Karnataka High Court
Khajamiya Miransaheb Mujahid vs Peerapasha Miransaheb Mujahid on 25 March, 1986
Equivalent citations: [1987]61COMPCAS106(KAR), ILR1986KAR2240
JUDGMENT M.P. Chandrakantaraj Urs, J.
1. This is a second appeal against the concurrent findings of the courts below. The brief facts that may be necessary for disposal of the appeal may be stated and they are a follows :
The appellant in this court and the court below was the defendant in the trial court. The respondent correspondingly was the plaintiff in the trial court. The plaintiff brought the suit for a declaration that certain shares bought in the name of himself and the defendant were bought solely out of his money as a matter of convenience and the defendant's name was added on. On retiring from Government service, the plaintiff demanded the defendant to transfer his interest in the shares which were acquired in several companies registered under the Companies Act, 1956 (hereinafter referred to as "the Act"), as he was the true and the full owner thereof. The defendant refused. Therefore, a suit for a declaration that he was the absolute and sole owner of the shares in question described in the schedule to the plaint was filed.
2. The defendant resisted the same on the ground, while admitting the fact, that the plaintiff had supplied the funds with instructions to buy the shares in joint names, as gifts. The gift being complete, he was the equal owner of the shares along with his brother.
3. The trial court framed the following issues :
(1) Does defendant prove that the plaintiff has gifted half the amount of the purchase money in respect of suit shares to him and as such he is the owner of half share in the suit share ?
(2) whether the court fee paid is not proper ?
4. Additional issue was also framed to the effect :
5. Whether the suit of the plaintiff is barred under the provisions of sections 187C and 187D of the Act ?
6. Apparently, the burden was cast on the defendant in the light of the admission that the whole of the money for purchase of the shares was out of the funds of the plaintiff. As the defendant pleaded a gift, the burden was on him to prove the gift. On all the issues, the plaintiff succeeded in the trial court. The same was confirmed by the first appellate court. Therefore, the present appeal.
7. In this court, Mr. W. K. Joshi, learned counsel appearing for the appellant-defendant, has very fairly conceded that his client should fail or succeed entirely on the question of application of section 187C of the Act and no other. Section 187C of the Act, as amended by the Companies (Amendment) Act 41 of 1974, provides in sub-sections (1), (2) and (3) of the Act as follows :
"187C. (1) Notwithstanding anything contained insection 150, section 153B or section 187B, a person, whose name is entered, at the commencement of the Companies (Amendment) Act, 1974, or at any time thereafter, in the register of members of a company as the holder of a share in that company but who does not hold the beneficial interest in such share, shall, within such time and in such form as may be prescribed make a declaration to the company specifying the name and other particulars of the person who holds the beneficial interest in such share.
(2) Notwithstanding anything contained elsewhere in this Act, a person who holds a beneficial interest in a share or a class of share of a company shall, within thirty days from the commencement of the Companies (Amendment) Act, 1974, or within thirty days after his becoming such beneficial owner, whichever is later, make a declaration to the company specifying the nature of his interest, particulars of the person in whose name the shares stand registered in the books of the company and such other particulars as may be prescribed.
(3) Whenever there is a change in the beneficial interest in such shares, the beneficial owner shall, within thirty days from the date of such change, make a declaration to the company in such form and containing such particulars as may be prescribed ...."
8. From the three sub-sections extracted above, it is clear that a duty is cast upon the person holding the shares whether it is a trust or a person not being a trust, holding such shares in trust for the benefit of others impliedly or expressly to furnish the name to the company of such person or persons for whose benefit the shares are held. Similarly, sub-section (2) of section 187C of the Act clearly provides that the person who has a beneficial interest in the shares or a class of shares of a company shall within the time specified therein computed in the manner indicated therein make a declaration to the company concerned specifying the nature of his interest, particulars of the person in whose name the shares stand registered in the books of the company and such other particulars as may be prescribed, the prescription being by the Companies (Court) Rules framed under the enabling provisions of the Act. Similarly, sub-section (3) of section 187C of the Act also provides that whenever there is a change in the beneficial interest in such shares by virtue of the beneficial interest passing to somebody else and that somebody else acquires the beneficial interest, he is required to disclose the nature of change and the extent of change and make a declaration to the company in such form and containing such particulars as may be prescribed.
9. Therefore, it is clear, the above sub-sections do not relate to ownership of shares, more so, when the ownership is in dispute. The three sub-sections, extracted above, presuppose the ownership vesting in a person other than the one who is entitled to beneficial interest in the shares and the respective duties cast upon the ostensible owner of the share and the beneficiary or the person having benefit of the shares.
10. This becomes more clear by looking at section 187C(5)(a) and (b) of the Act. The application which I have indicated becomes very clear. That section reads as follows :
"187C(5)(a). If any person, being required by the provisions of sub-section (1), sub-section (2) or sub-section (3), to make a declaration, fails, without any reasonable excuse, to do so, he shall be punishable with fine which may extend to on thousand rupees for every day during which the failure continues.
(b) If a company fails to comply with the provisions of this section, the company, and every officer of the company who is in default, shall be punishable with fine which may extend to one hundred rupees for every day during which the default continues."
11. The consequences being penal for failure to perform the statutory duty imposed, the ownership of the share is not affected. He is only liable to pay the prescribed fine and no more. Similarly, he will be penalised for the default.
12. Thus viewed, in a civil suit between brothers as to who the true owner is, section 187C of the Act has no role to pay. The failure of the defendant to report cannot be said to be penal because he was genuinely under the impression that he was holding it as a joint owner in his own right as a gift. Therefore, if action had been taken under the provisions of section 187C of the Act for failure to report the implied trust nature as claimed by the brother, it is highly improbable that the action would have resulted in penalty on the fact of this case.
13. All through, his case was that he was joint owner, having been gifted with half interest, and, therefore, the question of disclosure of either the nature of the trust, express or implied, or the nature of beneficial interest which his brother enjoyed would not at all arise.
14. In that view of the matter, the trial court and the lower appellate court have come to the right conclusion and this appeal must necessarily, therefore, fail.
15. Accordingly, the appeal is rejected.