Madras High Court
Mrs. Rajalakshmi vs M.Balasubramanium on 6 June, 2023
OSA.No.11 of 2023 and CMP.No.266 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.06.2023
CORAM :
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
and
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
OSA.No.11 of 2023
and
CMP.No.266 of 2023
1. Mrs. Rajalakshmi
2. S.Govindaraj
3. S.Karthik .. Appellants
Versus
1. M.Balasubramanium
2. M.Sundaram
3. M.Muthuselvam
4. G.Jagannathan
5. M.Vijayalakshmi
6. G.Jayakumar
7. B.Renuka
8. Branch Manager,
Karur Vysya Bank,
Purasawalkam Branch,
No.43, Gandeeshwar Koil Street,
Purasawalkam, Chennai - 600 084.
1/25
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9. Branch Manager,
Lakshmi Vilas Bank,
Purasawalkam Branch,
No.75, Gangadeeswarar Koil Street,
Purasawalkam, Chennai - 600 084.
10. Branch Manager,
Tamilnad Mercantile Bank,
Purasawalkam Branch,
Door No.80-93, First Floor,
Palace Regency,
Purasawalkam High Road,
Chennai - 600 010. .. Respondents
Original Side Appeal filed under Order 36, Rule 9 of the Original Side
Rules read with clause 15 of the Letters Patent, against the order and decreetal
order dated 30.09.2022 passed by the learned Judge in Application No.4664 of
2021 in C.S.No.362 of 2021.
For Appellants : Mr.R.Thiagarajan
For Respondents 1 to 3 : Mr.K.V.Babu, Senior Counsel
for M/s.Durga V Bhatt
For R6 : Mr.V.Nicholas
For R8 : Mr.H.Vijayakumar
For R4, R5, R7, R9 & R10: No appearance
JUDGMENT
(Judgment of the Court was delivered by R. MAHADEVAN, J.)
This Original Side Appeal has been filed as against the order passed by the
learned Judge in Application No.4664 of 2021 in C.S.No.362 of 2021, on
30.09.2022.
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2.The facts which are necessary for disposal of this Original Side Appeal
are as follows:
2.1. The first appellant herein is the daughter and the respondents 1 to 3
herein are the sons of late P.M.Maruthai Chettiar, who passed away on
07.10.2019. The appellants 2 and 3 are the sons of the first appellant and the
respondents 4 to 7 are the surviving legal heirs of the predeceased daughter by
name Jeevarathinam of the said Maruthai Chettiar.
2.2. The aforesaid Maruthai Chettiar, had some fixed deposits with the
respondent Banks to the tune of Rs.4,27,83,583/-, for which the appellants 1 to 3
were appointed as nominees. Upon the death of Maruthai Chettiar, the nominees
approached the banks for withdrawing the monies. Aggrieved by the same, the
respondents 1 to 3 herein filed a suit for injunction before the City Civil Court at
Chennai in O.S.No.7775 of 2019, in which, an order of status quo was granted on
25.10.2019, restraining the banks from releasing the deposit amounts and
subsequently, the said interim order was vacated. Thereafter, the amounts were
withdrawn by the nominees and the same have not been distributed to the other
legal heirs. In the light of the withdrawals made by the appellants herein, the suit
has become infructuous and hence, the same was withdrawn by the respondents 1
to 3 on 23.06.2022. Subsequently, the suit in C.S.No.362 of 2021 has been filed by
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the respondents 1 to 3 seeking partition of the fixed deposits and other reliefs. In
the suit, OA.No.807 of 2021 and A.Nos.4663 and 4664 of 2021 have also been
filed for grant of interim injunction and for directions directing the respondents
therein to furnish all the details of deposits, fixed deposits, etc, and deposit 3/5th
(1/5th for each of the legal heirs) of the monies already withdrawn by the
appellants from the deposits of late Maruthai Chettiar into this court.
2.3. It was argued on behalf of the respondents herein before the learned
Judge that the appellants 1 to 3 herein were appointed only as nominees of the said
deposits and except as nominees, they have no right over the deposits. They would
receive the deposits only as nominees in trust on behalf of themselves and on
behalf of other legal heirs and hence, they cannot become absolute owners of the
monies lying in the fixed deposits. It was further submitted that the appellants 1 to
3, who are acting as merely trustees, have a fiduciary duty to distribute the monies
equally amongst all the Class-1 legal heirs.
