Company Law Board
Mr. Sanjeev Joy And Mr. Yeshwant Joy ... vs Pereira & Roche Private Limited And Mr. ... on 10 December, 2001
Equivalent citations: [2002]110COMPCAS717B(CLB)
ORDER
K.K. Bbalu, Member
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 be his will devise, bequeath or dispose of property of whatever kind that he shall be entitled to, a 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 v. 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 in only in regard to the validity of the Will and not in relation to the subject matter of the Will. Shri Venkataraman prayer 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 petition. 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 v. 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.