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2001 DIGILAW 14 (JK)

Kanta Devi v. Parkasho Devi

2001-01-25

A.M.MIR

body2001
1. The question that arises in this second civil appeal is as to whether a nominee excludes the real legal heirs of the deceased from entitlement of release of an asset. Both the courts below have decreed the suit of respondent-plaintiff, Parkasho Devi, who is the sister of the deceased Guru Dass and who had been nominated as a Nominee with respect to a Saving Bank Account of Rs. 58,000/- deposited by the deceased with respondent No. 2. 2. Guru Dass having expired on 26-11-1997, plaintiff-Parkasho Devi field a suit before the Munsiff R.S. Pura, for release of the amount. The suit was countered by the appellant as well as respondent No.2 and on the pleadings of the parties, trial court framed following issues:- Whether the suit is not maintainable in the present form OPD-2 Whether suit is not maintainable as the matter pertains to debt and succession certificate with respect to the same has already been issued by the learned District Judge, Jammu OPD. 1-2. Whether the nomination of the plaintiff made by the deceased depositor Guru Dass Lal is not proper and valid under law, OPD-l. Whether the plaintiff is entitled to relief on the basis of nomination made by the deceased depositor Guru Dass Lal, OPD. Relief. 3. The trial court decided all the issues, including the issue No. 4 which related to the entitlement of the plaintiff to release of money, in favour of the plaintiff and against the defendant-appellant. Judgment and decree by the trial court was passed on 01 -06-1998. Aggrieved of this judgment and decree an appeal was filed before the First Appellate Court, who confirmed the judgment and decree and dismissed the appeal vide judgment and decree dated: 10-04-1999. 4. This appeal is posted for hearing today. Nobody appears for respondent No. 1 although Mr. Naveen Kumar, Advocate, has already appeared before the registry for her. I have, therefore, heard the arguments of Mr. Manohar Singh and Mr. Jamwal. I have also gone through the judgment of the First Appellate Court. 5. Learned District Judge seems to have been impressed by the power of a Civil Court to determine the rights and liabilities of the parties over and above the succession certificate issued by a competent court. Manohar Singh and Mr. Jamwal. I have also gone through the judgment of the First Appellate Court. 5. Learned District Judge seems to have been impressed by the power of a Civil Court to determine the rights and liabilities of the parties over and above the succession certificate issued by a competent court. In this behalf I would like to reproduce following para of the judgment of the appellate court:- "What is indisputedly gatherable from the aforesaid provision is that the Civil Court is sufficiently clothed and vested with power to determine the question of right between the parties with regard to the debts of the deceased irrespective of the fact that succession certificate has been already issued in respect of the such debt. This issue has also been rightly held decided by the trial court against the defendant and in favour of the plaintiff." 6. On the principle of law with respect to the power of the civil court, I have no reservation, but as far entitlement is concerned, this has to be adjudged on the recognised principle of law. Before the trial court the suit was one which was filed by the nominee and the suit was contested by the appellant-wife, who in law was the sole legal heir of the deceased. Thus while making up its mind as to who out of the two parties was entitled to the amount, the trial court had to search for the law governing the subject. The latest judgment of the Supreme Court on the subject is handed down in case titled Vishin-N. Khanchandani and anr Vs. Vidya Laxman and anr, reported in AIR 2000 SC 2747. This case also related to a National Saving Certificate while a nominee was pitched in a contest with the legal heirs. The Court authoritatively held that a nominee does not have any right for release of the money as against the legal heir. In this behalf para 13 of the judgment reads as under:- "In the light of what has been noticed hereinabove, it is apparent that though language and phraseology of section 6 of the Act is different than the one used in Section 39 of the Insurance Act, yet, the effect of both the provisions is the same. In this behalf para 13 of the judgment reads as under:- "In the light of what has been noticed hereinabove, it is apparent that though language and phraseology of section 6 of the Act is different than the one used in Section 39 of the Insurance Act, yet, the effect of both the provisions is the same. The Act only makes the provisions regarding avoiding delay and expense in making the payment of the amount of the national savings certificates, to the nominee of the holder, which has been considered to be beneficial both for the holder as also for the post office. Any amount paid to the nominee after valid deductions becomes the estate of the deceased. Such an estate devolves upon all person who are entitled to succession under law, custom or testament of the deceased-holder. In other words, the law laid down by this Court in Sarbati Devis case, AIR 1984 SC 346, holds field and is equally applicable to the nominee becoming entitled to the payment of the amount on account of national savings certificates received by him under Section 6 read with Section 7 of the Act who in turn is liable to return the amount to those, in whose favour law creates beneficial interest, subject to the provisions of sub-section (2) of Section 8 of the Act." Their lordships have relied upon as many as 14 judgments, which right from the year 1956 have been delivered on the subject by different courts including the Supreme Court. The most important of these judgments is one delivered in Sarbati Devi Vs. Smt. Usha Devi, Air 1984 SC346. 7. Thus the finding of the 1st Appellate Court as also the trial court has been oblivious of the legal entitlement of the debt in so far as the contest between the occasioned a miscarriage of justice and the judgments of both the courts below are against the recognised law of procedure. 8. The object of the Banking Rules is to enable the Bank to make payment to the nominee in case the real heirs do not come forward but once the legal heirs come before the court their claim cannot be knocked only because the deceased nominated a person other than the legal heirs. That being the position of law, I allow this appeal and dismiss the suit filed by the respondent No. 1 before the trial court. That being the position of law, I allow this appeal and dismiss the suit filed by the respondent No. 1 before the trial court. The net result will be that the amount of the saving bank deposit will be disbursed in accordance with the succession certificate issued by the competent authority. No order as to costs.