The plaintiffs in O.S No. 7179 of 1977 on the file of 6th Assistant Judge, City Civil Court, Madras are the appellants in the above appeal. They filed the said suit for directing the defendants to render proper accounts for the assets kept and left by A.D Muthukrishnan Naidu, since deceased on 13-11-1976 and for a decree for declaring the properties in the plaint schedule as joint family properties of the plaintiffs.

2. The case of the plaintiffs is as follows:— One Ramaswamy Naidu was the father of Rengiah Naidu, Bangaru Naidu, Janakiram Naidu and Muthukrishna Naidu. Rengiah Naidu was the father of the plaintiffs 1 and 2, grand father of plaintiffs 3 and 4. Bangaru Naidu was the father of plaintiffs 5, 7, 8 and 9 and husband of the 6th plaintiff. Ramaswamy Naidu died without any property. Janakiram Naidu earned enormous wealth during his life time and died issueless in 1955. His wife also died in 1956. The plaintiffs are the legal heirs. The properties left behind by Janakiram Naidu were enjoyed by the other members of the joint family. Items 1 to 5 in para 3 of the plaint i.e agricultural lands 3-13 acres at Kancheepuram, house No. 7-A, Nammalwar St, Big Kancheepuram, house property bearing Door Nos. 9 and 11, Narayanan Street, Madras and cash amounts were taken by the members of the joint family and under the power of attorney given by the other members of the family, A.D Muthukrishna Naidu was managing the properties. He died on 13-11-1976. He was employed at the Official Trustee's Office, High Court, Madras and he resigned his job in or about 1st June, 1957 and he did not gel any provident fund, gratuity or pension. The house properties were sold and the sale proceeds were kept by A.D Muthukrishna Naidu. The said assets are not self acquired properties of A.D Muthukrishna Naidu. The amount kept in bank deposits were transferred in the name of the defendants either by nomination or under either or survivor accounts. A.D Muthukrishna Naidu has no power to do so. The defendants have influenced A.D Muthukrishna Naidu by illegal and improper means and committed fraud and deception on A.D Muthukrishna Naidu and transferred his bank accounts in their name. Only on rendering proper accounts, the plaintiffs would be able to know. The Plaintiffs, who are the legal heirs are entitled to gel the assets left by A.D Muthukrishna Naidu.

3. In the written statement filed by the defendants it is contended that the allegations that A.D Muthukrishna Naidu was managing the entire properties left by Janakiram Naidu and the assets kept by Muthukrishna Naidu are the out come from the properties of D. Janakiram Naidu are all baseless and denied. The plaintiffs are not the legal representatives and they are not entitled to get the assets left by A.D Muthukrishna Naidu. It is further contended that the said Muthukrishna Naidu lost his wife only long prior to his retirement. So, he was looked after only by the defendants. Whatever may be, he was investing the same and he was expressing to the defendants that as he has not been cared for or looked after or enquired about by any of his relations including the plaintiffs. The savings, earnings and moneys from other income of A.D Muthukrishna Naidu has nothing to do with the income of joint family property as these defendants understood that only the joint family property in which A.D Muthukrishna Naidu was living. He died at the advance stage of 80 years. In the last few years prior to his death, he was expressing that he must in duty bound and according to his consciousness and free will and pleasure uninfluenced by any considerations excepting that for the gratitude, he had to show for the service rendered by the defendants in attending to his comforts and looked after as their father and father-in-law he will set apart portions of his investments in favour of the defendants and in pursuance thereof, the sums of Rs. 18,000/-, Rs. 102,80/-, Rs. 4800/-, Rs. 1200/- and Rs. 24,000/- were all made in either or survivor account respectively and said Muthu Krishna Naidu gifted the same to the benefit of the defendants. The sums were kept in fixed deposits nominating the 1st defendant as the person entitled to receive the same after his death. The defendants did not promise to withdraw the amounts from the banks and pay the same to the plaintiffs. The said Muthukrishna Naidu having died, the 1st defendant has the sole right to draw the said sums as the monies belonging to him and none of the plaintiffs or any other imaginary heirs of A.D Muthukrishna Naidu have any right, title or interest to the said sums. With these averments, the defendants prayed for dismissal of the suit.

