JUDGMENT - D.R. DHANUKA, J.:---Notice of Motion is made absolute in terms of prayers (a), (b) and (c). No order as to costs. The Prothonotary and Senior Master shall expeditiously take steps for issue of Succession Certificate subject to all office requisitions being complied with by the petitioner and subject to the interest of the petitioner minor being properly and adequately safeguarded.

2. The petitioner is a minor. The petitioner is the only son of late Shri Gustad Rustomji Commissariat, hereinafter referred to as "the deceased". The deceased had divorced Freny D. Irani, natural mother of the petitioner, some time in the year 1985. The deceased was an employee of the Central Bank of India. On divorce being obtained as aforesaid, the deceased nominated respondent No. 4, his brother for purpose of provident fund etc. The petitioner has filed this petition for issue of Succession Certificate in respect of certain debts and assets belonging to the deceased by his next friend, mother and natural guardian the said Freny Irani. There is no dispute that the petitioner is the minor son of the deceased and the petitioner is his only heir.

3. The assets of the deceased include a sum of Rs. 1,95,167/- lying to the credit of the deceased in the Provident Fund Account bearing No. 2590. The deceased died on 4th October 1992.

4. The respondent No. 4 has filed an affidavit in reply to this notice of motion contending that the deceased had nominated respondent No. 4 in respect of the provident fund dues. The respondent No. 4 resists this notice of motion on the ground that the respondent is absolutely entitled to provident fund amount by virtue of the said nomination. The respondent No. 4 contends that the said amount does not form part of estate of deceased and no injunction and/ or other relief can be granted in respect thereof. The respondent No. 4 has not raised any other contention in respect of any other assets of the deceased or otherwise. In substance, the respondent No. 4 resists grant of application for issue of succession certificate in respect of Provident Fund Amount lying to the credit of account of deceased.

5. In view of the contention urged on behalf of respondent No. 4, it is necessary to decide the above referred controversy finally and once for all.

6. Two important questions arise for consideration of the Court at the hearing of this notice of motion :

1. Whether the "nominee" has absolute title to the Provident Fund amount lying to the credit of the deceased employee by virtue of his nomination under the Provident Fund Scheme i.e. Employees' Provident Fund Scheme, 1952?

2. Whether the Provident Fund amount lying to the credit of the employee forms part of the estate of the employee and is available for distribution amongst heir of the deceased notwithstanding the nomination subject to special provision contained in Employees' Provident Fund Scheme, 1952 ?

7. Miss. Irani, the learned Counsel for the petitioner, has raised a further contention to the effect that no nomination can be made by the subscriber to the Provident Fund except in favour of a member of the family as specifically provided in para 61(3) of Employee's Provident Funds Scheme, 1952. Para 61(3) of the Employee's Provident Funds Scheme, 1952 reads as under :

"(3) If a member has a family at the time of making a nomination, the nomination shall be in favour of one or more persons belonging to his family. Any nomination made by such member in favour of a person not belonging to his family shall be invalid."

The expression "family" is defined for purpose of the said scheme in para 2(g) of Employee's Provident Funds Scheme 1952 as under :

"family" means

(1) in the case of a male member, his wife, his children, whether married or unmarried, his dependent parents and his deceased sons, widow and children;

x x x x x x x x x x x x x x x x x x x x x x "

The learned Counsel for the petitioner has contended that the deceased could nominate only his wife or child

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