S Kanthimathy S Lakshmi S Vs the Woodlands Estates Limited and - Citation 48187 - Court Judgment

Judgment:
The first company petition (C.P. No. 10/2005) is filed under Section 111A read with Section 111 of the Companies Act. 1956 ("the Act") - (i) to rectify the register of members of The Woodland Estates Limited "TWEL") in respect of (a) 2429 shares of TWEL, held by (late) S.Sivaramakrishna Aiyer at the time of execution of his Will dated 17.09.1986, by substituting the names of respondents 3, 4. 6 & 10 to 1 3 in the place of the second respondent; and (b) 9081 shares of TWEE acquired by (late) S. Sivaramakrishna Aiyer subsequent to the execution of his Will dated 17.09.1986. by substituting the names of petitioners and respondents 5 to 9; and (ii) to direct the second respondent to pay in favour of petitioners and respondents 5 to 9, dividends and other accretions, if any. received in relation to 9081 shares of TWEL, acquired by (late) S. Sivaramakrishna Aiyar, subsequent to execution of his Will dated 17.09.1986.

2. The second company petition (C.P. No. 11/2005) is filed under Section 111A read with Section 111 of the Companies Act. 1956 ("the Act") - (i) to rectify the register of members of The Peninsular Plantations Limited CTPPL") in respect of 32,492 equity shares of (late) S. Sivaramakrishna Aiyer, by substituting the names of petitioners and respondents 5 to 9 in the place of the second respondent, to the extent of 3.610 equity shares each and remaining two equity shares to any of the petitioners; and (ii) to direct the second respondent to pay in favour of petitioners and respondents 5 to 9, dividends and other accretions, if any, received in relation to 32,492 equity shares of (late) S. Sivaramakrishna Aiyer.

3. The third company petition (C.P. No. 12/2005) is filed under Section 111A read with Section 111 of the Companies Act. 1956 ("the Act") - (i) to rectify the register of members of The Travancore Rubber & Tea Company Limited "TRTCL") - (a) by deleting the names of respondents 3 to 6 in relation to 65.378 equity shares of (late) S. Sivaramakrishna Aiyer, transmitted in favour of the respondents 3, 4 & 6 and further transferred by the fourth respondent to the fifth respondent: and (b) by substituting the names of petitioners and respondents 5 to 9 to the extent of 7,264 equity shares and the remaining 2 equity shares to any of the petitioners; and (ii) to direct the respondents 3 to 6 to pay in favour of petitioners and respondents 7 to 9, dividends and other accretions, if any. received in relation to 65,378 equity shares of (late) S. Sivaramakrishna Aiyer.

4. The disputes involved in these company petitions are in relation to the shares bequeathed by (late) S. Sivaramakrishna Aiyer in TWEL. TPPL and TRTCL ("the Companies") in favour of his legal heirs, in terms of his Will dated 17.09.1986. The parties, being legal heirs of (late) S.Sivaramakrishna Aiyer are common, the issues involved and reliefs claimed in these company petitions are similar. In view of this, these company petitions were heard together and are being disposed of by this common order.

5. Shri v. Ramakrishnan, learned Counsel, appearing for the petitioners, while initiating his arguments submitted as under: 5.1 (Late) S. Sivaramakrishna Aiyer and his wife (late) S. Parvathavardhani Ammal are survived by the petitioners 1 to 4 and fifth respondent, being the daughters and respondents 2 to 4. the sons. The respondents 6 to 9 are the daughters-in-law and respondents 1 0-13 are the son and daughters of the eldest son (late) Veerasubramonia Sarma. (Late) S. Sivaramakrishna Aiyer and his deceased wife had executed two separate Wills on 17.09.1986.

which were duly registered on 19.09.1986. At the time of execution of the Wills, while (late) S. Sivaramakrishna Aiyer held 2.429 shares in TWEL, comprising of 1.819 equity shares. 500 preference shares and 110 redeemable preference shares, his wife held 9,081 shares comprising of 5.221 equity shares and 2,950 preference shares and 910 redeemable preference shares. (Late) S. Parvathavardhani Ammal bequeathed under Clause 14 of her Will all her shares in TWEL in favour of her husband. Upon the demise of S. Parvathavardhani Ammal in February 1998, all her 9.081 shares of TWEL devolved on her husband in accordance with the provisions of her Will. S. Sivaramakrishna Aiyer passed away in September 200, when he held 11.510 shares (7,040 equity, 3,450 preference and 1.020 redeemable preference shares) in TWEL, the break up of which consists of (i) 2.429 shares held by (late) S. Sivaramakrishna Aiyer as on the date of execution of his Will, namely. 17.09.1986: and (ii) 9.081 shares held by (late) S. Parvathavardhani Ammal and acquired by (late) S. Sivaramakrishna Aiyer in terms of her Will, aggregating 11.510 shares.

