1. This is the plaintiff's first appeal from, a decision of the learned Additional Subordinate Judge, Cuttack whereby he dismissed the plaintiff's suit for a declaration that she is the absolute owner in respect of certain Cash Certificates and Fixed Deposit Accounts mentioned in the plaint and that the defendants 1, 2 and 3 are mere benamidars of the plaintiff in respect of the same, in the circumstances hereinafter stated,
2. The facts are few and sample; the plaintiff Miss Sailabala Das,--a social worker, aged 82 years at the time of the institution of the suit--is a resident of Cuttack Town. The defendant No. 1 Jitendra Kumar Hazra, is the plaintiffs brother and defendants 2 and 3 Ananda Kumar Hazra and Sudhangsu Kumar Hazra are the sons of defendant No, 1 Jitendra Kumar Hazra, all residents of Calcutta. The suit relates to two Fixed Deposit Accounts,--both in the United Bank of India Ltd., Cuttack Branch, defendant No. 4 (hereinafter referred to as the Bank), namely,--one in the name of the defendant Jitendra Kumar Hazra for the sum of Rs. 5000/- and the other in the name of the defendant Ananda Kumar Hazra for the sum of Rs. 2000/-, and the suit also relates to five cash Certificates in, the said Bank, namely two in the name of the defendant Sudhangsu Kumar Hazra for Rs. 2000/- each, one in the name of the defendant Ananda Kr. Hazra for Rs. 2000/-, the remaining two being joint cash Certificates--one being in the name of the defendants Jitendra Kumar Hazra and Sudhangsu Kumar Hazra jointly for Rs. 2000/- and the other in the names of the defers. Jitendra Kumar Hazra and Ananda Kumar Hazra jointly for Rs. 1,000/-.
Admittedly, the source, out of which the said Fixed Deposit Accounts were opened and Cash certificates were purchased,--was money transferred from the plaintiff's Saving Bank Account in the said Bank according to her directions. The plaintiffs case is that she had made the said Fixed Deposits and purchased the said Cash Certificates in the names of the defendants, as she, in her old age, was frequently ailing and her hand was shaking, as a result of which one of her cheques is said to have been returned as her signature did not tally with the signature on the cheque, evidently due to her shaking hands; that she thought it advisable to keep her deposits in the names of her relations in whom she had implicit faith, so that in time of need, they would sign the necessarypapers to enable her to draw such amount, as required by her; her case, briefly stated, is that it was all a benami arrangement in the names of the defendants 1 to 3, she having kept, for herself, the control over the said monies, and in fact kept with her all the papers and documents relating thereto, and indeed the interest payable on the said Fixed Deposits was made payable to the plaintiff.
The defence case,--on the other hand, as pleaded by the defendants 1, 2 and 3,--was that it was not benami as alleged; that it was an absolute gift made by the plaintiff; that the monies in the Fixed Deposit Accounts became the property of the said defendants by virtue of such gift and they belonged to the said defendants.
The trial court dismissed the plaintiffs suit finding that it was gift in favour of the defendants and not a benami arrangement as alleged by the plaintiff and accordingly dismissed the plaintiff's suit. Hence, this appeal.
3. The only questions,--for consideration ia this appeal,--are whether the aforesaid arrangement was a gift or a benami transaction, and if it was a gift, whether it was a valid gift in law.
4. The points, urged on behalf of the plaintiff appellant herein,--are that there was no acceptance of the gift nor delivery of the subject-matter of the gift as required by law.
In view of somewhat involved nature of the transaction, it is necessary to state certain facts, in the light of which the legal implication of the transaction has to be determined. In as early as 1948, the plaintiff expressed desire to make some sort of arrangement with regard to her properties without having to make a will as appears from her letter dated September 11, 1948 (Ext. C) to the defendant Jitendra Kumar. In 1952 she seat to the defendant Jitendra Kumar certain bank forms which she required him to sign as appears from her letter dated February 15 1952 (Ext. D); then on March 29, 1952, she again wrote a letter (Ex. E). to the defendant Jitendra Kumar enclosing some bank forms to be signed by him for the purpose of opening accounts.