4. The 1st plaintiff was examined as P.W 1 and the 5th plaintiff as P.W 2. They also examined two more witnesses as P.Ws 3 and 4 apart from marking Ex. A1 to A47 in support of their case. On the other hand, the 1st defendant himself was examined as D.W 1. and one Seshachalam was examined as D.W 2. They also marked Ex. B1 to B4 in support of their defence.

5. The learned 6th Assistant Judge, City Civil Court, after framing necessary issues and in the light of the evidence available on record, decreed the suit as prayed for with costs.

6. Aggrieved by the judgment and decree of the trial court, the defendants have filed an appeal in A.S No. 237 of 1982 before the 6th Additional Judge, City Civil Court, Madras. The lower appellate Court after framing necessary points for determination, allowed the appeal in part and reversed the decree of the trial Court in so far as the amounts lying in is “either of survivor” account.

7. Against the order of the lower appellate Court, partly modifying the decree with regard to the amounts lying in the bank “either or survivor” account, the aggrieved plaintiffs filed the present appeal before this Court. While entertaining the appeal, this Court has framed the following substantial question of law for consideration:—

“When the amount deposited in “either or survivor” account is under the full control of the depositor, till his death, will it mean that he depositor has gifted the same to the survivor, in the absence of any specific gift?”

8. In the light of the substantial question of law framed earlier, Mr. R. Subramanian, learned counsel for the appellants submits that the lower appellate court mainly relying on Ex. A20 and A21 erroneously came to the conclusion that handing over of two F.D receipts to the 1st defendant by the deceased Muthukrishna Naidu will amount to a gift. He also submits that the reason given by the lower appellate court, with regard to the term “either or survivor” is erroneous and cannot be sustained. On the other hand, Mr. Venkatara manujam, learned counsel for the respondents submits that in view of assistance rendered by the defendants as seen from the oral evidence, coupled with the recitals in Ex. A20 and A21, the conclusion reached by the lower appellate court is in accordance with law and prays for dismissal of the Second Appeal.

9. I have carefully considered the rival submissions.

10. In the present appeal the only question that is to be decided is whether Muthukrishna Naidu had intended to give two FD amount receipts lying in “either or survivor” account to the defendants for their benefits. In view of the limited controversy, I am not traversing the other factual aspects. It is seen that the deceased Muthukrishna Naidu had kept two accounts. A sum of Rs. 1200/- Rs. 1200/- and Rs. 12,000/- were kept in F.D and the deceased Muthukrishna Naidu has nominated the 1st defendant as the person entitled to receive the sums after his death. It is pertinent to note that in this aspect, the deceased had consciously made the 1st defendant as nominee to collect the amounts. In those circumstances, the defendants admitted that after collecting the amounts as per the directions of the deceased Muthukrishna Naidu, they had to pay the amounts to the heirs of Muthukrishna Naidu. However, it is their case that in so far as the other amounts viz., Rs. 18,000/- invested on 17-11-1973, Rs. 102-50, Rs. 4000/- invested on 5-1-1976, Rs. 1200/- invested on 5-2-1976 and Rs. 25,000/- deposited on 5-7-76 the deceased Muthukrishna Naidu has written a letter Ex. A21 to the bank to convert that account into “either or survivor” account. In this aspect, it is useful to refer Ex. A21 and the same is herewith extracted.

“Madras Dt. 14-7-76

From A.D Muthukrishnan, 9 Second Narayanan Street, Seven Wells, Madras. 1

The Secretary, Madras Central Co.-Op. Bank Ltd.,

Madras. 1.

Sir, Sub: Adding of name in fixed deposits regarding.

I have invested a sum of Rs. 6000/- under two fixed deposits with your bank as per details given below:—

Date of Investment F.D.R No. F.D Amount Due Date: 5-2-76 001205 1200/- 5-2-77 5-1-76 001123 4800/- 5-1-77

As I am unable to come to the bank often for transaction purpose due to my agedness. I request you to kindly add the name of Sri V. Mohan Rangam, my brother's son-in-law along with my name in the above two fixed deposits and convert both as “Payable to “Either or Survivor” accounts. I have furnished herewith a consent letter received from Sri V. Mohan Rangam in this regard. I also submit herewith” “E or S” application from duty filled in by me and Sri V. Mohanrangam for the purpose mentioned above. I request you to kindly do the needful in this regard. Thanking you, Encl: Two Yours faithfully, Sd. A.D Muthukrishna Naidu 14-7-76.”