5.2 At the time of execution of the Wills, while (late) S. Sivaramakrishna Aiyer held 6,896 equity shares, his wife held 32,492 equity shares in TPPL. (Late) S. Parvathavardhani Ammal bequeathed under Clause 14 of her Will all her shares in TPPL in favour of her husband and upon the demise of S. Parvathavardhani Ammal in February 1998, all her 32.492 equity shares of TPPL devolved on her husband in accordance with her Will. S. Sivaramakrishna Aiyer passed away in September 2000, when he held 39,388 equity shares in TPPL, constituted by 6,896 equity shares held by (late) S. Sivaramakrishna Aiyer as on the date of execution of his Will, namely. 1 7.09.1986 and 32.492 equity shares held by (late) S. Parvathavardhani Ammal and acquired by (late) S. Sivaramakrishna Aiyer, in terms of her Will aggregating 39,388 equity shares.

5.3 At the time of execution of the Wills, while (late) S. Sivaramakrishna Aiyer held 5,524 equity shares, his wife held 28.619 equity shares in TRTCL, (Late) S. Parvathavardhani Ammal bequeathed under Clause 14 of her will all her shares in TRTCL in favour of her husband and upon the demise of S. Parvathavardhani Ammal in February 1998, all her 28,619 equity shares of TRTCL devolved on her husband in accordance with her Will. S. Sivaramakrishna Aiyer passed away in September 2000, when he held 70,902 equity shares in TRTCL, the break up of which is thus: (i) 5.524 equity shares held by S. Sivaramakrishna Aiyer as on the date of Execution of his Will, namely. 17.09.1986; (ii) 36,759 equity shares purchased by (late) S. Sivaramakrishna Aiyer from the fourth respondent: and (iii) 28.619 equity shares held by (late) S. Parvathavardhani Ammal and acquired by (late) S. Sivaramakrishna Aiyer, in terms of her Will, which accounted for 70.902 equity shares.

5.4 (Late) S. Sivaramakrishna Aiyer made specific provisions in his Will relating to shares of the Companies. At page No. 4 of his Will [paragraph B(ii)] he listed out the shares held by him in various companies including the Companies herein. In the immediately following Clause 10 of his Will he stated "I bequeath my shares in the Travancore Rubber & Tea Co. Ltd., Harrisons Malayalam Ltd., Vaikundam Rubber Co. Ltd and The Woodland Estates Ltd. equally to my three sons S. Veerasubramonia Sarma, S. Lakshmana Sarma and S. Krishna Sarma" (respondents 3 & 4). By virtue of Clause 11 he bequeathed shares held by him in TPPL to his other son S. Ramakrishna Sarma (second respondent) and under Clause 12 he bequeathed shares held by him in other companies, namely. The Kanthimathy Plantations Pvt. Ltd. and The Vardhani Plantations Pvt.

Ltd. to his wife and daughters.

