ANIL KUMAR K Vs. AJITH

JUDGEMENT

(1.) The scope and extent of power conferred upon the court to grant relief which is neither pleaded nor prayed for, in a suit, when the defendant admits the claim, is the issue which has cropped up for our consideration in this appeal. This appeal is directed against the judgment and decree passed in O.S. No. 615/2009 of the Sub Court, Kozhikode. The suit is one for partition and the appellant is the plaintiff in the above suit. (Parties are referred to as in the original suit). The averments in the plaint in brief are as follows:-

(2.) Defendants 1 to 5 filed written statement admitting defendants claim for partition over 'A' schedule property but denied the claim for partition over 'B' schedule property, stating that 5th defendant alone has right over 'B' schedule deposit as she is the nominee appointed by Bhaskaran in the Bank. According to them 5th defendant alone has right over 'B' schedule and the amount is not partible.

(3.) After trial, the suit decreed as prayed for. With respect to 'B' schedule Bank deposit the court below considered the point whether the Bank deposit for which nominee was appointed is partible in accordance with law of succession among the whole legal heirs. Relying on the decisions in Smt. Sabarbati Devi v. Ushadevi, 1984 AIR(SC) 346, Vishnu N. Khandchaudari v. Vidya Lachmandas Knanchandini, 2000 AIR(SC) 2747, Safiaya Usman v. Habeebah,2005 1 KerLT 66 (C. No. 84), Shipra Sengupta v. Mridul Sengapta & Ors., 2009 10 SCC 680 , the court below rightly held that the status of nominee to a bank deposit is an agent only, to receive the amount from the bank; such amount so received should form a part of the estate of the deceased and should be subject to lawful succession applicable to him. As far as legal heirs of the deceased are concerned, the nominee is only a trustee and all legal heirs have right of succession in accordance with law. The nominee is having a priority to receive the amount from the Bank; but all legal heirs have the right to claim their share as per the right of succession to the estate of the account holder. The nominee is accountable to all legal heirs.