1. This application raises an interesting question as to whether a Caveator can ask for an injunction restraining a person who happens to be the sole legatee of an impugned will from claiming the proceeds of the joint recount held in the name of the deceased and the said legatee.

2. The facts leading to this application are briefly stated hereafter.

3. One Sm. Nisha Sinha, a Hindu lady governed by Dayabhaga School of Hindu Law was a spinster who died on 29th September, 1983 leaving her last will dated 6th September, 1982 appointing Kamal Mitra, an Advocate and his nephew Sabyasachi Mitra as the Executors of the said will. The said Sm. Nisha Sinha died leaving behind her applicant Narendra Nath Sinha the sole surviving brother of the said deceased; one Sm. Sabita Sinha widow of her predeceased brother Santosh Kumar Sinha and several nephews by her predeceased sister Sm. Renuka Mitra as the heir, heiresses and legal representatives in accordance with the provisions of the Hindu Succession Act.

4. The said Kamal Mitra and Sabyasachi Mitra claiming to be the Executors of the said will applied for grant of Probate of the said will left by Sm. Nisha Sinha

5. On the application filed by the Caveators including the present applicant, C.K Banerji, J. by his order dated 7th May, 1985 directed the application filed by the said Executors for Probate to be set down and marked as contentious cause.

6. In the present application applicant has in his written statement challenged the will in respect of which probate has been applied for, inter alia, on the ground that the will was not made of free mind and agency of the maker of the will but has been caused by fraud and coercion practised by the propounder Kamal Mitra who at the material time, had the full control and dominion over the maker of the will standing in fiduciary relationship of Advocate and client. The sole legatee of the said will Sm. Mamata Ghosh was an attenendant of said Sm. Nisha Sinha for the last 4 years of her life.

7. The case of the petitioner in this application is that the said deceased Nisha Sinha during her life time opened with her own fund a Bank Account with Central Bank of India, Shyambazar Branch, Calcutta being Account No. 4019 in the joint name of herself and the said Sm. Mamata Ghosh. It was not included in the affidavit of assets filed by the Executors. The said deceased had also invested the said money lying in the said account from time to time in fixed term deposit. Taking advantage of the fact that the fixed term deposit with the Central Bank of India, Shyambazar Branch, Calcutta standing in the joint names of the deceased Nisha Sinha and the said Sm. Mamata Ghosh, the plaintiff Kamal Mitra has been trying to get the money withdrawn from the said fixed deposit upon maturity for his appropriation. If the said Kamal Mitra and the said Mamata Ghosh are allowed to withdraw the said fixed deposit iireparable loss and injury would be caused to the estate of the said deceased Nisha Sinha in respect of which the suit is pending for grant of Probate of purported will.

8. In the premises the Caveator Narendra Nath Sinha has made this application, inter alia, praying for an injunction restraining Kamal Mitra and Sm. Mamata Ghosh from withdrawing the monies lying in the fixed deposit with the Central Bank of India, Shyambazar Branch, Calcutta standing in the joint names of Nisha Sinha and the said Mamata Ghosh till the disposal of the suit.

7. This application is opposed. Affidavits have been filed on behalf of said Sm. Mamata Ghosh as well as on behalf of the said Kamal Mitra. The allegations concerning them have been denied.

8. The case of the said Smt. Mamata Ghosh is that she is the sole legatee of the will left by the deceased. She was employed with Krishna Chandra Dutta Cockme Dutta) Pvt. Ltd. At the request of the said deceased she left the job and pursued her studies and graduated in 1979. She also obtained certificate with distinction in Music from an institution recognised by Sangeet Natak Academy and Rabindra Bharati University. She was a companion of Sm. Nisha Sinha, since deceased.

