IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1220 of 2012 with CIVIL APPLICATION NO. 5144 OF 2012 For Approval and Signature:
HONOURABLE MR.JUSTICE AKIL KURESHI HONOURABLE MR.JUSTICE C.L. SONI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= JIGNESH CHHOTALAL DAVE - Appellant(s) Versus BANK OF INDIA MANAGER & 2 - Defendant(s) ========================================================= Appearance :
(MR JAGDISH H MEHTA) for Appellant(s) : 1,MR VIREN G DAVE for Appellant(s) : 1, None for Defendant(s) : 1, MR NIRAV C THAKKAR for Defendant(s) : 2 - 3.
========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE C.L. SONI Date : 7/05/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE C.L. SONI)
1. Appellant is the original plaintiff who had filed Special Civil Suit No. 67 of 2004 in the Court of the learned 9th Additional Senior Civil Judge at Jamnagar for directing the respondent No.1 bank to hand over 91,000 Sterling Pounds, the value of which is equivalent to the Indian Currency of Rs.70,00,000.00 which were lying with the respondent No.1 Bank in two different NRI Deposits in the name of the deceased Dhirajlal Manishankar Dave. It is the case of the appellant that the elder brother of the appellant's father namely deceased Dhirajlal Manishankar Dave was residing in Great Britain but during the last one year when he had come in India, he resided with the appellant and the appellant was looking after him. It was further alleged in the plaint that the deceased had deposited 91000 Sterling Pounds in the Bank of India NRI Account on 14.3.2003 and the deceased had nominated the appellant to recover the said amount and also orally talked the appellant to receive the said amount. However, after the death of the deceased Dhirajlal Manishankar Dave, when the appellant approached the bank to release the said amount, the respondent No.1 bank did not pay the said amount and, therefore, the appellant was required to serve notice, however, still, the appellant was not paid the said amount and, therefore, the suit was filed by the appellant before the trial Court.
2. The suit was resisted by the respondent no.1 bank by filing the written statement at Exh. 10 inter alia pointing out that the deceased Dhirajlal Manishankar Dave had executed will during his life time and appointed executor who had approached the UK Court and the said executor had raised objection through the attorney and the bank therefore asked the plaintiff that the plaintiff should approach the Indian Court for realizing the amount in question.
3. During the pendency of the suit before the trial Court, an application was made by the Legal heirs of the deceased Dhirajlal Manishankar Dave for being joined as party defendants and were also joined as party defendant No.2 and 3 in the suit and they also filed their written statement at Exh. 27. They stated that the deceased Dhirajlal Manishankar Dave was father in law of respondent No.2 and father of respondent no.3 and on the basis of the will in their favour, they had obtained Probate from the Oxford High Court on 7.5.2003 and become entitled to receive the amount. They have also stated that the Nominee has got no right to the suit amount because the nominee is not the legal heir under the provisions of the Indian Succession Act and, therefore, the suit was required to be dismissed.
4. On the basis of the pleadings, the learned Judge framed following issues at Exh. 20:
“(1) Whether the plaintiff proves that he is entitled to recover the amount of 91000.00 (Ninety one thousand) pound as a nominee of deceased Dhirajlal Manishankar Dave from the defendant NO.1?
(2) Whether the defendant Nos. 2 and 3 prove that they are entitled to receive the suit amount by virtue of Will dated 08.02.2002 signed by deceased Dhirajlal Manishankar Dave and as executors of the said Will?
(3) Whether the defendant Nos. 2 & 3 prove that they have legally obtained the Probate on 01.05.2003, of the Will dated 08.02.2008 from Oxford High Court?
(4) Whether the suit is bad for non-joinder of necessary parties?
(5) Whether the plaintiff is entitled to get the interest?
(6) Whether the plaintiff is entitled to get the relief as prayed for?
(7) What order and decree?”
5. The above issues were answered by the trial Court as under:
“(1) In the negative.
(2) In the affirmative.
(3) In the affirmative.
(4) In the negative.
(5) In the negative.
(6) In the negative.
(7) As per final order”
6. The appellant examined himself as Plaintiff Witness No.1 at Exh. 37 and also examined one Mr. Bhupatbhai Rambhai Dave as Plaintiff's witness No.2 at Exh. 51. From the side of the defendant, one Shri Dipakbhai S. Ekka was examined as defendant's witness at Exh. 55. On behalf of defendants No.2 and 3, Shardaben Dipakbhai Dave was examined at Exh. 75. Both the sides produced on record documentary evidence.