2.4. It was argued on behalf of the appellants herein that they were
nominated as nominees in respect of deposits made by late Maruthai Chettiar and
by virtue of such nomination, they became the absolute owners of the properties.
The nomination was made only with an intention to transfer the entire assets after
the demise of the original depositor in favour of the appellants, as enough
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properties have already been given to the respondents 1 to 3. Further, it was
contended that as the appellants are the absolute owners of the movable property,
filing of the present suit for partition is not maintainable and that, the respondents
1 to 3 could have filed a suit for declaration and sought for entitlement in respect
of the fixed deposits, amongst other contentions.
2.5. Considering the arguments advanced on either side, the learned Judge
relied upon Section 45-ZA(2) of the Banking Regulation Act, 1949 and also the
decisions of the Hon’ble Supreme Court and held that nomination does not confer
any beneficial interest on the nominees and does not make them as owner of the
monies and that, all the monies receivable by the nominees by virtue of Section
45ZA(2) would form part of the estate of the deceased depositor and devolve
according to the rule of succession, to which the depositor may be governed.
Further, relying upon the Circular issued by the Reserve Bank of India in
No.RBI/2004-05/490 dated 09.06.2005, it was held that any such payment made to
the nominees shall not affect the right or claim which any person may have against
the survivor / nominee to whom the payment is made. It was further held that the
nominees would receive the money in trust on behalf of themselves and on behalf
of other legal heirs who are entitled to succeed the estate of the deceased. In short,
it was held that nominees are nothing but holding the deposits for themselves and
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on behalf of the other legal heirs of the deceased depositor as well. It was also held
that since the cause of action in O.S.No.7775 of 2019 filed before the City Civil
Court, Chennai is different when compared with that of the cause of action arose
in respect of the present suit in C.S.No.362 of 2021, the bar under Order II
Rule 2 CPC to file the present suit, does not arise. It was further held that the
question of Court Fee under Section 37(1) of the Tamil Nadu Court Fees and Suits
Valuation Act, 1965 does not arise, as for the property in joint possession, Court
fee has been paid rightly in terms of Section 37(2) of the Act, further holding that
the question of filing a suit for recovery of money does not arise. Accordingly,
O.A.No.807 of 2021 and A.Nos.4663 and 4664 of 2021 have been allowed by the
learned Judge.
2.6. Aggrieved by the order in A.No.4664 of 2021, the present Appeal has
been filed.
3.The learned counsel for the appellants has submitted that the respondents
1 to 3 have claimed similar reliefs in C.S.No.362 of 2021 and in O.S.No.7775 of
2019 and it is barred under law inasmuch as it attracts mischief under Order II
Rule 2 of CPC. The respondents 1 to 3 ought to have filed a comprehensive suit
uniting all the causes of action. The suit for movable property falls under Section
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24 of the Tamil Nadu Court Fees and Suits Valuation Act and as such, invocation
of Section 37 (1) of the Act is erroneous. They have filed the suit treating the
deposits as movable assets held by co-sharers and sought for partition instead of
filing a suit for recovery of money and paying court fee under Section 24 of the
Act. The learned counsel further submitted that the learned Judge ought to have
noticed that the deposits have been appropriating benefits and lost the character of
oneness/ joint holding of all shares and hence, the proper remedy available for
them is receiver of money and not anything else. In support of his contentions, the
learned counsel placed reliance on the following decisions of the Hon'ble Supreme
Court:
(i)State of UP and others v. Visheshwar [1995 Supp (3) SCC 590];
wherein, it was held that grant of main relief by way of interim order is not proper
when by interim order was issued to issue orders for confirming the petitioner as
forest guard.
(ii)Commissioner/Secretary to Government Health & Medical Edu.Deptt.
Civil Sectt., Jammu v. Dr.Ashok Kumar Kohli [1995 Supp (4) SCC 214], in
which, it was observed that interim order must not overreach the main relief when
interim directions were issued regarding selection to the post as Lecturer, based on
selection list of Jammu and Kashmir Public Service Commission.
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(iii)Shiv Shankar and others v. Board of Directors, UPSRTC and another
[1995 Supp (2) SCC 726], wherein, it was held that grant of main relief by way of
interim order is not proper, when there were directions to absorption of appellants
as Conductors by way of interim order.
(iv)Union of India and others v. Modiluft Ltd [(2003) 6 SCC 65], in which,
it was pointed out that final relief by way of interim order cannot be granted, when
a direction to grant NOC to relauch airline, was issued by the High Court.