5.5 The bequest under Clauses 10 & 11 of the Will, as borne out by the intention of the testator, in terms of the language used therein, related to the shares of TWEL, TPPL, TRTCL and other two companies held by (late) S. Sivaramakrishna Aiyer at the time of execution of the Will and that the bequest does not extend to the shares of the Companies acquired by (late) S. Sivaramakrishna Aiyer subsequent to the execution of the Will. Accordingly, (i) the three sons named in Clause 10. namely, (late) S. Veerasubramonia Sarma and respondents 3 & 4 alone were entitled to one-third share each only in 2.429 shares of TWEL; (ii) the second respondent named in Clause 11 was entitled to 6.896 equity shares only of TPPL held by (late) S. Sivaramakrishna Aiyer at the time of execution of the will; and (iii) the three sons named in Clause 10, namely, (late) S. Veerasubramonia Sarma and respondents 3 & 4 were entitled to one-third shares each only in 5.524 equity shares of TRTCL held by (late) S. Sivaramakrishna Aiyer at the time of execution of the will. Shri Ramakrishnan. learned Counsel, pointed out that the shares acquired by (late) S. Sivaramakrishna Aiyer in the Companies, subsequent to execution of his will fell within Clause 26 of the Will which reads thus; "My live daughters and daughters-in-law shall also take equally any items of properties which have been left out in this Will and also the properties I may hereafter acquire" and accordingly, each of the daughters and daughters-in-law was entitled to one-ninth share each in 9,081 shares of TWEL, 32,492 equity shares of TPPL and 28.619 equity shares of TRTCL acquired by (late) S. Sivaramakrishna Aiyer either by purchase or through inheritance subsequent to the execution of his will. Nevertheless, the second respondent, the executor of the Will and Chairman and Director of TWEL & TPPL had completely taken away the entire shares of (late) S. Sivaramakrishna Aiyer in the Companies solely to himself, without transmitting 2.429 shares of TWEL equally to the three sons, namely, (late) S. Veerasubramonia Sarma and respondents 3 & 4 and the balance 9.081 shares to the daughters and daughters-in-law of (late) S. Sivaramakrishna Aiyer and similarly took away the entire shares of (late) S. Sivaramakrishna Aiyer to himself without transmitting 32.492 equity shares of TPPL to the daughters and daughters-in-law of (late) S. Sivaramakrishna Aiyer. At the board meeting of TRTCL held on 29.03.2003. 65.378 equity shares of TRTCL were equally transmitted to the three sons, namely, (late) S. Veerasubramonia Sarma and respondents 3 & 4. The transfer committee and the board of the companies have misconstrued the Will of (late) S. Sivaramakrishna Aiyer and acted against the interests of the deceased's daughters and daughters-in-law. The second respondent, being the executor and also beneficiary under the Will was interested director, but transferred all the shares improperly without giving effect to the terms of the Will of the deceased (late) S. Sivaramakrishna Aiyer. According, to the petitioners, subsequent to the demise of S. Veerasubramonia Sarma, the shares of TRTCL, transmitted to him, have again been transmitted in favour of his widow, being the sixth respondent herein. The fourth respondent transferred to the fifth respondent a substantial portion of the shares of TRTCL, erroneously transmitted in his favour, which is invalid. The transmission and transfer of impugned shares are not bonafide and are contrary to the provisions of the Companies Act.

Hindu Succession Act and Indian Succession Act.

5.6 By virtue of the judgment of Bombay High Court in Finolex Industries Limited v. Anil Ramchand Chhabria (2000) 37 CLA 278 - Section 111A has to be read in conjunction with Section 111 and cannot be read in isolation. A combined reading of Section 111(5) and Section 111A(7), clearly indicates that transmission of shares by operation of law is also governed by Section 111A. The underlying object of Section 28 of the Depositories Act is to provide additional benefits under Section 111A to the shareholders, which they are already enjoying under Section 111 of the Act. The remedy provided in Section 111A(3) is in addition to the remedy provided in Section 111(4). The remedies of appeal and rectification are available to all kinds of shares held in a public company under the proviso to Section 111A(2) and 111A(3) read with Sub-section (7) of Section 111A of the Act, which would make applicable the provisions of Section 111(1)(2) and (4) by virtue of Section 111(5) of the Act.

By virtue of Section 111A(7), the provisions of Sub-sections (5), (7), (9), (10) and (12) of Section 111 shall, so far as may be, apply to the proceedings before the Company Law Board under this section as they apply to the proceedings under Section 111. The CLB is empowered under Section 111(7) to decide any question relating to the title of any person to the shares, while deciding any application made under this sub-section. In view of this, the CLB can interpret the terms of the Will and decide the title to the shares impugned in the company petitions. It cannot, therefore, be said that by virtue of Section 111(14), the provisions of Sub-sections (1), (2) and (4) of Section 111 are not applicable to the public companies. The principles enunciated by the Bombay High Court in Finolex Industries Limited v. Anil Ramchand Chhabria (supra) have been followed by this Board in Hero Honda Motors Limited v. Unit Trust of India and Ors. (2005) 66 CLA 11. This decision of Northern Region Bench of this Board holding that the remedies under the proviso to Sub-section (2) and Sub-section (3) of Section 111A are available to transfer as well as transmission matters, is binding on all other Benches in the light of the decision of the Supreme Court in S.I. Rooplal and Anr. v. Lt.

