In the absence of evidence of a contrary intention, there is a resulting trust in favor of the heirs and legal representatives of a deceased joint account holder.

VAIDYA, J.:- The above First Appeal is filed by defendant No. 3 in Special Suit No. 34 of 1965, instituted by respondent No. 1 for a declaration that respondent 1 Plaintiff was the owner of the amounts deposited by his aunt Dwarkabai with the State Bank of India, Branch Jalgaon, and the New Citizens Bank, Branch Jalgaon, now merged with Bank of Baroda, and for an injunction restraining defendants Nos. 1, 2 and 3 from claiming the said amounts.

2. The plaintiff is the son of Ranchoddas, the brother of Liladhar, the deceased Husband of Dwarkabai. Defendants Nos. 1 and 2 are her brothers; and defendant No. 3 is the son of defendant No. 2. Dwarkabai had filed Special Suit No. 43 of 1945, on September 9, 1944, against Ranchoddas, the father of the plaintiff, for maintenance, past as well as future, and for recovery of her Stridhan ornaments. The matter came to this Court in First Appeal No. 313 of 1947. Dwarkabai succeeded in getting a decree. The plaintiff's father paid Rs. 9,000/- as past maintenance to Dwarkabai, Rs. 16,995/- for ornaments, and Rs. 175/- per month as future maintenance and a house for her residence in accordance with that decree. She died on September 17, 1965.

3. After her death, the house was given in the possession of the plaintiff by the defendants. But while she was living in the house which was given to her, she was acting on the advice of her brothers, defendants Nos. 1 and 2, and defendant No. 3, the son of defendant No. 2. The defendants were in a position to dominate her will as they were her nearest and dearest relatives. Though the defendants ordinarily resided at Dharangaon, one of them was constantly living with Dwarkabai at Jalgaon. Despite efforts made by the plaintiff and his family members, to maintain cordial relations with her, she frustrated the efforts and was not on good terms with them. In these circumstances, taking advantage of the dominant position which the defendants had over Dwarkabai, they made her deposit Rs. 10,000/- with the State Bank of India in the Saving Bank account at Dharangaon Branch, in the joint names of herself and defendant No. 3.

4. Copy of an application, dated February 23, 1965, Exhibit 46, which is on record is the application in a printed from typed in English. It bears the signature of defendant No. 3 and the right hand thumb-impression of Dwarkabai. One of the printed materials in that application is:-

"When the account is to be in the names of two parties insert "either" or "both" if in the names of three or more parties insert "any one" "any two" or "all" as the case may be."

The word "either" is inserted in English in the declaration which runs as follows:-

"We declare that the State Bank of India Savings Bank Rules have been read by/to us and that we accept them as binding upon us. We also declare that we have no Savings Bank Account at any other office of the Bank. We further declare that the balance of our account will be payable to either of us in terms of rule 2." It is not clear from the declaration whether this declaration and the relevant Bank rule was read out and/or explained to Dwarkabai as neither the word "by" or "to" is struck off in the declaration.

5. At Exhibit 47 is the Savings Bank Account Book issued by the State Bank of India in the joint names of defendant No. 3 and Dwarkabai, with an endorsement on the front cover of the passbook as well as on the first page made by the Agent in red ink showing that the amount was payable to either or survivor. Savings Bank Rules are printed in the Pass-book. Rule 2 deals with joint accounts and runs as follows :-

"2. Accounts may be opened in the joint names of two or more approved persons (not being minors) to be payable to -

(i) Both or all of them or to the survivor or survivors of them, or

(ii) either or any one or more of them or the survivor or survivors of them.

An account so opened will, in the event of any one or more of the accountholders dying, become payable to the survivor or survivors w