G. Balagangadharan Nair, J.
1. The principal question in this appeal by the defendants in a suit for partition is whether a residential building which stands on Item 1 belong? exclusively to the first defendant or is available for partition. Items 1 to 6 (subject to the controversy about this building) admittedly belonged to one Sadanandan son of the second plaintiff and husband of the first defendant and father of defendants 2 to 4. He died on February 3, 1962, leaving the second plaintiff and the defendants as his heirs, each being entitled to 1/5th share. By Ext. P-l dated June 3, 1966, the second plaintiff made a gift of her l/5th share to her daughter the first plaintiff. In 1967 they brought this suit for partition. Sadanandan had a Post Office Savings Bank Account evidenced by the Pass Book Ext. D-9. This was con-verted into a joint account in the names of himself and the first defendant in 1959. At the time of his death, the account stood at Rs. 16,594.15 and by May 1965, all this had been withdrawn by the first defendant, leaving a balance of Rs. 70.17, as is disclosed by the fresh Pass Book (Ext D-9 (a) 1 issued in lieu Of Ext. D-9. The first defendant had contended that the disputed building was constructed by her after Sadanandan's death, utilising part of the bank deposit supplemented by the contributions made by her father and brother. As to the bank deposit itself she pleaded that it had been gifted to her by Sadanandan and that it belonged to her exclusively. The courts below did not accept the case of alleged gift or contribution by the father and brother and they agreed in finding that the building was constructed with the postal savings money which devolved on all the heirs on Sadanandan's death and that the building was hence liable to partition.
2. The law relating to joint deposits or either or survivor accounts is well settled by judicial decisions and it would be enough to refer to a few of them, in Guran Ditta v. T. Ram Ditta, AIR 1928 PC 172, which it the leading case, one Teku Ram opened a deposit account in the name of himself and his wife 'payable to either or survivor'. After Teku Ram's death, his wife renewed the deposit for a period of one year and later she withdrew the amount and interest in the suit which was brought by the eldest son the principal question was whether this amount was part of the estate of Teku Ram to whom it originally belonged or whether it passed to his wife on the terms of the deposit note. The Privy Council observed:
'The general principle of equity, applicable both in this country and in India, is that in the case of a voluntary conveyance of property by a granter, without any declaration of trust, there is a resulting trust in favour of the granter, unless it can be proved that an actual gift was intended. An exception has, however, been made in English law, and a gift to a wife is presumed, where money belonging to the husband is deposited at a Bank in the name of a wife, or where a deposit is made, in the joint names of both husband and wife.
This exception has not been admitted in Indian law under the different conditions which attach to family life and where the social relationships are of an essentially different character.'
Applying this principle, their Lordships held that there was no presumption in the deposit note of an intended advancement in favour of the wife and that the sum and interest were the property of Teku Ram and remained at his disposal at the date of his death.
3. In a subsequent case Shambhu Nath v. Pushkar Nath, AIR 1945 PC 10, the above decision was followed and their Lordships observed that the rule was not confined to assets in the joint names of the deceased man and his wife and it was conceded that it was of universal application whatever the property and whatever the relationship. On the facts the Privy Council held that all the joint holdings were for the advancement of those whose names were joined with the deceased.
4. The Supreme Court had occasion to consider the question in Indranarayan v. Roop Narayan, AIR 1971 SC 1962, which arose out of a suit for partition of the estate of one Dr. Pandit, father of the plaintiff and first defendant. A major point in the dispute concerned certain fixed deposit receipts of which one stood in the name of the second defendant, who was the first defendant's wife and all the others stood in the name of Dr. Pandit. The amounts covered by all the deposits belonged to Dr. Pandit, The first defendant contended that Dr. Pandit had transferred all the deposits save that in favour of the second defendant to their joint names and that he had made a gift of them to himself, (the 1st defendant). The 2nd defendant raised a plea that the deposit in her name was a gift to her by Dr. Pandit. Their Lordships found that there was no satisfactory proof of the genuineness of the letters by which the fixed deposits were transferred to the joint names of Dr. Pandit and the first defendant or of any general intention on the part of Dr. Pandit to give the amounts exclusively to the first defendant and that the letters only showed that he wanted to put the amounts in the joint names as he was then seriously ill. In the course of the discussion the Supreme Court followed, AIR 1928 PC 172 and AIR 1945 PC 10 and held:
'The transfer with which we are concerned in this case cannot be gift because Dr. Pandit continued to be the owner of the amounts in question till his death. There is no presumption of advancement in this country but yet if there had been satisfactory evidence to show that the transfers in question are genuine and further that Dr. Pandit intended that the amounts in question should go to the 1st defendant exclusively after his death, we would have held that the advancement put forward had been satisfactorily proved and the presumption rebutted.
It was for the 1st defendant to establish that there was a general intention on the part of Dr. Pandit to benefit him and in pursuance of that intention he transferred the deposits to the joint names of himself and the 1st defendant. If he had proved those facts, he would have made good his plea -- see Young v.Sealey, (1949) 1 All ER 92; Mrs. Avis Fitzelan Cowdrey v. Imperial Bank of India, AIR 1956 Mad 56; D. Nagarajamma v. State Bank of India, Cuttapah. AIR 1962 Andh Pra 260.'
