Sh. Ghanshyam Das vs Sh. Shiv Kumar Vig and Another

Indermeet Kaur, J.—This appeal has impugned the judgment and decree dated 24.04.1999 which had reversed the finding of the Trial Judge dated 21.02.1997. Vide the impugned judgment dated 24.04.1999, it was held that the defendant No. 1 was entitled to the entire amount of the FDR which was in the name of Bua Dutta lying with the defendant No. 3, bank.

plaintiff, Smt. Parbati Devi (deceased), filed the suit for declaration claiming herself to be the owner of the total amount held under the fixed deposit receipt No. FD/A/619657/2464 dated 17.09.1988 lying with the Allahabad Bank. The prayer was that the defendants should be restrained from taking this amount. The principal amount of the FDR was Rs. 1 lac which had been deposited on 17.09.1988 for period of two years. It was in the joint names of Bua Dutta and Shiv Kumar Vig, the defendant. During the pendency of the suit, plaintiff Smt. Parbati Devi died and she was substituted through her legal representative, Sh. Ghanshyam Das.

The Trial Judge had framed four issues which inter alia read as follows:

(i) Whether the plaintiff has no locus standi to file the present suit? OPD.

(ii) Whether there is no cause of action for the suit? OPD.

(iii) Whether the plaintiff is entitled to relief of declaration as prayed for? OPP.

(iv) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP.

(v) Relief.

It was held that Smt. Parbati Devi, the widow of Bua Dutta was his class I hier in terms of the Schedule of the Hindu Succession Act. The defendant, Shiv Kumar Vij, was the nephew. plaintiff though her legal representative was held entitled to the whole amount of the FDR lying with the Allahabad Bank; suit was decreed in her favour.

Vide the impugned judgment, the finding of the Trial Judge was set aside. The impugned judgment took into account the fact that the FDR dated 17.09.1988 was in the joint names of Bua Dutta and Shiv Kumar Vij payable to Rs. former or survivor'' and Shiv Kumar Vij, that is the defendant; after the death of the Bua Dutta (who had died inter-State) was the only person entitled to receive this FDR amount.

The first appellate court also held that Sh. Ghanshyam had not been properly impleaded as the legal representative of Smt. Parbati Devi; Ghanshyam Das belonging to a different caste could not have been the legal representative of Parbati Devi. The impugned judgment had returned the finding that since the FDR was in the name of former or survivor, the amount of the FDR vested in the name of the survivor i.e. Shiv Kumar Vij. He was accordingly held entitled to the said amount.

After the appeal was admitted on 09.12.1999, the following substantial question of law was formulated which inter alia reads as follow:

Whether in case of deposit by a Hindu in joint names of himself and respondent No. 1, whether the same is payable to the legal heirs or to the survivor?

None has appeared for the parties. Matter is on board. On the last date i.e. on 29.09.2010, time had been sought by the counsel for the appellant to submit his arguments. Both the parties have failed to appear before this Court today. The sum of Rs. 1 lac lying in the disputed FDR dated 17.09.1988 was admittedly in the joint name of Bua Dutta and Shiv Kumar. It was payable to former or survivor. Smt. Parbati Devi, the widow of Bua Dutt had staked her claim on this amount. She had died during the pendency of the suit. The impugned judgment had returned a categorical factual finding that Sh. Ghanshyam Das could not have been the legal representative of Smt. Parbati Devi as both were from different castes one belonging to the Brahmins caste and the other to the Khatri caste.

The FDR clearly recited that this amount is payable to former or survivor. After the death of Bua Dutta, the survivor was admittedly Shiv Kumar; he was rightfully entitled to the said amount. The impugned judgment calls for no interference. Substantial question of law is answered accordingly. Appeal is dismissed.