INTRODUCTION
The fact that the Indian judicial system is overburdened and plagued by endemic delays is well-known. While significant strides have been made in increasing the number of Judges as a ratio of the population, we are still miles away from what our own Law Commission recommends 2. Fortunately for most Indians, they are likely to encounter the judicial machinery only in cases related to succession. It is at this stage that the average Indian must acquaint himself with the applicable laws of succession and inheritance and interact with the judicial machinery. It is, therefore, imperative that the laws relating to succession are (a) kept simple; and (b) remain well-settled. Any churn in these settled principles would have the effect of impacting more people than perhaps any other area of law.
This article attempts to harmonise the potentially problematic observations made in a recent judgment passed by the Supreme Court in Aruna Oswal v. Pankaj Oswal 1 with a long-settled position of law regarding the status of a nominee and the legal effects of nomination. This is important because the inclusion of nominees has become de rigueur, whether in the case of bank accounts, fixed deposits, insurance policies, stockholdings or property, all of which one may acquire during one’s lifetime and, in respect of which, the bank/financial institution/housing society will insist that one includes a nominee. It is in this context that any change in the legal position of a nominee is likely to cause major upheaval in succession planning and lead to a quagmire of litigation.
The “prima facie” observations made in Aruna Oswal 1, which concern the deceased’s shareholding in two companies, has reignited the controversy that arose in Kokate 3 judgment passed by a Single Judge of the Bombay High Court — which was in turn held to be per incuriam by a coordinate Bench of the Bombay High Court in Salgaonkar 4 decision. This controversy was finally put to rest in appeal by the Division Bench of the Bombay High Court in Shakti Yezdani 5, upholding the decision in Salgaonkar 4. Although this decision is pending in appeal before the Supreme Court 6, it continues to hold the field, and, in our view, rightly so. Our endeavour is to bring in consonance the prima facie observations in Aruna Oswal 1 and reconcile them with a long line of judgments to avoid an unnecessary refraction from a settled position in law and ensure that there remains uniformity in judicial approach so that parties can legitimately expect a consistent pattern of decision-making in the context of succession.
NOMINATION IN DIFFERENT CLASSES OF ASSETS
To start with — what is a nominee? Black’s Law Dictionary defines a nominee to be inter alia a party who holds bare legal title for the benefit of another. According to English Law, a nominee is a mere agent of the person from whom he receives the money and, on the death of such person, the money forms part of his estate; the nominee has no beneficial interest therein. 4
Broadly, the law on nomination is that, on the demise of the instrument-holder, the nominee is the “go-to” person so far as the issuer (usually, a financial institution or housing society) of the instrument is concerned. This is in order for the issuer to obtain a valid discharge from his responsibility/liability and to ringfence itself from getting stuck in a quagmire of any potential litigation between the contesting heirs. A nominee, by virtue of such “transfer”, “vesting”, or for that matter, “receiving” the underlying worth of such instrument does not, in any manner, become the owner of such instrument. He merely holds it in trust for the benefit of the legal heirs and to avoid a legal vacuum being created until the contesting rights/claims are settled. This has been the long-standing legal position across the board, irrespective of the instrument in question and notwithstanding the language/usage of different terms adopted in various statutes.
The legal position so far as insurance policies are concerned, has long been settled courtesy the decision in Sarbati Devi 7 wherein the Supreme Court dealt with the question of whether a nominee under Section 39 of the Insurance Act, 1938 8 gets an absolute right to the amount due under the insurance policy on the demise of the policy-holder. It was held that, merely because monies are payable to the nominee, does not mean that the monies belong to the nominee; Section 39 did not amount to a third mode of succession (styled as “statutory testament”). On the demise of the policy-holder, the amount payable under the policy became part of his estate and could be claimed by his heirs in accordance with the laws of succession governing them. The Court found it difficult to equate a nominee with an heir or legatee, holding that a mere nomination does not have the effect of conferring on the nominee any beneficial interest. The nomination only indicates the hand which is authorised to receive the amount on the payment for which the insurer gets a valid discharge of its liability under the policy. This view was later reaffirmed in Challamma 9 wherein the Supreme Court held that a nominee under Section 39 is a mere agent.
This principle was adopted even so far as monies lying in the provident fund were concerned. The Bombay High Court in Nozer Gustad Commissariat 10 held that the rights of a nominee of a provident fund are analogous to the rights of a nominee under the Insurance Act and that the principles laid down in Sarbati Devi 7 are applicable to such cases. The Court held that the object of nomination was not to clothe the nominee with title and that the word “vest” does not mean vesting of absolute title or beneficial interest in the nominee. It relied upon the Supreme Court’s interpretation of the word “vest” in Fruit & Vegetable Merchants Union v. Delhi Improvement Trust 11 wherein it was held that the word did not mean that the property is owned by the person in whom it is vested — it may vest in title or it may vest in possession or it may vest in a limited sense as indicated in the context in which it may have been used in a particular piece of legislation.