9. It is further stated that she opened an account in the joint names of herself and Smt. Nisha Sinha. In the joint account the name of Smt. Mamata Ghosh comes first. The joint account was opened on the basis that either of the joint account holders or the survivor would be able to operate the said account. The case is that under the terms and conditions of the joint account or fixed deposit, Sm. Mamata Ghosh has every right to operate the said account either by way of withdrawing money from the said account or depositing as the case may be. She deposited in the joint account her earning from tuition. Both the monies of the deceased as well as of said Mamata Ghosh were put into the said joint account. It is her case that Kamal Mitra has nothing to do with the said joint account. Against one fixed deposit made jointly a loan of Rs. 13,000/- was obtained. The said loan was taken against fixed deposit no. 51/268 dated 14th June, 1982 After the death of Nisha on Sinha 29th September, 1983 a sum of Rs. 6,000/- has been paid and the entire loan was liquidated and the said fixed deposit has become free from all encumbrances. Since the fixed deposit money belong jointly to her and the said Nisha Sinah, deceased either of the joint account holders or survivor, she was and is entitled to withdraw the proceeds of the joint account or fixed deposit.

10. Mr. Kamal Mitra in his affidavit has denied the allegations made against him.

11. At the hearing Mr. Partha Bose, learned Counsel appearing for the petitioner has contended that even though the accounts were opened jointly in the names of the deceased Nisha Sinha and the said Sm. Mamata Ghosh the question is whether the said monies belong to the estate of the deceased and accordingly at this stage if the survivor of the joint account holders takes away the proceeds of the said joint account, the estate will suffer ??? in the event the application for probate fails. Mr. Bose has relied on several decisions in support of his contentions. He has relied on a decision of the Privy Council in the case of Guran Ditta v. T. Ram Ditta reported in 109 IC 723. In that case one Teku Ram on the 17th May 1919 opened a deposit account for Rs. 1 lakh with the Peshawar Branch of the Alliance Bank of Simla in the name of himself and his wife, “payable to either or survivor” Teku Ram died on 20th May 1920. After his death the deposit was renewed for a further period of one year in the name of the wife alone. It was admitted that the money deposited in the Bank was at the time of deposit the property of and belonged to Teku Ram who had supplied it from his own resources. It was argued on behalf of the appellant that apart from outside evidence these was a presumption that the sum deposited constituted an advancement or resulting trust in favour of the wife of Teku Ram. The question before the Privy Council was decided on the construction of the terms of the deposit loan whereby the joint account was opened. The Privy Council held thus:

“The general principle of equity, applicable both in this country and in India, is that in the case of a voluntary conveyance of property by a grantor, without any declarat on of trust, there is a resulting trust in favour of the grantor, unless it can be proved that an actual gift was intended. An exception has, however been made in English Law, and a gift to a wife is presumed, where money belonging to the husband is deposited at a Bank in the name of a wife, or, where a deposit is made, in the joint names of both husband and wife.”

“This exception has not been admitted in Indian Law under the different conditions which attach to family life, and where the social relationships are of an essentially different character. The principle to be applied has been stated in Kerwick v. Kerwick reported in 47 IA 275:

“The general rule and principle of the Indian Law as to the resulting trusts ditiers but little, if at all, from the general rule of English Law upon the same subject, but in their Lordships' view it has been established by the decisions in the case of Gopeekrist Gosain v. Gungapersaud Gosain (3) and Moulvie Sayyud Uzbur Ali v. Bebee Ultaf Fatima (4) that owing to the wide apread and persistent practice which prevails amongst the natives of India, whether Muhammaden or Hindu, for owners of property to make grants and transfers of it benami for no obvions reason or apparent purpose, without the slighest intention of vesting in the donee any beneficial interest in the property granted or transferred, as well as the usages which these natives have adopted and which have been protected by statute, no exception has ever been engrafted on the general law of India negativing the presumption of the resulting trust in favour of the person providing the purchase money such as has, by the Courts of Chancery in the exercise of their equitable jurisdiction, been engrafted on the corresponding law in England in those cases where husband or father pays the money and the purchase is taken in the name of a wife or child. In such a case there is, under the general law in India, no presumption of an intended advancement as there is in England”

