JUDGMENT Chatterjee, J. - The question for adjudication in this case is whether a joint account opened by a Hindu in the names of himself and his wife and payable to either or survivor can be operated upon by the wife after the death of her husband, is the bank entitled to withhold payment to the widow unless the heirs or legal representatives of the deceased husband give their consent? In this case a Bank did its best to put off payment to its constituent although no rival claimant came forward to deny her title. Mr. Aswini Kumar Chatterjee was a contractor and lived at Shibpore in the district of Howrah. During the bombing scare he left Calcutta and temporarily migrated to Krishnagar in the district of Nadia. His wife Sm. Shantimoyee Debi, the Plaintiff, also went up there. 2. On June 4, 1942, an application was made to the Bengal Central Bank Ltd., at its Krishnagar Branch in the following words:-- Gentleman, We have to request that you will open a current account with me/us. I/we declare that the current account rules of the Bengal Central Bank Ltd have been read by me/us and that I/we accept them or any change thereof binding upon me/us Youra faithfully, Aswini Kumar Chatterjee. 3. The title of the Account was--"Aswini Kumar Chatterjee & Sm. Santimoyee Debi." There was a special contract with the bank and a direction was given to the Bank in the application form: Amount to be deposited or withdrawn severally and the account will be payable to either of us or the survivor. Aswini/Kumar Chatterjee. 4. The specimen signature card was signed by both Mr. Chatterjee and the Plaintiff and it was also put down there that the account was to be operated separately. The specimen signatures were given on the same day, i.e., June 4, 1942. 5. Some monies were deposited from time to time to the credit of the joint account with the Defendant Bank at Krishnagar. Then the account was transferred to Calcutta at the Bank's Head office. The current pass book in the joint names of the Plaintiff and her husband shows that on October 1, 1942, a sum of Rs. 1,198-8-0 was transferred from Krishnagar to the head office and stood to the credit of that account. Then the account was transferred to Calcutta at the Bank's Head office. The current pass book in the joint names of the Plaintiff and her husband shows that on October 1, 1942, a sum of Rs. 1,198-8-0 was transferred from Krishnagar to the head office and stood to the credit of that account. Thereafter other monies were deposited from time to time, and it is significant that the account does not show any withdrawal whatsoever. 6. Mr. Chatterjee died on December 21, 1946. He left a number of sons and daughters, three of them are step-sons of the Plaintiff. 7. On January 13, 1947, a cheque was drawn by the Plaintiff for Rs. 6,800. At that time there was to the credit of the account Rs. 17,000. The said cheque was not paid by the bank on the ground that consent of the heirs and successors of Aswini Kumar Chatterjee (deceased) was required. On behalf of the Plaintiff a protest was lodged against the dishonouring of the cheque. Thereafter an affidavit was made by the Plaintiff before a Presidency Magistrate of Calcutta stating the relevant facts. A letter of indemnity was also given to the Bank against any loss that it may suffer on account of payment to her of the balance then lying in the said account. 8. On March 5, 1947, the Plaintiff drew, another cheque on the Bank for Rs. 16,910-15-9 but the same was returned unpaid on the same ground and the Bank again wanted the consent of the heirs and successors of the deceased. On the same day Mr. T. Banerjee, Plaintiff's Attorney, wrote to the Bank protesting against the conduct of the Bank and demanding payment of Rs. 16,910-15-9 ps. then standing to the credit of the account. 9. It seems that instead of paying the lady the amount standing to her credit, the Bank did its best to create trouble. On March 10, 1947, some one from the Bank called on the Deputy Official Trustee of Bengal and showed him the specimen signature card and the account opening form and it was pointed out to the said officer that the instruction contained therein, viz., "the account would be payable to either of us or the survivor" were inserted later and it was written in different hand and ink. There is absolutely nothing in this point as the Bank ultimately had to admit to the Official Trustee in its subsequent correspondence that this portion of the instructions was incorporated before the forms were tendered at the Krishnagar office for opening the account. 