This was also held to be the consistent position in law as far as government savings certificates were concerned in the Supreme Court decision in Vishin N. Khanchandani 12 holding that a nominee holds the monies for the benefit of those who are entitled to it under the law of succession. The argument made on behalf of the nominees — that, in the absence of a savings clause in the statute, there is absolute devolution to the exclusion of the legal heirs, was expressly rejected by the Supreme Court.
In 2009, the Supreme Court considered both Sarbati Devi 7 and Khanchandani 12 in Shipra Sengupta 13 matter, while dealing with a nomination made for monies lying in a general provident fund. The Court confirmed the position that the amount can be received by the nominee, but a claim can be made by the legal heirs in accordance with the laws of succession.
Shortly thereafter, in Ram Talwar 14, the Supreme Court, considered the position of nominees in the context of monies lying in a bank account in a claim based on Section 45-ZA(2) 15 of the Banking Regulation Act, 1949. The Court held that the decision passed in Khanchandani 12 applies in full force as Section of the was materially and substantially the same as the provisions of Section 45-ZA(2) of the Banking Regulation Act, 1949. It was held that, by no stretch of imagination, could the latter make the nominee the owner of the monies lying in the bank account. The Banking Regulation Act was enacted to consolidate and amend the laws relating to banking and its ambit was not to deal with questions of succession. Therefore, any monies received by a nominee by virtue of Section 45-ZA thereof would form part of the estate of the deceased and devolve in accordance with the applicable laws of succession.
DECISIONS IN Kokate 3 AND Salgaonkar 4 IN THE CONTEXT OF SHARES
The facts in Kokate 3 matter were that the deceased was a holder of certain shares in a company, which were in dematerialised form. During his lifetime, and as per Section 109-A 16 of the Companies Act, 1956, he nominated his nephew in respect of those shares. After his demise, his wife filed a suit claiming ownership by virtue of being his heir. This was disputed by the nominee who claimed ownership rights in the shares on the strength of the nomination executed in his favour. The Court was required to consider the effect of such nomination under Section 109-A and found that this provision stood on a separate footing. The Single Judge took note of the language adopted by the legislature in Section 109-A, which “vested” the shares of the deceased holder in the name of the nominee, and “entitled” him to “all the rights” in the shares, “to the exclusion of all other persons”. Such nomination was “notwithstanding anything contained in any other law for the time being in force or in any disposition, whether testamentary or otherwise …” The learned Judge observed that, in light of such wording, a nomination would give the nominee beneficial ownership of such shares and all rights incidental to ownership would follow. The Court contrasted this provision with the provisions of Section 39 of the Insurance Act and Section 30 of the Maharashtra Cooperative Society Act, with the former entailing a mere payment by the insurance company to the nominee to obtain a complete discharge and the latter entailing a transfer to the nominee, which transfer would effectually discharge the Society as against any other person making a demand. It was held that neither of these provisions resulted in “vesting” of ownership rights in the insurance policy or rights in the society, as the case may be, upon such nominee. Therefore, the analogy drawn from Sarbati Devi 7 was completely misplaced in the case of dematerialised shares. The Court also observed that Bye-law 9.11 1 7 of the Bye-Laws of National Securities Depository Limited framed under powers conferred by Section 26 of the Depositories Act, 1996 makes the nominee’s position superior to even a testamentary disposition and that Bye-law 9.11.7 gives the nomination the effect of the testamentary disposition itself. In this context, it held the nominee to be the owner of such shares and dismissed the claim of the heirs.
The view in Kokate 3 was held to be per incuriam by another Single Judge of the Bombay High Court in Salgaonkar 4, when considering the effect of nomination in an administration suit where the nominees relied upon the judgment passed in Kokate 3 to exclusively “succeed” in law to certain mutual funds and fixed deposits forming part of the deceased’s estate. The Court was of the view that the interpretation of Section 109-A and Bye-law 9.11 by the Kokate 3 Court was irreconcilable with the decisions passed in Khanchandani 12, Shipra Sengupta 13, Challamma 9, Nozer Gustad Commissariat 10 and Antonio Fernandes 18 — none of which were either cited or distinguished by Kokate 3 Court. It was held that it was not the intention or focus of the Companies Act or the Depositories Act to create a third mode of succession; it was only to afford the company or the depository a legally valid quittance vis-à-vis the nominee to avoid getting embroiled in unnecessary litigation with any claimants under the applicable succession law. The nominee would continue to hold the assets, in a fiduciary capacity only, and would be answerable to all claimants under succession law.