The implication of this letter will be hereinafter discussed. There is ample evidence to show that the plaintiff had,--also in the past, previous to the suit transaction,--opened such accounts, in the names of her different near relations, some of which appear to have been subsequently withdrawn and credited to her Savings Bank Account as appears from Statement of Fixed Deposit Account of the Bank dated May 30, 1955 (Ext. 10 (a) ) and Statement of Savings Bank accounts of the Bank dated September 13, 1957 (Ext. 10(b)).
Now, coming to the transaction in suit, evidence shows that certain bank forms were sent by the plaintiff to the defendants Jitendra and Ananda in Calcutta, in which she said defendants were required only to put in their signatures; in fact, the 'X' (cross) marks in the Bank forms indicate where the defendants were required to put in their signatures. After the said Bank forms with the signatures, as required, reached the plaintiff, the fixed Deposit Accounts were opened in the respective names and the said defendants with the Bank on the terms of the applications contained in the said forms (Ext. 8) series signed by the said defendants as aforesaid. It is clear that besides the name and address,--the other particulars in the forms were filled in by or at the instance of the plaintiff, including the special instruction that the interest on the fixed deposits was to be credited to the Savings Bank Account of the plaintiff with the defendant Bank and that the deposits are to be renewed unless otherwise instructed, as appears from Ext. 8 series.
The Accountant of the defendant Bank (P. W. 2) stated that forms were received by the plaintiff from the office of the defendant Bank; that, as required by the plaintiff, he (accountant) filled up the entries as per Ext. 8 (a) and Ext. 8 (b) in his hand and asked the plaintiff to get the rest filled up and signed by the persons concerned; that when he (the accountant) was handed over the original applications for opening the Fixed Deposit Accounts, he found the instruction mentioned therein to the effect that interest accruing on the amount was to be credited to the Savings Bank Account of the plaintiff. The evidence of the plaintiff herself as P.W. 1 is that the defendants authorised the interest accruing on the deposits to be adjusted to her account; and that it was so done from Calcutta where the said defendants signed the applications. Thus, it in clear that the entry of special instruction regarding crediting of interest to the plaintiff's Savings Bank Account was already there in the forms (Ext. 8 series) when the said defendants put their signatures, as directed by the plaintiff.
The defendant Bank also issued Fixed Deposit Reeeipts in favour of the defendants Jitendra Kumar and Ananda Kumar, in whose, names the accounts were opened (Ext. 2 and Ext. 2/a).
As regards cash certificates, they were also issued in the respective names of the defendants as aforesaid (Exts. 1 to 1 (d)). The Fixed Deposit Accounts were opened on April 7. 1954, the date of maturity being after a period of one year; and the five Cash Certificates in suit are Three Years' Cash Certificates, all bearing different drt?s in the month of January, 1954, the date of maturity being after three years in January 1957. Tt is significant that all the Fixed Deposit receipts and cash certificates and all papers connected therewith are in possession of the plaintiff. It is on these facts, shortly stated, that it is to be considered whether the transaction constituted a valid gift or a mere henami transaction.
5. Under Section 122 of the Transfer of Property Act 'gift' is the transfer of certain existing move-ables or immoveable property made voluntarily and without consideration by the donor to the donee and accepted by or on behalf of the donee. Section 123 provides that for the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed byor on behalf of the donor or by delivery; such delivery may be made in the same way as goods sold may be delivered. Thus for determination of the point we have to consider whether there was acceptance of the gift and whether there was delivery of the subject-matter of the gift in the same way as goods sold may be delivered,
6. On the question of acceptance, there is no evidence whatsoever regarding acceptance of the Cash Certificates, which throughout have been in possession of the plaintiff the donor. As regards the Fixed Deposits, the conduct of the defendants shows that there was no acceptance of the gift. The defendant Jitendra wrote a letter dated May 6, 1955 to the defendant-Bank (Ext. N) through Hazra Road (Calcutta) Branch of the defendant Bank, demanding payment of accrued interest on the fixed deposits; thereafter the defendant Jitendra again wrote to the defendant-Bank a letter dated May 18, 1955 (Ext. N./1) alleging mis-appropriation, forgery and threatening legal action; then on May 20, 1955 the defendant Jitendra again wrote to the defendant-Bank a letter (Ext. N/2) intimating strained feelings with the plaintiff since March 1955.
