JUDGMENT : Pankaj Naqvi, J. Heard Shri Rahul Sahai, learned counsel for appellant. Despite written notice dated 17.4.2014 to Shri Rahul Chaturvedi, Advocate, he has not appeared on behalf of respondents. The said notice is taken on record. 2. For the sake of convenience, parties shall be referred as they were described before the trial court i.e. as plaintiff/defendants, unless specified otherwise. 3. This second appeal has been preferred by defendant challenging the judgment and decree of the appellate court, whereby suit for declaration and injunction filed by plaintiffs has been decreed. 4. The hearing of the appeal was confined to the following substantial questions of law: 1. Whether the appellate court was justified in ignoring the registered will dated 7.12.1989 in favour of the appellant and in believing the alleged unregistered will dated 19.12.1990 in favour of plaintiff-respondent, though, its execution is surrounded by suspicious circumstance, as found by the trial court 2. Whether the account being in the name of "Either or Survivor", the appellant being the "Survivor", was alone entitled to operate the same and to the proceeds thereof. 5. Akhand Dham Ashram Panipat, Haridwar, Vrindaban through its Mahant Shyam Sundar and Mahant Shyam Sunder Chela Brahmleen Atma Prakash filed a suit for declaration and injunction alleging that certain FDRs, described in the plaint, solely belonged to Swami Atma Prakash Nirankari Chela Swami Akhandanand Nirankari. It was stated that out of the offerings made, Mahant Atma Prakash held fixed deposit receipts in his name. However, Mahant Atma Prakash executed a will dated 24.7.1984 in which said FDRs were bequeathed in favour of his chela i.e. Plaintiff no.2 Mahant Shyam Sundar. Mahant Atma Prakash died on 22.12.1990. Plaintiffs who had original FDRs in their possession staked their claim for payments as legal representatives in the said FDRs. It was alleged that defendant no.1 was only a sevika at the Ashram who fraudulently got her name recorded in the FDRs as nominee i.e. either/survivor. As the bank insisted to make payments against FDR's to defendant no.1, plaintiffs filed the above suit for injunction that defendants be restrained from encashing the FDRs and for declaration that plaintiffs alone are entitled to the value thereof. 6. As the bank insisted to make payments against FDR's to defendant no.1, plaintiffs filed the above suit for injunction that defendants be restrained from encashing the FDRs and for declaration that plaintiffs alone are entitled to the value thereof. 6. The suit was contested by defendant no.1 Smt. Krishna Kumari alleging that said FDRs were purchased out of the funds contributed by the deceased Atma Prakash alongwith her and the same were duly recorded in their joint names. It was further stated that the alleged will dated 24.7.1984 in favour of plaintiff no.2 stood cancelled by instrument dated 7.12.1989. 7. During the pendency of suit an amendment was incorporated in the plaint that Mahant Atma Prakash also executed another will dated 19.12.1990 in favour of plaintiff no.2. 8. The Trial Court after exchange of pleadings and evidence framed as many as 10 issues. Issue no.4 and 10 were to the following effect:- Issue No. 4: Whether will dated 24.7.1984 executed by Mahant Atma Prakash in favour of plaintiff was cancelled by a registered cancellation dated 7.12.1989.If so its effect Issue No. 10: Whether Mahant Atma Prakash executed a will dated 24.7.1984 in favour of plaintiff. If so its effect. 9. It was not disputed that subsequent to the execution of alleged will dated 19.12.1990 by Mahant Atma Prakash in favour of plaintiff no.2 he passed away on 22.12.1990. The trial court disbelieved the version of the plaintiff primarily on the ground that once the alleged registered will dated 24.7.1984 was superseded by subsequent will dated 19.12.1990 then notwithstanding whether registered cancellation dated 7.12.1989 is proved or not, execution of subsequent will dated 19.12.1990 was to be proved. The trial court on evidence found that execution of will dated 19.12.1990 was itself surrounded with suspicious circumstance, which could not be dispelled, in as much as, will dated 24.7.1984 was allegedly rescinded on 7.12.1989, there was no justification to execute another will to the same legatee on 19.12.1990 when the testator is alleged to have died 3 days later i.e. on 22.12.1990. Thus the trial court dismissed the suit, but on appeal, same has been set aside, and the suit of plaintiffs has been decreed. 10. Thus the trial court dismissed the suit, but on appeal, same has been set aside, and the suit of plaintiffs has been decreed. 10. The appellate court proceeded on the assumption that as cancellation dated 7.12.1989 was not established and execution of will dated 24.7.1984 itself not being disputed it decreed the suit on the basis of the will dated 24.7.1984. 11. The perversity committed by the appellate court was that once plaintiffs had set up a subsequent will dated 19.12.1990 in support of their claim then the claim on the basis of earlier will dated 24.7.1984 (Paper no.40 ka), lost its relevance and significance. The will dated 19.12.1990 was executed by the testator prior to 3 days of his death when he was hospitalised. Thus the very execution of the will dated 19.12.1990 was surrounded by a suspicious circumstance as there was no justification put forward by the plaintiff's in their evidence as to why despite a registered cancellation dated 7.12.1989, testator executed second will just 3 days before his death. This fact alone rendered will dated 19.12.1990 as extremely doubtful and unworthy of being relied upon irrespective of proof/disproof of cancellation dated 7.12.1989. 12. Thus the court finds that appellate court misdirected itself in coming to the conclusion that as cancellation dated 7.12.1979 was not established, suit was liable to be decreed. 13. Coming to the second question the court finds that the judgment of the Apex Court in the case of Anumati v. Punjab National Bank A.I.R. 2005 S.C. 29 that in the event of endorsement of either or survivor in a fixed deposit, bank was obliged to release the amount under the FDR's in favour of defendant appellant, as the nominee survived the deceased holder of the FDR's. The said judgment holds that a fixed deposit is nothing but a joint account and that an endorsement of either or survivor in such an account means that the amount is payable by the bank on maturity of fixed deposit to either of the account holder in order to obtain a valid discharge. Thus if the said contesting defendant appellant was claiming repayment under the aforesaid FDR's on the basis of the said clause, then that was only with a view to give a valid discharge to the bank but then the same would always be subject to the entitlement/right which a person may have in order to claim the said amount. Nomination in FDR's is subject to right/entitlement of the nominee which could be objected to, as was done in the present case on the strength of the alleged will, but as the claim of the plaintiff-respondent was not established, the defendant appellant being the sole surviving nominee in the FDR's, would be liable to claim the said amount. 14. Consequently the second appeal is liable to succeed. 15. The second appeal is allowed with costs. The judgment and decree of the first appellate court is set aside and that of the trial court is restored. Appeal Allowed.