(v)State of UP and others v. Ram Sukhi Devi [(2005) 9 SCC 733], wherein,
it was observed that final relief by interim order and the subject matter was
appointment made on compassionate ground, without considering the GO, which
clarified that dying in harness Rules 1974 not applicable to Part time employees;
and
(vi)Kalabharati Advertising v. Hemant Vimalnath Narichania and others
[(2010) 9 SCC 437] in which, it was laid down that Dismissal or withdrawal of the
case culminates in nullification of interim order.
With these submissions, the learned counsel prayed for setting aside the order
impugned herein.
4.On the other hand, the learned senior counsel for the respondents 1 to 3,
placing reliance on the decision of the Hon'ble supreme court in Sucha Singh
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Sodhi (dead) through legal representatives v. Baldev Raj Walia and another
[(2018) 6 SCC 733], has submitted that there is no bar under Order 2 Rule 2 CPC
for the respondents 1 to 3 to file the second suit, when the first suit was dismissed
as withdrawn. Referring to the decision of the Hon'ble Supreme Court in Inacio
Martins (Deceased through LRs) v. Narayan Hari Naik and others [(1993) 3
SCC 123], the learned senior counsel submitted that the present suit is filed for
partition, whereas the previous suit was filed for permanent injunction restraining
the respondents therein from withdrawing the amounts of the fixed deposits and
hence, the cause of action for both the suits are different. The learned senior
counsel further submitted that nomination merely gives right of depositor to
receive money lying in account and it does not make nominee owner of money
lying in account and the 1949 Act is in no way concerned with question of
succession. To substantiate the same, he placed reliance on the decisions of the
Hon'ble Supreme Court in Sarbati Devi (Smt) and another v. Usha Devi (Smt)
[(1984) 1 SCC 424]; and Ram Chander Talwar and another v. Devender Kumar
Talwar and others [(2010) 10 SCC 671]; and the decision of the Bombay High
Court in Shakti Yezdani and another v. Jayanand Jayant Salgaonkar and others
[2016 SCC Online Bom 9834]. Thus, according to the learned senior counsel, the
learned Judge has rightly passed the order impugned herein, on proper
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appreciation of records and on consideration of relevant Circulars and decisions of
the Hon'ble Supreme Court and therefore, the same does not require any
interference in the hands of this Court.
5.Heard the learned counsel on either side and perused the materials
available on record carefully and meticulously.
6.By order dated 21.03.2023, this court has ordered the petition viz.,
CMP.No.6342 of 2023, filed by the appellants praying to receive the affidavit
dated 03.07.2015 executed by the late Maruthai Chettiar, as additional evidence in
this original side appeal, subject to its admissibility and relevancy. However, a
xerox copy of the affidavit alone was filed on the side of the appellants. This court
has also perused the same.
7.There is no dispute with regard to the relationship between the parties.
Admittedly, the deceased Maruthai Chettiar owned some fixed deposits with the
respondent banks and he nominated the appellants 1 to 3 for the same. It is also an
admitted fact that after the demise of the said Maruthai Chettiar, the appellants /
nominees have withdrawn the fixed deposits lying in the bank. Claiming their
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shares in the fixed deposits owned by the deceased, the respondents 1 to 3
instituted two suits viz., OS No.7775 of 2019 before the City Civil Court, Chennai
for permanent injunction restraining the appellants from withdrawing / transferring
the fixed deposits made by the depositor and permanent injunction restraining the
respondent bank from releasing any fund to the appellants 1 to 3 without insisting
upon the succession certificate. However, the said suit was dismissed as
withdrawn; and (ii)C.S.No.362 of 2021 before the learned Judge, for partition of
the fixed deposits mentioned in the schedule appended to the plaint and
consequential reliefs. Along with the suit, they have taken three applications, one
among which is A.No.4664 of 2021 for directing the respondents therein to
deposit 3/5th share of the monies already withdrawn by them into the court. The
said application was allowed by the order impugned in this appeal.
8.The first contention of the learned counsel for the Appellants is that a suit
for movable assets falls under Section 24 and hence, payment of Court Fee under
Section 37(2) of the Tamil Nadu Court Fee and Suit Valuation Act was not
maintainable. However, a reading of the plaint would show that it is a suit for
partition of movable assets and the plaintiffs have pleaded that they are in joint
possession and therefore, the plaintiffs have valued the suit under Section 37(2)
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of the Act. It is trite law that the court fee must be decided based on the averments
in the plaint and cannot be decided based on the objections raised in the written
statement. It will be useful to refer to the following judgments on this aspect:
(a) The Hon’ble Apex Court, comprising of three judges, in Neelavathi v.
