IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 22.7.2010 Coram: THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.1053 of 2007 M.Subramania Mudaliar .. Appellant/Appellant Plaintiff vs. 1. M.Velu Mudaliar 2. M/s.Canara Bank Thirukalikundram Branch by its Manager, having office at Thirukalikundram 3. M/s.State Bank of India Thirukalikundram Branch By its Manager, having office at Thirukalikundram .. Respondents/Respondent Defendants The Second Appeal has been filed against the judgment and decree, against the judgment and decree passed in A.S.No.66 of 2006, on the file of the Principal District Judge, Chengalpattu, dated 12.3.2007, confirming the judgment and decree passed in O.S.No.29 of 2001, on the file of the Principal Subordinate Court, Chengalpattu, dated 26.12.2005. For Appellant : Mr.T.V.Krishnamachari For Respondents : Mr.K.P.Gopalakrishnan J U D G E M E N T This second appeal has been filed against the judgment and decree, dated 12.3.2007, made in A.S.No.66 of 2006, on the file of the Principal District Court, Chengalpattu, confirming the judgment and decree, dated 26.12.2005, made in O.S.No.29 of 2001, on the file of the Principal Subordinate Court, Chengalpattu. https://hcservices.ecourts.gov.in/hcservices/ 2. The plaintiff in the suit, in O.S.No.29 of 2001, is the appellant in the present second appeal. The defendants in the said suit are the respondents herein. The plaintiff had filed the suit, in O.S.No.29 of 2001, on the file of the Subordinate Court, Chengalpattu, praying for a decree for partition of the amounts covered by the schedule mentioned 17 fixed deposit receipts, into two equal shares and for the allotment or delivery of half share of the amounts to the plaintiff and for costs. 3. The brief facts of the case, as stated by the plaintiff, are as follows: The plaintiff is the elder brother of the first defendant. The plaintiff and the first defendant are the sons of V.Muthukumaraswamy Mudaliar. In respect of their joint family properties, their younger brother M.D.S.Velayudha Mudaliar had filed a suit, in O.S.No.297 of 1978, on the file of the Principal Subordinate Court, Chengalpattu. The said suit had been decreed. As against the preliminary decree passed in the said suit, the plaintiff had preferred an appeal, in A.S.No.829 of 1987, before the High Court of Judicature at Madras. The plaintiff and the first defendant had jointly invested their separate earnings, by way of fixed deposits, in "Either or Survivor" account, in the branches of the second and the third defendant banks. 4. It had also been stated that the investment made by the plaintiff, as well as the first defendant, were made a subject matter of the partition suit, in O.S.No.297 of 1978. However, it was held that the plaintiff in the said suit was not entitled to claim any share in the joint investments made by the plaintiff and the first defendant. 5. It had also been stated that in the receipts relating to the amounts deposited by the plaintiff, as well as the first defendant, either the name of the plaintiff or the name of the first defendant had been shown as the first name. The fixed deposit applications had been signed by the plaintiff, as well as the first defendant. At the time of maturity of the deposits, the plaintiff had requested the first defendant to cooperate in the matter for the renewal of the deposits. However, the first defendant had refused to do so. In such circumstances, the petitioner had filed the suit, in O.S.No.29 of 2001, on the file of the Principal Subordinate Court, Chengalpattu. 6. In the written statement filed on behalf of the first defendant, it had been stated that the allegations made by the plaintiff in the plaint filed in the suit, in O.S.No.29 of 2001, are false. The first defendant had submitted that item Nos.7 to 11 of the schedule properties, invested in the third defendant Bank, belong to the first defendant, exclusively. The fixed deposit receipts issued https://hcservices.ecourts.gov.in/hcservices/ by the third defendant, in respect of the said items, are with the first defendant. Similarly, item Nos.13 to 17 of the schedule properties, invested with the second defendant Bank, belong to the first defendant, exclusively. The fixed deposit receipts, in respect of the said items, are with the first defendant. Similarly, item Nos.1 to 6 of the schedule properties, invested with the third defendant Bank, and item No.12 of the schedule properties, invested with the second defendant Bank, are the individual and separate properties of the plaintiff. 7. It had also been stated that the first defendant had paid the necessary income tax for the fixed deposits relating to item Nos.7 to 11 and 13 to 17 of the suit schedule properties. The plaintiff had paid the income tax for item Nos.1 to 6 and Item No.12 of the suit schedule properties. 8. It had also been stated that, in fact, the plaintiff had not cooperated in the attempts made by the first defendant to renew the fixed deposits in the second and the third defendant Banks. In such circumstances, the suit filed by the plaintiff is liable to be dismissed, as devoid of merits. 9. In view of the averments made on behalf of the plaintiff, as well as the defendants, the trial Court had framed the following issues for its consideration: "1. Whether the plaintiff is entitled for partition, as prayed for? 2. To what other relief?" 