Recovery suit filed by in-laws of a girl.
Adv. Deepak
(Querist) 19 August 2012
This query is : Resolved
Father-in-law invested money in postal MIS scheme in joint name with his daughter-in-law. Father-in-law expired. Matrimonial relations are strained. Girl not living with her husband and mother-in-law. In the mean time, she withdrawn the money kept in joint account by her father-in-law, as she was the only sole living account holder. Her husband and mother-in-law filed civil suit for recovery of the said money claiming that they are the legal heirs of the deceased account holder. Mother-in-law entered witness box. However, after her witness, she is closing her evidence without bringing husband of the girl in witness box. Husband is sufferring from severe oligospermia. Separate divorce petition is also going on. Is it possible to compel the husband of the girl to give evidence? Can defendant call Plaintiff as her witness, if Plaintiff did not put his evidence? What is the remedy? Experts are requested to extend their kind co-operation. Regards.
adv. rajeev ( rajoo )
(Expert) 20 August 2012
You can file an application to call the husband for evidence.
ajay sethi
(Expert) 20 August 2012
1)Rule 4 of the Post Office Savings Account Rules, 1981 provides that "if one of the depositors dies in a joint account, the joint account shall, as from the date of death of the said depositor, be deemed to be a single account in the name of the surviving depositor".
2)as clarified in the MOF (DEA) letter No. 2/23/87-NS.II dated 12.12.1988 and DG Posts letter No. 97-8/88-SB dated 12.1.1989, if one of the depositors of an MIS account dies, the account will be treated as a single account in the name of the surviving depositor from the date of death of the said depositor and when a report to this effect is received in the post office, the Postmaster will ask the surviving depositor to withdraw the excess amount in excess of the limit prescribed for a single depositor as this amount will not carry interest from the date of death of the joint depositor
3)The Rules do not prohibit any such succession taking place in accordance with the relevant law regarding succession of property upon the death of one of the depositors. The general principle of law that when there are two owners of a property jointly owning such property, they are presumed to be tenants in common and each has a definite though undivided share in the property, would apply in the case of a joint account under the monthly income scheme Rules also.
4) on death of father in law his legal heirs have right to amount lying in Mis scheme to extent of his share
ajay sethi
(Expert) 20 August 2012
oligospermia means low sperm count in men and is cause of male infertility . merely because a man is suffering from oligospermis does not mean he is unable to lead evidence .
in your case mother in law has given evidence in support of the case that she along with her son are legal heirs of MIS account . it would have been advisable to examine him self as witness . but you cant compel him to lead evidence
Guest
(Expert) 20 August 2012
You have not mentioned whether you are fighting case on behalf of the plaintiff husband and mother-in-law or the defendant girl and the joint depositor of the MIS account.
Your own question has created a confusion, when along with the statement about claim of MIS, you have stated, "husband is sufferring from severe oligospermia. Separate divorce petition is also going on" and then supplementing your statement with questions whether "it is possible to compel the husband of the girl to give evidence"; and "can defendant call Plaintiff as her witness, if Plaintiff did not put his evidence?"
it is not understood whether your questions are related to the claim on MIS amount or the divorce petition when the questions follow immediately after and in continuation of the reference to their divorce petition?
Anyway, the position explained by Shri Sethi about joint account is quite correct, as per the PO Savings bank Rules.It may also be added that these Rules are not made by the Postal Authorities, rather by the Ministry of Finance under the provisions of the Post Office Savings Bank Act, etc., and are of statutory nature.
So, Post Office is free from any liability in the case. The matter therefore lies between the plaintiff and defendant to settle the claim between themselves.
However, if your questions relate to the petition on the legal heirship, since the petition/affidavit of the suit is a sort of evidence put forth by the petitioner, the examination of the petitioners by the defendant is not in the capacity of her own witness, rather as a cross-examination of the petitioner against the affidavit filed by self and his mother. She (defndant) has the right either to cross-examine or not any of the petitioner or leave them without examining. So, it is at her sweet will whether she wants to cross her husband or not. She, however, has the right to compel the petitioner to come to the witnesss box to reply her questions. You cannot expect the layman petitioner to put him for examination. It was for you, as a prosecution lawyer to put your own client to give any more evidence as clarification or additional facts aabout his case.
Further, about the claim as heirs, the burden of proof as to how much the father-in-law of the girl could contribute towards the MIS deposit, lies solely on the plaintiff/ prosecution advocate, as they can put their claim only to the extent that the deceased would have contributed.
Adv. Deepak
(Querist) 20 August 2012
Can I file application to call husband as witness of Defendant girl in MIS Case? Entire amount in MIS has been contributed by the deceased father-in-law. Husband and mother-in-law are the nominees on behalf of the deceased father-in-law and the Defendant girl. In that case as a nominee on behalf of the surviving depositor also, can husband and mother-in-law claim the entire amount as legal heirs of the deceased? Out of the two plaintiffs in MIS case, one plaintiff mother-in-law of the girl adduced her evidence and also cross-examined by the defendant girl. However, husband did not adduce any evidence and plaintiffs are closing their evidence. So now, can defendant girl call her plaintiff husband as her witness in MIS case.
Adv. Deepak
(Querist) 20 August 2012
Similarly, in divorce petition also, can petitioner girl call her mother-in-law as her witness to give evidence.
V R SHROFF
(Expert) 20 August 2012
Anybody who can depose to bring material fact that helps court to help justice, that person can be called as witness to give evidence.
Interest of justice is paramount consideration, and cross examination take care of facts for court to consider evidence if proved, or reject the deposition.
Adv. Deepak
(Querist) 22 August 2012
Resp. Ajay Sethi, Sir, husband and mother-in-law are not only the legal heirs of the deceased, but are also nominees of both, the deceased and the respondent girl. Now in this case, will the legal heirs have the right to the amount of the deceased to the extent of his share as they are also simultaneously the nominees of the defendant girl also.
Resp. P.S. Dhingra, Sir, I am fighting the case on behalf of the girl. My questions relate to MIS claim. In MIS claim, the mother-in-law has closed her evidence. So the husband as plaintiff no.2 will not adduce any evidence. But there are certain facts, which only the husband can prove. So in that case, can I call husband Plaintiff no.2 as witness of Defendant No.1 the girl? Is it permissible? Total contribution of the amount is from the deceased father-in-law.
Resp. V.R. Shroff, Sir, would you please specifically clarify that in my case, can the girl as defendant call her husband as Plaintiff No.2 to give evidence? Is such application tenable?
Experts are requested to kindly extend their co-operation.
ajay sethi
(Expert) 22 August 2012
father in law 50%shyare would go to his wife and son . the defendant girl would have her right to 50%of money .
Adv. Deepak
(Querist) 22 August 2012
Resp. Ajay Sethi, Thank you very much for your kind advice.
