Even a holder of succession certificate is not entitled for entire amount on maturity.

The Second Appeal is directed against the judgement dated 2.8.1993, of Sub-Court, Erode in its A.S.No.79 of 1993 in dismissing the suit which itself was against the decree dated 30.1.1992 passed by the District Munsiff, Erode in O.S.No.497 of 1985.

2. While admitting the second appeal, the following questions of law were framed:

" i) Whether the lower Appellate Court is right in reversing the judgement and decree of the trial court without holding its findings on facts and evidence on record as wrong; and

ii) Whether the lower appellate court is right in presuming that the late Sengoda Gounder would not have intended to grant his share of the account to the plaintiff, while the defendants have not pleaded or shown any other reason for the late Sengoda Gounder to open an account jointly with his daughter who was unmarried at that time and all his other children were married and settled."

3. The suit was filed by the appellant/plaintiff, directing the first defendant Canara Bank to pay the accrued interest to herself and for permanent injunction, restraining the bank for depositing the accrued interest into the savings bank account of his father, deceased Sengoda Gounder.

4. There was a fixed deposit receipt dated 5.7.1984 found in the name of Sengoda Gounder and his youngest daughter Parvathy, the plaintiff herein with an arrangement of payment to either or survivor. The fixed deposit was for three years and the date of maturity was mentioned as 4.7.1987. It is in the meantime, on 5.9.1984, as found in Ex.A2, death certificate, Sengoda Gounder expired. The accrued interest was arranged to have been deposited in the Savings Bank Account of Sengoda Gounder, even while he was alive. That arrangement was made by both the depositors with the bank. There was a tripartite agreement in between two depositors on the one side and the bank on the other side, in and by which the accrued interest over the deposited amount will be deposited in the Savings Bank Account of Sengoda Gounder and for the residue in the F.D.R. will be disposed of according to the principle of either or survivor.

5. This tripartite agreement holds good, even as per the following statement made in Tannan's Banking Law and Practice in India, 18th Edition (Re-print 1996) wherein, at page 195, it is said thus:

"Banks have now accepted the view that in an account, where the operation is by "Either or Survivor", the survivor is the only person who is entitled to the balance thereof after the death of one of the account holders. This practice is based on the principle that the terms of operation form part of the contract of deposit."

This has been reproduced and argued in a case law cited in 1997-3-L.W. 673 (Govindan Chettiar (Died) vs. Akilandam alias Seethalakshmi and 24 others). It was held therein as follows:

"I do not thing, the said statement by the learned Author has any relevance to this case. Those cases relate to the interpretation of contract between the bank and the customer, and the Bank gets discharged when it makes payment to the survivor.

When an inter se dispute arises as to the ownership or beneficiary of the amount, that ownership has to be proved de hors the receipt......' Either or Survivor' account will not make the survivor the beneficiary or the owner of the amount. It only enables the survivor to collect the amount as Trustee for the other heirs. From the mere opening of an account as 'Either or Survivor', an inference should not be made that the survivor is entitled to collect and appropriate the entire amount for himself."

Therefore, the arrangement of payment to either or survivor in a tripartite agreement will only enable the bank to dispose of the amount and when rivalry between the depositors comes, this Court have held uniformly that unless there is proof of gift by one of the depositors to the other and upon the death of one of the depositors who had gifted, the other cannot draw the amount in the capacity of a survivor. Thus the intend