Plaintiff must prove deposit not for benefit of deceased wife to claim entire amount. Sec.3(2) of Benami Transactions (Prohibition) Act 1988 applies to determine property rights.

N.Kannadasan, J.

The above Appeal is filed by the plaintiff having aggrieved by the judgment and decree dated 5.2.1999 in C.S.No.221/1997.

2. The plaintiff married one Jansi Rani, who was originally married to Ramesh and gave birth to two sons, who are defendants 2 and 3. The said Ramesh died in a road accident and the plaintiff married Jansi Rani on 21.2.1994. According to the plaintiff, his father borrowed money from the 1st defendant-bank and when the plaintiff wanted to settle the said demand made from the 1st defendant-bank, the bank insisted the plaintiff to deposit a sum of Rs.5 lakhs in the bank and so he made such deposit, in a short term deposit, on 30.3.1994, but in the name of his deceased wife Jansi Rani. On 13.5.1994 she committed suicide and thereby she died. When the plaintiff tried to withdraw the money from the 1st defendant-bank, the bank insisted the plaintiff to produce succession certificate and so the plaintiff filed the suit in O.S.No.221/1997 for recovery of a sum of Rs.10,22,000/- with future interest at 18% from the date of plaint till date of realisation and for per permanent injunction to restrain the 1st defendant from disbursing the deposit No.SDR 50/1151, dated 30.3.1994, in the name of Jansi Rani, without reference to the claim of the plaintiff.

3. The said suit was contested by defendants 2 and 3 through their paternal grandfather, contending inter alia that the said money was deposited by Jansi Rani by herself and it is her property and so the plaintiff is not having any right or interest in the said deposit lying with the 1st defendant-bank as the plaintiff is not the husband of the deceased Jansi Rani.

4. The 1st defendant-bank also filed written statement stating that the plaintiff and one Jansi Rani called on the bank and deposited a sum of Rs.5,00,000/- in cash on 30.3.1994. It is also stated that the 1st defendant-bank had received all the monies due under the compromise in C.S.Nos.263 and 266 of 1977 filed by the 1st defendant. It is also stated that the said Jansi Rani has not nominated any person to receive the proceeds of the Fixed Deposit incase of death or otherwise and so the 1st defendant insisted upon the plaintiff to produce a succession certificate issued by a competent court to release the proceeds of the said deposit.

5. The learned Judge framed five issues. With respect to Issue No.1, the learned Judge found that the 1st defendant-bank is liable to disburse the amount due under Ex.B3 deposit equally among the plaintiff and defendants 2 and 3. With respect to Issue No.2, the learned Judge found that the plaintiff is not entitled to 18% interest as claimed by him and the bank was directed to pay the rate of interest as prescribed by the Reserve Bank of India from time to time. With respect to Issue No.3 regarding maintainability of the suit, the learned Judge found that the suit is maintainable. With respect to Issue No.4, the learned Judge found that the plaintiff is the lawfully married husband of Jansi Rani having married her lawfully on 21.2.1994 at Chennai. Ultimately, the learned Judge granted decree declaring that the plaintiff is entitled to 1/3rd share in Ex.B3 deposit and the 1st defendant-bank was directed to to pay 1/3rd share in Ex.B3 deposit with appropriate interest calculated at the bank rate fixed by the Reserve Bank of India and further directed to invest 2/3rd share belonging to defendants 2 and 3 in Fixed Recurring Deposit till the minors attain majority. Aggrieved against this judgment and decree, the plaintiff has filed the above Appeal on the ground that he is entitled to receive the entire amount as he is one who deposited the amount benami in the name of her wife.

6. Learned counsel appearing for the appellant/plaintiff submitted that the said amount of Rs.5 lakhs was deposited only as requested by the 1st defendant-bank as a precondition to settle the dispute with respect to the payment of amount due by the plaintiff's father. As they request