Such conduct, far from amounting to acceptance, amounts to repudiation of the gift in terms contained in the said applications (Ext. 8 series) whereby the interest was payable to the plaintiff under special instruction stated therein. Undoubtedly, the Fixed Deposit Accounts were opened on the terms of the applications (Ext. 8 series) containing special instruction regarding payment of interest to the plaintiff. So, the defendants' repeated demands as aforesaid were contrary to the terms and conditions of the fixed deposits. Moreover, the defendants, in their written statement, alleged that the moneys belonged to the plaintiff and the defendant Jitendra Kumar, although the Savings Bank accounts stood in the plaintiff's name. This is clearly, repudiation of the gift altogether by the defendants. Indeed, there is no proof of acceptance of the gift by the defendants.
In the present case, there is no evidence of even implied acceptance far from express acceptance. The defendant Jitendra Kumar's letter to the Bank dated May 6, 1955 (Ext. N), demanding interest, cannot be construed as his assertion of ownership of the Fixed Deposits so as to amount to acceptance, because, as already discussed, defendant's demand for interest is contrary to the terms and conditions of the gift and thus it amounts to repudiation of the gift itself. There is also no evidence of communication of alleged acceptance, if any, by the defendants to the plaintiff.
7. Next, on the question of delivery of possession Section 123 of the Transfer of Property Act requires that such delivery may be made in the same way as goods sold may be delivered. Section 33 of the Sale of Goods Act provides that delivery of goods sold may be made by doing anything which the parties agree shall be treated as delivery or which has the effect of putting the goodsin the possession of the buyer or any person authorised to hold them on his behalf.
The defendants' case is that it amounted to delivery when the Bank transferred the moneys from the Savings Bank Account of the plaintiff as per her directions and credited the same to the said Fixed Deposit Accounts opened in the names of the defendants. The entire argument,--advancedon behalf of the defendants on this point,--is based on the wrong notion that the Bank acted as agent of the defendants in the said transaction. This argument overlooked the basic principles that the relationship between a Bank and its constituents is not one of agent and principal but debtor and creditor. In the present caste, there is no evidence to show that the defendants had authorised the Bank to hold the monies delivered by the plaintiff in the manner aforesaid. In fact, the defendantsdid not know that the Fixed Deposit amounts had been transferred from the plaintiffs Savings Bank Account and credited to their accounts as aforesaid, after the defendants had sent back from Calcutta the Bank forms,--with their signatures,--to the plaintiff, nor the defendants knew whether the forms signed in blank (without mentioning the figure Of deposit) were all used by the plaintiff in Cuttack and whether the Fixed deposit, accounts,--though initially contemplated by the plaintiff,--were at all ultimately opened in the defendants' names.
On this point, the evidence of the defendant Jitendra Kumar himself (D. W. 2) is relevant. The pertinent question put to him and the answer given by him, on this point, are quoted as follows :
'Q. Why the aforesaid amount was invested at Cuttack instead of in your accounts in Calcutta if the same as you claim, was in way of gift in your favour.
A. I cannot say. The plaintiff was free to do as she liked. She of course expected that I should come to Cuttack and live with her. This is what I surmise as aforesaid''.
It is clear that the defendants were not aware of the actual position of what was happening in Cuttack with regard to the plaintiff's idea of opening Fixed Deposit Accounts in the names of the defendants. Placed in that position, there was no question nor any occasion for the defendants giving authority to the Bank to receive, on their behalf, monies delivered by the plaintiff in the manner aforesaid. Law requires authorisation to hold them on their behalf. There must be an 'agreement of attornment' as it is sometimes called which has the effect of transferring legal possession to the donee; all the three parties must concur, otherwise there is no delivery. All these cases of delivery of the symbols of property are founded upon that sort of tripartite contract which is adverted in some of the cases between the vender, the vendee and the wharfinger (Godts. v. Rose, (1855) 17 C. B. 229 : 139 E. R. 1058; Rameswar Narain Singh v. Rani Reknath Koeri, AIR 1923 Pat 165 (170)).