Before the decision in Salgaonkar 4 was decided 5 in appeal by the Division Bench of the Bombay High Court, the Supreme Court, in Indrani Wahi 19, had occasion to consider the effect of a valid nomination under Section of the which mandated the transfer of the share in the name of the nominee on the death of such member. The Supreme Court held that, in a case of valid nomination, the society was liable to transfer the share in the name of the nominee. However, the effect of such transfer to the nominee would have no relevance to the issue of title between the successors, who, having established their rights, could proceed against the nominee. It was only if a member had not exercised his nomination rights, would such share devolve upon the deceased’s heirs/legal representatives.
The Division Bench of the Bombay High Court, while considering the aforementioned per incuriam controversy in the appeal in Shakti Yezdani 5, considered Indrani Wahi 19 as well as the series of decisions of the Supreme Court on the interpretation of provisions of nomination under various statutes. The Division Bench held the view taken in Kokate 3 as incorrect and found no reason to depart from the consistent view that nomination could not be treated as a third mode of succession. The nominee was not entitled to the beneficial ownership of shares to the exclusion of all other persons entitled to the same under the laws of succession. Consequently, it also held that a bequest made under a will would supercede a nomination made under the Companies Act/Depositories Act.
DECISION IN Aruna Oswal 1
Therefore, the position of law, settled after several decisions in the context of several asset classes, is that nomination cannot have the effect of creating a third type of succession. However, the recent observations of the Supreme Court in Aruna Oswal 1 run the risk of opening a can of worms — unless, of course, an endeavour is made to reconcile these prima facie observations and harmonise them with the settled legal position. This is what we attempt.
Aruna Oswal 1 was the outcome of the Oswal family tussle. Abhey Kumar Oswal passed away leaving his wife, Aruna Oswal, as the nominee to his 39.88% shareholding in M/s Oswal Agro Mills Ltd. (“Oswal Agro”). On his demise, the Company registered the entire shareholding in Aruna’s name. Their son, Pankaj, filed a partition suit before the Delhi High Court claiming his 1/4th right, title and interest in his father’s estate, including the shares of Oswal Agro. The Delhi High Court granted 20 a status quo in the matter as interlocutory relief. Thereafter, Pankaj filed a petition under Section 241 of the Companies Act, 2013 alleging acts of oppression and mismanagement in Oswal Agro. Aruna filed a maintainability application on the ground that Pankaj did not hold the requisite 10% shareholding in the company to maintain the petition under Section 244. This was resisted by Pankaj claiming entitlement and legitimate expectation of 9.97% shareholding by virtue of being a legal heir of his deceased father, in addition to him personally holding a 0.03% shareholding in the company. The issue of entitlement of legal representatives to a deceased member’s shares to maintain such proceedings is no longer res integra after the Supreme Court’s decision in World Wide Agencies (P) Ltd. 21, the difference here was the presence of a nominee. Nevertheless, NCLT dismissed 22 Aruna’s application holding Pankaj to be entitled to the 1/4th share. NCLAT also dismissed 23 Aruna’s appeal. It is in this context that the matter came up for consideration before the Supreme Court.
The Supreme Court held that, in cases where there is a nominee, there is an absolute vesting of rights in the nominee and Section 72(3) of the Companies Act, 2013 supercedes, by virtue of its non obstante clause, any other law for the time being in force. Further, in view of the Delhi High Court’s status quo order 20, the shares would have to be held in the name of Mrs Aruna Oswal, until the civil suit was finally decided. Since the basis of the petition was a claim by way of inheritance, such determination of questions of right, title and interest in the shares, including the effect of nomination, would fall squarely within the domain of a civil court, before which adjudication was pending. It would, therefore, not be appropriate for the Company Court to entertain parallel proceedings, before the civil court decides the issue. Accordingly, the Supreme Court set aside the orders passed by NCLT 22 and NCLAT 23 and allowed the civil appeal to the extent that Pankaj withdraw the petition entirely, until the civil dispute concerning his right, title and interest in the estate/shares was finally adjudicated.
We have no quarrel with the ultimate decision in Aruna Oswal 1. The rationale is consistent with the settled legal position that, on the demise of the shareholder, the company is required to register the shares in the name of the nominee, who alone can exercise all rights therein.