12. Applying the principle thus stated to the present case, their Lordships held that there is no presumption, in the deposit note, of an intended advancement in favour of Musammat Gujri, and that the sum of Rs. 1,00,000, and interest, were the property of Teku Ram, and remained at his disposal at the date of his death, as found in the decisions of the Courts below”

13. It may be mentioned that in that case a suit was instituted by the respondent, the brother of the deceased Teku Ram, where one of the main issues was whether the deposit was the sole property of the wife of Teku Ram by gift or will or otherwise. It appears from the facts of that case and on the evidence disclosed that the money was supplied by Teku Ram. In this case it is not admitted that entire money belonged to the deceased Nisha Sinha. Secondly in the instant case this account is not a joint account by the husband and wife. This account was operated by the deceased and a stranger. It appears that the view of the Privy Council was that since the deceased supplied the money to the joint account, whether that account was payable to either survivor, the money belonged to the estate of the person who originally supplied the money.

14. Mr. Basu then cited a decision of the Madras High Court in the case of S.K Panikar v. Trarancore National and Qilon Bank Ltd. reported in AIR 1942 Madras 351. In that case an application for leave to set off the amount standing to the credit of the applicant in the current and savings bank, either or survivor account in the name of the applicant and his wife. In the Calcutta Branch of the Bank against the loan due and payable by the applicant to the Bank was made. The Madras High Court following the said judgment of the Privy Council held that under the law prevailing in India a deposit by husband in the name of himself and his wife payable to either or survivor in the absence of evidence to the contrary must be presumed to belong to the husband.

15. This is also a case where the joint account was in the name of the husband and wife.

16. Mr. Basu has also relied on a judgment of the Division Bench of this Court in the case of Sm. Chinmoyee Saha v. Deb ndralal Saha, reported in AIR 1985 Cal. 349. There the Division Bench of this Court held that where the propounder himself takes a prominent part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account and the propounder is required to remove the doubt by clear and satisfactory evidence. In this case the executor propounder is the Lawyer and the Testatrix was his client and accordingly there is great doubt as to the genuineness of this will. Therefore if the will is not probated the property would devolve upon the heirs and legal representatives of the deceased and one of such properties would be the joint account held by the deceased with the said Mamata Ghosh.

17. This case has no relevance here. The Division Bench was concerned with the grant of probate of a will and was not concerned whether the money standing to the credit of the joint account belonged to the survivor or not?

18. The contention of Mr. Ahin Chowdhury, learned Advocate appearing for the said Sm. Mamata Ghosh is two fold—first, the Probate Court would not go into the question whether or not a particular asset belongs to the estate of the deceased. It has to be decided if at all in a regular suit. Secondly where there is a joint account the survivor is entitled to get the amount on her own right. He has relied on a decision of the Division Bench of the Madras High Court in the case of Hepzibah Annathai Rangachari v. R. Ananthalakshmi Rangachari reported in AIR 1975 Madras 342. In that case the deceased had an account in the United Commercial Bank jointly with the wife and the daughter. The wife asked for letters of administration. The Division Bench held thus:

“Where it is a case of joint account in a Bank and the amount is payable to either or survivor, the nature of the case requires that it is treated as an exception to the general rule we mentioned. This is because, though the will in this case devised the entire assets of the deceased testator in favour of the appellant, inasmuch as the account was joint and the amount standing to its credit was payable to either or survivor, the appellant, as between the Bank and herself would be entitled to draw the same in her own right. On that view, it may not even be necessary to obtain Letters of Administration, for, there is in that case little to administer, and as we mentioned, her right to draw the amount can be independently of the will”.