Governor through Chief Secretary, Delhi and Ors. 1999 (10) SC 300, wherein it was held a Co-ordinate Bench of a tribunal cannot overrule an earlier judgment of another Co-ordinate Bench of the same tribunal, which is opposed to all principles of judicial discipline and that it can only refer it to a larger Bench, if it disagrees with the earlier pronouncement. In view of this, the petitioners are entitled for the relief of transmission of the impugned shares and the consequent rectification of the register of members of the Companies, as claimed in the company petitions.

Furthermore, the period of limitation of two months prescribed under Section 111A(3) is not applicable on facts and in view of the judgment of the Bombay High Court in Finolex Industries Limited v. Anil Ramchand Chhabria (supra). At the same time, the company petitions (C.P. Nos. 10 & 12 of 2005) having been filed within three years from the date of illegal transmission of shares of TWEL & TCTPL are within time.

5.7 Section 111A empowers, among others, an investor to make an application under Section 111A(3) to rectify the register, and any person aggrieved is entitled to invoke the provisions of Sub-section (4) of Section 111 for rectification of the register of a company.

The petitioners are investors under Section 111A(3) and aggrieved persons within the meaning of Section 111(4), having locus standi to file these petitions. Applying the law as laid down by the Supreme Court in World Wide Agencies P. Ltd and Anr. v. Mrs. Margaret T. Desor and Ors. (1990) Vol. 67 CC 607 that the legal representatives of a deceased member represent the estate of that member whose name is on the register of members and that when a member dies, his estate is entrusted in the legal representatives. A shareholder of a company is an "investor", even if his name is not found in the register of members as a "member" of the company. It is not necessary for a person to invest his own funds to become an investor in the company, but it is sufficient, if one's predecessor in interest had invested the funds. Similarly, any person who succeeded to shares by way of operation of law can be treated as an investor.

The petitioners, being the legal representatives of (late) S. Sivaramakrishna Aiyer, who was an investor, will be entitled to make an application under Section 111A(3) of the Act on the principle that the term "Investor" includes his legal heir.

5.8 The cause of action arose in these company petitions on account of the unlawful transmission of shares. The petition (C.P. No. 11 of 2005) has been filed after a period of three years and ten months of the transmission of impugned shares in favour of the second respondent which was fraudulently concealed from the petitioners.

The respondents also fraudulently failed to file necessary returns containing the details of the shareholding with the Registrar of Companies. The petitioners were unaware of the fact and date of transmission, with reasonable diligence, until the respondents 1 & 2 disclosed the date of transmission in their counters. This Bench, by an order dated 27.07.2005 appointed an Advocate Commissioner to authenticate the statutory records of TPPL. but the respondents did not permit the Advocate-Commissioner to authenticate the statutory records, as borne out by his report dated 01.08.2005, thereby the petitioners could not know the alleged transmission of shares in the name of the second respondent. By virtue of Section 17 of the Limitation Act, 1963, the period of limitation shall not begin to run until the petitioners discovered the fraudulent concealment by the respondents 1 & 2. The subject disputes are between brothers and sisters relating to the Will of their deceased father, which arose after his demise in September, 2000. As the disputes were between the family members, the petitioners initially made requests to the second respondent and thereafter, made representations to (late) S. Veerasubramonia Sarma, the eldest son of (late) S. Sivaramakrishna Aiyer, in order to persuade the second respondent to act fairly, as could be seen from the correspondence exchanged between the second respondent and (late) S. Veerasubramonia Sarma. The efforts made by the petitioners for an amicable settlement continued upto 2005 and it was only when all attempts to arrive at an amicable settlement failed, the petitioners were constrained to institute these proceedings. Therefore, the petitioners have made an application under Section 5 of the Limitation Act (C.A. No. 81 of 2005), seeking condonation of the delay in filing the petition beyond three years.