5. In view of these pronouncements, a brief reference alone is necessary to the following cases which were also cited at the bar--AIR 1956 Mad 56 and Nagarajamma v. State Bank of India, AIR 1961 Andh Pra 320. In AIR 1956 Mad 56, one Mrs. Jones, converted a sole account into a joint either or survivor account in the name of herself and one Mrs. Folkes. On her death Mrs. Folkes claimed the balance at the credit of this account and the claim was resisted by the residuary legatee under the will of Mrs. Jones. The High Court held on the evidence that Mrs. Jones intended that the amount should go on her death to Mrs. Folkes and that was the idea of converting the sole account into the Joint either or survivor account. In view of this finding their Lordships observed that there was little scope for legal argument, although they quoted the general principle of law laid down in AIR 1928 PC 172. In AIR 1961 Andh Pra 320 one Ramaswamy deposited Rs. 10.000/- in the joint names of himself and his concubine, who was the appellant, payable to either or survi-ver. After Ramaswamy's death, the appellant claimed the balance at the credit of the account on the ground that he had intended to make a gift of the amount of Rs. 10.000/- to her. It was held that the appellant had not discharged the onus which was on her of proving the gift and that the mere fact that the deposit was made in the joint names does not lead to the conclusion that Ramaswamy gifted the amount to her. The learned Judge followed AIR 1928 PC 172 and AIR 1945 PC 10. On appeal, a Division Bench AIR 1962 Andh Pra 260 confirmed the decision in AIR 1961 Andh Pra 320. It might be mentioned that AIR 1956 Mad 56 and AIR 1962 Andh Pra 260 were approved by the Supreme Court in the decision already cited.
6. 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 adeposit 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.
7. This is the legal position and I cannot agree with the contention of counsel for the appellants that so far as deposits with Post Office Savings Banks go, it is overridden by Rule 37 of the Post Office Savings Bank Rules that on the death of the holder of a joint account in the names of two persons, the joint account would be converted into a single account to be operated by the survivor and that on his death the balance at credit would be paid under the orders of the Post-Master General to the heirs and legal representatives of the survivor. These provisions are designed only to regulate the easy operation of the accounts and payment of moneys and do not touch the rights inter se among the depositors or the rights of inheritance. Under the law as outlined above, the burden is on the first defendant to prove that Sada-nandan intended that the deposit should be taken by her or that he made an actual gift in her favour. The courts below have concurrently found against her on this point and no good ground has been made out to interfere with them. There are on the other hand, materials which lend support to the conclusions of the courts below. The first defendant as D. W. 1 admits that Sadanandan intended the deposit for the construction of a house and that he had even prepared a plan for this purpose during his life time. This negatives and in any event improbabilises the alleged gift. Under Rule 11 of the Post Office Savings Bank Rules, the total amount at call which a depositor, may have at any time, exclusive of interest for the current year is Rs. 15,000/-. Rule 11-A provides that this limit of Rs. 15.000/-does not apply to joint accounts, under which the limit is Rs. 30.000/-. Under Rule 29, no interest would be allowed on an account on any sum in excess ofRs. I5.000/-, if the account stands in the name of a single depositor or on any sum in excess of Rs. 30,000/- if the account stands in the names of two joint depositors both of whom are living. The respondents' contention that Sadanandan converted the single account standing in his name to a joint account in the name of himself and the first defendant, in view of these restrictions about the limit of the deposit and interest appears probable for on 3-10-1959 the balance at credit had reached Rs. 15,169.58 and the conversion was made on 6-10-1959. This aspect again improbabilises the first defendant's case of gift. If in 1959, he conceived the idea of making a gift, the normal and probable thing he would have done was to transfer the amount to her account and not convert it into a joint account. I agree with the courts below that Sadanandan remained the sole beneficial owner of the amount. The first defendant's plea that she used the contributions by her father and brother also in constructing the building has been rejected by the courts below. As the disputed building was constructed by the amounts drawn from the deposit account which belonged to Sadanandan, it is part of his assets and is partible.
8. It was next contended that Items 4 to 6 are in the possession of a pathivaram tenant and the appellants cannot therefore be made answerable for mesne profits in respect of them. Except the testimony of D. W. 1, there is no evidence in support of the alleged pathivaram. The pathivaramdar has not been examined either. This question is also not seen to have been argued in the lower appellate court. In these circumstances, I see no ground to interfere with the finding of the trial court on this point.
9. Lastly counsel raised an argument based upon Sections 22 and 23 of the Hindu Succession Act. As for Section 22, the transfer Ext. P-l to which it is sought to be applied had already taken place on 3-6-1966, and was no longer at the stage of proposal when the suit was brought in 1967. Even so, no plea on the basis of Section 22 was taken in the courts below. The claim under Section 23 must also fail for the reason that it has been waived by the omission to raise it in either of the lower courts. The appeal memorandum in this Court is also silent about the claim and it was raised only at the time of arguments. I am not therefore inclined to entertain this objection. But that apart, I feel that on grounds of equity it should be directed that the residential house should be allotted to the appellants in the final decree for they are the wife and children of Sadanandan and are residing therein as their family house and the mother has gone out of the picture leaving her rights to her daughter.
10. In the result, subject to the direction that the residential house, would be allotted to the appellants in the final decree for partition, the appeal is dismissed. Parties will bear their costs in this Court and the lower appellate court.