19. Mr. Bose in reply has relied on a judgment of this Court in the case of Nirod Barani Debi…Applicant, v. Chamatkarini Debi…Opposite Party, . reported in 19 CWN 205. In that case the appeal was directed against an order by which the Court below refused to grant an injunction in a proceeding for Letters of Administration of the estate of one Brojo Nath Dobey. The appellant Nirodbarani Debi and the respondent Chamatkarini Debi are daughters of the deceased. Shortly after the death of Brojo Nath Dobey, Nirodbarani applied for letters of administration to his estate. Thereafter, Chamatkarini made an application for probate of a will alleged to have been executed in her favour by her father. There were thus two counter cases before the Court and the question of the genuineness and validity of the will had to be determined in the first instance. Before the cases came on for trial the appellant Nirode Barani Debi who had asked for letters of administration applied to the Court for an injunction to restrain her sister from alienating the properties of which she was in possession. There the Division Bench held thus:

“The question, arises whether a proceeding for probate of a will or for letters of administration may rightly be held to be a suit in which property is in dispute. In our opinion, the answer must be in the negative. It has been repeatedly held that the only question in controversy in a proceeding in the Probate Court is that of representation of the estate of the deceased and no question of title thereto, that is, the title of the deceased or of the conflicting titles alleged by the parties to the probate proceeding can be investigated by the Court Consequently it would be, in our opinion, an undue straining of the language to hold that a probate proceeding is a suit in which there is property in dispute. But we do not lay down the proposition that the Court is not competent, because it is a Court of Probate, to grant an injunction in any circumstances. The proper procedure to follow in cases of this description is for the aggrieved party to apply to the Court for the appointment of an administrator pendente lite, under s. 34 of the Probate and Administration Act. When an application has been made under s. 34, it may be necessary for the Court to grant an injunction either in the exercise of its inherent power or under r. 7 of Or. 39 of the Code. For instance, it may be brought to the notice of the Court that a party in possession is about to deal with the moveable properties; unless an injunction is granted, the appointment even of an administrator pendente lite may become fruitless. The Court, under such circumstances, has ample authority, either under statutory powers or in the exercise of its inherent jurisdiction, to make a temporary order, so as not to dafeat the ultimate order which the Court is competent to make.”

20. He therefore contends that the Court has power to grant injunction as sought for by the Caveator.

21. I have given my anxious consideration to the rival contentions

21A. The Privy Council in Guran Ditta (supra) has no doubt laid down that whatever may be the position of law as exists in England in respect of the theory of advancement, no such principle is applicable to India where the conditions which attach to family life are different and where the social relationships are of an essentially different character. The view seems to be that when a deposit is made in the joint name of husband and wife, payable either or survivor, there is no presumption of advancement in favour of wife and there is a resulting trust in favour of the husband who made the deposit in absence of contrary intention. The doctrine of advancement being inapplicable in India, the deposit must be treated as the absolute property of the deceased depositor (husband) and should be paid to her heirs. Whatever might have been the position in 1928 as between the husband and wife of those days of social relationship the position has changed rapidly in the last sixty years. Not only the relationship has changed but because of the growing complexities of life, the joint account is opened not because of convenience alone, but with presumed intention to benefit the survivor.

22. The proposition that has been canvassed must be tested in the light of the law relating to Banking. On the death of an individual customer the title to his assets vests in his legal representatives. It is only after obtaining succession certificate or probate or letter or administration, the legal representatives are entitled to draw upon or otherwise deal with such account. But when the account is a joint account payable either or survivor, and one party dies, survivor is ordinary entitled to the whole amount. This is really based on the law of devolution between joint owners or on the custom of bankers on the express or implied agreement. The Bank upon making payment to the survivor has no further liability to the legal representative or the executor of the will of the deceased as the case may be. In the case of joint account of husband and wife, the English Courts have considered whether the wife was joined for the sake of convenience or for the purpose of providing for her in case she was the survivor. As I have said in the growing complexities of social life and erosion of values, unless the wife, if she is the survivor acquires the right to claim the balance of joint account when the husband dies, the wife may not also survive in the long run unless she has her independent source of income. I am in respectful agreement with the views expressed by the Division Bench of the Madras High Court in Hepzibah Amalhi Rangachari (supra) that the surviving wife is entitled to draw the money in her own right.