N. Natarajan, (1980) 2 SCC 247, it was held as under:
“6. On reading of the plaint as a whole, we are unable to agree with the
view taken by the High Court. It is settled law that the question of court fee must be
considered in the light of the allegation made in the plaint and its decision cannot
be influenced either by the pleas in the written statement or by the final decision of
the suit on merits. All the material allegations contained in the plaint should be
construed and taken as a whole vide S. Rm. Ar. S. Sp. Sathappa Chettiar v. S. Rm.
Ar. Rm. Ramanathan Chettiar [AIR 1958 SC 245 : 1958 SCR 1021, 1031-32 : 1958
SCJ 407]. The plaint in para 5 states that Muthukumaraswamy Gounder died
intestate and undivided and Muthukumaraswamy's father Vanavaraya Gounder
was managing all the ancestral joint family property as the head of the Hindu
undivided joint family till his death. In para 8 the plaintiffs stated that on the death
of Muthukumaraswamy Gounder his 1/3rd share in the joint family properties
devolved upon his sons and daughters. It further alleged that the plaintiffs were in
joint possession of the properties along with Vanavaraya Gounder and his other
sons. In para 9, it is stated that each of the plaintiffs is entitled to a share in the
suit properties as heirs of the late Muthukumaraswamy Gounder and also as heirs
of the late Vanavaraya Gounder. In para 11, it is stated that since the death of
Vanavaraya Gounder Defendants 1 to 6 are receiving the income from the
properties and are liable to account to the plaintiffs. In para 12, it is stated that
since the death of Vanavaraya Gounder Defendants 1 to 6 failed to give the
plaintiffs their share of income and the plaintiffs could not remain in joint
possession. Therefore the plaintiffs demanded partition and the Defendants 1 to 6
were evading. Again in para 13, it is claimed that each of the plaintiffs as
co-owners is in joint possession of the suit properties, and this action is laid to
convert the joint possession into separate possession so far as the shares of the
plaintiffs are concerned. Throughout the plaint, the plaintiffs have asserted that
they are in joint possession. We are unable to agree with the High Court that
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recitals in all the paragraphs is merely a formal statement repeating the statutory
language. The plea in para 12 which was relied on by the High Court states that
the Defendants 1 to 6 failed to give the plaintiffs their share of the income and the
plaintiffs could not remain in joint possession. The plea that they were not given
their due share would not amount to dispossession. Reading the plaint at its worst
against the plaintiffs, all that could be discerned is that as the plaintiffs were not
given their share of the income, they could not remain in joint possession. The
statement that they are not being paid their income, would not amount to having
been excluded from possession. The averment in the plaint cannot be understood as
stating that the plaintiffs were not in possession. In fact, the defendants understood
the plaint as stating that the plaintiffs are in joint possession of the suit properties.
In para 18 of the written statement the defendants pleaded that the plaintiffs have
framed the suit as though they are in joint possession and enjoyment of the suit
properties. Asserting that the plaintiffs were out of possession, the defendants
stated: “While it is so, the allegation that they are in joint possession of the suit
properties, is not correct”.
7. The trial court has not placed any reliance on the recitals in para 12 of
the plaint on which the judgment of the High Court is based. The trial court found
on evidence that the plaintiffs never enjoyed the suit properties at any time. This
finding is not enough for, the mere fact that the plaintiffs were not paid their share
of the income or were not in actual physical possession, would not amount to the
plaintiffs having been excluded from joint possession to which they are in law
entitled. On a consideration of the plaint as a whole and giving it its natural
meaning, we are unable to agree with the conclusion arrived at by the High Court.
8. Section 37 of the Tamil Nadu Court Fees and Suits Valuation Act relates
to partition suits. Section 37 provides as follows:
“37. (1) In a suit for partition and separate possession of a share of joint
family property or of property owned, jointly or in common, by a plaintiff
who has been excluded from possession of such property, fee shall be
computed on the market value of the plaintiff's share.
(2) In a suit for partition and separate possession of joint family property
or property owned, jointly or in common, by a plaintiff who is in joint
possession of such property, fee shall be paid at the rates prescribed.”
