1. A common question of law arises in these two otherwise unrelated cases. In this judgment, I have addressed only that question of law, but not the respective applications on merits.

2. The question first came up in JayanandJayant Salgaonkar v Jayashree Jayant Salgaonkar (“Salgaonkar”) when Mr. Snehal Shah, learned Counsel for the Plaintiff in that matter, urged that the decision of a learned single Judge of this Court in HarshaNitin Kokate v The Saraswat Cooperative Bank Ltd & Ors. (2010 (112) Bom. LR 2014)was per incuriam and not good law. As a substantially similar issue arose in the second of these cases Nanak Ghatalia v Swati Ghatalia, I invited Mr. Ghatalia, the Petitioner appearing pro-se and Mr. Karl Tamboly, learned Counsel for the Caveatrix, to make their submissions on the question as well.

3. I am not in this judgment deciding the merits of the applications in Salgaonkaror Ghatalia, but only considering whether Kokatewas or was not per incuriam. The applications in both cases will then have to be heard on their merits. However, it is necessary to set out briefly how the question for determination arises.

4. Salgaonkar(Suit No.503 of 2014) is an action for administration of the estate of one Jayant Shivram Salgaonkar. The Plaintiff’s Notice of Motion No. 822 of 2014 seeks reliefs in respect of his estate described in the list at Exhibit “A” to the Plaint. Item 9 of that list speaks of investments in Mutual Funds, etc. These are detailed in Exhibit “D” to the Plaint. This is a list of various investments in Mutual Funds and it shows the name of the ‘nominee’ in respect of each such investment. Defendants Nos. 5 and 6 seem to be the nominees in respect of the bulk of these mutual fund investments. In their Affidavits in Reply to the Notice of Motion, Defendants Nos. 5 and 6, represented by Mr. Rajendra Pai, learned Counsel, have specifically urged that these investments do not form part of the Jayant Salgaonkar’s estate. They each claim to be exclusively entitled in law to ‘succeed to’ these investments qua such nominees, and they invoke, inter alia, Regulation 29A of the SEBI (Mutual Fund) Regulations, 1996. Defendant No.6 makes a similar claim on the basis of Section 45-ZA of the Banking Regulation Act, 1949 in respect of a fixed deposit receipt for Rs.50 lakhs with IDBI Bank.

5. In Ghatalia, probate is sought to the will of one Urmila S. Ghatalia. The Petitioner is one of the deceased’s sons. The other son has consented to the grant of probate. The action is opposed by the deceased’s daughter. At present, the controversy is only whether or not the daughter is entitled to file and maintain a caveat in opposition to the probate petition or whether this caveat must be held to be defective and non-est. In the course of the hearing, a settlement was suggested and was very nearly reached. The only contentious issue related to some of the deceased’s investments. The Petitioner, Mr. Nanak S. Ghatalia, submitted that being a nominee in respect of those investments he alone was entitled to them and, notwithstanding anything in the will, these investments came to him exclusively on his mother’s death. They did not form part of her distributable estate and were not required to be distributed in accordance with the will that he propounds.

6. In both cases, the claims of exclusive rights to and ownership of the investments are founded on the judgment of the learned single Judge in Kokate. That decision was in a Notice of Motion in a Suit in which the plaintiff claimed an interest in certain shares as the heir and legal representative of one Nitin Kokate, the plaintiff’s deceased husband. Nitin Kokate had, in his lifetime, made a nomination in respect of these shares in favour of his nephew, the 3rd defendant to the suit. The question placed before the Court was whether the plaintiff, Nitin Kokate’s widow, could “show her legal right, title and interest in those shares”. (Para 2 of the Maharashtra Law Journal report. All