However, we believe that potential difficulties are likely to arise on account of certain problematic language in the judgment, which states as follows: (Aruna Oswal case 1, SCC p. 88, para 15)
- 15. … It is prima facie apparent that vesting is absolute, and the provisions supersede by virtue of a non obstante clause any other law for the time being in force. Prima facie shares vest in a nominee, and he becomes the absolute owner of the securities on the strength of the nomination.
(emphasis supplied)
The Supreme Court held that the rights of a nominee would depend upon what is statutorily provided and distinguished Sarbati Devi 7, Khanchandani 12 and Ram Talwar 14 on the basis that the provisions of the Life Insurance Act, Government Savings Act and the Banking Regulation Act, respectively, did not contemplate “vesting” of the instrument concerned in the nominee. It would, therefore, appear that the Supreme Court was swayed by the usage of the term “vesting” in the Companies Act, which was to be construed on a separate footing from all other statutes that did not adopt similar language qua nominees. In fact, as we have seen above, this was the exact rationale adopted in Kokate 3, which was ultimately set aside in Shakti Yezdani 5.
In our view, it is therefore imperative that a purposive construction of these observations in Aruna Oswal 1 must be given, which does not unsettle the prevailing legal position and does not sound a discordant note for one asset class, where the nominee of shares becomes the “absolute owner”.
Firstly, these observations are only prima facie in nature, that too, in a Company Court jurisdiction — one that does not concern itself with the laws of succession.
Secondly, the Supreme Court has, at six occasions in the judgment, repeatedly emphasised that the matter of determination of title was pending adjudication in a separate civil proceeding and that the civil court alone would be able to decide the right, title and interest of the nominee and the effect of such nomination 24.
Thirdly, with these repeated caveats, the Supreme Court could never have meant to conclusively hold that the nominee is in fact the owner, otherwise, there would be nothing left for the civil court to decide.
Fourthly, it is likely that the Supreme Court used the term “absolute owner” to indicate “absolute vesting” as interpreted by the Supreme Court in Fruit & Vegetable Merchants Union 11. This would, in our view, be the correct position and distinguish World Wide Agencies 21 from the facts in Aruna Oswal 1. Once there is a nomination, until a final adjudication of title, the shares and all their concomitant rights vest absolutely in the nominee. Therefore, a legal representative could not claim any rights in the deceased member’s share for the purpose of Section 244 of the Companies Act.
CONCLUSION
The final decision passed in Aruna Oswal 1 correctly holds that, in case of a nomination, as distinguished from World Wide Agencies 21, a legal heir cannot maintain an oppression and mismanagement petition on the strength of his claimed entitlement to the deceased’s shares, unless he has first established his title. The observations regarding the nominee being an “absolute owner” should be read to mean that all rights of the shares vest absolutely in the nominee, pending the determination of title between heirs. Any other reading would have the unfortunate effect of unsettling the established legal position. Moreover, individuals arrange their affairs on the legitimate expectation that courts will act in a consistent manner. Any other reading of Aruna Oswal 1 would lead to wholesale confusion wherein nominations for all other asset classes do not render the nominee as “absolute owners” but in the case of shares, they do. This would lead to major upheaval in cases where nominations have already been made and create a wholly unsatisfactory state of affairs.
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*The article has been published with kind permission of SCC Online cited as (2021) 10 SCC J-29
† Advocate, Bombay High Court.
‡ Advocate, Bombay High Court.
1 Aruna Oswal v. Pankaj Oswal, (2020) 8 SCC 79.
2 India presently has around 20 Judges per million population. The 245th Law Commission Report recommends 50.
3 Harsha Nitin Kokate v. Saraswat Coop. Bank Ltd., 2010 SCC OnLine Bom 615 : (2010) 3 Mah LJ 780.
4 Jayanand Jayant Salgaonkar v. Jayashree Jayant Salgaonkar, 2015 SCC OnLine Bom 1221 : (2015) 5 Mah LJ 647.
5 Shakti Yezdani v. Jayanand Jayant Salgaonkar, 2016 SCC OnLine Bom 9834.
4 Jayanand Jayant Salgaonkar v. Jayashree Jayant Salgaonkar, 2015 SCC OnLine Bom 1221, para 30: (2015) 5 Mah LJ 647.
6 Civil Appeal No. 7107 of 2017.
1 Aruna Oswal v. Pankaj Oswal, (2020) 8 SCC 79.
7 Sarbati Devi v. Usha Devi, (1984) 1 SCC 424.
8 Notified on 1-4-1939.
9 Challamma v. Tilaga, (2009) 9 SCC 299.
1 0 Nozer Gustad Commissariat v. Central Bank of India, 1992 SCC OnLine Bom 481 : (1993) 1 Mah LJ 228.