10. On March 11, 1947, the Manager of the Bank wrote to the Deputy Official Trustee pointing out that owing to the difference in handwriting the Bank was not sure whether it could pay the money to the lady with safety. Mr. Chatterjee according to the Plaintiff left a Will wherein the Official Trustee of Bengal was mentioned as executor and trustee. The Bank wanted the Official Trustee to confirm that he did not claim any interest in the fund lying in the above account to enable the Bank to pay the money to the widow. It is significant that up to that stage neither the Official Trustee nor any of the sons of the deceased nor any of the beneficiaries of the alleged trust ever put forward any claim to the money in the Bank. Yet the Bank refused to pay because it suspected the authenticity of a portion of the instruction in the application form which had been admittedly with the Bank from the date the account was opened, that is, from June 4, 1942. The Official Trustee had further correspondence with the Bank but he never put forward any claim to the Bank in respect of the money lying to the credit of the account. 11. On April 2, 1947, the Deputy Official Trustee enquired of the Plaintiff whether she was prepared to withdraw the amount jointly with him as executor of the Will of Mr. Chatterjee. Naturally the lady did not agree, and on April 22, 1947, Mr. T. Banerjee wrote to the Official Trustee and asserted that the lady was solely entitled to the money. On the same day two step-sons of the Plaintiff wrote a letter to the Manager of the Bank stating that their father died intestate leaving three sons and his widow as his heirs and the properties including this money belonged to their father and the lady had no personal right in the same. Thus months after the death of Mr. On the same day two step-sons of the Plaintiff wrote a letter to the Manager of the Bank stating that their father died intestate leaving three sons and his widow as his heirs and the properties including this money belonged to their father and the lady had no personal right in the same. Thus months after the death of Mr. Chatterjee and at least three months after the dishonour of the first cheque drawn by the Plaintiff, two of her stepsons, one of whom is still a minor, came forward to provide some justification for the conduct of the Bank by setting up a title adverse to the lady. 12. On May 6, 1947, this suit was instituted by the Plaintiff for a decree for Rs. 16,910-15-8 being the amount lying in the said account. The defence is that Mr. Chatterjee alone deposited the money and opened the current account at the Krishnagar Branch of the Bank. The Bank denied that the Plaintiff and Mr. Chatterjee opened the account as alleged by her. It is further stated that Mr. Chatterjee died leaving a Will and the Official Trustee is acting in terms of that Will. I understand the probate of the Will has been revoked and the Will has been ordered to be proved again. The Bank has also filed an interpleader suit being Suit No. 1166 of 1947. The Bank says that it could not pay the money to the Plaintiff because the Official Trustee did not confirm that he had no claim or interest in the said sum. 13. The sole issue in this suit is was the lady entitled to the monies on the dates she drew the two cheques, namely, January 13, 1947 and March 5, 1947. In my opinion, the lady was entitled to do so and the Bank had no right to refuse payment. It seems that the judgment of the Judicial Committee in Garan Ditta v. Ram Ditta 55 I.A. 235 (1928) : s.c. 32 C.W.N. 817 is creating some confusion. In that case all that the Judicial Committee said is this the deposit by a Hindu of his own money in a Bank in the joint names of himself and wife, and on the terms that it is to be payable to either or the survivor, does not on his death constitute a gift by him to his wife. In that case all that the Judicial Committee said is this the deposit by a Hindu of his own money in a Bank in the joint names of himself and wife, and on the terms that it is to be payable to either or the survivor, does not on his death constitute a gift by him to his wife. There is a resulting trust in his favour in the absence of proof of a contrary intention and there is in India no presumption of an intended advancement in favour of a wife. What are the facts of that case: In 1919 a Hindu called Teku Ram opened a deposit account with the Alliance Bank of Simla for one lakh of rupees in the names of himself and his wife. Musstt. Gurji, and it was made payable to either or the survivor. He died in 1920 and his wife and three sons survived him. After his death Gurji withdrew the money through her son Guran Ditta. In 1921, Ram Ditta, the eldest son, brought the suit against his mother and brothers. He alleged that the father and the sons were members of a joint Hindu family and wanted a decree for one-third of the money. The Defendants alleged that the money belonged to Musstt. Gurji under a Will made by her husband and alternatively that it was gift by the husband to the wife. The main issue in that case was