R.S.A.No. 2803 of 2009 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2803 of 2009 Date of decision: 2.9. 2009 Charanjit Kaur and others ......Appellants Versus Union Bank of India and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Naresh Kaushik, Advocate, for the appellants. **** SABINA, J. Plaintiff Hari Singh filed a suit for declaration and mandatory injunction, which was dismissed by Civil Judge (Jr.Divn.) Amritsar vide judgment and decree dated 7.11.2005. In appeal, the said judgment and decree were upheld by the Additional District Judge, Amritsar vide judgment and decree dated 1.10.2008 Hence, the present appeal. Brief facts of the case, as noticed by the trial Court in para Nos. 2 to 4 of its judgment, are as under:- “2. It is averred by the plaintiff that originally R.S.A.No. 2803 of 2009 2 plaintiffs Hari Singh was as old man and he was unmarried throughout his life and was having no legal heir to inherit his estate except Baldev Singh in whose favour, he executed a valid Will dated 24.4.1995. It is further averred that the plaintiff Hari Singh had deposited a sum of Rs. 500/- on 29.6.1994 and opened a saving bank account vide account No.53612 with the defendant bank and he had further deposited a sum of Rs.1,40,000/- in the bank on 3.6.94. Thereafter, plaintiff Hari Singh has been withdrawing the amounts from the account from time to time and on 3.8.94, the balance aount of Rs.1,05,000/- was outstanding in his account and no amount was withdrawn. However, the plaintiff deceased Hari Singh approached the bank for withdrawing the some of the amount but he was told that the balance of his account was short and the amount has been converted into fixed deposit to the tune of Rs.1,15,000/- on 13.9.94 in the joint account of the plaintiff Hari Singh and Harjit Singh defendant No.2 and that in fact on 13.9.94, the plaintiff had approached the defendant bank for the deposit of Rs.10,000/- along with Harjit Singh who is nephew of deceased Hari Singh and said Harjit Singh had got his name entered and opened joint account and get the amount of the plaintiff lying in his saving bank R.S.A.No. 2803 of 2009 3 amount of Rs.10,000/- converted into the fixed deposit amount. His intention was that the plaintiff deceased Hari Singh was an old man and he was not to survive for more than two years and after his death, Harjit Singh will become entitled to receive the amount in question. It is further that the deceased plaintiff Hari Singh who was an old man, was never interested to save the amount for his legal heirs nor he intended to give any amount to Hari Singh or any relative as none of them have served him nor any of them had ever helped him whenever he needed. It is also stated that in case the plaintiff Hari Singh during pendency of the suit died then one of his relatives would be entitled to receive any amount. That in case of his death, amount in question may be paid to one Shri Baldev Singh son of Swaran Singh who had served him. It is also averred that the deceased plaintiff Hari Singh had executed a Will in favour of the present plaintiff Baldev Singh. Hence, the present plaintiff Baldev Singh only is entitled to receive the payment of amount lying deposited in the fixed deposit unit in the bank of the saving bank Account No.53612 on the basis of the said Will. It is further averred that the cause of action accrued to the plaintiff which has necessitated the filing of the present suit. R.S.A.No. 2803 of 2009 4 3. Upon notice, the defendants appeared and filed written statements. Defendant No.1 filed written statement taking preliminary objections that the suit is liable to be dismissed for non-joinder of Harjit Singh who is necessary party. That the suit is not maintainable in the present form. That the plaint is improperly stamped. That the plaint does not disclosed any cause of action. That the plaint has no locus standi to file the suit on merits, it is categorically stated that the plaintiff himself approached the defendant bank along with one Sh.Harjit Singh and told the defendant that he wanted to convert a sum of Rs.1,15,000/- fixing to his credit in his saving bank account No.53612 into FDRs. It is further averred that the defendant bank is bound to make the payment as per rules and regulations. So no payment could be made to the plaintiff against the rules and denying all other averments, prayer for dismissal of the suit is made. 4. Whereas defendant No.2 filed separate written statement taking preliminary objections that the suit is not legally maintainable as the plaintiff has no cause of action to file the present suit against the defendants. The plaintiff has suppressed the material facts from the courts. That plaintiff has got no locus standi or R.S.A.No. 2803 of 2009 5 competence to file the instant suit. That the alleged Will dated 24.4.1995 was never executed by late Sh. Hari Singh in favour of Sh.Baldev Singh and that the said Will is forged and fabricated document. That the suit of the plaintiff has become infructuous. On merits, all the other averments of the