This is followed by Ex. A20 wherein the 1st defendant has given a consent for becoming a co-depositor in the two fixed deposits referred to under Ex. A21.

11. A careful scrutiny of Ex. A21 clearly shows that as the deceased Muthukrishna Naidu was unable to go to the bank often for transaction, due to his age, he has requested the Secretary, Madras Central Co-operative Bank, Madras-1 for inclusion of the 1st defendant in the two fixed deposits mentioned therein. Except stating his old age, the deceased Muthukrishna Naidu, has not mentioned anything in the said letter. No doubt in pursuance of the request made by the deceased Muthukrishna Naidu the 1st defendant has given a consent for becoming a co-depositor. A perusal of the above referred two documents clearly shows that except to assist the deceased Muthukrishna Naidu in order to attend the bank transactions I do not find any other purpose as contended by the defendants or as concluded by the lower appellate court. No doubt, it is true that the lower appellate Court has very much relied on a decision of this court reported in (1955) 35 Company Cases 457 = (1955) 68 L.W 865 = A.I.R 1956 Mad. 56 = Mrs Avis Fipzalan Cowdrey v. Imperial Bank of India. In the said decision, the Division Bench of this court has held as follows:—

“Where the surrounding circumstances in converting a personal account into an “either or survivor” account show that the deceased intended to make a gift or provision for the survivor would be entitled to the balance standing to the credit of the joint account”.

This passage has made the lower appellate court to come to the conclusion that the inclusion of the 1st defendant in the two fixed deposits by the deceased Muthukrishna Naidu, and handing over the said F.D receipts would amount to a gift. In the said decision it has been held thus.

“That was a case where one Katherine Mary Jones who had a current account in her name with the Bangalore Branch of Imperial Bank of India addressed a letter to the bank asking the bank to arrange to have her current account in which an amount of Rs. 17683-15-7 stood to her credit changed to a joint account with Mrs. Esme Folkes. Mrs. Jones and Mrs. Folkes filled up the necessary form for opening a current account in their joint names and both of them also filled up what is called “either or survivorship” form. The learned Chief Justice who rendered the judgment has referred to the fact that Mrs. Jones was weak and lost her eye sight and on that account Mrs. Jones had to rely on Mrs. Folkes. The learned Chief Justice has indicated that circumstance would justify the case of Mrs. Folkes that Mrs. Jones intended to reward Mrs. Folkes for her service. The conversion of the individual current account into a joint either or survivor account according to the learned Chief Justice in that case would operate to vest the title to the amount in the account in both Mrs. Jones and Mrs. Folkes, subject to the condition that on either of them surviving the other the balance is taken by the survivor absolutely”.

12. On my perusal of the said judgment, it is seen that in that case apart from the evidence of Mrs. Folkes that Mrs. Jones clearly manifested an intention that whatever balance was left in the joint account should be taken by Mrs. Folkes, it is further seen in that case that two respectable witnesses have filed affidavits to the effect that Mrs. Jones intended to give benefit of I he amount lying in the joint account at the time of death of Mrs. Folkes. In view of the definite intention of Mrs. Jones as well as solemn affidavits from two respectable witnesses filed in support of Mrs. Jones and after concluding that surrounding circumstances, viz., Mrs. Jones did intend to make a provision for Mrs. Folkes in case he died before Mrs. Folkes, the learned Judges in the said decision came to the conclusion that Mrs. Folkes, became entitled to the balance standing to the credit of joint account in the name of both. The said decision shows that there must be strong surrounding circumstances to convert the personal account into “either or survivor” account. It also shows that the intention of the deceased should be explicit to make a gift or provision for the survivor. As pointed out by me Ex. A21 does not contain any such statement as found in the Division Bench decision referred to above. Since I have also extracted the entire contents of Ex. A21 I am not repeating the same. Hence by applying the principles enunciated in the above referred Division Bench decision and in the light of Ex. A20 and A21 I am unable to sustain the conclusion reached by the lower appellate court in this regard.

