IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO (ISA.) 553 of 2008. Judgment Reserved on 21.10.2009 Date of decision October 26th, 2009. Amar Kaur ..Appellant Versus Shri Ram Singh and others ..Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. For the appellant Ms.Jyotsna Rewal Dua, Advocate. For respondent1 1 to 4 Mr. K.D.Sood, Advocate. Dev Darshan Sud, J. This appeal has been preferred by respondent No. 2 wife of deceased Shri Sadhu Singh against the judgment of the learned District Judge, Nahan in proceedings under Section 372 of the Indian Succession Act, 1925 granting succession certificate/probate in terms of the Will Ext.P9 dated 4.5.1996 to the respondents-petitioners. It is undisputed before me that the petitioner herein was convicted under Section 302 readwith Section 34 of the Indian Penal Code for murdering her husband Sh. Sadhu Singh. It is also undisputed that late Shri Rattan Singh, father of the respondents-petitioners, is the brother of the deceased. It is undisputed from the record that the appellant was held guilty of murder of 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - her husband late Shri Sadhu Singh which would thus attract the provisions of Section 25 of the Hindu Succession Act, 1956 which reads: “25. Murderer disqualified- A person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of a person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder.” Learned counsel appearing for the appellant urges that the learned Court was in error in not considering the facts that the fixed deposit receipts, the saving bank account detailed in the petition and the Will Ext.P9 are not the sole property of late Shri Sadhu Singh but also include contributions made by the appellant and she is entitled to succeed/receive 50% of such amount which has been so invested. Learned counsel appearing for the appellant has argued with reference to the evidence on record and has made extensive reference to the evidence in support of her contention. Learned counsel submits that evidence of the appellant who appeared as RW1 was clear, cogent and unequivocal on the point that money deposited was not that of the deceased solely but also of the appellant and she is thus entitled to her share alongwith interest on the investments. She submits that when this evidence is read, in conjunction with Ext.P2, there can be no - 3 - doubt that she was entitled to the invested money. Ext.P2 is a letter which has been addressed by late Shri Sadhu Singh to the Himachal Pradesh Cooperative Bank, Paonta Sahib. This was written on 6th April, 1995 and reads: “Sewa main, Shree Maan Manager, H.P.Cooperative Bank Ltd. Poanta Sahib. Sub:- Bank ke rakam khaton mein meri dharam Patni kaa naam jodne hetu. Shri Maan ji, Nivedan hai ki apke bank mein mere bachat khata and miyadi jama hai, unme mere marni ke baad meri patni Smt. Amar Kaur len den kar sakti hai. Jab tak main betha hoon, main len den karunga. Agar meri dharam patni meri sewa nahi karegi, to main iska naam katwa sakta hoon. Aapki mahan kripa hogi. Ta. 6.4.95 Prarthi, Sd/- (Sadhu Singh)” Learned counsel appearing for the respondent submits that the letter cannot be interpreted in a way which would condone the act of the appellant committing murder of the testator, thus removing the bar of Section 25 of the Hindu Succession Act. He submits that instructions to the Bank are clear that deposit would remain joint till his wife looks after him. He submits that even RW1 in cross examination has admitted that late Shri Sadhu Singh had sold his land to M/s Malwa Cotton Mills and the entire amount had been deposited in Fixed Deposits. - 4 - According to him, this negates the fact that the appellant had any share in the money deposited in the bank. Taking into consideration the entirety of the evidence on record, more especially, the cross-examination of the appellant herself, I cannot persuade myself to accept the submission made by learned counsel for the appellant that the appellant had also been contributing to the investments made by the deceased and that such joint investments constituted the joint estate of both of them. There is neither any pleading nor evidence on record to support this contention. The law on joint deposits is by now well settled. In Guran Ditta and another vs. T. Ram Ditta AIR 1928 Privy Council 172, the Privy Council held that: “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 declaration 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 principle has been reiterated in Shambhu Nath Shivpuri vs.Pushkar Nath and others AIR (32) 1945 Privy Council 10. The High Court of Bombay in Krushanadas Nagindas Bhate vs. - 5 - Bhagwandas Ranchhoddas and others AIR 1976 Bombay 153 has followed the ratio of Shambu Nath’s case. In Muhammedan vs. Parukutty Amma 1995 (1) Civil Court Cases 362 (Kerala) the Court considered the principle of law in extenso and held that: “15. The problems concerning the relationship of parties to accounts, interse is somewhat complicated. Bank will obtain a good discharge by paying the balance of a joint account to the survivor or survivors. But that will not solve the dispute between the survivor and the legal heirs of the deceased. In the case of joint deposits it cannot be presumed that the depositor first named alone is the owner. As held by the Supreme Court in State of Maharashtra v. Pollanji Darabshaw Daruwalla, AIR 1988 SC 88, the matter is principally guided by the terms of the agreement, interse, between joint depositors. What their Lordships stated is: “The assumption that in all joint depositor first named alone is the beneficial owner and the depositor named second has no such beneficial interest is erroneous. The matter is principally guided by the terms of the agreement interse, between the joint depositors. If, however, the terms of the acceptance of the deposit by the depositee stipulate that the name of the beneficial owner shall alone be entered first, then the presumptive beneficial interest in favour of the first depositor might be assumed.” In the case of accounts to be operated by either or survivor question has arisen before court as to who is to take the money on the demise of one among them. A learned single judge of this Court in Padmanabhan Bhavani vs. Govindan Bhargavi,1974 KLT 822, went into the issue in detail. After an exhaustive survey of all - 6 - decisions on the point, the learned Single Judge formulated the following propositions. (i) A deposit made by a Hindu of his money in the joint names of himself or his wife or any other person, on the terms that it is payable to either or survivor, does not on his death constitute a gift by him to the other person. (ii) In such a case without any declaration of trust, there is a resulting trust in favour of the depositor in the absence of any contrary intention or unless it can be proved that an actual gift of the amount was intended. (iii) The Principle of English Law that a gift to wife is presumed, where money belonging to the husband is deposited at a Bank in her name or where a deposit is made, in the joint names of both husband and wife has no application in India. In other words, there is no presumption in India of an intended advancement as there is in England. (iv) The burden of proving a contrary intention or gift on the person who seeks to rebut the resulting trust in favour of the person who makes the deposit. (v) This burden could be discharged either by proving that there was a specific gift or that the owner of the money had a general intention to benefit the claimant and that it was in pursuance of that intention that he made the deposit in the claimant’s name or transferred the deposit to the joint names of himself and the claimant. - 7 - (vi) In the absence of such proof the amount under the deposit will form part of the onwer’s estate on his death and will be partible among the heirs.” I need not multiply precedent any more. From the evidence I do not find that there was any intention on the part of the deceased to have gifted any portion of joint deposits to his wife. I also do not find any evidence or from the pleadings on record to hold that a part of the deposited money belonged to the appellant. In these circumstances, there is no merit in this appeal, which is accordingly dismissed. There shall be no order as to costs. October 26,2009 (ms). (Dev Darshan Sud), J.