7 Sarbati Devi v. Usha Devi, (1984) 1 SCC 424.
1 1 AIR 1957 SC 344.
1 2 Vishin N. Khanchandani v. Vidya Lachmandas Khanchandani, (2000) 6 SCC 724.
1 3 Shipra Sengupta v. Mridul Sengupta, (2009) 10 SCC 680.
1 4 Ram Chander Talwar v. Devender Kumar Talwar, (2010) 10 SCC 671.
1 5 Section 45-ZA is part of Part III A of the Banking Regulation Act 1949 and was originally inserted by Act 20 of 1950 and thereafter substituted in its present form by Act 53 of 1953.
1 2 Vishin N. Khanchandani v. Vidya Lachmandas Khanchandani, (2000) 6 SCC 724.
3 Harsha Nitin Kokate v. Saraswat Coop. Bank Ltd., 2010 SCC OnLine Bom 615 : (2010) 3 Mah LJ 780.
4 Jayanand Jayant Salgaonkar v. Jayashree Jayant Salgaonkar, 2015 SCC OnLine Bom 1221, para 30: (2015) 5 Mah LJ 647.
1 6 Inserted by Companies Amendment Act 1999 on 31-10-1998.
7 Sarbati Devi v. Usha Devi, (1984) 1 SCC 424.
1 7 Inadvertantly referred to in the judgment as “Section 9.11”.
3 Harsha Nitin Kokate v. Saraswat Coop. Bank Ltd., 2010 SCC OnLine Bom 615 : (2010) 3 Mah LJ 780.
4 Jayanand Jayant Salgaonkar v. Jayashree Jayant Salgaonkar, 2015 SCC OnLine Bom 1221, para 30: (2015) 5 Mah LJ 647.
1 2 Vishin N. Khanchandani v. Vidya Lachmandas Khanchandani, (2000) 6 SCC 724.
1 3 Shipra Sengupta v. Mridul Sengupta, (2009) 10 SCC 680.
9 Challamma v. Tilaga, (2009) 9 SCC 299.
1 0 Nozer Gustad Commissariat v. Central Bank of India, 1992 SCC OnLine Bom 481 : (1993) 1 Mah LJ 228.
1 8 Antonio Joao Fernandes v. Provident Fund Commr., 2010 SCC OnLine Bom 519.
5 Shakti Yezdani v. Jayanand Jayant Salgaonkar, 2016 SCC OnLine Bom 9834.
1 9 Indrani Wahi v. Registrar of Coop. Societies, (2016) 6 SCC 440.
5 Shakti Yezdani v. Jayanand Jayant Salgaonkar, 2016 SCC OnLine Bom 9834.
1 9 Indrani Wahi v. Registrar of Coop. Societies, (2016) 6 SCC 440.
3 Harsha Nitin Kokate v. Saraswat Coop. Bank Ltd., 2010 SCC OnLine Bom 615 : (2010) 3 Mah LJ 780.
1 Aruna Oswal v. Pankaj Oswal, (2020) 8 SCC 79.
2 0 Pankaj Oswal v. Aruna Oswal, 2017 SCC OnLine Del 12803.
2 1 World Wide Agencies (P) Ltd. v. Margarat T. Desor, (1990) 1 SCC 536.
2 2 Pankaj Oswal v. Oswal Agro Mills Ltd., 2018 SCC OnLine NCLT 29970.
2 3 Oswal Greentech Ltd. v. Pankaj Oswal, 2019 SCC OnLine NCLAT 1526.
2 0 Pankaj Oswal v. Aruna Oswal, 2017 SCC OnLine Del 12803.
1 Aruna Oswal v. Pankaj Oswal, (2020) 8 SCC 79.
7 Sarbati Devi v. Usha Devi, (1984) 1 SCC 424.
1 2 Vishin N. Khanchandani v. Vidya Lachmandas Khanchandani, (2000) 6 SCC 724.
1 4 Ram Chander Talwar v. Devender Kumar Talwar, (2010) 10 SCC 671.
3 Harsha Nitin Kokate v. Saraswat Coop. Bank Ltd., 2010 SCC OnLine Bom 615 : (2010) 3 Mah LJ 780.
5 Shakti Yezdani v. Jayanand Jayant Salgaonkar, 2016 SCC OnLine Bom 9834.
1 Aruna Oswal v. Pankaj Oswal, (2020) 8 SCC 79.
2 4 Id, paras 17, 21, 25, 29, 31 and 33.
1 1 AIR 1957 SC 344.
2 1 World Wide Agencies (P) Ltd. v. Margarat T. Desor, (1990) 1 SCC 536