By virtue of a judgment of the Calcutta High Court rendered in Nupur Mitra v. Basubani Private Limited (1992) 2 Cal LJ 264 on the question of Limitation Act, which was affirmed by the Supreme Court, the Limitation Act. 1963 is applicable to cases filed under Section 111 of the Act. The CLB following the decision in Nupur Mitra v. Basubani Private Limited (supra) considered the question whether the CLB is vested with the power to condone the delay in filing the petition, under the provisions of the Limitation Act. 1963. in Tommy Mathew v. Duroflex Ltd. and Ors. (2004) Vol. 122 CC 741 and held that (a) the provisions of Limitation Act are applicable to the proceedings under Section 111; and (b) that if "sufficient cause is shown" by the petitioner delay in filling the petition can be condoned by virtue of Section 5 of the Limitation Act. This has been recently affirmed by the Kerala High Court and therefore, binding on the CLB, more so when the registered office of the Companies is located in Kerala State. The petitioners have shown here above "sufficient cause" for the delay in having filed the petition (C.P. No. 11 of 2005) after a delay of ten months, which may be condoned by invoking the provisions of Section 5 of the Limitation Act.

5.9 The Indian Succession Act, 1925 does not confer executive jurisdiction on civil courts to interpret any Will, but only in respect of probate and administration of estate. A Will can be interpreted by all judicial forums. The interpretation of the terms of the Will is not a matter within the province of the District/High Court. In a number of cases the CLB has interpreted the investment agreement. Any legal document can be interpreted by the CLB. as there is no legal bar in the Indian Succession Act. The genuineness and validity of the Will are not under dispute. None of the parties has initiated any legal proceedings in any Forum challenging the Will. However, the contesting parties are claiming to the exclusion of each other, the impugned shares under the Will of (late) S. Sivaramakrishna Aiyer. When the contentious issue falls within the ambit of Sections 111 and 111A, this Board does not lose jurisdiction to decide the same, despite the fact that it involves the interpretation of a Will, which is a simple question of law. The CLB is empowered to interpret the Will. in the light of the principles enunciated by the Supreme Court in Ammonia Supplies Corporation (P) Ltd. v. Modern Plastic Containers Pvt. Ltd. , wherein it was categorically held that complicated questions of fact or law can be adjudicated in a summary proceeding. Therefore, this Board can exercise its jurisdiction in interpreting the Will of (late) S. Sivaramakrishna Aiyer and decide the prayer for rectification of the register of members, as held in Khurshid Alam v. P. Pagnon Company Private Limited and Ors. (2002) Vol. 108 CC 523. This Board did not find the issues not so complicated that they cannot be decided in a summary manner.

5.10 The Supreme Court in Gnambal Ammal v. T. Raju Aiyer while laying down the cardinal principles to be observed by the Courts in construing a Will pointed out that the intention of the testator must be ascertained and "gathered primary" from the language of the document which is to be read as a whole without indulging in any conjuncture or speculations as to what the testator would have done, if he had been better informed or better advised." The CLB in Mrs. Pushpa Vadora v. Thomas Cook (India) Ltd. (1996) Vol. 87 CC 921 while entertaining an appeal under Section 111 of the Act upon refusal of the company to register the transmission of shares in favour of legal heirs of a deceased member without probate of Will, considered various questions which included (a) whether the appeal was in time; (b) whether a Will executed by a Hindu in the Union Territory is required to be probated and (c) whether the Company was rightly insisting on a probate of the Will or letters of administration in the facts and circumstances of the case, upon which the CLB categorically came to the conclusion that (i) there was no need in that case for a probate of Will executed in Delhi: (ii) the board of directors never applied their mind to the provisions of relevant article of association of the Company; and (iii) the objection relating to the validity of the Will is not sustainable. With these findings the CLB directed the company in that case to register the transmission of shares in favour of the appellant without any further requirement. The CLB in Narinder Kumar Sehgal v. Leader Valves Ltd. (1993) Vol. 77 CC 393 upheld the decision of the board of directors of the company to insist on production of succession certificate/probate of Will in view of the controversies raised by a legal heir regarding the identity of the legal heirs of the deceased member. This Bench, can, therefore, interpret the Wills under dispute, more so when there is only difference of opinion on the interpretation of the relevant clauses therein.

