections 68, ;Transfer of Property Act, 1882 - Sections 123; Trusts Act, 1881 - Sections 81
AppellantKrushanadas Nagindas Bhate
RespondentBhagwandas Ranchhoddas and ors.
Appellant AdvocateR.W. Adik, Advocate-General and ;M.G. Das, Advs.
Respondent AdvocateP.S. Patankar, Adv.
Excerpt:
a) the court ruled that release deed was not a document that was required by law to be attested - therefore, the attesting witness was not to be examined.;b) the deposit made by a was in the joint names of himself and b that was payable to either of them or the survivor - it was held that the same was no gift of money by a to b.;c) the deposit made by a in the bank in joint names of himself and b was payable to either of them or the survivor with in the frame work of section 81 of the trusts act, 1882 - the court ruled that on the death of the one, there was resulting trust in favour of his heirs, unless facts and circumstances showed a contrary intention. - - 43 of 1945m on september 9, 1944, against ranchoddas, the father of the plaintiff, for maintenance, past as well as future, and.....vaidya, j.1. the above first appeal is filed by defendant no. 3 in special suit no. 34 of 1965, instituted by respondent no. 1 for a declaration that resdpondent 1 plaintiff was the owner of the amounts deposited by his aunt dwarkabai with the state bank of india, branch jalgaon, and the new citizens bank, branch jangaon, now merged with bank of baroda, and for an injunction restraining defendants nos. 1, 2 and 3 from claiming the said amounts.2. the plaintiff is the son of ranchoddas, the brother of lialdhar, the deceased husband of dwarkabai. defendants nos. 1 and 2 are her brothers; and defendant no. 3 is the son of the defendant no. 2. dwarkabai had filed special suit no. 43 of 1945m on september 9, 1944, against ranchoddas, the father of the plaintiff, for maintenance, past as well.....
Judgment:

Vaidya, J.

1. The above First Appeal is filed by defendant No. 3 in Special Suit No. 34 of 1965, instituted by respondent No. 1 for a declaration that resdpondent 1 plaintiff was the owner of the amounts deposited by his aunt Dwarkabai with the State Bank of India, Branch Jalgaon, and the New Citizens Bank, Branch Jangaon, now merged with Bank of Baroda, and for an injunction restraining defendants Nos. 1, 2 and 3 from claiming the said amounts.

2. The plaintiff is the son of Ranchoddas, the brother of Lialdhar, the deceased Husband of Dwarkabai. Defendants Nos. 1 and 2 are her brothers; and defendant No. 3 is the son of the defendant No. 2. Dwarkabai had filed Special Suit No. 43 of 1945m on September 9, 1944, against Ranchoddas, the father of the plaintiff, for maintenance, past as well as future, and for recovery of her Stridhan ornaments. The matter came to this Court in First Appeal No. 313 of 1947. Dwarkabai succeeded in getting a decree. The plaintiff's father paid Rs. 9,000/- as past maintenance to Dwarkabai, Rs. 16, 995/- for ornaments, and Rs. 175/- per month as future maintenance and a house for her residence in accordance with that decree. She died on September 17, 1965.

3. After her death, the house was given in the possession of the plaintiff by the defendants. But while she was living in the house which was given to her, she was acting on the advice of her brothers, defendants Nos. 1 and 2, and defendant No. 3, the son of defendant No. 2. the defendants were in a position to dominate her will as they were her nearest and dearest relatives. Though the defendants ordinarily resided at Dharangaon, one of them was constantly living with Dwarkabai at Jalgaon. Despite efforts made by the plaintiff and his family members, to maintain cordial relations with her, she frustrated the efforts and was not on good terms with them. In these circumstances, taking advantage of the dominant position which the defendants had over Dwarkabai, they made her deposit Rs. 10,000/- with the State Bank of India in the Savings Bank account at Dharangaon Branch, in the joint names of herself and defendant No. 3.