It will be seen that the court fee is payable under Section 37(1) if the plaintiff is
“excluded” from possession of the property. The plaintiffs who are sisters of the
defendants, claimed to be members of the joint family, and prayed for partition
alleging that they are in joint possession. Under the proviso to Section 6 of the
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Hindu Succession Act, 1956 (Act 30 of 1956) the plaintiffs being the daughters of
the male Hindu who died after the commencement of the Act, having at the time of
the death an interest in the Mitakshara coparcenary property, acquired an interest
by devolution under the Act. It is not in dispute that the plaintiffs are entitled to a
share. The property to which the plaintiffs are entitled is undivided “joint family
property” though not in the strict sense of the term. The general principle of law is
that in the case of co-owners, the possession of one is in law possession of all,
unless ouster or exclusion is proved. To continue to be in joint possession in law, it
is not necessary that the plaintiff should be in actual possession of the whole or
part of the property. Equally it is not necessary that he should be getting a share or
some income from the property. So long as his right to a share and the nature of
the property as joint is not disputed the law presumes that he is in joint possession
unless he is excluded from such possession. Before the plaintiffs could be called
upon to pay court fee under Section 37(1) of the Act on the ground that they had
been excluded from possession, it is necessary that on a reading of the plaint, there
should be a clear and specific averment in the plaint that they had been
“excluded” from joint possession to which they are entitled in law. The averments
in the plaint that the plaintiffs could not remain in joint possession as they were not
given any income from the joint family property would not amount to their
exclusion from possession. We are unable to read into the plaint a clear and
specific admission that the plaintiffs had been excluded from possession.
9. In the result both the appeals are allowed. As we have found that the
trial court was in error in directing the plaintiffs to pay the court fee under Section
37(1), the preliminary decree for partition and possession of 1/72 share in the B.
Schedule properties and the shares in deposit in State Bank of India at Pollachi,
and in the share in the Gnanambika Mills, is confirmed. The direction by the trial
court as to payment of court fee under Section 37(1) of the Court Fees Act and the
judgment of the High Court in A.S. No. 924 of 1974 and A. Section 811 of 1975 are
set aside. The appeal is allowed with costs.”
(b) The Hon’ble Apex Court comprising of Three Judges, in Lakshmi
Ammal v. K.M. Madhavakrishnan [(1978) 4 SCC 15] held as under:
"2. It is unfortunate that long years have been spent by the courts below on
a combat between two parties on the question of court fee leaving the real issues to
be fought between them to come up leisurely. Two things have to be made clear.
Courts should be anxious to grapple with the real issues and not spend their
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energies on peripheral ones. Secondly, the court fee, if it seriously restricts the
rights of a person to seek his remedies in courts of justice, should be strictly
construed. After all access to justice is the basis of the legal system. In that view,
where there is a doubt, reasonable, of course, the benefit must go to him who says
that the lesser court fee alone be paid.
3. In this particular case there is hardly any difficulty in holding that the
plaintiff in para 14 of the plaint has clearly alleged that she is in joint possession
and is seeking partition and separate possession of her half share in the suit
properties as heir of deceased, Paramayee. Obviously, the court fee that is payable
is as she has claimed, namely under Section 37(2) which corresponds to Article
17(b) of the Central Act, which is the predecessor legislation on the subject. We
allow the appeal and send the case back to the trial court and direct that Court to
proceed with the suit expeditiously. We make it clear that our decision on the
question of court fee does not have any implications on the merits, including the
validity or otherwise of the Will. No costs.”
9.At the cost of repetition, the main relief sought in the case is the partition.
Partition is nothing but division and redistribution of existing rights by and
between co-owners or co-parceners in movable or immovable property into shares,
based on the law of the land applicable to them, followed by delivery of
possession. The effect is the termination of joint ownership and vesting of
independent and absolute rights from thereon. Every Property though can be
valued in terms of money, the valuation may not be accurate at times. Just
because, they can be valued in terms of money, even approximately, it cannot be
contended that every suit relating movable property must be treated as a suit for
recovery of money and court fee must be paid accordingly. The main relief
claimed in the suit is to be taken into account while determining the court fee. In
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the plaint, it has been clearly pleaded that they are in joint possession of the
property in the capacity as legal heirs of the deceased. Hence, considering the
judgments referred to above and the averments made in the plaint, we have no
hesitation in holding that the suit has been valued properly.
10.The next point contended is that the suit is barred under Order II Rule 2.
