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Bishasu Yadav vs v. Post Master,Mau - WRIT - A No. 2344 of 2001  RD-AH 1034 (12 April 2005)
Civil Misc.Writ Petition No. 2344 of 2001
Bihasu Yadav ..... Petitioner
Post Master, Mau Nath Bhanjan, Department of
Posts of India, Office at Mau Nath Bhanjan
and others. ..... Respondents.
( Hon'ble Justice Amitava Lala & Hon'ble Justice Sanjay Misra,JJ.)
Counsel for the petitioner .... Sri I.R.Singh.
Counsel for the Respondents .... Sri Subodh Kumar.
Amitava Lala,J.- The writ petitioner herein claims to be the nominee of one Smt Parvati Devi wife of late Vindhyachal Rai resident of Village Deokali Bisunpur, Post Kopaganj, District Mau, Uttar Pradesh. Such nomination was made on 20th March 1999 in two postal accounts being MIS 3400042 and 3400043 at the branch Post Office Kopaganj, Mau. Said Smt.Parvati Devi expired on 21st October,1999. Thereafter the petitioner made application for permitting him to operate such accounts as nominee. The postal authority did not permit to operate. It is said by such authority that firstly an order for payment from the competent court is to be obtained thereafter claim application will be submitted. According to the petitioner such order is illegal. He is entitled to operate the accounts in accordance with Section 4 of Government Savings Banks Act,1873.
Respondents counsel contended that nomination in favour of the petitioner is doubtful for various reasons which are specifically mentioned in the counter affidavit as follows:-
(a) Nominee seems to be under different another caste.
(b) The name and address of the writer of the thumb impression have not been noted with date.
(c) Space provided for the introducer of the account, the thumb impression of the deceased has been affixed;
(d) The name and address of the introduced is not legible as also there is no signature of the identifier.
(e) Rectification of the omission revised SB-3 was called for from Sub Post Master Kopaganj for registration of the nomination. The Sub Post Master Kopaganj was suitably instructed that without rectifying the omission, no nomination will be entertained.
(f) No record is available in the Post Office Kopaganj with the revised SB-3 and Pass Book of above noted MIS Account has been sent to Head Post Office Mau in between March 99 and November 99. As per the statement of one postal official named Sri Gaya Prasad the Pass Book and SB-3 were brought to Head Post Office Mau through the petitioner himself and nomination was registered. Sri Gaya Prasad was on leave in the month of August, 99 but got the nomination registered on 12th August,1999. Nexus or connection between the petitioner and postal assistant known as Gaya Prasad indicated malafide intention. The petitioner in connivance with some postal officials got nomination registered.
(g) The nomination was made after a period of five months from the date of opening of the account.
The nomination register is a confidential record of the Post Office, but the petitioner got the serial number of nomination without seeing the record and nomination register and registration etc. for which Postal Authority became apprehensive.
Under such circumstance the postal authorities asked the petitioner to produce legal heirship certificate from the competent court but inspite of complying the instructions, he filed this writ petition before this Court. Moreover one Sri Awadesh Rai s/o Sri Late Sri Badri Rai Village Deokali Bishunpur Post Kopaganj initiated a Civil Proceeding being case no.6/2000 in the Court of Civil Judge Senior Division Mau for payment of amount under both the accounts.
We have gone through the Section 4 of the Government Savings Banks Act,1873. Sub section 1 of Section 4 is as Follows:-
"Notwithstanding anything contained in any law for the time being in force, or in any disposition, whether testamentary or otherwise, by a depositor in respect of his deposit, where any nomination made in the prescribed manner purports to confer on any person the right to receive the deposit on the death of the depositor, the nominee shall, on the death of the depositor become entitled, to the exclusion of all other persons to be paid the deposit, unless the nomination is varied or cancelled in the prescribed manner".
It is true to say that there is a non-obstanti clause under such sub section in respect of making the nominee entitled to receive the amount under the deposit in exclusion to others but such sub section indicates about the relationship between the Bank/Post Office and nominee under the instrument regarding discharge of their responsibility alone. Such Act can not over ride or supersede the appropriate Succession Act under which one is otherwise entitled to get benefit. Therefore, the reasonable interpretation is that the nominee is the holder or recipient of the amount but not owner of the amount in case dispute arises. Normally the nominations are being made within the family e.g. husband in favour of wife or wife in favour of the son/daughter etc. In such cases no question comes up. But whenever nomination appears to be contrary to succession and/or made for a person outside the family then there would be obvious conflict and in such conflict by virtue of this Act, necessity of succession can not be ignored. If we keep eyes open to this Act along with the Succession Act conflicting situation will obviously arise. According to us right of succession has not been properly spelt out at the time of introduction of this Act. In other words pious desire of the legislature was to make easier banking transaction in between Bank and Post Offices in one hand and depositors under the instrument on the other hand. It is only said that the deposits have to go in favour of the nominee in absence of the depositor. Therefore, when both the Acts are existing the reasonable interpretation of the Court would be that the nominee might have been the beneficiary of the amount normally but when there is a dispute the nominee is not more than holder of such amount. In such case he can not be the beneficiary/successor as a matter of course. The dispute about succession will be governed by the respective Succession Act alone. As such we can not hold it good to say that nomination gives absolute and unfettered right of ownership of the amount to a nominee by virtue of such section. In A.I.R.1984 S.C. 346 ( Smt. Sarbati Devi & another vs Smt. Usha Devi ) it was held that the nomination only indicates the hand which is authorized to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them. The only factual difference between the two cases is that such matter related to L.I.C. policy but this matter is in respect of deposit in the Post Office. The principle is same and similar in nature. Whatever language is put under the Act if the right under succession is ignored, there will be a havoc situation. The true reflection of the Act is that a valid nominee should not be disturbed in getting release of the fund but invalid nominee should not get benefit of such law. For the purpose of valid discharge of the liability of the Bank or the Post Office this principle will apply as a matter of privity between the depositors and Bank or Post Office, but taking the advantage of this law, successory right of the family property to which he or they are not the party or parties, cannot be usurped. Therefore, the Bank or Post Office can not declare successory right of a person in case of any dispute without getting such declaration from the appropriate Civil Court either following the religious succession or by following the Indian Succession.
Apart from the general principle which has been discussed above in the instant case, the Bank or Post Office themselves doubted the nominees nomination factually. Therefore the question of fraud or forgery can not be adjudicated simply by application of section under the Act but by the appropriate evidential test of a fact finding court. In the instant case a civil proceeding is already pending. If the nominee is truthful person he can very well take an appropriate a defence in such a proceeding. But when the Civil proceeding is already pending, the postal authority rightly thought it fit that firstly right of the claimant as nominee will be decided by the Civil Court and we think particularly so when the principle laid down by the Supreme Court aforesaid. Thus, we are of the view no relief can be granted by this High Court in this proceeding under Article 226 of the Constitution of India.
Therefore, the writ petition stands dismissed. However, this order will not prejudice the petitioner either to initiate any civil proceeding or to take a defence in the proceeding if any, to get the clean chit for the purpose of recovery of such amount. Interim order if any, is vacated. No order is passed as to cost.
( Justice Amitava Lala )
( Justice Sanjay Misra )
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