4. Copy of an application, dated February 23, 1965, Exhibit 46, which is on record is the application in a printed form typed in English. It bears the signature of defendant No. 3 and the right hand thumb-impression of Dwarkabai. One of the printed materials in that application is:-

'When the account is to be in the names of two parties insert 'either: or 'both: if in the names of three or more parties insert 'any one' 'any two' or 'all' as the case may be.'

The word 'either' is inserted in English in the declaration which runs as follows:-

'We declare that the State Bank of India Savings Bank Rules have been read by/to us and that we accept them as binding upon us. We also declare that we have no Savings Bank Account at any other office of the Bank. We further declare that the balance of our account will be payable to either of us in terms of rule 2.' It is not clear from the declaration whether this declaration and the relevant Bank rule was read out and/or explained to Dwarkabai as neither the word 'by' or 'to' is struck off in the declaration.

5. At Exhibit 47 is the Savings Bank Account Book issued by the State Bank of India in the joint names of defendant No. 3 and Dwarkabai, with an endorsement on the front cover of the pass-book as well as on the first page made by the Agent in red ink showing that the amount was payable to either or survivor. Savings Bank Rules are printed in the Pass-Book. Rule 2 deals with joint accounts and runs as follows:-

'2. Accounts may be opened in the joint names of two or more approved persons (not being minors) to be payable to-

(i) Both or all of them or to the survivor of them. or

(ii) either or any one or more of them or the survivor or survivors of them.

An account so opened will, in the event of any one or more of the account-holders dying, become payable to the survivor or survivors without reference to the representatives of the deceased person or persons.

In the case of (ii), if payment of an account is at any time forbidden by any one or more of the account-holder, the account will only be payable on the discharge of all the account-holders or the survivor or survivors of them.'

6. It is the case of the plaintiff that in spite of the Rule and the manner in which the account was opened at the State Bank of India, Branch Dharangaon, the amount was of the exclusive ownership of Dwarkabai; at her death; and that under the pressure of defendants Nos. 1 & 2 she was compelled to open this account in the joint names of herself and defendant No. 3. The plaintiff averred that this amount was never gifted orally or in any manner to defendant No. 3 was not at all entitled to withdraw any amount from the State Bank of India. and the said amount, which was part of the estate of the deceased Dwarkabai, devolved on the plaintiff as the karta of his family and her undisputed nearest heir according to Hindu Law. The plaintiff also claimed exclusive ownership as the Karta of his family of the amounts in deposit with the Citizens Bank of India, Branch Jalgaon, exclusively in the name of Dwarkabai, with which we are not concerned in this appeal.

7. Defendants Nos. 1 to 3 resisted the suit. But we are now concerned in this appeal only with the contentions of defendant No. 3. He submitted that before the opening of the account, the deceased Dwarkabai had gifted voluntarily her own amount of Rs. 10,000/- to him orally; and after opening of the account she had passed a receipt to that effect. In the alternative, he also contended that the amount was bequeathed to him out of natural love and affection; and it was, in any event, a gift by way of Donation Mortis Causa. he and other defendants denied that there was any pressure brought on Dwarkabai and contended that the plaintiff's suit must be dismissed.

8. The learned Civil Judge framed eight issues. The plaintiff examined himself and one Sharadchandra Kashinath, and employee of the New Citizens Bank of Baroda, who stated that the balance in the account of Dwarkabai was only Rupees 40.22 paise. The plaintiffs produced at Exhibit 36, notice of the stay of payment which he had sent to defendants Nos. 1 and 2, on September 20, 1965, the reply (Ex. 37) dated September 24, 1965 and also a copy of the notice (Ex. 37) sent to the Agent of the State Bank of India at its branch at Dharangaon not to pay the amount of Rs. 10,000/- to defendants Nos. 1 and 2.

9. Defendants Nos. 1 and 2 did not lead any oral evidence. They merely produced the original notice sent by the plaintiff at Exhibit 39 and a copy of their reply at Exhibit 40. Defendant No. 3 examined himself and a witness Dattatraya Laxman Bhave, an employee of the State Bank. He produced Exhibit 47 which has been already referred to above, defendant No. 3 produced a writing dated February 23, 1965 in the form of a letter with the list (Ex. 26) at Serial No. 3, which purported to be letter Court as an unstamped document of a release-deed, by which Dwarkabai relinquished her rights in the Saving Bank Account with the State Bank of India at its Branch at Dharangaon.

