Kokate case held per incuriam, only legal heirs and not nominees are entitled to deceased’s investments

Bombay High Court: Declaring the judgment of Harsha Nitin Kokate v. The Saraswat Cooperative Bank Ltd, 2010 SCC OnLine Bom 615  to be per incuriam, a bench comprising of G.S. Patel, J has held that legal heirs and not the nominees will get the ownership rights of share certificates. The Court declared the earlier judgment to be per incuriam, which means it had been wrongly decided and does not have to be followed. In the Kokate judgment,the Court had mistakenly concluded that once a nomination is made, the securities in question automatically get transferred in the name of the nominee upon the death of the holder of the shares and not to the legal heirs.

The Court had considered the provisions of Section 109A of the Companies Act, 1956, and Bye-Law 9.11 under the Depositories Act and held that they do not displace the law of succession. The Court also discussed the purpose of nomination under Section 39 of the Insurance Act and various Supreme Court cases where it has been laid down that although the insurance company would pay the amount due on insured’s death to the nominee, they would hold it in “trust” and ultimately only the legal heirs of the deceased could claim the property. Disagreeing with the views of Kokate judgment, the Court observed that it had failed to consider many binding judgments of the Supreme Court including the judgment of Sarbati Devi v Smt. Usha Devi (1984) 1 SCC 424.

The Court held that that the rights of a nominee to shares of a company cannot override the rights of legal heirs of deceased and therefore the amount received by the nominee can be claimed by the legal heirs of the deceased. Jayanand Jayant Salgaonkar vs. Jayshree Jayant Salgaonkar, 2015 SCC OnLine Bom 1221decided on 31-3-2015

5 comments

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    A decision of a court is per incuriam when it is given without its attention having been drawn to the relevant authorities or statutes?

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    the learned judge G.S.Patel Court observed that it had failed to consider many binding judgments of the Supreme Court including the judgment of Sarbati Devi v Smt. Usha Devi (1984) 1 SCC 424.but SEBI/NSDL has been established by Govt. of India in April 12, 1992 and November 1996 respectively and this law was not available that time?

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    NSDL/SEBI and DP has to communicate this decision to their investors not to trust their nominee clause.they should make proper WILL , kindly issue notification to all investors those are not awrae of this decision.Any Parliament passed law may be declared invalid by any high court as it is signed by president of India?

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    Have to wait for its validity before apex court. I don't agree with this as a general law on all nominations.

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    how can a coordinate bench overrule another coordinate bench decision?

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