whether the one lakh of rupees deposited by Teku Ram became the sole property of Musstt. Gurji by gift. That money, it was found by the Courts in India, was at the time of the deposit the property of, Teku Ram In the argument before the Judicial Committee it was admitted that the money belonged to the husband. He had supplied it in fact from his own funds by a transfer from his current account at the same Bank. The argument on behalf of the Appellants was that there was a presumption that the deposit constituted an advancement or transfer in favour of Musstt. He had supplied it in fact from his own funds by a transfer from his current account at the same Bank. The argument on behalf of the Appellants was that there was a presumption that the deposit constituted an advancement or transfer in favour of Musstt. Gurji All that Lord Parmoor pointed out in that case is that the general principle of equity 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. But a presumption of advancement of gift in favour of a wife or child cannot be extended to Hindus or Mahomedans in India. The ground of distinction is stated to be the widespread practice of Benami in India. All that the Privy Council said is that where it is proved or admitted that the money deposited in a Bank was the property of the husband, then there is no presumption of any intended advancement in favour of the wife, simply because the instruction given to the Bank is that the money deposited would be payablte to either or the survivor. This view of Lord Parmoor has been followed by Lord Porter in a recent judgment of the Judicial Committee in Pandit Shambhu Nath Shivpuri v. Pandit Pushkar Nath 42 C.W.N. 97 (1944) P.C.. 14. Now the rule laid down in the case of Guran Ditta v. Ram Ditta, 55 I.A. 235 (1928): 32 C.W.N. 817 can only apply where it is established that a Hindu husband deposits his own money in a Bank in the joint names of himself and his relation. I have no evidence before me that the money that was put in the Bank at the time the account was opened or the different sums which were deposited later in the joint account were the monies of-the husband. Unless it is established or proved that the monies deposited in the Bank were the monies of Mr. I have no evidence before me that the money that was put in the Bank at the time the account was opened or the different sums which were deposited later in the joint account were the monies of-the husband. Unless it is established or proved that the monies deposited in the Bank were the monies of Mr. Chatterjee, the principle laid down by the Judicial Committee in the above cases cannot apply. No attempt has been made before me to establish these facts and, therefore, these Privy Council judgments have no application to this case. There is no question of any resulting trust in favour of the husband's estate in the absence of proof that all these monies were the husband's monies. 15. The next point taken by the Defendant was that the contract of the Bank was with the husband alone and the Plaintiff was not a party to the contract and no consideration really moved from the Plaintiff and she is, therefore, not entitled to sue. On the facts of this case I am satisfied that this account was really opened by both the husband and the wife and there was a contract between the Bank on the one side and the husband and the wife on the other side and she is entitled to maintain the suit. 16. I have been referred to Paget's Law of Banking, 5th Edn., pages 15 and 97. It is urged by the learned Counsel for the Bank that when there is a joint account in the names of a husband and wife with authority to the wife to draw or operate on the account, then on the husband's death it is not safe for the Bank to allow the wife to draw. On the death of the husband it is a question of intention whether the arrangement was merely a matter of convenience during the joint lives or whether it was a method of providing for the wife in case she was the survivor. In the first case survivorship would be excluded and the widow cannot obtain payment. In the second case she, as the survivor, is entitled to payment. My attention has been drawn to Marshal v. Crutwell L.R. 20 Eq. 328 (1875), In re: Day v. Harrison 90 L.J. Ch. 186 (1821) and Hirschorn v. Evans (Barclays Bank, Ltd.) (1938) 2 K.B. 801. In the second case she, as the survivor, is entitled to payment. My attention has been drawn to Marshal v. Crutwell L.R. 20 Eq. 328 (1875), In re: Day v. Harrison 90 L.J. Ch. 186 (1821) and Hirschorn v. Evans (Barclays Bank, Ltd.) (1938) 2 K.B. 801. In my view the Bank is under a special obligation when the direction is that the amount shall be payable to "either or survivor." Ordinarily, when a husband and wife open an account and give the order to the Bank that it is to honour the cheque signed