10. The plaintiff had been examined as P.W.1 and 30 documents had been marked on his behalf, as Exhibits A.1 to A.30. The first defendant had been examined as D.W.1 and 45 documents had been marked on his behalf, as Exhibits B.1 to B.45. The trial Court had decreed the suit stating that the plaintiff was entitled to the deposits in item Nos.1 to 6 and item No.12 in the suit schedule properties. However, the claim of the plaintiff for partition and allotment of half of the amounts in fixed deposits, in the second and the third defendant Banks, had been rejected. 11. From the evidence available on record, the trial Court had found that the suit schedule properties were 17 deposits made by the plaintiff, as well as the first defendant, in the second and third defendant Bank. The original receipts, in respect of item Nos.1 to 6 and Item No.12, were available with the plaintiff and the original receipts, in respect of the other deposits, were available with the first defendant. Exhibits A.24 to A.30 are the receipts available with the plaintiff and Exhibits B.36 to B.45 are the receipts available with the first defendant. All the deposits were payable on maturity "Either or Survivor". https://hcservices.ecourts.gov.in/hcservices/ 12. The trial Court had found that the claim of the plaintiff is that all fixed deposits in the second and the third defendant Banks were joint investments and therefore, he is entitled to half share in the said deposits. However, the first defendant had contended that the deposits in serial Nos.1 to 6 and 12 of the suit schedule belonged to the plaintiff and item Nos.7 to 11 and 13 to 17 belonged to the first defendant. 13. It had also been noted that one M.D.S.Velayudha Mudaliar, brother of the plaintiff and the first defendant, had filed a suit, in O.S.No.297 of 1978, before the Principal Subordinate Court, Chengalpattu, for partition and separate possession of 1/4th share of the suit items. Five items of the fixed deposits made with the defendants 2 and 3 were included in serial Nos.10 to 13 of 'E' schedule properties in the said suit. Since, the suit had been decreed, an appeal had been filed by the plaintiff in the present suit and his three sons, who were the defendants 2 to 5, in O.S.No.297 of 1978, before the High Court of Judicature at Madras, in A.S.No.829 of 1987. 14. The trial Court had further noted that the High Court of Judicature at Madras, in its judgment, dated 28.8.2001, made in A.S.No.829 of 1987, had held that, with regard to the bank accounts, it was made clear that the parties concerned would be entitled to their respective shares, based on the receipts of the fixed deposits made by them. 15. The trial Court had also found that the plaintiff, as well as the first defendant had paid the necessary income tax, in respect of the amounts for which they had receipts of the fixed deposits. As such, the trial Court had come to the conclusion that the plaintiff, as well as the first defendant would be entitled to the amounts, as per the receipts available in their possession. 16. Against the judgment and decree of the trial Court, dated 26.12.2005, made in O.S.No.29 of 2001, the plaintiff had filed an appeal, in A.S.No.66 of 2006, on the file of the Principal District Judge, Chengalpattu. 17. The appellate Court had framed the following points for consideration: "1. Whether the appellant/plaintiff is entitled for partition of fixed deposits under suit items 7 to 11 and 13 to 17? 2. Whether the judgment and decree of the trial Court is to be confirmed or not?" 18. In view of the contentions raised on behalf of the appellant https://hcservices.ecourts.gov.in/hcservices/ and the respondents and in view of the averments made on their behalf, the first appellate Court had confirmed the findings of the trial Court, by its judgment and decree, dated 26.12.2005, made in O.S.No.29 of 2001. 19. The first appellate Court had arrived at its conclusions stating that the appellant was not entitled to claim any share over the deposits, made in Exhibits B.36 to B.45, relating to the suit item Nos.7 to 11 and item Nos.13 to 17, as they are the separate properties of the first respondent in the appeal. 20. Aggrieved by the judgment and decree of the first appellate Court, dated 12.3.2007, made in A.S.No.66 of 2006, the plaintiff in the suit, who was the appellant in the first appeal, had filed the present second appeal, raising the following questions, as substantial questions of law: "a) Whether the Courts below have properly construed the fixed deposit receipts forming subject matter of the suit, which clearly reads that the bank has received the amounts from M.Subramania Mudaliar and M.Velu Mudaliar from which it is clear that the moneys have been jointly deposited by both and as such each is entitled to half share and 'E' or 'S' is only an instruction and that will not decide the title to money covered by the deposit? b) Whether the Courts below have properly appreciated the legal principal that any Income Tax Returns or orders thereon is only for the purpose of the Income Tax Act and the title to any property either movable or immovable will be decided by the Civil Court?" 21. The learned counsel appearing for the appellant had submitted that the judgment and decree of the Courts below are erroneous and invalid, as they are contrary to law. The Courts below had failed to see that the plaintiff and the first defendant are jointly entitled to the deposit amounts, as they had invested the said amounts, jointly. 