plaint were denied and it is categorically submitted that Hari Singh was an old, sick person and he was unmarried during his life time. However, it is denied that there was no one to inherit his estate except Baldev Singh. It is further averred that defendant who is nephew of late Hari Singh had been providing financial help to the plaintiff. That the plaintiff is neither related to Hari Singh nor he has any concern with Hari Singh. However, he has concocted a false story and forged alleged Will showing himself to be legal heirs of Hari Singh in order to grab his estate. It is further averred that Hari Singh, with his sweet will and volition, had asked the defendant No.2 to accompany him and therefore he got prepared said FDRs in their joint name and that defendant No.1 bank on being satisfied about the genuineness of the transaction, had issued FDRs in the joint name which was payable with the instruction “Either of Survivor” and that on the death of Hari Singh. Survivor of Harjit Singh R.S.A.No. 2803 of 2009 6 is legally entitled to the maturity amount and the plaintiff has no right over the amount of these FDRs and the defendant No.2 is solely entitled to the said amount. It is further averred by the defendant No.2 that the said alleged Will is a shame and bogus document, prepared by fraudulent means and that Baldev Singh who was apprehending death of Sh.Hari Singh, during the pendency of the suit, had appeared the said document in order to grab the property of Sh.Hari Singh. It is further averred that Hari Singh was being looked after by Bhagat Singh and his nephew Harjit Singh present defendant and Smt.Balwinder Kaur sister of Bhagat Singh and Sh.Bhagat Singh also used to send money order to Hari Singh and also by hand through Sh.Harjit Singh and other relatives. Hence, delying the plaintiff has any cause of action, prayer for dismissal of the suit is made.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to declaration as prayed for? OPP 2. Whether the plaintiff is entitled to mandatory injunction as prayed for? OPP 3. Relief. R.S.A.No. 2803 of 2009 7 Vide order dated 7.2.2002, following additional issues were framed :- 2-A Whether the suit is not legally maintainable? OPD 2-B Whether the plaintiff has suppressed the material facts from the Court? OPD 2-C Whether the plaintiff has locus standi to file the present suit? OPD 2-D Whether suit of the plaintiff has become infructuous? OPD After hearing learned counsel for the appellants, I am of the opinion that the present appeal deserves to be dismissed. The case of plaintiff Hari Singh is that he had deposited the amount of Rs.1,40,000/- for his maintenance and had been withdrawing the amount as per his needs from time to time. Harjit Singh-defendant No.2 with mala fide intention had got converted the remaining amount of Rs.1,15,000/- in a joint FDR i.e. in the name of the plaintiff and himself. When the plaintiff approached the bank for withdrawal of amount, he was told that the amount had been invested in a joint FDR and hence, he could not withdraw any amount from his account. It was further averred in the plaint that in case the plaintiff dies during the pendency of the suit, the amount should be allowed to be withdrawn by Baldev Singh in view of Will executed by the plaintiff in his favour. R.S.A.No. 2803 of 2009 8 The case of defendant No.2, on the other hand, is that the suit was not maintainable as it had been filed by the plaintiff at the instance of Baldev Singh. The said fact was evident as in the said suit, it was specifically averred that in case of death of plaintiff during the pendency of the suit, Baldev Singh be allowed to withdraw the amount in view of Will executed by the plaintiff in his favour. The saving account was opened by the plaintiff jointly with defendant No.2 in Union Bank of India (defendant No.1). The amount of Rs.1,15,000/- was invested in a joint FDR by plaintiff and defendant No.2. As per the instructions, the FDRs on maturity could be released to either of survivors. Hence, the FDR was liable to be released to defendant No.2 being survivor. Baldev Singh, however, could not prove the execution of Will by plaintiff Hari Singh in his favour. It has been averred by learned Additional District Judge in the impugned judgment that the Will in question was undated. However, it had been attested on 24.4.1995. Learned Additional District Judge further observed that the witnesses examined by Baldev Singh propounder of the Will had failed to prove due execution of the Will. PW-2 Tarlok Singh in his cross-examination, deposed that the executant of the Will had thumb marked the same after it was attested by the witnesses. He did not know whether Baldev Singh was related to Hari Singh or as to when Hari Singh had died. He had never visited the house of Baldev Singh. He did not know who was serving Hari Singh during his life time. R.S.A.No. 2803 of 2009 9 In these circumstances, the Courts below had rightly dismissed the suit of the plaintiff. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE September 02, 2009 anita