JUDGMENT 1. - The petitioner has prayed that the State Insurance Department may be directed to make payment of Insurance Policy of her deceased husband Radheyshyam Hardenia, which are due and payable on account of death of her husband Shri Radheyshyam Hardenia. It is claimed that the marriage of the petitioner was solemnised in 1960 but, after some time the relations with her husband were strained and a petition fora decree of restitution of conjugal rights was also filed by the husband in the Court of Additional District and Sessions Judge Gangapur City, District Sawai Madhopur, which was subsequently withdrawn. 2. The petitioner has claimed that in the voter list, her name has been shown as wife of Radheyshyam Hardenia, who was teacher in Panchayat Samiti, Todabheem and expired on 1.11.92. A claim was made to the Assistant Director, State Insurance and General Provident Fund and the Block Development Officer, Panchayat Sanriti, Todabheem, District Sawai Madhopur has also recommended the case of the petitioner. In the service book, the petitioner has been shown as wife of Radheyshyam Hardenia, but, the Director State Insurance and General Provident has advised that the payment is to be made to the younger brother of the petitioner's husband, who has been shown as nominee. 3. Reliance has also been placed on the decision of the Apex Court in the case of Sarbati Devi v. Usha Devi, AIR 1984 SC 346 wherein it was observed that "a mere nomination under section 39 of the Insurance Act, 1938 does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount can he claimed by the heirs of the assured in accordance with the law of succession governing then". It was further observed that according to Section 39 the policy-holder continues to hold interest in the policy during his life time and the nominee acquires no sort of interest in the policy during the life-time of the policy-holder. On the death of the policy-holder, the amount payable under the policy becomes part of his estate which is governed by the law of succession applicable to him. On the death of the policy-holder, the amount payable under the policy becomes part of his estate which is governed by the law of succession applicable to him. Such succession may be testamentary or intestate. The provisions of Section 39 were interpreted. to mean that the words 'amount shall be payable to the nominee or nominees' does not mean that the amount shall belong to the nominee or nominees. The language of Section 39 was held not capable of altering the course of succession". In this case the nominee (wife) claimed absolute right to the amount payable under two policies to the exclusion of her son and her mother-in-law. A suit for declaration was filed through the next friend that the mother-in-law and her son were entitled to ⅔rd share of the amount due and payable under the insurance policies. The defendants resisted the suit which was ultimately dismissed. The first appeal by the District Court was dismissed and the second appeal by the High Court was also dismissed and, therefore, the matter was challenged by filing the appeal after obtaining permission special leave under Article 136 of the Constitution. The decision given by the High Court was reversed by the Apex Court. 4. The relevant provisions of Section 39 of the Insurance Act, 1938 are as under:- "39. Nomination by policy-holder. (1) The holder of a policy of life insurance on his own life may, when effecting the policy or at any time before the policy matures for payment, nominate the person or persons to whom the money secured by the policy shall be paid in the event of his death : Provided that where any nominee is a minor, it shall be lawful for the policy-holder to appoint in the. prescribed manner any person to receive the money secured by the policy in the event of his death during the minority of the nominees. prescribed manner any person to receive the money secured by the policy in the event of his death during the minority of the nominees. (2) Any such nomination in order to be effectual shall unless it is incorporated in the text of the policy itself, be made by an endorsement on the policy communicated to the insurer and registered by him in the records relating to the policy and any such nomination may at any time before the policy matures for payment be cancelled or changed by an endorsement, or a further endorsement or a will, as the case may be, but unless notice in writing of any such cancellation or change has been delivered to the insurer, the insurer shall not be liable for any payment under the policy made bona fide by him to a nominee mentioned in the text of the policy or registered in records of the insurer. (3) The' insurer shall furnish to the policy-holder a written acknowledgement of having registered a nomination or a cancellation or change thereof, and may change a fee not exceeding one rupee for registering such cancellation or change. (4) A transfer of assignment of a policy made in accordance with Section 38 shall automatically cancel a nomination : Provided that the assignment of a policy to the insurer who bears the risk on the policy at the time of the assignment, in consideration of a loan granted by that insurer on the security of the policy within its surrender value, or its reassignment on repayment of the loan shall not cancel a nomination, but shall affect the rights of the nominee only to the extent of the insurer's interest in the policy. (5) Where the policy matures for payment during the life-time of the person whose life is insured or where the nominee or, if there are more nominees than one, all the nominees die before the policy matures for payment, the amount secured by the policy shall be payable to the policy-holder or his heirs or legal representatives or the holder of a succession certificate, as the case may be. (6) Where the nominee or if there are more nominees than one, a nominee or nominees survive the person whose life is insured, the amount secured by the policy shall be payable to such survivor or survivors. (6) Where the nominee or if there are more nominees than one, a nominee or nominees survive the person whose life is insured, the amount secured by the policy shall be payable to such survivor or survivors. (7) The provisions of this section shall not apply to any policy of life insurance to which S. 6 of the Married Woman's Property Act, 1874 applies or has at any time applied : Provided that where a nomination made whether before or after the commencement of the Insurance (Amendment) Act, 1946 in favour of the wife of the person who has insured his life or of his wife and children or any of them is expressed, whether or not on the face of the policy, as being made under this section the said section 6 shall be deemed not to apply or not to have applied to the policy." 5. The provisions of Service Rules 34 and 35 of the Rajasthan Government Servant's Insurance Rules, 1953 are as under:- Rule 34-Appointment of a nominee - The insured shall be entitled to nominate a person or persons to whom the sum assured under all the assurance contracts granted on his life should be paid in the event of his death. Such nomination shall be in Form V or VI as the case may be completed and signed by the insured in the presence of his immediate official superior, and sent to the Director who shall register the nomination in the books and sent a written acknowledgement of the receipt of the nomination to the insured. Rule 35-Persons who can be appointed nominee- Except with the special previous permission of the Director of Insurance no insured shall nominate any person who is not the husband, wife, child, brother, sister, father or mother of the insured : Provided, however, that in the case of a policy financed from the All India Services (Provident Fund) nomination can be made only in favour of the wife and/or child." 6. From the perusal of the Rajasthan Government Servant's Insurance Rules, 1953 and the principles which have been laid down by the Apex Court, I am of the view that the said principles are equally applicable for a claim of a policy under the Rules of 1953. 7. From the perusal of the Rajasthan Government Servant's Insurance Rules, 1953 and the principles which have been laid down by the Apex Court, I am of the view that the said principles are equally applicable for a claim of a policy under the Rules of 1953. 7. In the present matter, the Government Servant died on 1.11.1992 and the declaration was filed on 20.4.1989 in which Shri Mohan Lal Sharma was nominated. 8. In column 2 of State Insurance Form regarding, whether he is married or bachelor, he has shown Widower (divorced). The petitioner has tried to claim the right that the petition for restitution of conjugal rights was withdrawn by the husband and there was no divorce. On the basis of the voters list alone it can not be determined that the petitioner is legally married wife of deceased Shri Radheyshyam Hardenia or in accordance with the Hindu Succession Act, she is entitle for the entire claim. The proper course for the petitioner was to get the Succession Certificate or to file a Civil Suit and this Court can not under Article 226 adjudicate such a disputed question of fact. By order dated 31st May, 1993, the State Insurance Department was restrained from disbursing the amount of State Insurance to Mohan Lal Sharma or anyone else. The petitioner may file Civil Suit if she so desire and the said stay order shall be valid for 30 days from the date of this order. With the above observations the writ petition is dismissed on account of availability of alternative efficacious remedy and the disputed facts being involved in the writ petition the discretion under Article 226 can n e exercise by this Court.Writ Petition dismissed *******