10. The learned Civil Judge held that the said document was inadmissible in evidence as it was not stamped in accordance with law and defendant No. 3 failed to examined either of the two attesting witnesses who had signed the document. He held that defendants Nos. 1 and 2 abused their dominating position and gained advantage of Dwarkabai. Relying on certain decisions referred to by him in the course of his judgment, the learned Civil Judge came to the conclusion that although there was a joint account opened by Dwarkabai and defendant No. 3, after the death of Dwarkabai, the plaintiffs, who was the nearest heir of the deceased Dwarkabai, and ordered that the defendants shall be permanently restrained from withdrawing the amounts deposited by Dwarkabai in the joint name of herself and defendant No. 3 in the State Bank of India, branch Dharangaon and the amount deposited by her in her name with the Baroda Bank, Branch Jalgaon, with an order to them to bear the plaintiff's costs of the suit. The judgment and decree are challenged in the above First Appeal by defendant No. 3 alone.

11. The ground urged by the learned Advocate-General, appearing for defendant No. 3, the appellant, was that the learned Civil Judge erred in law in holding that the document Ext. 26/3 was release-deed. there is no merit in this contention. The document is in Marathi. The original document is not sent by the lower Court to this Court, though it ought to have done so. However, it is translated by the parties who admitted that it is as under:-

'Shri

Chiranjeve Nagindas Bhate, resident of Dharangaon, Many blessings. Today on 23-2-1965 the amount of Rupees 10,000/- kept in the joint account to you and mine in the State Bank of India, Dharangaon, that amount I have already given you by an oral gift and which you have accepted. For my satisfaction the account is opened in joint name, that amount you being the owner, have got absolute right to withdraw.

Dated 23-2-1965.

L. H. T. I. of Dwarkabai w/o Liladhar Bhate.

Scribe: Chhogalal Chunnilal Pardeshi r/o Dharangaon

Witness: 1. Gulabdas Kisandas Bhatia.

2. C. M. Gujarathi.'

It is manifest that this document purports to have been executed after opening the joint account in the State Bank of India.

12. Article 55 of the Indian Stamp Act, is as follows:-

It is undisputed that the letter is not stamped. As required by Art. 55 of the Stamp Act, though it is in the form of a letter it must be considered to be an instrument whereby Dwarkabai renounced her claim against the amounts standing in the joint account with the State Bank of India. We are, therefore, of the opinion that the learned Civil Judge was quite right in impounding this unstamped document and in ignoring it altogether as it was not stamped as required by law.

13. In view of the above conclusion it is really unnecessary to deal with the second ground urged by the learned Advocate-General that the learned Civil

Description of Instrument Proper Stamp Duty55. RELEASE, that is to say, any instrument (Not being such a release as is provided for by Section 23-A whereby a person renounces a claim upon another person or against any specified property-(a) If the amount or value of the claim does not exceed Rs. 1,000/-(b) in any other caseThe same duty as a Bond (N0. 15) for such amount or value as set forth in the Release.Fifteen rupees.

Judge erred in holding that the execution of Exhibit 26/3 by Dwarkabai was not proved by defendant No. 3. Section 35 of the Stamp Act lays down that-

'No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped.'

It is, therefore, unnecessary to decide whether the execution of the document was proved by defendant No. 3.

14. The learned Advocate-General is, no doubt, right in his submission that the learned Civil Judge erred in law in applying the provisions of Section 68 of the Indian Evidence Act which apply only if a document is required by law to be attested. There is no law which requires a document like Exhibit 26/3 to be attested. There is also some force in the contention of the learned Advocate-General that the learned Civil Judge erred in holding that the execution of the document was not established by defendant No. 3, inter alia, because he did not specifically state in his deposition that the thumb-impression of Dwarkabai was on the deed at a particular spot.