It is pertinent to mention here that the appeal is against the direction issued by
learned Judge, in the nature of temporary mandatory injunction. The
appellants/defendants had not filed any application claiming that the suit is barred
by law. Be that as it may, as rightly contented by the learned counsel for the
respondents, the earlier suit was for permanent injunction and the present suit is
for partition, the bar under Order II Rule 2 will not apply. It is also relevant to
point out at this juncture that in the earlier suit filed before the city civil court,
initially, an order of status quo was granted and the same was vacated
subsequently, upon which, the funds were released, forcing the
respondents/plaintiffs to withdraw the earlier suit and file the present suit, which
prima facie, from the averments in the plaint, disclose a different cause of action.
The judgement relied upon by the learned counsel in Sucha Singh Sodhi (dead)
through legal representatives v. Baldev Raj Walia and another [(2018) 6 SCC
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733], is applicable. It will be useful to refer to the judgment of the Hon’ble Apex
Court in Rathnavathi v. Kavita Ganashamdas, (2015) 5 SCC 223 : (2015) 2 SCC
(Civ) 736 : 2014 SCC OnLine SC 860, wherein, it was observed as under:
“26. One of the basic requirements for successfully invoking the plea of
Order 2 Rule 2 CPC is that the defendant of the second suit must be able to show
that the second suit was also in respect of the same cause of action as that on
which the previous suit was based. As mentioned supra, since in the case on hand,
this basic requirement in relation to cause of action is not made out, the defendants
(appellants herein) are not entitled to raise a plea of bar contained in Order 2 Rule
2 CPC to successfully non-suit the plaintiff from prosecuting her suit for specific
performance of the agreement against the defendants.
27. Indeed when the cause of action to claim the respective reliefs were
different so also the ingredients for claiming the reliefs, we fail to appreciate as to
how a plea of Order 2 Rule 2 CPC could be allowed to be raised by the defendants
and how it was sustainable on such facts.
28. We cannot accept the submission of the learned Senior Counsel for the
appellants when she contended that since both the suits were based on identical
pleadings and when cause of action to sue for relief of specific performance of
agreement was available to the plaintiff prior to filing of the first suit, the second
suit was hit by bar contained in Order 2 Rule 2 CPC.
29. The submission has a fallacy for two basic reasons. Firstly, as held
above, cause of action in two suits being different, a suit for specific performance
could not have been instituted on the basis of cause of action of the first
suit. Secondly, merely because pleadings of both suits were similar to some extent
did not give any right to the defendants to raise the plea of bar contained in Order
2 Rule 2 CPC. It is the cause of action which is material to determine the
applicability of bar under Order 2 Rule 2 CPC and not merely the pleadings. For
these reasons, it was not necessary for the plaintiff to obtain any leave from the
court as provided in Order 2 Rule 2 CPC for filing the second suit.
30. Since the plea of Order 2 Rule 2 CPC, if upheld, results in depriving the
plaintiff to file the second suit, it is necessary for the court to carefully examine the
entire factual matrix of both the suits, the cause of action on which the suits are
founded, the reliefs claimed in both the suits and lastly, the legal provisions
applicable for grant of reliefs in both the suits.
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31. In the light of foregoing discussion, we have no hesitation in upholding
the finding of the High Court on this issue. We, therefore, hold that the second suit
(OS No. 2334 of 2000) filed by the plaintiff for specific performance of agreement
was not barred by virtue of the bar contained in Order 2 Rule 2 CPC.”
11.The next and main contention of the learned counsel for the appellants is
that the appellants being the nominees, are the absolute beneficiary of the deposits
and they cannot be characterised as agents / trustees or collecting agents for the
respondents 1 to 3, but are the real persons, entitled to hold, possess and deal with
the same. While so, the decision rendered by the learned Judge with regard to the
rights of the appellants at the interlocutory stage is without any legal basis and is
liable to be set aside. Whereas, it is the stand of the respondents 1 to 3 that
nominee does not get absolute right over the deposits made by the deceased
depositor and the provision regarding nomination was made with an intent to
protect the estate of the deceased till his legal representatives take appropriate
steps and therefore, the respondents are entitled to have their shares in the fixed
deposits made by the deceased and the same was accordingly, ordered by the
learned Judge.