5.11 The Company petitions involve the interpretation of the Will of (late) S. Sivaramakrishna Aiyer and the Will of (late) Mrs. S. Parvathavardhani Ammal. The disputes are on account of the shares inherited by (late) S. Sivaramakrishna Aiyer from his wife and shares purchased by (late) S. Sivaramakrishna Aiyer after the date of his Will. The question for adjudication is whether such shares devolve on the sons under Clause 10 of the Will or whether these shares devolve equally on the daughters & daughters-in-law under Clause 26 of the Will. All parties admit the genuineness and validity of both the Wills. Before interpreting the Wills, the socio-economic status of the testators and the circumstances in which the Wills came to be executed by them will have to be considered by the Bench. Both the testators were highly literate with matured wisdom and reputed people. The Wills were prepared after detailed planning and legal advice, by a lawyer and were attested in the presence of another lawyer. Most of the clauses in both the Wills are similar and many clauses are identical. Both the Wills have to be red together in view of the circumstances in order to understand and appreciate the meanings to be given to each provision, as admitted by the second respondent in his counter statement. The conscious desire of the testators, as borne out by Clause 9 of the Wills was "the main wealth of the family is in the control of the management of the above companies. If during my lifetime the distribution of the control of the management of the above companies is not done, it is my earnest desire that the right of management of the said companies should be distributed and exercised in the following manner". Thereafter, both the Wills set out Proposal A and Proposal B for the distribution of the control of management of the Companies. Shri v. Ramakrishnan, learned Counsel, pointed out the relevance of Clauses 10, 11, 12 & 26 of the Will, before determination of which, the principles as enunciated in Sections 74, 75, 82, 83 & 87 of the Indian Succession Act, must be kept in view. While according to the petitioners the words 'my shares' found in Clauses 10, 11 & 12 refer to the number and description of the shares listed in Clause B(ii) of the Will, it is the case of the respondents that the words 'my shares' refer to number and description of the shares held by (late) S. Sivaramakrishna Aiyer at the time of his death. The words 'and also the properties max hereafter acquire', according to Shri v. Ramakrishnan, learned Counsel, include shares, which (late) S. Sivaramakrishnna Aiyer inherited under the Will of his wife, whereas the respondents assert that the word 'acquire' would not cover shares obtained by inheritance. By virtue of Section 90 of the Indian Succession Act, the property, unless the contrary intention appeared from the Will, shall refer to and comprise the property described therein at the time of death of the testator. In view of the contrary intention appearing from the Will, 'my shares' stated in Clauses 10, 11 & 12 will refer only to the shares listed in the Will of (late) S. Sivaramakrishna Aiyer. A careful reading of both the Wills together will reveal that both the testators wanted their shares to devolve in a particular manner, despite the fact that at the time of execution of the Wills neither of them knew as to who would expire first. (Late) S. Sivaramakrishna Aiyer and (late) S. Parvathavardhani Ammal. therefore, carefully planned that their Wills so that the wealth of the family represented by the shares would devolve in a similar and identical faction regardless of whether S. Sivaramakrishna Aiyer died first or whether S. Parvathavardhani Ammal died first. Annexure-A forming part of the written arguments of Shri Ramakrishna, learned Counsel represents the devolvement of shares if S. Sivaramakrishna Aiyer had died first and S. Parvathavardhani Ammal died, thereafter. Annexure-B represents the devolvement of shares if S. Parvathavardhani Ammal died first and S. Sivaramakrishna Aiyer died later. Shri v. Ramakrishnan, learned Counsel, pointed out that whoever dies first, namely, whether S. Sivaramakrishna Aiyer or S. Parvathavardhani Ammal the end result will be identical in terms of Annexures A & B mentioned supra. If the interpretation of the petitioners are accepted, the shares devolve almost identical to the manner in which the shares would have devolved had S. Sivaramakrishna Aiyer died first. If the interpretation of the respondents are accepted then there is a very large variation in the devolvement of shares had S. Sivaramakrishna Aiyer died first. (Late) S. Sivaramakrishna Aiyer and (late) Parvathavardhani Ammal would not have intended such wide variation in the devolvement of shares purely on the accident of who died first. Thus, the interpretation of the petitioners on the words 'my shares' and 'acquired' should be the preferred as correct interpretation. Even otherwise, the word 'acquired' covers every form of acquisition of property whether through inheritance, gift.

transfer, succession etc., as reflected in Section 14 of the Hindu Succession Act, 1956, where the word 'acquired' covers 'inheritance, devise, partition' etc. The term 'acquire' in terms of the Advanced Law Lexicon - P. Ramanatha Aiver 3^rd edition 2005; Concise Oxford Dictionary 9^th edition, means 'to gain any means'. (Late) S. Sivaramakrishna Aiyer in the instant matters gained certain impugned shares after execution of his Will on account of bequest made by his wife and hence, the petitioners became entitled to the same.

