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2002 Supreme(Cal) 703
IN THE HIGH COURT AT CALCUTTA
Altamas Kabir & G.C. De, JJ.
Abhra Sinha
vs.
India Explosive Ltd. & Ors.
and
Arun Kanti Ghose
vs.
State Bank of India
F.A. No. 158 of 1995 with F.A. No. 91 of 1995
Decided On : November 28, 2002
Shivapada Mukhopadhyay, Ashalata Ghosh, Dipty Bhattacharya for the appellant in F.A. No. 158 of 1995;
Sukumar Mukherjee for the respondent in F.A. No. 91 of 1995;
D.P. Adhikary, J.H. Mallick for the appellant in F.A. No. 91 of 1995 & for the respondent No. 3 in F.A. No. 158 of 1995.
The inclusion of a person as one of the joint holders of a fixed deposit or term deposit does not automatically entitle such person to receive the money payable under the said instruments on the death of the principal depositor.
Headnote:
BANKING - Joint Fixed Deposit - Survivorship - Will - Interpretation - Gift - Indian Contract Act, 1872, Sections 42 and 47 - Banking (Regulation) Act, 1949, Section 45ZA - Indian Succession Act, 1925, Section 276.
Fact of the Case:
Jogendra Nath Das and Smt. Abhra Sinha were joint depositors in a fixed deposit with M/s. India Explosive Ltd. and a term deposit with the State Bank of India. Upon Jogendra Nath Das's death, Arun Kanti Ghose, the administrator and legatee of Jogendra Nath Das's Will, applied for Letters of Administration under Section 276 of the Indian Succession Act. Smt. Abhra Sinha filed a suit for a declaration of her title to the fixed deposit. Arun Kanti Ghose filed a separate suit for a declaration that he was entitled to recover the money deposited in the term deposit.
Finding of the Court:
The court held that the provisions of Sections 42 and 47 of the Indian Contract Act and Section 45ZA of the Banking (Regulation) Act, 1949, did not apply to the facts of the case because a Will made by the first depositor intervened. The court found that there was no intention to create a gift in favor of the joint depositor unless a specific intention to that effect was proved. The court also held that the joint depositors had no title to the moneys in the absence of any intention of the first depositor to create a gift in their favor.
Issues: Whether the joint depositors in respect of the fixed deposit with M/s. India Explosive Ltd. and the term deposit with the State Bank of India were entitled to payment under the said deposits excluding the claim of the legatee under the Will of Jogendra Nath Das, deceased.
Ratio Decidendi: The court held that the provisions of Sections 42 and 47 of the Indian Contract Act and Section 45ZA of the Banking (Regulation) Act, 1949, did not apply to the facts of the case because a Will made by the first depositor intervened. The court found that there was no intention to create a gift in favor of the joint depositor unless a specific intention to that effect was proved. The court also held that the joint depositors had no title to the moneys in the absence of any intention of the first depositor to create a gift in their favor.
Final Decision: The court dismissed the appeal filed by Smt. Abhra Sinha (F.A. No. 158 of 1995) and allowed the appeal filed by Shri Arun Kanti Ghose (F.A. No. 91 of 1995). The judgment and decree passed by the learned Judge, 12th Bench, City Civil Court at Calcutta, in Title Suit No. 2071 of 1983 on 20th March, 1993, forming the subject matter of F.A. 158 of 1995 was affirmed. The judgment and decree passed by the learned Judge, 3rd Bench, City Civil Court at Calcutta, in Title Suit No. 1430 of 1998 on 11th July, 1994 was set aside, and the suit filed by the plaintiff stands decreed with costs.
Altamas Kabir, J.
The appellant in F.A. No. 158 of 1995, Smt. Abhra Sinha, was one of the joint depositors along with one Jogendra Nath Das in respect of a fixed deposit of Rs. 1 lakh, under Fixed Deposit Receipt No. 780406, issued by M/s. India Explosive Ltd. in the name of Jogendra Nath Das as the first depositor and Smt. Abhra Sinha as the joint depositor for a term of three years. Shri Jogendra Nath Das died on 7th April, 1983, leaving Smt. Abhra Sinha as survivor in respect of the said fixed deposit.
2. On the death of Shri Jogendra Nath Das one Shri Arun Kanti Ghose applied for Letters of Administration under section 276 of the Indian Succession Act before the learned District Judge, Malda, in respect of the properties mentioned in the Will of the deceased Shri Jogendra Nath Das, including the amount indicated in the fixed deposit receipt and the same was numbered as O.C. Suit No. 4 of 1984. The said O.C. Suit No. 4 of 1984 was disposed of by the learned District Judge, Malda, by his judgment and decree dated 11th September, 1987, wherein the learned District Judge held that Shri Arun Kanti Ghose and the other plaintiff, Smt. Arati Ghosh, had been able to prove the due execution and attestation of the Will of Shri Jogendra Nath Das and that the testator was mentally alert and physically fit and had the testamentary capacity to execute the Will which was also found to be the last Will of the deceased, Shri Jogendra Nath Das.
3. Pursuant to his aforesaid finding, the learned District Judge, Malda, allowed the application under section 276 of the Indian Succession Act and granted the Letters of Administration in respect of the estate of the deceased, Shri Jogendra Nath Das, to the plaintiffs, namely, Shri Arun Kanti Ghose and Smt. Arati Ghosh.
4. In the aforesaid background, Smt. Abhra Sinha filed a suit, being Title Suit No. 207 of 1983, in the City Civil Court, at Calcutta, inter alia, for declaration of her title in respect of the fixed deposit lying with M/s. India Explosive Ltd. in the joint names of the plaintiff and Jogendra Nath Das, deceased. On the issues as framed the suit was dismissed by the learned Judge, 12th Bench, City Civil Court at Calcutta, on 20th March, 1993, upon holding that the amount under the Fixed Deposit Receipt belonged exclusively to the deceased, Jogendra Nath Das, as the first depositor who bequeathed the same under a Will which had been probated by the legatee and that by virtue of the Letters of Administration granted to him Shri Arun Kanti Ghose had stepped into the shoes of the first depositor and he was, therefore, entitled to deal with the estate of the deceased, including the money under the fixed deposit in respect whereof the State Bank of India had rightly treated him as the first depositor.
5. F.A. No. 158 of 1995 has been filed by Smt. Abhra Sinha against the said judgment and decree of the learned Judge, 12th Bench, City Civil Court at Calcutta, dismissing her suit.
6. While the aforesaid suit filed by Smt. Abhra Sinha was pending, Shri Arun Kanti Ghose as the Administrator and legatee of the last Will of Late Jogendra Nath Das filed a separate suit in the City Civil Court at Calcutta, being Title Suit No. 1430 of 1988, inter alia, for a declaration that he was entitled to recover the money deposited under the Term Deposit Receipt No. 382218 dated 15th March, 1982, along with interest thereon, made by the deceased Jogendra Nath Das, with the State Bank of India at its Surya Sen Street Branch. In the said suit it was contended that the term deposit had been made in the joint names of the depositor, Jogendra Nath Das and Smt. Aruna Sinha, the defendant No. 2 in the suit, and was made payable to 'Either or Survivor'. It was claimed that the term deposit had been taken from the retirement benefits of Jogendra Nath Das and he had issued a cheque in favour of the State Bank of India from his Savings Bank account for investing the money for the said term deposit. It was claimed that
