KAMALA DEVI Vs. RAJANIKANTA PATNAIK

JUDGEMENT

(1.) Petitioner calls in question correctness of order passed by learned Subordinate Judge, Berhampur allowing an application filed by opp. parties 1 and 2 under S. 372 of the Indian Succession Act (in short the 'Act'). The application was filed by present opp. parties 1 and 2, inter alia, on the ground that they are the legal heirs of one Pratap Ch. Patnaik who died on 7-1-1983 leaving behind the applicants and his mother one Santilata Devi, who died subsequent to the death of Pratap. They claimed to be the only surviving successors and legal heirs of deceased Pratap and petitioner Kamala is the widow of one late Narahari Sahu. Taking advantage of similar religious thoughts, Kamala managed to get a fixed deposit of Rs. 10,000/- made in the joint names of Pratap and Kamala by fixed deposit receipt No 2184 N.L.T. with present opp. party No. 3 Bank. Money was paid by Pratap but for the purpose of collectional facilities it was made in the joint names. It was never intended that the same would go to Kamala on the death of Pratap. After death of Pratap, fixed deposit which had matured on 6-3-1985 became payable to the present opp. parties 1 and 2; but notwithstanding issuance of statutory notice under S. 27 of the Orissa Co-operative Societies Act (in short the 'Co-operative Act), there was no payment made and therefore, filling of the application was necessitated. Kamala resisted the claim on the ground that she was the widow of Pratap and she had made deposit jointly with Pratap and the application for fixed deposit receipt and other connected documents clearly establish that she was entitled to amount on the death of Pratap. Learned Subordinate Judge held that the amount was payable to the legal heirs in the absence of positive material to show that the amount was intended to pass on to Kamala on the death of Pratap. It was concluded that the amount in question was deposited by Pratap and therefore, on his death the amount due against the fixed deposit was payable to the legal heirs of Pratap. It was also concluded that Kamala was not the second wife of deceased Pratap. In appeal, the conclusions were affirmed by learned Second Addl. District Judge, Berhampur. I have heard Mr. G. N. Mohapatra for petitioner and Mr. B. Ratho for opposite party No. 3 bank. The opp. parties 1 and 2 have not entered appearance in spite of notice.

(2.) Learned counsel for petitioner Kamala has strenuously urged that the amount having been deposited by both Pratap and petitioner and the intention being very clear that she was to receive the amount on the death of Pratap, the courts below have proceeded on hypothetical basis to conclude that the deposit was made by Pratap and therefore, unless a gift was intended, the amount was to be received by present opposite parties 1 and 2. In spite of service of notice, said opposite parties have not entered appearance in this Court. The learned counsel for the opposite party No. 3-bank submits that it shall honour the decision rendered in the dispute.

(3.) Question of entitlement of a joint holder of an account in the bank has received attention of various Courts. Supreme Court in AIR 1971 SC 1962 : Indranarayan v. Roop Narayan , after referring to several decisions of the Privy Council in AIR 1928 PC 172 : Guran Ditta v. T. Ram Ditta and AIR 1945 PC 10 : Pandit Shambhu Nath Shivpuri v. Pandit Pushkar Nath, held that the person who claims that there was an intendment of a gift has to prove it to be so. A deposit made by a Hindu of his money in the joint names of himself, his wife or any other person on the terms that it is payable to either himself or the survivor does not on his death constitute a gift by him to other person. 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. Resulting trust enures to the benefit of the legal heirs. There is no presumption in India of an intended advancement or gift or presumption of a gift as in the case of England where it is in joint names of husband and wife. The burden that a gift was intended can be discharged either by placing material to show that a specific gift was made or that owner of money had general intention to benefit the claimant and in pursuance of this intention, deposit was made in the joint names or was transferred to the joint names of the depositor and the claimant. Similar view was expressed in Padmanabhan Bhavani v. Govindan Bhargavi, AIR 1975 Kerala 83. The arrangements made by the depositors with the Banker or Postal authorities while opening or operating the accounts do not irresistibly prove the entitlement of claimants. It certainly is a factor to be considered. The arrangements are intended to regulate and facilitate payment. They do not and cannot determine rights inter se among depositors, legal heirs, or the rights of inheritance.