5.12 Clause 18 of the articles of association of TRTCL stipulates that every transmission of share shall be verified in such a manner as the board of directors may require and that the Company may refuse to register any such transmission until the same is so verified. The board of directors of TRTCL, ought not to have interpreted the Will on account of the complications involved therein and must have asked for probate of the Will of (late) S. Sivaramkrisna Aiyer. Clause 26 of the articles of association envisages that the legal heir, executor or administrator of deceased shareholder shall be the only person entitled to be recognized by the Company as having any title to or interest in the shares registered in his name, save in cases specified therein. The second respondent is admittedly the executor of the Will left by (late) S. Sivaramakrishna Aiyer, in which case no request could be made by the legal heirs for the transmission of shares. The share transfer committee meeting was allegedly held at 3 p.m. on 29.03.2003, approving the transmission of shares in TRTCL. The board meeting of TRTCL, which reportedly ratified the minutes of the share transfer committee, was held on the same day at 3.30 p.m. The minutes of the share transfer committee consists of 30 pages of handwritten minutes. It would be physically impossible to write these minutes in half an hour and then place the minutes for approval before the meeting of the board of directors of TRTCL which however, without application of its mind registered the transmission of shares.

Furthermore, the petitioners 2 & 3 were directors present at the board meeting, but asserted that the transmission of shares was never placed before, considered or approved at the said board meeting. The petitioners 2 & 3 never acquiesced or approved the transmission of shares. The directors favoured the second respondent and failed to act independently. The second respondent abused his powers and ensured that the impugned shares in TRTCL were transmitted exclusively to his brothers contrary to the terms of the Will. The fifth respondent, being one of the daughters was aware of the disputes among the children of (late) S. Sivaramakrishan Aiyer, prior to her purchase of the shares as borne out by various letters exchanged among them. The fifth respondent paid no consideration at the time of the transfer of shares to her, but demand draft was given long after the transfers were registered. The fifth respondent is not a bonafide purchaser for value without notice of any defect in title to the shares and therefore, she could not get better title than the seller, namely the fourth respondent, by virtue of Section 27 of the Sale of Goods Act.

5.13 The share transfer committee allegedly transmitted the impugned shares held by (late) S. Sivaramakrishna Aiyer in TPPL to the second respondent on 27.09.2001 and this transmission was allegedly approved by the board of directors on 19.12.2001. The Company wrongly interpreted the Will and effected the transmission in favour of the second respondent. The transferees, but not the executor, lodged the relevant papers before the Company for effecting the transmission of shares, which shows lack of bonafides on the part of the transferees and therefore, such illegal transmissions must be set aside. The executor, being one of the directors participated in the board meeting and approved the transmission of shares, thereby TPPL acted malafide, without taking any legal opinion in the matter of transmission of shares. Furthermore, the minutes of the share transfer committee and board of directors approving the transmission of impugned shares are fabricated documents with interpolations made by the Companies and second respondent, as found reflected in the minutes of the board meeting dated 19.12.2001. The fourth petitioner was present at the board meeting held on 19.12.2001, but the transmission was not placed before or approved at the said board meeting, as affirmed by her in an affidavit executed on 14.02.2006, in this behalf, which has not been refuted by the respondents. There was no agenda on the transmission of shares at the board meeting held on 19.12.2001. The petitioners were not even aware of the share transmission having allegedly taken place in December 2001 until the filing of the counters by the respondents 1 & 2. Table 'A' forming part of Schedule I of the Act applies to TPPL. Article 25 of Table A provides that on the death of a member, the survivor or survivors where the member was a joint holder, and his legal representatives where he was a sole holder, shall be the only persons recognised by the Company as having any title to his interest in the shares. This has not been duly satisfied while transmitting the shares of (late) S. Sivaramakrishna Aiyer in TPPL. The Board of directors, while interpreting the Will failed to act fairly and therefore, the interpretation of the Company has to be set aside. The executor ought to have taken steps for transmission of the impugned shares, but in the instant cases, the legal heirs themselves had taken the steps for transmission in their favour. Thus, the Companies acted malafide and the decision in having transmitted the shares has to be set aside. The board of directors acted as per the dictates of the second respondent. In view of this, the impugned shares may be reverted back to the deceased S. Sivaramakrishna Aiyer. In the alternative, the CLB may interpret the Will and give the shares impugned in the petitions, in favour of the petitioners. There was no application by the second respondent, as the executor of the Will for transmission of the shares to the legatee. The Company did not obtain any independent legal advice, but blindly followed the directions of the second respondent in transmitting the impugned shares. The shares of (late) S. Sivaramakrishna Aiyer held in TWEL have not been transmitted in the name of his legal heirs. The failure of the Companies to transmit shares in accordance with the last Will of the deceased S. Sivaramakrishna Aiyer is contravention of the provisions of law.

