1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.1869 of 2010 Shubhangi Anant Sonsale & ors. ... Petitioners versus Damayanti Shashikant Sonsale ... Respondent ... Mr.P.R.Arjunwadkar for the petitioners Mr.Surel S. Shah for the respondent CORAM : D.G. KARNIK, J. DATED : 23rd June 2010 P.C. 1. This writ petition is directed against the order of the Civil Judge, Sr. Division granting succession certificate in respect of the estate of the deceased Anant Sonsale in favour of the respondent no.1 and the order of the District Judge substantially confirming the said order with some modification. 2. When the matter came up for hearing before this Court on 29th April 2010, this Court (Coram:A.S.Oka,J) passed the following order: “The order impugned in these two Writ Petitions has been passed on an application for grant of Succession 2 Certificate under Section 372 of the Indian Succession Act, 1925. By the very nature of the proceedings, the rights of the parties are not decided in such proceedings. The effect of grant of Succession Certificate is that the Creditors get a valid discharge by making payment of the debts payable to the deceased person to a person who holds the Succession Certificate. In such proceeding, the rights of the parties are not decided. It is brought to my notice that the Petitioners in the Writ Petition No.1869 of 2010 have filed a declaratory suit claiming that the 1st Petitioner is legally wedded wife of the deceased and the 2nd and the 3rd Petitioners are respectively daughter and the son of the deceased and the 1st Petitioner. As the rights of the parties are not at all decided and the remedy of parties to go to the Civil Court is open, prima facie, I am of the view that it is not necessary to entertain these Writ Petitions. However, the learned counsel appearing for the Petitioners seeks time on the ground that he has been informed that there is a recent judgment which takes a contrary view. Hence, stand over till 22nd June, 2010. Mr.Arjunwadkar, learned counsel appearing for the petitioner submitted that in Harsha Nitin Kokate Vs. Saraswat Co­operative Bank Ltd. & ors. in Notice of Motion No.2351 of 2008 in Suit No.1972 of 2008 decided on 20th April 2010 (Coram : Smt. Roshan Dalvi, J),contrary view has been taken. I am unable to agree. Therein the Court held that the 3 provisions of section 109A of the Companies Act and 9.11 of the Depositories Act were different from section 39 of the Insurance Act and therefore, the nominee would get the right to the shares. That judgment has no application to the facts of the present case. 2. Learned counsel for the petitioner submitted that petitioner was a nominee of the provident fund maintained under the Employees Provident Funds Act and therefore she is entitled to receive the money in preference over the succession certificate. That was not an issue before the court issuing of the succession certificate. The only issue was whether succession certificate should be granted to the respondent no.1. The Court has taken a view that succession certificate can be granted to respondent no.1 and that order has been modified by the appellate court only to the extent of directing the respondent no.1 to furnish security to the extent of 2/3rd share. No where, the court has decided, as it could not have, the issue “whether the succession certificate would have a priority over a nomination.” That issue therefore cannot be allowed to be raised in this writ petition. No other point was urged. There is no merit in the writ petition which is rejected summarily. (D.G. KARNIK,J.)