23. Here the case is not of a husband and wife. A spinster opened the joint account with another who looked after her in the last phase of her life. A substantial part of the said account, according to the caveator was contributed by the deceased. The account was opened jointly. A loan was obtained against the security of joint fixed deposit account and made free from encumbrances by the survivor. Even if the deceased had made contribution to the said account, wholly or partly, that is not relevant to decide whether the survivor is entitled to the balance of the joint account when Sm. Nisha Sinha died. Reference may be made to a decision of the High Court of Australia in Russell v. Scott reported in (1936) 55 CLR 440.

24. In that case an elderly lady of some means and her nephew opened a joint account in the Commonwealth Savings Bank. Her moneys only were to feed the account, which was opened by the transfer of a large sum from an account in her own name. Her nephew assisted her in all matters of business and it seems to have been considered safer and more convenient that the moneys she required should be withdrawn upon the signature of both of them. She also desired that her nephew should benefit by having whatever should stand at the credit of the account at her death, and by means of the account she intended to effectuate this desire. But until her death the account was to be used for the purpose of supplying her wants. At her death an amount of £ 1,395 12s 4d stood at the credit of the account, and the question was whether the nephew is beneficially entitled to this sum and to a small sum of £ 75 which was drawn out and placed to his own account just before her death. In other words, the question was whether the survivor of two persons opening a joint bank account is beneficially entitled to the balance standing at credit when the other dies.

There Starke, J. held thus:

“A person who deposits money in a bank on a joint vests the right to the debt or the chose in action in the persons in whose names it is deposited, and it carries with it the legal right to title by survivorship (Standing v. Bowring; In re Shields; Corbould Ellis v. Dales, Re Reid; Lindlay on Partnership, 7th ed (1905), p. 380). The vesting of the right and title to the debt or chose in action takes effect immediately, and is not dependent upon the death of either of the person in whose names the money has been deposited. In short it is not a testamentary deposition. There is nothing in the law to forbid a person depositing moneys in the joint names of himself and his family, or strangers”

There Dixon and Evatt, JJ. held thus:

“The contract between the bank and the customers constituted them joint creditors. They had, of course, no right of property in any of the moneys deposited with the bank. The relation between the bank and its customers is that of debtor and creditor. The aunt and the nephew upon opening the joint account became jointly entitled at common law to a shose in action. The chose in action consisted in the contractual right against the bank, i.e in a debt, but a debt fluctuating in amount as moneys might be deposited and withdrawn. At common law this chose in action passed or accrued to the survivor.”

Then they proceeded to hold;

“The right at law to the balance standing at the credit of the account on the death of the aunt was thus vested in the nephew. The claim that, it forms part of her estate must depend upon equity. It must depend upon the existence of an equitable obligation making him a trustee for the estate”

Then they said:

“As a legal right exists in him to this sum of money, what equity is there defeating her intention that he should enjoy the legal right beneficially? But upon principle and upon English Authority, we answer, none English authority is confined so far as we can discover, to cases of husband and wife. But there is much authority to the effect that when a joint bank account is opened by husband and wife with the intention that the survivor shall take beneficially……….that intention prevails………………..although the deceased husband supplied all the money paid in and during his life the account was used exclusively for his own purposes” (P. 451)

Thereafter referring to various English decisions, the learned Judges held:

“The fact that these cases arose between husband and wife affect only the burden of proof. In a case where there is no presumption of advancement, satisfactory affirmative proof of an intention to confer of beneficial interest supplies the place of presumption. Once it appears, as it does in the present case, that a definite intention existed that the balance at the credit of the Bank account should belong to the survivor, these cases become, in our opinion undistinguishable”

25. The principles laid down by the High Court of Australia will apply to the facts of this case. In my judgment, the survivor has a legal right to the balance standing at the credit of the account on the death of the other depositor of the joint account.

