AVIS FITZALAN COWDREY Vs. IMPERIAL BANK OF INDIA

JUDGEMENT

(1.) THIS appeal against the judgment of CHANDRA REDDI J. arises in the following circumstances : One Katherine Mary Jones, a resident of Bangalore, was a constituent of the Bangalore branch of the Imperial Bank of India and had a current account with it in her sole name. On 13th May, 1951, she addressed a letter to the manager of the bank asking him to arrange to have her current account, in which an amount of Rs. 17, 683-15-7 stood to her credit, changed to a joint account with Mrs. Esme Folkes of N. 7, Viviani Road, Richards Town, Bangalore. Mrs. Jones and Mrs. Folkes filled up the necessary form for opening a current account in their joint names and both of them also filled up what is called an "Either or Survivorship" form, which is in the form of a letter addressed by them to the manager in the following terms

(2.) ACCORDINGLY, a joint account was opened in their names on 14th May, 1951. Mrs. Jones died on 20th October, 1951 and on that date, the balance at credit in the joint account was Rs. 21, 199-1-1. The appeal relates to this sum Mrs. Jones left behind her a will dated 25th May, 1951, in and by which she appointed the Imperial Bank of India as sole executor. She bequeathed all her clothing and wearing apparel to Mrs. Folkes and two pecuniary legacies of Rs. 2, 000 and Rs. 3, 000 to Miss Brito and to Mrs. Folkes respectively. She devised and bequeathed all the residue of her property, real and personal, immovable, and moveable, subject to the payment of just debts, funeral and testamentary expenses to her cousin, Mrs. A. F. Cowdrey, residing in Southern Rhodesia. The Imperial Bank of India duly obtained probate of the will. On 1st November, 1951, Mrs. Folkes wrote to the manager of the bank that the current account of the deceased Mrs. Jones had been converted into a joint either or survivor account at the express wish of the deceased, so that she, Mrs. Folkes, could help the deceased in her last days and the balance would go to herself on the death of Mrs. Jones, and claimed the said amount. Mrs. Cowdrey, the residuary legate, opposed this claim and herself made a claim to this amount as residuary legatee. She made a special claim in respect of two amounts which were included in the joint current account, namely, a sum of Rs. 5, 006-7-6 being the total of the amounts alleged to have been sent to the deceased by her (Mrs. Cowdrey) for the express purpose of paying the doctor's bills, nursing fees, medicines etc., of the deceased, and to a sum of Rs. 7, 281-12-0, being the redemption proceeds of 3% Government of Indian loan, 1951-54 bonds of the face value of Rs. 7, 300 belonging to the deceased.

(3.) IN support of her case, the appellant, Mrs. Cowdrey, relied upon that fact that Mrs. Jones was at the time physically feeble and practically blind, that there was no mention of any gift of the amount in question to Mrs. Folkes in the will and that there was a specific bequest of Rs. 3, 000 only to Mrs. Folkes. We agree with the learned Judge, CHANDRA REDDY J. that none of these facts is conclusive. The fact that Mrs. Jones was weak and of failing eyesight might well support the case of Mrs. Folkes that on that account Mrs. Jones had to rely entirely on Mrs. Folkes and would naturally have intended to reward her (Mrs. Folkes) for her services. The omission in the will of any mention of the amount in the joint account may well be explained by a consciousness on the part of Mrs. Jones that she had already made an arrangement for the disposal of the balance that may remain in that account, by opening an either or survivor accountAs against these circumstances relied on by the appellant, the respondent, Mrs. Folkes, relied on the positive evidence adduced by her to the effect that Mrs. Jones clearly manifested an intention that whatever balance was left in the joint account should be taken by Mrs. Folkes. Dr. Rose, who was the medical consultant of Mrs. Jones during her last days, swore to an affidavit in which he deposed that the deceased was considerably attached to Mrs. Folkes who was her constant help and attended to her needs for several years upto the time of her death and that Mrs. Jones informed him that the proceeds of the joint either or survivor account which Mrs. Jones had desired to be opened in their joint names was intended for the benefit of Mrs. Folkes. He had no hesitation in saying that to his personal knowledge Mrs. Jones had opened that account with the object and intention that the survivor should be entitled absolutely to the proceeds of the account. Rev. Mathew Hickey, Catholic Priest and Vice-Provincial of Redemptorist Congregation, deposed in an affidavit that he had visited Mrs. Jones sometimes in his capacity as a Catholic Priest and that Mrs. Jones explicitly mentioned to him that she had intended that the proceeds of the joint either or survivor account in the Imperial Bank of INdia should go to Mrs. Folkes. Mr. Harden, the agent of the Imperial Bank of INdia in 1951, swore to an affidavit in which he inter alia stated that he remembered Mrs. Folkes calling on him in May, 1951, and informing him that Mrs. Jones wished to have her personal current account converted into a joint either or survivor account with Mrs. Folkes for two reasons, namely, (1) that Mrs. Folkes could operate on the account at her discretion, and (2) that in the event of the death of Mrs. Jones the balance would automatically go to Mrs. Folkes. On this evidence which the learned Judge accepted, it is clear that the intention of Mrs. Jones in converting her sole current account with the bank into a joint either or survivor account in the names of herself and Mrs. Folkes was to give absolutely such balance as may remain to the credit of that account at her death to Mrs. FolkesOn this finding of fact, there is very little scope for legal argument. IN Guran Ditta v. Ram Ditta 1928 (55) Cal 944 28 L.W. 66 (P.C.)) which no doubt dealt with money deposited in the Bank by a Hindu, the Privy Council laid down a general principle, thus