7. The main issue focused before the Court Below was as to whether the appellant being a nominee only was entitled to receive the amount deposited by the deceased Dhirajlal Manishankar Dave. In the periphery of this issue, the learned Judge was also required to decide as to whether respondents No.2 and 3 were entitled to receive the said amount as legal heirs as also by virtue of the will alleged to have been executed in their favour by the deceased Dhirajlal Manishankar Dave. The learned Judge recorded finding that the appellant original plaintiff was merely nominee and was not entitled to the suit amount. The learned Judge also recorded that the legal heirs of the deceased Dhirajlal Manishankar Dave were available and they also obtained Probate Certificate in their favour and, therefore, the learned Judge reached to the conclusion that the suit was required to be dismissed and accordingly, the learned Judge dismissed the suit of the plaintiff vide judgment and decree dated 21.3.2009.
8. It is against this judgment and decree, the appellant has come before this Court by filing the present first appeal.
9. Learned Advocate Mr. Dave for the appellant bank. He submitted that though the appellant was described as Nominee in the bank in respect of the amount of 91000 Sterling Pounds deposited by the deceased Dhirajlal Manishankar Dave, with the sole intention to make the said amount available to the appellant even-though his legal heirs were available, he nominated the appellant to receive the said amount and, therefore, the appellant was entitled to receive the amount deposited by deceased Dhirajlal Manishankar Dave. In view of this, the appellant was not required to be considered simply as nominee in strict legal sense. The learned Judge therefore committed grave error in recording the finding that the appellant was just nominee and was not entitled to receive and utilize the amount
submitted that the appellant was the care taker of the deceased Dhirajlal Manishankar Dave when he was driven away by his heirs from the U.K. His heirs have then come forward just to grab the amount of the deceased Dhirajlal Manishankar Dave and the intention of the deceased Dhirajlal Manishankar Dave was to see that the appellant got the amount as his heir. The appellant was therefore legally entitled to receive the amount in question as against the claim of the legal heir of the deceased Dhirajlal Manishankar Dave. He, therefore, submitted that the learned Judge ought to have held the action of the bank in refusing to release the amount in question to the appellant, as illegal and ought to have passed decree in favour of the appellant, as prayed for.
10. Learned Advocate for the appellant has further argued that the will itself was in shadow of doubt and the probate of the foreign court was not required to be recognized, therefore, no cognizance of the will alleged to have been executed in favour of respondents no.2 and 3 could have been taken by the learned Judge for deciding the entitlement of the appellant to the amount of the deceased Dhirajlal Manishankar Dave in respondent No.1 Bank. He therefore submitted that it was only the appellant who was entitled to the amount in question and respondents no.2 and 3 who were claiming the amount in question as legal heirs of the deceased Dhirajlal Manishankar Dave, were having no right whatsoever to get the said amount lying in the bank. He submitted that the appellant continued to be the nominee in the bank and in view of the fact that the deceased was being taken care of by the appellant all throughout till his death, even if there was no will executed by the deceased in favour of the present appellant, nomination in favour of the appellant in the bank could have been considered as final to make the appellant entitled to receive the amount in question and to utilize the amount.
11. As against the above said arguments advanced by the learned advocate for the appellant, learned advocate Mr. Nirav C. Thakkar for respondents No.2 and 3 submitted that the appellant except being nominee, had no other right to claim the amount deposited by the deceased Dhirajlal Manishankar Dave. He submitted that the person who is nominated as a nominee either in the bank or before any other institution for any property is just like a trustee without any right towards the property and he has to receive, hold and distribute such property to the person legally entitled to have such property. He submitted that when respondents no.2 and 3 who are legal heirs of the deceased Dhirajlal Manishankar Dave and are present to receive the amount in question as a matter of right, they cannot be deprived of their entitlement to receive such amount simply because the name of the appellant was entered as nominee in the record of the bank. He further submitted that the appellant has not claimed any other legal right to the amount in question. His simple claim is that he was nominated as nominee of the deceased and, therefore, as a nominee, he was entitled to receive the amount. He tried to support his claim by putting forth the ground that the deceased had resided with him and he took care of the deceased till his death. Learned advocate further submitted that in absence of any legal document like will etc. giving right to the appellant to claim the amount in question from the bank, the bank is not under an obligation to give the amount to the nominee when the bank is already informed by the legal heirs of the person whose amount has been lying with the bank. He pointed out that the respondents no.2 and 3 were legal heirs of the deceased and were otherwise entitled to receive the amount of the deceased lying with the bank. He, therefore, submitted that the bank has not committed any illegality in denying the claim of the appellant in respect of the amount deposited by the deceased with the bank. He has further submitted that over and above the natural claim as legal heirs of the deceased Dhirajlal Manishankar Dave, respondents no.2 and 3 are otherwise entitled to receive the amount in question on the basis of the will executed by the deceased Dhirajlal Manishankar Dave in their favour. He
basis of the will, respondents no. 2 and 3 were entitled to receive the amount in question. He, therefore, urged that this Court may not interfere with the judgment and decree passed by the learned Judge.