26. The contention of the caveator is that all the monies deposited in the said account belonged to the deceased and she had no intention to give the same to the survivor who is a trustee for the estate. I am afraid this contention even if sustainable, cannot be decided in the probate jurisdiction. The duty of the Probate Court is to decide whether or not a document is entitled to probate as a testamentary instrument, whether such instrument has been executed according to the requirements laid down in the Indian Succession Act, and who is entitled to be constituted the personal representative of the deceased. The form of the instrument is immaterial. The Court has to decide whether the instrument was intended to operate after his death and that it is executed in accordance with the statutory requirements. It is not the duty of the Probate Court to consider any issue as to the title of the testator to the property the will deals with or to consider whether the testator had disposing power over such property or to the validity of the bequests made. The probate court cannot go into the question whether the testator has left any property or not. A proceeding under the Indian Succession Act is not a suit. In a proceeding upon an application, for probate of a will, the only question which the Court is called upon to determine is whether the will is true or not. It is not the function of the Court to go into the question of title with reference to property covered by the will. Nor can it decide whether an asset not included in the affidavit of assets belonged to the deceased and formed part of the estate. He who asserts that a particular asset has not been included in the affidavit of assets filed with the application for probate, must prove in a properly constituted suit that such asset in fact was the asset of the deceased. A caveat is a notice in writing that no grant is to be sealed in the estate of the deceased named in without notice to the caveator. The person who enters a caveat admits that the particular property forms a portion of the estate of the testator, but objects either to the execution of the will or to the proposed manner of dealing with any portion of the estate. The whole object of the Caveat is to prevent the issue of any grant without notice to the caveator in respect of the assets disclosed. The entire assets of the deceased should be disclosed in the affidavit of assets. If the contention is that an asset, not included in the affidavit of the asset is the asset of the deceased, the person raising such contention, to have an interim relief, must institute appropriate proceeding as indicated in the judgment of this Court in the case of Nirod Baran Debi (supra). He cannot convert the probate proceeding into a regular suit. As a matter of fact, Sm. Mamata Ghose, who is a surviving party to the joint account maintained in the names of the deceased and Sm. Mamata Ghose, is not a party to this proceeding. Nor is the Central Back of India. Such relief as is asked for in this application, can only be granted in a regular suit where Sm. Mamata Ghosh and the Central Bank of India would be necessary and proper parties.

27. If the application for probate fails, the assets left by the deceased would no doubt devolve upon her legal representatives. But such assets will be those assets which admittedly belonged to the deceased. To establish right or title to the property not included in the affidavit of assets, legal representatives have to institute regular suit.

28. For the reasons aforesaid, this application has no merit and must fail. But one other aspect needs to be considered on the basis of the concession made by Mr. Ahin Chowdhury learned Counsel appearing for Sm. Mamata Ghose, that he will have no objection if the Court directs that half of the amount be retained in the fixed deposit by Mamata Ghose till the disposal of the probate proceedings. I his submission made by the learned Counsel is presumably based on the admitted position that a part of the contribution to the joint account was made by the deceased. Where it is clear that each has made a substantial contribution but the amount provided by each cannot be determined with accuracy, their beneficial interests may be treated as equal. But that question does not call for determination having regard to the view I have taken on the main question.

29. This application is therefore rejected. The applicant shall pay costs of this application to the appearing parties.

30. Learned counsel for Mamata Ghosh has given an undertaking to this Court that she will keep invested a sum of Rs. 20,000/- in she fixed deposit of Central Bank of India until further order. If for any reason she wants to withdraw the said amount or any part thereof, she will obtain leave of this Court.

Save as aforasaid all interim orders, if any, are vacated.

Application rejected.