12.This court finds bona fide in the contentions so raised on the side of the
respondents 1 to 3. In the given factual matrix, the learned Judge relied upon
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OSA.No.11 of 2023 and CMP.No.266 of 2023
Section 45-ZA(2) of the Banking Regulation Act, 1949 and the decision of the
Hon’ble Supreme Court in Ram Chander Talwar & Anr. v. Devender Kumar
Talwar & Ors. [2010(10) SCC 671], wherein it has been held that Section
45ZA(2) merely puts the nominee in the shoes of the depositor after his death and
clothes him with the exclusive right to receive the money lying in the account, but
by no stretch of imagination it makes the nominee the owner of the money. The
learned Judge has also relied upon the decision of the Hon’ble Supreme Court in
Shipra Sengupta v. Mridul Sengupta & Ors. [(2009) 10 SCC 680], Circular of
RBI dated 09.06.2005 for settlement of claims in respect of deceased depositors,
judgment of the Hon’ble Supreme Court in Vishin N.Kanchandani & Others vs.
Vidya Lachmandas Khanchandani & others [2000 (6) SCC 724] with regard to
the issue relating to entitlement of the nominee towards National Savings
Certificate and Section 19 and 88 of the Indian Trusts Act, 1882, went on to hold
that the nominees cannot claim any absolute right over the properties of the
deceased depositor based on the nomination in respect of fixed deposit receipts,
but they are only entitled to receive the deposits and the said deposits would
devolve upon all persons, who are entitled to succession under law and that, a
trustee is bound to keep clear and accurate accounts of the trust-property at the
request of the beneficiary, to furnish him with full and accurate information as to
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OSA.No.11 of 2023 and CMP.No.266 of 2023
the amount and state of the trust-property and that, a trustee or an agent is bound
in a fiduciary character to protect the interest of the principal and the former would
hold the property for the benefit of the member of the person on whose behalf, he
acted as an agent. Having held so, the learned Judge has rightly allowed the
application by directing the respondents therein to deposit 3/5th of the monies
already withdrawn by them from the deposits of the deceased Maruthai Chettiar
before the Court.
13.Though the learned counsel for the appellants referred to various
decisions, the same do not assist the case of the appellants as the decisions deal
with the proposition that the final relief cannot be granted by way of an Interim
Order and with the dismissal of main case, the interim relief also lapses. Further,
all except two judgements deal with service matters and one case out of the two,
relates to grant of NOC for relaunching the Airlines and another was relied to
drive the proposition that withdrawal means abandonment and after withdrawal of
the main case, the benefit of interim order cannot be relied. The proposition put
forth by the appellant, though a general proposition, is not universal as the facts of
a case might warrant grant of interim relief, though amounting to main relief, the
failure of which would render nothing to be adjudicated in the main suit. One such
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OSA.No.11 of 2023 and CMP.No.266 of 2023
circumstances would be to preserve the subject matter of the suit. It would be
relevant to refer to the judgment of the Apex Court in Deoraj v. State of
Maharashtra [2004 (4) SCC 697], wherein it was held as under:
“12. Situations emerge where the granting of an interim relief would
tantamount to granting the final relief itself. And then there may be converse cases
where withholding of an interim relief would tantamount to dismissal of the main
petition itself; for, by the time the main matter comes up for hearing there would
be nothing left to be allowed as relief to the petitioner though all the findings may
be in his favour. In such cases the availability of a very strong prima facie case —
of a standard much higher than just prima facie case, the considerations of
balance of convenience and irreparable injury forcefully tilting the balance of the
case totally in favour of the applicant may persuade the court to grant an interim
relief though it amounts to granting the final relief itself. Of course, such would be
rare and exceptional cases. The court would grant such an interim relief only if
satisfied that withholding of it would prick the conscience of the court and do
violence to the sense of justice, resulting in injustice being perpetuated throughout
the hearing, and at the end the court would not be able to vindicate the cause of
justice. Obviously such would be rare cases accompanied by compelling
circumstances, where the injury complained of is immediate and pressing and
would cause extreme hardship. The conduct of the parties shall also have to be
seen and the court may put the parties on such terms as may be prudent.”
14.The above proposition was followed and reiterated by the Apex Court in
Hammad Ahmed v. Abdul Majeed, (2019) 14 SCC 1 : (2020) 1 SCC (Civ) 475 :
2019 SCC OnLine SC 467, in the following passage:
“58. The ad interim mandatory injunction, is to be granted not at the
asking but on strong circumstance so that to protect the rights and interest of the
parties so as not to frustrate their rights regarding mandatory injunction.