12. We have gone through the impugned judgment and decree passed by the learned Judge. We have also perused the documents on record. We have considered the submissions made by the learned advocates for the parties.
13. Plaintiff's witness has, in his evidence, stated that the deceased Dhirajlal Manishankar Dave has lastly resided with him and he had deposited 91000 Sterling Pound with the respondent No.1 Bank and he was named as nominee in the bank. Deceased Dhirajlal Manishankar Dave passed away on 14.3.2003 and after his death, he made an application to the bank with the copy of the death certificate of the deceased Dhirajlal Manishankar Dave for paying him the above said amount deposited by the deceased Dhirajlal Manishankar Dave. The bank did not pay the said amount to him though the bank accepted him as nominee of the deceased. Defendant No.2 and 3 had no right to the amount in question because the deceased Dhirajlal Manishankar Dave had never made any will in their favour and the will as also the probate were fabricated and got up documents and, therefore, being nominee of the deceased, he is entitled to receive the amount in question.
14. From the averments made in the plaint as also from the deposition of the plaintiff himself, it clearly appears that the entire claim in the suit of 91000 Sterling Pound is on the basis that the plaintiff was the nominee of the deceased Dhirajlal Manishankar Dave. There is no other right claimed to the suit amount either as legal heir or on the basis of any other document. As against this, respondents no.2 and 3, especially respondent no.3 is legal heir who is otherwise entitled to receive the amount of the deceased Dhirajlal Manishankar Dave under the provisions of the Indian Succession Act. Over and above their claim as legal heir, they have also put forward their claim on the basis of the will executed in their favour by the deceased Dhirajlal Manishankar Dave as also on the basis of the probate granted in their favour.
15. The question is, therefore, whether a person who is simply a nominee can over reach the claim of a person who is not only legal heir but also claims additional right on the basis of will.
Nominee is a a person who is named to receive a property or benefits on behalf of the persons actually entitled to receive such property or benefit under the law. Such person is named to act as agent or a trustee on behalf of the person legally entitled to receive the property of deceased. He is just potential successor to another's right. Such right or benefit may be under a contract or under a law. For example, when a person is appointed as executor in will, he is nominated by will to execute and implement the with of deceased as per will after his death to distribute his properties. Thus, such executor is a nominee who cannot claim any right to the property. Same way, person nominated to receive any property either from the bank or from any State authority will have right to only get the property or any other benefits on behalf of the rightful claimants of such property or benefits. The learned Judge has considered the right of the nominee and has come to the conclusion that such person who is named as nominee can never be entitled to a suit amount as legal heirs of the deceased Dhirajlal Manishankar Dave are very much available. Learned Judge has considered the judgment of Hon'ble the Supreme Court in case of Vishn N. Khanchandani v/s. Vidya Lachmandas Khanchandani reported in AIR 2000 SC 2747; then, judgment of this Court in case of Parmeshwary Devi v/s. ONGC Ltd., reported in 2003(2) GLR page 1490 and Smt. Sarbati Devi and others v/s. Smt. Usha Devi reported in AIR 1984 SC 346. Relying on the above said judgments, learned Judge has come to the conclusion that the nominee who is just to collect the funds and is to distribute amongst genuinely legally entitled persons and in the present case, the appellant being merely nominee cannot claim any other right as against the legal heirs of the deceased Dhirajlal Manishankar Dave who have already put forward their claim.
16. We have also gone through the above said judgments considered by the learned Judge. We find that the claim of the appellant to receive the amount in question was only on the ground that he was appointed as nominee and as held by our High COurt as also by Hon'ble Supreme Court, nominee is just to collect the fund and to distribute amongst the legally entitled persons. Therefore, law is very much settled that a person who is simply named as nominee without there being any further right cannot be made entitled to receive any property or fund for his own use especially when other legal heirs of deceased person are available to receive such property or benefit. We therefore find that the appellant's claim being only as nominee as against the claim of respondent no.2 and 3 being legal heirs of the deceased Dhirajlal Manishankar Dave, the appellant is not entitled to receive 91000 Sterling Pound from the bank and the bank has rightly refused to give such amount to the appellant. The learned Judge having reached correct conclusion in law, we do not find any error in such conclusion reached by the learned Judge.
17. In view of the above, this appeal is required to be dismissed. Hence, it is dismissed. No order as to costs.
18. In view of the orders passed in the First Appeal, Civil Application No. 5144 of 2012 for stay stands disposed of as not surviving.
(Akil Kureshi,J.) (C.L.Soni,J.) an vyas