by either of them, then the account is a joint one and the Bank cannot deal with it otherwise than at the request of both the parties and when it honours any cheque drawn by either of them then it is acting in terms of the above instructions. But the position is different when further instructions are given as to what should happen after the death of either the husband or the wife. Paget in his Law of Banking says that the banker ought not to be mixed up with the question as to whether the fund passes to the survivor or not and that is why special mandate should be taken for the disposal of the balance on the death of either party. Such special mandate is taken when the instruction is given to the Bank to pay to either or the survivor and in such case the Bank must carry out the mandate unless a competent Court issues an injunction before the presentation of the cheque to the Bank by the survivor. 17. The law has been clearly put in McEvoy v. The Belfast Banking Co., Ltd. (1935) A.C. 24. In that case Lord Atkin observed:-- " It is said that the effect of the contract created by the deposit of 10,000 by the father in the names of himself and his son the opening of the joint deposit account and the giving and acceptance of the deposit receipt was the formation of a contract between the father alone and the Bank. Neither the father nor the Bank, it is said, purported to contract for or with the son; the son was a third party who could acquire no rights against the Bank. Neither the father nor the Bank, it is said, purported to contract for or with the son; the son was a third party who could acquire no rights against the Bank. It was as though the father had opened an account in his own name making the sums payable to himself or his son, in which case it was aid the son would clearly have to prove an independent Contract between himself and the Bank before he could sue the Bank. My Lords, this contention seems to me to raise the one question of general importance in the case. It involves the whole question of the legal relations created by a Bank deposit in this form. The argument, if correct appears to me inconsistent with well established hanking practice and likely to impair the confidence in deposits made in joint names. I consider it to be quite unfounded." A little later the noble Lord observed: "The suggestion is that where A deposits a sum of money with his Bank in the names of A and B. payable to A or B, if B comes to the Bank with the deposit receipt he has no right to demand the money from the Bank or to sue them if his demand is refused. The Bank is entitled to demand proof that the money was in fact partly B's, or possibly that A had acted with B's actual authority. For the contract it is said, is between the Bank and A alone. My Lords, to say this is to ignore the vital difference between a contract purporting to be made by A with the Bank to pay A or B and a contract purporting to be made by A and B with the Bank to pay A or B. In both cases of course payment to B would discharge the Bank whether the Bank contracted with A alone or with A and B. But the question is whether in the case put B has any rights against the Bank if payment to him is refused. I have myself no doubt that in such a case B can sue the Bank. The contract on the face of it purports to be made with A and B, and I think with them jointly and severally. I have myself no doubt that in such a case B can sue the Bank. The contract on the face of it purports to be made with A and B, and I think with them jointly and severally. A purports to make the contract on behalf of B as well as himself and the consideration supports such a contract. II A has actual authority from B to make such a contract. B is a party to the contract ah initio. If he has not actual authority then subject to the ordinary principles of ratification B can ratify the contract purporting to have been made on his behalf and his ratification relates back to the original formation of the contract." 18. I hold that in this case the lady can sue the Bank. The contract in this case purports to be made with both the husband and the wife and it is a joint and several contract. The husband acted with the authority of the wife and in any event there was ratification of the contract by the wife. Such ratification relates hack to the original formation of the contract. There is evidence of ratification that she was receiving the accounts from the Bank from time to time, she drew cheques on that account and she wanted to operate on the account and she asserted her right to draw monies in terms of instruction originally given. The suit is decreed for Rs. 30.910-15-9 with costs on Scale No. 11. Certified for two Counsel. 1 do not award any damages in favour of the Plaintiff The judgment will carry interest at 6 per cent. per annum.