13. It is also relevant to refer the decision reported in A.I.R 1971 S.C 1962 - Indranarayan v. Roop Narayan wherein the Apex Court has held as follows:—

“In the case of transfer made by a Hindu of his money in a bank to the joint names of himself and his son on the terms that it is payable to either himself or the survivor, the son can successfully put forward plea of advancement in his favour if he proves that the transfer is genuine and that the father intended that the money should go to the son exclusively after his death”.

14. The Supreme Court has further held as follows:—

“The transfer with which we are concerned in this case cannot be gift because Dr. Pandit continued to be the owner of the amounts in question till his death. There is no presumption of advancement in this country but yet if there had been satisfactory evidence to show that the transfers in question are genuine and further that Dr. Pandit intended that the amounts in question should go to the 1st defendant exclusively after his death, we would have held that the advancement put forward had been satisfactorily proved and the presumption rebutted.

It was for the 1st defendant to establish that there was a general intention on the part of Dr. Pandit to benefit him and insursuance of that intention he transferred the deposits to the joint names of himself and the 1st defendant. If he had proved those facts, he would have made good his pleasee Young v. Sealey, (1949) All ER 92: Avis Fitzalan Cowdray v. Imperial Bank Of India, AIR 1956 Mad. 56 = (1955)68 L.W 865 D. Nagarajamma v. State Bank of India, Cuddapah, AIR 1962 Andh-Pra. 260.

In Guran Ditta v. Ram Ditta ILR 55 Cal. 944 = AIR 1928 PC 172 the Judicial committee held that the deposit made by a Hindu of his money in a bank in the joint names of himself and his wife, and on the terms that it is to be payable to either or the survivor, does not on his death constitute a gift by him to his wife. There is resulting trust in his favour in the absence of proof of a contrary intention, there being in India no presumption of an intended advancement in favour of a wife. The same view was expressed by the Judicial Committee in Pandit Shambhu Nath Shivpuri v. Pandit Pushkar Nath 71 Ind App 197 = (AIR 1945 PC 10).

24. But the difficulty in this case is firstly that here is no satisfactory proof of the alleged letter sent by Dr. Pandit to the Bank of Indore. Secondly there is no evidence of the general intention on the part of Dr. Pandit to give those amounts exclusively to the 1st defendant. In the letter said to have been sent by Dr. Pandit to the bank all that is said is that he wanted to put the amount in the joint names of himself and the 1st defendant as he was seriously ill. There is nothing in that letter to show that he intended to make over that amount to the 1st defendant As noticed earlier Dr. Pandit was in his death bed. Therefore, he might have thought it prudent to transfer the deposits to the joint names of himself and the 1st defendant to facilitate collection. That being so, we are unable to uphold the plea of the 1st defendant regarding those deposits.”

15. In the light of the decision of the Apex Court referred above, in our case also there is no satisfactory proof with regard to general intention on the part of the deceased Muthukrishna Naidu to give those amounts (FD) exclusively to the 1st defendant. In Ex. A21 letter sent to the bank all that is said is that he wanted to put the amount in the joint names of himself and the 1st defendant as he was aged. There is nothing in that letter to show he wanted to make over that amount to the 1st defendant. In as much as the deceased Muthukrishna Naidu was more than 80 years, at the time of Ex. A1, he might have thought it prudent to transfer the deposits to the joint names of himself and the 1st defendant to facilitate collection. In those circumstances, in the light of the conclusion reached by the Supreme Court, the finding of the lower appellate court cannot be sustained and is liable to be set aside. A similar view has been taken by Bombay High Court reported in AIR 1976 Bombay 153 - Krushandas v. Bhagwandas.

16. In these circumstances, in the light of the law laid down by the Apex Court in the decision referred above and in the light of the Ex. A20 and A21 as well as oral evidence let in In the parties, I am unable to sustain the conclusion reached by lower appellate court viz., inclusion of the 1st defendant in the Two F.D receipts along with the deceased Muthukrishna Naidu and having the said F.D receipts by the 1st defendant would amount to gift cannot be sustained and the same is accordingly set aside. On the other hand, the trial court has rightly granted a decree in favour of the plaintiffs directing the defendants to render proper accounts for the assets kept and left by the deceased A.D Muthukrishna Naidu.

17. Accordingly, the Second Appeal is allowed, the judgment and decree of the lower appellate court are set aside and the judgment and decree of the trial court are restored. However, in the circumstances of the case, there will be no order as to costs.

KA//RR/VCS