8. We, therefore, find that in view of the Banks' position,--that it did not and could not act as agent tor the defendants,--there was no deliveryas required by law. Accordingly, we hold that in J the absence of acceptance and delivery the said transaction did not constitute a valid gift in law.
9. Lastly, on the question whether the transaction was a benami transaction, the undisputed position in law is that the actual points, for consideration on a question of benami, are-
(i) Was there any motive for a benami:
(ii) was the alleged benamdar so connected with the alleged principal as to render it probable that he should be selected as a benamdar :
(iii) in whose possession and custody was the document o'f title :
(iv) who was in possession :
(v) from which source did the consideration come.
All these points have been broadly discussed above, in the context whether the transaction constituted a valid gift in law. In the present case, it is admitted that the source of money for the Fixed i Deposits and cash certificates is the plaintiff's savings Bank account with the defendant Bank; so also, the relationship of brother and sister as betweeen the defendant Jitendra and the plaintiff, and that of aunt and nephew as between the plaintiff and the defendants Annanda and Sudhangsu is admitted; the possession and custody of the documents With the plaintiff are also admitted. As regards possession of the subject-matter of the Fixed Deposit and Cash Certificates, the defendants' case is that possession of the Bank amounts to their possession; but having regard to our finding that there was neither delivery nor acceptance for reasons aforesaid, it cannot be said that the defendants are and / or can be treated as in possession of the subject-matter as claimed, for the purpose of determining the real character of the transaction.
On the question of motive, the defendants' case is that all throughout plaintiff's life, she was like a mother to the defendants and in fact she had been spending money for them throughout her life; that the alleged motive,--that she purported to make this arrangement, because of her shaking hands and inability to draw cheques as aforesaid,--had not been established, except that only one cheque, had been returned as the plaintiffs signature is stated to have not tallied, as she intimated in her letter to the defendant Jitendra (Ext. E).
The defendants strongly relied on a letter from the plaintiff to the defendant Jitendra dated 11th September 1948 (Ext. C) where she expressed that she would not live long and wanted to settle her properties, so that the defendant Jitendra may become the owner of everything in the event of her death; it shows that as early as 1948 the plaintiff expressed her wish to give away everything to the defendants without having to make a will. The defendants' stand,--on the strength of Ext. C,--is that she intended to make a gift Rut this casual expression of her wish in 1948 is, however, inconsistent with her subsequent conduct as appears from the statement of Savings Bank account of the Bank dated September 12, 1957 (Ext. 10 (b) ) which shows that moneys,--in the Account in the name of Sudhangsu which was opened as early as on April 20, 1953,--had been withdrawn and credited to the plaintiff's Savings Bank Account onDecember 27, 1954. This shows that the plaintiff never really intended to part with her monies, and the idea of an out and out gift was never in her mind. Indeed her real motive is apparent from her letter dated March 29, 1952 to the Defendant Jitendra where she wrote thus :
''If there is anything left after my death I want that they will come to you and your sons--no one knows how long one is going to live--so I must have money as long as I live,--if anything is left it must go to you all'.
This undoubtedly, shows that it was uppermost in her mind that she must have money as long as she lives. This, indeed, is clearly indicative of her real state of mind before the arrangement she made in 1954, which is the subject-matter of the present suit. It is thus clear that the apparent was not the real, and that the entire arrangement was intended to be benami.
We, therefore, hold that the Fixed Deposits and the Cash Certificates standing in the name of theI defendants are all benami, the real owner in respectthereof being the plaintiff herself.
10. In this view of the case, the decision of the trial court--dismissing the plaintiff's suit--is set aside. The plaintiff's suit is, accordingly, decreed in her favour.
This appeal is, therefore, allowed with costs throughout.
11. I agree.