15. It is, no doubt, true that the learned Civil Judge who had the advantage of hearing and seeing the witness observed that defendant No. 3 did not specifically state that the thumb-impression which was on Exhibit 26/3 was that of Dwarkabai. The deposition of defendant No. 3 does not contain any such express statement. This, however, appears to be taking too technical a view of the matter, as defendant No. 3 has stated in his evidence:-

'When I reached the house Chhogalal and Chunilal Gulabdas were in the house. Dwarkabai told in the presence that she is to pass a receipt so that there may not be any difficulty in withdrawing the amount. Accordingly she wrote the said chit. Accordingly the receipt was written. Chhogalal wrote this receipt. On the receipt Dwarkabai affixed her thumb-impression. I, Chhogasing, Gulabshet, my uncle, and Gulabdas Kishandas were present when she affixed the thumb-impression on the said receipt. The receipt was with me, since the execution.

However, all this does not help defendant No. 3 in any way because, as already pointed out above the document is inadmissible for any purpose.

16. Besides, the learned Judge was right is disbelieving this interested and uncorroborated story of defendant No. 3 as he failed to examine either of the said attesting witnesses or any one else who was present when the document was executed. 'Though the examination of these witnesses was not necessary under Section 68 of the Indian Evidence Act as held by the learned Civil Judge, it was the duty of defendant No. 3 to produce the best evidence available. We find that defendant No. 3 relied entirely on his own interested oral testimony and the alleged thumb-impression of Dwarkabai on this document for establishing the oral gift of the amount to him. Further, in the cross-examination, though defendant No. 3 denied that Exhibit 26/3 was a bogus and fabricated chit, he admitted that he and Dwarkabai had both gone to the bank for opening the account after the alleged oral gift.

17. His cross-examination reads:

'Q. When she had gifted you Rupees 10,000/- what was the necessity for opening the joint account to please her?

A. (The witness has not replied the question).

Q. When the receipt by Dwarkabai was passed for having no difficulty to withdraw the amount, why this receipt is not kept with you even after the death of Dwarkabai?

A. After her death there was no necessity to withdraw the money. Therefore, the receipt is with me. I do not remember to have gone to Dharangaon after the death of Dwarkabai.'

The suggestions of the plaintiffs was that taking advantage of some blank piece of paper with the thumb-impression of Dwarkabai, the defendants fabricated Exhibit 26/3, and the receipt and the pass-book were both kept with Dwarkabai after opening of the account.

18. It is rather strange that defendant No. 3 was unable to answer the question as to why if there was a gift of Rs. 10,000/- as stated by the defendants, there was a necessity for opening an account in the name of Dwarkabai as well as of defendant No. 3; and why he parried the question regarding the receipt. The document becomes more suspicious when we find that it was not even referred to in the reply which was sent to the notice sent by the plaintiff to defendants Nos. 1 and 2.

19. The learned Civil Judge, who had the advantage of seeing and hearing the witnesses, has observed in paragraph 16 of his judgment:-

'Admittedly defendants Nos. 1 and 2 are natural brothers of Dwarkabai. She was a widow and she had filed a suit against her husband's family. In view of the above circumstances, and in view of the relations between Dwarkabai and her brothers, it can be easily inferred that she had no other independent person to have a fair advice. She was illiterate, and as such defendants Nos. 1 and 2 were in a position to dominate her will, and undue influence by defendant Nos. 1 and 2 was possible. It is an admitted fact of the parties that the deposit of Rs. 10,000/- at the State Bank of India. Branch Dharangaon is in the name of Dwarkabai and defendant No. 3. Defendant No. 3 is the son of Defendant No. 2. Taking into consideration the relation, it can be presumed that the defendants had administered undue influence on Dwarkabai.'

We find no reason to differ from this proper view taken by the learned Civil Judge regarding the conduct of the defendants in opening the account with the State Bank of India and in taking the alleged document (Ex. 26/3).

