C.P.
No.1/111/SRB/2001
Present: 1. Shri S. Balasubramanian, Vice-Chairman
2. Shri K.K.Balu, Member.
IN THE MATTER OF COMPANIES ACT, 1956 (1 OF 1956)
AND
IN THE MATTER OF THE M/S PEREIRA & ROCHE PRIVATE LIMITED
C.P.
No.11/111/SRB/2000:
PRESENT ON BEHALF OF
PARTIES:
1. Shri Arvind P.Datar, Senior Advocate …
for Petitioners in CP No. 11/2000
2. Smt. Chitra Narayan, Advocate … for
Petitioners in CP No. 11/2000
3. Shri. R.Venkataraman, Advocate … for Petitioner in CP No. 1/2001
4 Shri V.Venkadasalam, Advocate … for
Respondents in CP No 11/2000 and 1/2001
(DATE OF HEARING: 24.10.2001)
K.K.BALU:
1.
In this order, we
are dealing with two petitions – CP 11/2000 by (i) Mr. Sanjeev Joy and Shri
Yeshwant Joy and CP 1/2001 by Mrs. Hilwiah Roche – filed under Section 111 of
the Companies Act, 1956 (“the Act”) against M/s Pereira & Roche Private
Limited (“the Company) seeking directions to register the transfer of 25 shares
of the Company in favour of the petitioners (CP 11/2000) and 19 shares of the
Company (which form part of 25 shares stated supra) in favour of the petitioner
(CP 1/2001). The first respondent
company is common in both the petitions.
The shares impugned in both the petitions are the same excepting six
shares of the Company. Moreover, the
facts and circumstances of these petitions are common. Hence, both the petitions are disposed of by
this common order.
2.
The facts as stated
in the petition (CP 11/2000) and reiterated by Shri Arvind P.Datar, Senior
Counsel for the petitioners are that Shri J.M.B. Roche holding 25 shares died
in the year 1996 leaving behind a registered Will dated 15.09.1993,
bequeathing, inter-alia, the impugned shares in favour of his grand children,
being the petitioners. The second
respondent being the Managing Director of the Company and brother of the
deceased testator was appointed as the executor of the Will. The Will was probated by the second
respondent by filing probate Original Petition No.65/98 before the Court of
Subordinate Judge, Tuticorin. By virtue
of the Will duly probated, the petitioners became entitled to the impugned
shares. In spite of the repeated
demands, the respondents failed to transmit the impugned shares held in the
name of late J.M.B.Roche in favour of the petitioners. Shri Datar, while elaborating the principle
of Section 3 of the English Wills Act, 1837, has reiterated that a person may
by his will devise, bequeath or dispose of property of whatever kind that he
shall be entitled to, at the time of his death, and which, if not so devised,
bequeathed or disposed of would devolve by intestacy. He further relied on Rukmani Devi Vs. Narendra Lal Gupta –
AIR 1984 SC 1866 – to show that a probate granted by a competent court
is conclusive proof of the validity of such will until it is revoked and no
evidence can be admitted to impeach it except in a proceeding taken for
revoking the probate. At this juncture,
he pointed out that the second respondent being the executor of the Will had
got the Will probated in a competent court, and that the impugned shares are explicitly
forming part of the schedule attached to the order of the probate in probate
Original Petition No.65/98. He,
therefore, urged that the Company should be directed to register the
transmission of the impugned shares in favour of the petitioners, notwithstanding
the revocation proceedings initiated in regard to the probate before the Sub
Court at Tuticorin by the petitioner in CP 1/2001.
3.
According to Shri
R.Venkataraman, Advocate for the petitioner (CP 1/2001), the petitioner had
purchased from Mr. J.M.B.Roche, since deceased, in September, 1993, 19 equity
shares of the Company forming part of 25 shares involved in CP 11/2000 for a
sum of Rs.19,000/-. Due to unforeseen
circumstances and stress and strain in the family relationship, the petitioner could
not present the transfer documents to the Company in time. The petitioner has got the transfer deed
revalidated by the Registrar of Companies by an order dated 28.07.2000 upto
27.8.2000 and thereafter, the petitioner submitted the transfer instruments to
the Company on 3.8.2000. However, the
Company had, pointing out various infirmities, rejected the share transfer
application. The rejection of share
transfer application by the Company is illegal, improper and is motivated. Shri R.Venkataraman has further pointed out
that the petitioner had filed a petition before the sub-ordinate Judge Court at
Tuticorin to revoke the probate granted to the extent of 19 shares. Relying on provisions of Section 227 of the
Indian Succession Act, he further pointed out, the probate is only in regard to
the validity of the Will and not in relation to the subject matter of the
Will. Shri Venkataraman prayed that the
Company should be directed to register the transfer of 19 shares of the Company
in favour of the Petitioner (CP 1/2001).
4.
Shri
V.Venkadasalam, Counsel appearing for the Company has contended that the Will
executed by the deceased J.M.B. Roche does not explicitly disclose 25 shares in
the Company. Moreover, the late J.M.B.
Roche, before his death had transferred 19 shares to Mrs.Hilwiah Roche (Petitioner
in CP 1/2001), who had submitted a transfer deed for the 19 shares. The Company could not register the transfer
in respect of 19 shares on account of various defects. Consequently, the petitioner in CP 1/2001 had filed a petition before the
sub-court, Tuticorin to revoke the probate granted in respect of the 19
shares. The said petition is pending
before the Civil Court at Tuticorin. In view of the rival claim for the 19
shares, the Company could not register the transfer in favour of the petitioners
(CP 11/2000 & CP 1/2001) in respect of the impugned shares.
5.
Shri Datar, in his
reply has denied any transfer of 19 shares said to have been made by the
deceased J.M.B.Roche before his death in favour of the petitioner (CP 1/2001),
who is none other than wife of the second respondent in CP 11/2001. He further pointed out that the second
respondent and his wife misused the blank transfer forms left behind by the
late J.M.B.Roche and that the validity of the share transfer forms executed by
the late J.M.B.Roche in the year 1993 had elapsed. The revalidation of the share transfer forms was done after seven
years and only after the initiation of the present proceedings. The claim of Mrs. Hilwiah Roche is not
tenable. Shri Datar has therefore
sought for the relief prayed for in the petition.
6.
We have considered
the pleadings and oral submissions made on behalf of the petitioners and the
respondents in both the petitions. The facts not in dispute are that the late
J.M.B.Roche had left behind him a registered Will dated 15.09.1993 bequeathing
inter-alia the shares in the Company in favour of the petitioners (CP
11/2000). The second respondent is the
executor of the Will. The Will was
probated in a competent Court of law.
The probate covers, among other assets, 25 shares impugned in the
petition. The probate duly granted by a
competent court conclusively establishes the validity of the Will until it is
revoked as has been held by the apex court in Ruckmini Devi Vs. Narender
Lal Gupta cited supra. As on
date the probate has not been revoked.
In the circumstances, the petitioners in CP 11/2000 are entitled to the
impugned shares. Accordingly, we direct
the Company to transfer 25 shares in favour of the petitioners within a month
of this order. This order is however
subject to the outcome of the probate revocation proceedings initiated before
the Civil Court at Tuticorin by the petitioner in CP 1/2001 and therefore, till
these proceedings are concluded, the petitioner in CP 11/2000 will not transfer
these shares to anyone-else and the petitioner in CP 1/2001 will also go by the
outcome of the probate revocation proceedings.
7.
With the above
directions, both the petitions stand disposed of.
(K.K. BALU) (S.BALASUBRAMANIAN)
Dated this 10th day of December, 2001