The presumption of ownership of the fund of a bank account is in favour of the account holder, unless it is shown otherwise. The burden of proving that the source of the fund of a bank account is from a debuttar property lies on the defendants who claim it to be so.

1. THIS appeal is against the judgment and decree dated 23rd April, 2000, passed by the learned Judge, 5th Bench, City Civil Court, Calcutta in Title Suit No. 163 of 1992, whereby and whereundcr the plaintiffs (respondents herein) succeeded to get a decree of declaration that the plaintiffs are having 2/9th share of Rs. 53,503.23P i.e. Rs. 11,889.61 lying deposited with the Bank of India, Eliot Road Branch. The plaintiffs also got a decree of permanent injunction restraining the defendant No. 1 from disbursing the plaintiffs' 2/ 9th share of the money i.e. Rs. 11,889.61 P. Thus, it appears that this appeal relates to a claim of a sum of Rs. 11,889.61P at the time of passing of the decree.

2. BEREFT of all details, we just record that the case made out by the plaintiffs is that the plaintiff No. 1, Cauvery Chowdhury is the wife of late Dipak Chowdhury and the plaintiff No. 2, Aurkah Prava Choudhury is the son of said late Dipak Choudhury. The plaintiffs alleged that said Dipak Choudhury opened a joint savings bank account being account No. 4389 with the defendant No. 1 bank and deposited Rs. 40,000/- under quarterly income certificate being Fixed Deposit Receipt Nos. 10/85 and 10/86 dated 30th October, 1984 each valued at Rs. 20,000/-. The said bank account was opened by late Dipak Choudhury jointly with Goutam Chowdhury, defendant No. 2 and Pradip Chowdhoury, defendant No. 3. Dipak Choudhury died intestate leaving behind his wife, plaintiff No. 1, minor son, plaintiff No. 2 and mother, defendant No. 4, respectively. According to the plaintiffs, the aforesaid money lying deposited with the bank, belong jointly.

After the death of said Dipak Choudhury, defendant Nos. 2 and 3 surreptitiously tried to withdraw the entire money, taking advantage of their names being included in the joint account. Incidentally, the defendant No. 2 was an employee of the said bank and it was very convenient and easy for him to withdraw the money surreptitiously. The plaintiffs prayed for a declaration that the plaintiffs are legally entitled to 2/9th share of the amount of Rs. 53,503.23P, i.e.Rs. 11,889.61P.

3. The defendant No.1, being the concerned bank, though filed written statement, has not really supported anybody's case and waited for the judgment of the Court. It appears that the defendants Nos. 2 and 3 filed written statement and took a stand that ostensibly the said money was lying in the name of three persons but ownership of the fund did not belong to them and the source of fund for deposit was the sale proceeds and/or the premium obtained by virtue of long term lease in respect of the household debuttar property at Varanasi. In sum and substance, the claim of the defendants is that the said money really belong to the debuttar and that those three persons were holding the fund on behalf of the deity and the said money is not secular one. The defendant No. 4, Renuka Choudhury filed a written statement and supported the case of the defendants Nos. 2 and 3.

4. IN view of the aforesaid pleadings, the learned Trial Judge framed the following issues to resolve the dispute :

1. Is the suit maintainable in its present form ?

2. Is the suit barred by limitation ?

3. Has the Court jurisdiction to entertain the suit ?

4. Is the plaintiffs entitled to relief as prayed for?

5. Whether the money deposited in the bank are the secular or debuttar?

Whether the entire sale proceeds have been deposited in the bank ?

5. DOES the plaintiff has any cause of action in the instant suit ?

6. TO what relief or reliefs the plaintiff is entitled ?

6. It appears that the plaintiffs in order to prove their case have examined the plaintiff No. 1 herself as witness and one Sri Lalit Mohan Haider has also deposed on behalf of the plaintiffs. Incidentally, the defendant Nos. 2 and 3, though filed written statement, did not come forward to depose in this case and none of the defendants has taken any step to summon them to give testimony in this matter. The defendant