20. Even if we assume that it is not a release deed, but it was merely a letter declaring the fact of the gift of Rs. 10,000/-, as contended by the learned Advocate General on behalf of the defendants, we find that defendant No. 3 has not even established the essentials of a gift as defined in Section 122 of the Transfer of Property Act, 1882, as there was no transfer of Rs. 10,000/- in pursuance of this letter. it has come into existence after the opening of the joint account in the names of Dwarkabai and defendant No. 3. Section 122 defines a gift as a transfer of certain existing moveable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the done, and accepted by or on behalf of the done. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the done dies before acceptance, the gift is void.

21. In the present case, apart from his own interested word defendant No. 3 did not care to produce any other evidence though such evidence was available according to his story of the alleged two attesting witnesses to the document, Exhibit 26/3. Moreover, the contents of the document are self-contradictory, inasmuch as if there was an oral gift as alleged, it is difficult to understand what the letter means by saying 'for my satisfaction the account is opened joint name' and why it declared when the joint account was to be operated either by Dwarkabai or by defendant No. 3 or by survivor, that the amount would be owned by defendant No. 3 and defendant No. 3 had an absolute right to withdraw it.

22. It is true that the plaintiff has not been able to establish that the Passbook and the receipt were retained by Dwarkabai; but it is an undisputed fact that no amount was ever withdrawn fact that no amount was ever withdrawn either by Dwarkabai or by defendant No. 3 from the joint account till the filing of the suit. The document, Ext. 26/3 becomes very suspicious because it is difficult to conclude as to why if there was an oral gift, Dwarkabai would personally go to the State Bank with defendant No. 3 to open a joint account as admitted by defendant No. 3 himself.

23. Further under Section 123 of the T. P. Act, for purposes of making a gift of moveable property, the transfer may be effected, wither by a registered instrument signed as aforesaid or by delivery. It is true that the document does not purport to be an instrument of transfer. It is in the nature of a letter acknowledging an oral gift. Hence, it may be, that it was not required to be registered. But is impossible to consider the recitals in Exhibit 26/3 as sufficient to show that defendant No. 3 has accepted the amount, when in fact that amount was in the deposit in the joint account of defendant No. 3 and Dwarkabai in the bank and the Bank could pay to either of them or to the survivor. There was, therefore, no acceptance of the alleged gift of Rs. 10,000/- as the amount continued to be in the bank and was always withdrawable by Dwarkabai herself under the rules of the bank which are referred to above.

24. The learned Civil Judge is also quite right in holding that there was no evidence to the effect that the Pass-book (Ex. 47) was handed over to defendant No. 3 from its beginning at the instance of or at the request of Dwarkabai. Under these circumstances he was right in holding that there was no evidence that Dwarkabai has either made a gift or a request to defendant No. 3 by the document (Exhibit 26/3) or by any other mode. There is no evidence of acceptance on the record apart from his interested word, which cannot be believed without corroboration, in the face of the joint account with the Bank.

25. Lastly, it was contended by the learned Advocate-General that as the amount in the joint account was payable either to Dwarkabai or to defendant No. 3 or survivor and as defendant No. 3 or survivor and as defendant No. 3 survived Dwarkabai, it was he that was entitled to recover the amount from the Bank and not the plaintiff as the heir. The learned Civil Judge negatived this contention made before him relying on the decision in Mrs. T. C. Paul v. Nathaniel Gopal Nath, : AIR1931All596 , which was based on the decision in lakshmiah Chetti v. Kothandrama Pillai, , where it was laid down, that, in India, the principle of English law that when a property is purchased in the name of a wife or a deposit is made in the wife's name, it would be presumed that the purchase or deposit was intended for her advancement, does not hold good.

26. In Mrs. Paul's case, one Mr. Hope, before his death, deposited certain amounts in the bank, and the deposits were in the following terms: 'Mr. and Mrs. Hope payable to either or survivor'. Mr. Hope kept with himself the deposit certificate and bank receipts; and they had not been handed over to Mrs. Hope. It was held that there was no gift in favour of Mrs. Hope; and she could not will away the amount deposited.