In Deoraj v. State of Maharashtra [Deoraj v. State of Maharashtra, (2004) 4 SCC
697] , this Court held that Court would grant such an interim relief only if it is
satisfied that withholding of it would prick the conscience of the Court and do
violence to the sense of justice, resulting in injustice being perpetuated throughout
the hearing, and at the end the Court would not be able to vindicate the cause of
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OSA.No.11 of 2023 and CMP.No.266 of 2023
justice. Therefore, in appropriate case, ad interim injunction in mandatory form
can be granted. The Court held as under : (SCC p. 703, para 12)
“12. Situations emerge where the granting of an interim relief would
tantamount to granting the final relief itself. And then there may be converse
cases where withholding of an interim relief would tantamount to dismissal
of the main petition itself; for, by the time the main matter comes up for
hearing there would be nothing left to be allowed as relief to the petitioner
though all the findings may be in his favour. In such cases the availability of
a very strong prima facie case — of a standard much higher than just prima
facie case, the considerations of balance of convenience and irreparable
injury forcefully tilting the balance of the case totally in favour of the
applicant may persuade the court to grant an interim relief though it
amounts to granting the final relief itself. Of course, such would be rare and
exceptional cases. The court would grant such an interim relief only if
satisfied that withholding of it would prick the conscience of the court and
do violence to the sense of justice, resulting in injustice being perpetuated
throughout the hearing, and at the end the court would not be able to
vindicate the cause of justice. Obviously such would be rare cases
accompanied by compelling circumstances, where the injury complained of
is immediate and pressing and would cause extreme hardship. The conduct
of the parties shall also have to be seen and the court may put the parties on
such terms as may be prudent.”
59. The argument that under Order 39 Rules 1 and 2 of the Code, the Court
has the jurisdiction to maintain the status of the parties on the date of filing of the
suit or on the date of passing of the order but cannot direct the parties to do
something which was not in existence at the time of filing of the suit, is not a
general rule of universal application. The nature of the orders claimed by the
appellant are not passed ordinarily in a routine manner as the plaintiff is required
to have a case which should be of higher standard than mere prima facie case. But
in view of the agreement between the parties, as recorded by the Division Bench in
an earlier round of litigation the primary question was agreed to be that who is to
act as Chief Mutawalli. Both the learned Single Judge and the Division Bench
have examined such question only. Even, before this Court, the parties have
argued primarily on the question as to who shall be the Chief Mutawalli.
Therefore, a prima facie opinion would lead to consequential order in respect of
management of the affairs of Hamdard.”
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OSA.No.11 of 2023 and CMP.No.266 of 2023
15.It is also relevant to refer to Section 39 of the Specific Relief Act, which
deals with Mandatory Injunction as under:
“When, to prevent the breach of an obligation, it is necessary to compel
the performance of certain acts which the court is capable of enforcing, the court
may in its discretion grant an injunction to prevent the breach complained of, and
also to compel performance of the requisite acts.”
16.In this case, it is beyond doubt that the order has been passed to protect
the subject matter of the suit property, the movable assets, pending the rival claims
and partition. As there is no dispute to the fact that the plaintiffs are the legal heirs
of Maruthai Chettiar, it is natural that the subject matter of the suit property is
protected until disposal of the suit. A perusal of the order under challenge also
indicates that the Learned Judge has issued the direction having found a
prima facie case in favour of the respondents/plaintiff. Therefore, we are of the
view that the order of the Learned Judge, is also in line with the principles of
equity. The other issues like limitation, nature of relief sought in the suit by way
of grounds, are all matters that are to be agitated during trial. Thus, this Court
finds no reason to interfere with the order so passed by the learned Judge.
17.In such view of the matter, this Original Side Appeal is liable to be
dismissed and is accordingly, dismissed. However, the parties are at liberty to raise
all the contentions in the suit. The xerox copy of the affidavit dated 03.07.2015
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OSA.No.11 of 2023 and CMP.No.266 of 2023
filed by the appellants, shall form part of the record. No costs. Consequently,
connected miscellaneous petition is closed.
[R.M.D., J.] [M.S.Q., J.]
rk 06.06.2023
Index : Yes / No
Internet : Yes / No
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OSA.No.11 of 2023 and CMP.No.266 of 2023
R. MAHADEVAN, J.
and
MOHAMMED SHAFFIQ, J.
rk
OSA.No.11 of 2023
06.06.2023
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