A. M. BHATTACHARJEE, J.

( 1 ) THE petitioner is the duly constituted nominee in respect of a Safety Locker in the Durgapur Branch of the Punjab National Bank, which was hired by her deceased husband, but the Bank has decided to deny to the petitioner any access to that Locker unless she produces a succession certificate in support of her right. I have no doubt that the Bank has gone entirely wrong in doing so.

( 2 ) IT is true that the law in India is, by and large, against any interference with the ordinary course of intestate succession, save and except by a valid testamentary disposition strictly in accordance with the law governing testamentary disposition. We have got to, as pointed by the Supreme Court in Sarbati Devi vs. Usha Devi (AIR 1984 SC 346 at 349), bear in mind the anxious care that our law takes in the matter of execution and proof of testamentary instruments which have the effect of diverting the estate of the deceased or any part thereof from the ordinary course of intestate succession. If any post-mortem course of disposition of property does not satisfy the strict and rigorous requirements of the rules governing testamentary succession, it would stand out-weighed and overthrown by the general law of intestate succession, unless a statute rules otherwise. A nominee, therefore, notwithstanding a valid nomination in his favour by the last holder in respect of any property, would not acquire any right, title or interest in the property itself, to the exclusion of the heirs on intestacy, unless the law governing such nomination clearly vests the same in the nominee.

( 3 ) SECTION 39 of the Insurance Act, 1938; no doubt provides that on the death of the assured, the amount secured "shall be payable" to the nominee, if he survives the assured. But the view of this Court, as would appear from the decisions in Ramballav vs. Gangadhar (AIR 1956 Cal 275) and in Life Insurance Corporation vs. United Bank (AIR 1970 Cal 513), as well as of various other High Courts, has all along been that a nomination under section 39 does not have the effect of conferring on the nominee any beneficial interest in the amount payable, but only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge. This view has now been upheld by the Supreme Court in Sarbati Devi (supra ).

( 4 ) BUT as already indicated, the relevant statute providing for the nomination may also provide that the amount or the properies, in respect of which nomination has been made, shall also vest in the nominee. As has been held by a Division Bench of this Court in Keshab Lal vs. Ivarani (AIR 1947 Cal 176), construing the relevant provisions of the Provident Funds Act, 1925 and the Contributory Provident Fund (Bengal) Rules, a nomination thereunder conferred on the nominee not only absolute right to receive the money but also an absolute interest in the money itself.

( 5 ) A rather recent Division Bench decision of this Court in Usha vs. Smriti (1988 - 1 Calcutta High Court Notes 194: CAL LT 1988 (1) HC 35) has had to consider a similar question with reference to the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 and of the Scheme framed thereunder. The Division Bench has referred to the Supreme Court decision in Sarbati Devi (supra) and the earlier Division Bench decision of this Court in Keshab Lal vs. Ivarani (supra) and has, if I may say with respect, rightly highlighted the difference between the provisions of the Employees' Provident Fund Act and the Scheme thereunder which fell for its consideration and of the provisions of section 39 of Insurance Act which were construed by the Supreme Court in Sarbati Devi (supra) and has held that under section 10 (2) of the Employees Provident Fund Act, 1952, the amount is to "vest in the nominee" and has accordingly ruled that the nominee has not merely the right to receive the Fund, but the right to the Fund itself.

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