27. The learned Advocate-General submit that in the present case there was no question of any presumption of advancement as the relation between Dwarkabai and defendant No. 3 was one of natural love and affection between her and her brother's son. He contended that in view of the evidence of defendant No. 3 and the declaration made by Dwarkabai in her letter (Ex. 26/3) it must be held that although the account was a joint account and the amount was payable either to Dwarkabai or to defendant No. 3 or survivor, Dwarkabai intended to complete her gift to defendant No. 3 of the amount in the joint account. he submitted that Dwarkabai had admittedly strained relations with the plaintiff and the members of the family of the plaintiff and the members of the family of the plaintiff as she had to fight a litigation upto this Court to get the amount for her maintenance, and therefore, having recovered the amount, she could never have intended that the amount should go to anyone other than her brother's son who was living with her and for whom she had great love and affection.

28. The argument though plausible must be rejected because, in the first place, as already stated above, Exhibit 26/3 cannot be looked at for any purpose; and secondly, in respect of a joint account opened in the bank, the law seems to be well settled that on the death of one, there is a resulting trust in favour of his heirs and legal representatives, unless there are special facts and circumstances to show a contrary intention. Thus in: Guran Ditta v. Ram Ditta 55 Ind App 235 : AIR 1928 PC 172, a deposit by a Hindu of his own money in a bank in the joint names of himself and wife, and on the terms that it was to be payable to either or the survivor, was held by the Privy Council as not amounting to a gift by him to his wife. The Privy Council laid down:-

'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 wife.'

29. Similarly in Shambhu Nath v. Pushkar Nath , which was also a case of deposit by a Hindu of his money in Bank in joint names of himself and his wife, and on terms that it was payable to either or survivor once again the Privy Council affirmed the ratio in Guran Ditta v. Ram Ditta AIR 1928 PC 172 and observed:

'The rule however is not confined to assets in the joint names of the deceased man and his wife. It is conceded that it is of universal application whatever the property and whatever the relationship. It was common ground, therefore, before their Lordships that it was for respondent to establish a contrary intention. If he succeeded in doing so he kept the assets standing in the joint names of the deceased and himself. If not, those assets must be included in the partible property.'

Although the above observations are based on a concession made at the Bar, the concession itself seems to be consistent with the established law.

30. In Chorley's Law of Banking Sixty Edition, 1974, the law is stated thus at page 195:

'Once of the most important features of joint ownership is that, in the absence of contrary provision, on the death of one of the joint owners his rights pass to the other joint owners and not to his personal representative (Executor or administrator). According to this rule, the rights of a joint party in a banking account pass on death to the other joint parties. The rule is not, however, a rigid one, and if it can be shown that the intention of the parties at the time of opening the account was that it should not apply, effect will be given to this intention; and this, as we have just seen, should be provided for in the terms of the mandate. Further, the tendency of the Court in modern times has been against the doctrine of survivor-ship.' (Underlining is ours).

31. Similarly in Paget's Law of Banking, Eighth Edition 1972, it is observed at page 32:-

'The rule of survivorship may be overridden by equity. there are a number of cases in which, while the rule has been admitted, equity has been brought in to mitigate what was considered to be a hardship. ............ The Construction of a joint deposit account contract was considered by the House of Lords in McEvoy v. Belfast Banking Co. (1935) AC 24. The father of the plaintiff (shortly before the former's death) transferred $ 10,000 out of his own name into that of his and his son's names in the belief that he could thereby properly avoid death duties. The son was a minor at the time, Lord Atkin took the view that the contract with the bank was made by the father for himself and for his son and that if the latter had ratified, he would have made himself a party to the contract. Lords Warrington and Macmillan did not expressly deal with the point; Lord Thankerton took the view that the son was not a contracting party and therefore, that the bank was justified in paying the father's executors.'