22. It has also been stated that the Courts below had failed to see that in the earlier suit, in O.S.No.297 of 1978, filed by M.D.S.Velayudha Mudaliar, it had been held that the deposits standing in the name of the plaintiff and the first defendant are the joint investments of the plaintiff and the defendant and as such, M.D.S.Velayudha Mudaliar was not entitled to any claim of the suit deposits. 23. It had also been stated that the Courts below had failed to see that the deposits were in the name of the plaintiff, as well as the first defendant, jointly, in "Either or Survivor accounts" and https://hcservices.ecourts.gov.in/hcservices/ therefore, both the plaintiff, as well as the first defendant in the suit, were entitled to the amounts in equal shares. The Courts below had failed to appreciate the evidence adduced on behalf of the plaintiff, properly. 24. It had also been stated that the Courts below had erred in not considering the evidence adduced by D.W.3, who had stated that the fixed deposits are jointly in the name of the plaintiff, as well as the first defendant. The Courts below had erred in arriving at their conclusions, merely based on the income tax returns filed by the plaintiff, as well as the first defendant. Further, the amounts in the fixed deposits were in "Either or Survivor" accounts and therefore, both the plaintiff, as well as the first defendant, were entitled to half share of the amounts in such deposits, as per the banking regulations. Further, the trial Court, as well as the first appellate Court had misconstrued the observations found in the judgment, dated 28.8.2001, passed by the High Court of Judicature at Madras, in A.S.No.829 of 1987. 25. The learned counsel appearing for the appellant had relied on the following decisions in support of his contentions: 1. ANUMATI Vs. PUNJAB NATIONAL BANK (2004) 8 SCC 498 2. KUSHALDAS Vs. MOHANARANGAM (1997 (III) CTC 707) 3. PARVATHI Vs. VALLIYAMMAL (2005 (1) CTC 684) 26. Per contra, the learned counsel appearing for the first respondent in the second appeal had submitted that the Courts below were right in coming to their conclusions, based on the evidence available on record. The contentions raised by the appellant, who was the plaintiff in the suit, in O.S.No.29 of 2001, are untenable and invalid in the eye of law. The appellant cannot be permitted to plea contrary to the observations made by the High Court, in its judgment, dated 28.8.2001, made in A.S.No.829 of 1987. 27. The appellant is not entitled to claim equal share in the amounts deposited in the fixed deposits in the second and the third defendant Banks, since, the said amounts had been deposited by the appellant, as well as the first respondent, from their separate earnings, even though the fixed deposits were in "Either or survivor category". From the income Tax returns of the appellant, as well as the first respondent, it is clear that the amounts deposited in the fixed deposits of the second and the third respondents belong to them, separately, as per the the receipts, which were in their possession. 28. In view of the submissions made by the learned counsels appearing for the parties concerned and in view of the records available and in view of the decisions cited by the learned counsel appearing for the appellant, this Court is of the considered view https://hcservices.ecourts.gov.in/hcservices/ that the appellant has not shown sufficient cause or reason to interfere with the concurrent findings of the Courts below. 29. Both the trial Court, as well as the first appellate Court, had arrived at their conclusions, based on the evidence available on record. The plaintiff in the suit, in O.S.No.29 of 2001, who is the appellant in the present second appeal, had not been in a position to substantiate the claims made by him, either by oral or by documentary evidence to show that the amounts deposited in the fixed deposits, in the second and the third respondent Banks were common funds of which he was entitled to half share. 30. It has not been shown as to how, in spite of the observations made by the High Court of Judicature at Madras, in its Judgment, dated 28.8.2001, made in A.S.No.829 of 1987, the parties concerned were entitled to their respective shares in the amounts deposited in the fixed deposits, on the claim of the appellant that he was entitled to half share of the amounts in such deposits available with the second and third respondent Banks, in the fixed deposits. Further, both the Courts below had found that separate income tax returns had been filed for their respective shares, based on the receipts of the fixed deposits found to be in their possession. 31. The decisions cited by the learned counsel appearing for the appellant had arisen in different facts and circumstances from those arising in the case in hand. As such, the decisions cannot be taken to be in favour of the contentions raised on behalf of the appellant. Further, the learned counsel appearing for the appellant had not been in a position to show that the appreciation of the facts and the evidence available on record in the present case, by the Courts below, are perverse in nature. As such, the second appeal is devoid of merits. Hence, it stands dismissed. No costs. Consequently, connected M.P.No.1 of 2007 is closed. lan Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To: 1. The Principal District Judge, Chengalpattu 2. The Principal Subordinate Court, Chengalpattu https://hcservices.ecourts.gov.in/hcservices/ + 1 cc to Mr. T.V. Krishnamachari, Advocate SR No.53280 + 1 cc to Mr. K.P. Gopalakrishnan, Advocate SR No.53265 BV(CO) SR/13.9.2010 S.A.No.1053 of 2007 https://hcservices.ecourts.gov.in/hcservices/