SHIVAKANT PRASAD,J. - (1.) The instant appeal is directed against a judgment and decree dated 18.8.2000 passed by learned 1st Court, Civil Judge (Senior Division), Howrah in Title Appeal No. 27 of 1999 affirming the judgment and decree dated 30.1.1999 passed by learned 6th Court, Civil Judge (Junior Division), Howrah in Title Suit No. 10 of 1997.
(2.) The appeal is at the instance of the plaintiffs, inter alia, on the ground that the learned Courts below have failed to consider the principle relating to nominee that the nominee has no right to deny or deprive the rights of other lawful claimants as per the law of inheritance/succession and that the learned Courts below have erred in law in holding that if the decree is granted the same would effect the contractual right with the bank for getting altogether that such contractual agreement with the bank cannot take away the right of the other claimants. Accordingly, the appellants have preferred second appeal for setting aside the judgment and decree passed by the learned Courts below. The background of the case is that the plaintiffs' father Tarapada Das, having had left behind him his heirs, viz. his wife, his two daughters i.e. the plaintiff no. 1 and the defendant no. 2 and the minor son of his predecessor daughter i.e. the plaintiff no. 2 on his death on 14.9.1994, had deposited jointly with his wife i.e. the defendant no. 1 during his life time a sum of Rs. 17,000/- (Rupees Seventeen thousand only) with U.C.O Bank, Jagadishpur Branch, Howrah, a sum of Rs. 6900/- (Rupees Six thousand nine hundread only) with the said bank and another sum of Rs. 25,000/- (Rupees Twentyfive thousand only) with sub post office, Chanditala, Dist-Hooghly as fixed deposit. The mode of operation of the said deposits being "either or survivor". It is stated in the plaint that the said Tarapada Das, since deceased having had got the aforesaid amounts as his retirement benefits as the Railway employee. The plaintiff nos. 1 & 2 have one-fourth share each in the said deposited amounts morefully described in schedule "A", "B" and "C" to the plaint. It is alleged in the plaint that in spite of approach of the plaintiffs on several occasions to the said deposited amounts amongst the legal heirs of the said Tarapada Das, since deceased, in accordance with their respective share on the ground of the immediate need of the plaintiffs, the defendant nos. 1 and 2 have flatly refused to do so and that there is an apprehension of withdrawal of the said amounts by the defendant nos. 1 and 2 and hence this suit.
(3.) The defendants contested the suit in the Trail Court by filing a written statement describing that Tarapada Das also deposited a sum of Rs. 6,000/- in the F.D.R A/c in the U.C.O Bank, Jagadishpur Branch in the district of Howrah vide A/C No. 683979 in the joint name with the defendant no. 1. The defendants further submitted that the said Tarapada Das deposited the said sum for the safety and security of the defendant nos. 1 and 2. The plaintiffs have no right over the said amount, which is lying therein. The defendants further contended that during the life time Tarapada Das gave a lot of money in cash to the plaintiff no. 1 who is the elder sister of the defendant no. 1 and gave a lot of money to Partha Sarathi Das, the plaintiff no. 2. The father of the plaintiff no. 2, namely, Hritish Baran Das being the elder son-in-law of the defendant no. 1 have free ingress and egress in the house of the defendant no. 1 getting advantage that said Hritish Baran Das i.e. the father of the plaintiff no. 2 stolen those certificates from the almirah of the defendant no. 1 and for the same a criminal case has been started in the name of the father of the plaintiff no. 2 before the 5th Court of the Judicial Magistrate, Howrah under Section 379 of the I.P.C and the same is pending.;