32. In Re Giggis, Roberts v. Maclaren (1969) 1 Ch 123, Magarry, J., while dealing with the joint account of husband and wife, dealt with all the cases of the English Law applying the presumption of advancement to the wife in the circumstances of the case and after discussing a decision of the High Court of Australia in Russell ,v. Scott (1936) 55 CLR 440, observed at page 149:-

'It may be that the correct analysis is that there is an immediate gift of a fluctuating and defeasible asset consisting of the chose in action for the time being constituting the balance in the bank account. But whether that is right or wrong (and the subject is worthy of academic disputation), I am happy to regard it as a problem that I need not attempt to resolve in this case.'

33. In view of his position in law, it cannot be said that what was conceded before the privy Council was inconsistent with law. We are of the opinion that it will ordinarily depend on the facts and circumstances of the case relating to the opening of the account showing the intention of the parties. If from the facts and circumstances of the case it could be held that the intention was to make the survivor the owner of the amount lying in the account, then he, and not the heirs, would be entitled to recover the amount. If the facts and circumstances of the case do not establish any such intention, although the holder of the joint account may be authorised to withdraw the amount, he would be bound to restore that amount to the heirs and legal representatives of the deceased joint holder. The bank may be discharged by payment to the survivor. But the survivor may, in the absence of an intention to make him the owner, be accountable to the heirs of the deceased joint holder.

34. That is why Halsbury's Laws of England, Fourth Edition, 1973, at page 36, paragraph 44, the law is stated as under:-

'Where a person deposits money with a bank in the names of himself and another with instructions that it is to be payable to either or the survivor, the other's right against the bank depends on whether the depositor purported to make the other a party to the contract; if the depositor did so, then he must have had authority to act as the other's agent. If there was no such authority the bank would not be under obligation to the other party unless the latter ratified the contract. The bank's obligation to joint depositors on a current account is a joint obligation for which the right to sue is joint, and not an individual right of each depositor. If on the death of either party, the joint current account is overdrawn, the survivor will be liable for the whole debt. Where the money is in the name of husband and wife, the position on the husband's death may depend upon the reason for setting up the joint account.'

35. In the present case, we find no facts and circumstances which establish the intention on the part of Dwarkabai whose money was deposited in the joint account, to indicate that she intended to make defendant No. 3 the owner of the amount in the event of his surviving her. The case of defendant No. 3 in fact is that there was an oral gift prior to the opening of the account which was subsequently acknowledged in the letter Exhibit 26/3. We have held that there was no such gift, and that Exhibit 26/3 is itself inadmissible in evidence. We also agree with the finding of the learned Civil Judge that the uncorroborated testimony of the plaintiff cannot be accepted as true in the facts and circumstances of the case.

36. It must be, therefore, concluded that there is nothing before us to show that Dwarkabai intended to make defendant No. 3 the owner of the amount in the joint account in the event of her death though he may have an authority to withdraw the amount. The heirs of Dwarkabai are, therefore, entitled to the ownership of the amount.

37. The view of the law which we are taking is supported not only by the aforesaid decision of the Allahabad High Court in Mrs. T. C. Paul's case, : AIR1931All596 , based on the decision of the Privy Council in Lakshmiah's case, but also by a decision of a Division Bench of this Court in Keshavlal Tribhovandas v. Bai Dahi : AIR1943Bom7 where following Guran Ditta's case AIR 1928 PC 172 this Court laid down 'that the mere fact that the deposit was made in the name of the wife did not show that a gift to her was intended'. There is also a Division Bench decision of the Andhra Pradesh High Court in: Nagarajamma v. State Bank of India, : AIR1962AP260 , where the facts were somewhat similar to the facts in the case before us. It was 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; and therefore, on his death the amount in deposit is payable to his heirs as his absolute property.

38. The contention of the learned Advocate-General, that the form of opening of the Account and the Rules of the joint account of the State Bank of India made the survivor, defendant No. 3, the absolute owner of the amount lying in credit in that account, must, therefore, be rejected.

39. No other ground was urged in support of the appeal.

40. The judgment and decree of the learned Civil Judge are affirmed. The First Appeal is, therefore, dismissed.

41. In the circumstances of the case, parties to bear their own costs in this Court.

42. Appeal dismissed.


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