6. Shri Dulip Singh, learned Senior Counsel, since deceased, representing the respondents 1 & 2 and Shri T.K. Seshadri, learned Senior Counsel for the fifth respondent, while challenging the very maintainability of the company petitions on various grounds, submitted: 6.1 The company petitions have been filed under the provisions of Section 111 read with Section 111A for the relief of rectification of the register of members of the Companies, as prayed therein. Section 111 only applies to a private company, as evidenced from Sub-section (14) of Section 111. The Companies before the CLB are public companies and therefore, Section 111 cannot be invoked by the petitioners, Section 111A, dealing with "Rectification of register on transfer" was ntroduced by the Depositories Act, 1996, with effect from 20.09.1995.

Under the same Act, Section 22A of the Securities Contracts (Regulations) Act was repealed thus, making free transfer of shares of the public company possible. Sub-section (2) provides that shares shall be freely transferable subject to the provisions of Section 111A. When Section 111A was first introduced in the Act. there was no proviso to Sub-section (2). The proviso of Sub-section (2) came to be introduced by the Depositories Related Law Amendment Act, 1997 with effect from 15.01.1997, thereby a remedy is conferred on the shareholder, where the company refuses to register the transfer of shares without sufficient cause. The right to appeal under the proviso is conferred on the transferee only in respect of a refusal to register a transfer or the intimation of transfer and not on a third party, consequent upon his inheritance of shares by operation of law. Therefore, the expression "intimation of transfer" is to be read in conjunction with the object of the Depositories Act and the heading of Section 111A being "Rectification of register on transfer" which does not refer to a "transmission". The words "intimation of transfer" appearing in Section 111A(2) cannot also be interpreted to mean or include "intimation of transmission", since the operative portion of Sub-section (2) deals only with the transferability of shares. At the same time Section 111A(3) uses both the expressions "instrument of transfer or the intimation of the transmission". Hence, it is only where an application is made under Section 111A(3), the CLB can exercise its power with regard to a transfer or transmission of shares, subject the restrictions laid down in Sub-section (3). It is relevant to point out that Section 111. dealing with a private company, uses the expression "instrument of transfer or the intimation of such transmission", the latter part of which is absent in Section 111A and such absence is certainly not a lacuna or omission by oversight. Furthermore, Sections 7 & 14 of the Depositories Act contemplate the registration of transfer of securities with depository on receipt of intimation, and does not cover any transmission of security and consequently, Section 111 A.which is creation of the Depositories Act, cannot encompass transmission of shares. Therefore, a person who is aggrieved by reason of a company refusing to accept a transmission of shares can only seek his remedy through a civil court, whose jurisdiction is not barred either in Section 111 or 111A of the Act. Therefore, the ratio laid down in the decision of a Single Judge of the Bombay High Court in Finolex Industries Limited v. Anil Ramchand Chhabria (supra) that the provisio to Section 111(2) must be read in such a way that the words "intimation of transfer" should be read as "intimation of transmission" is incorrect. When the scope and applicability of Section 111 and 111A came to be considered by a Single Judge of the Bombay High Court in Gopal Krishna Baliga v. Poona Industrial Hotel Limited (2000) 102 CC 375 it was categorically held that there are two types of appeal given by Section 111, namely, the right of appeal given under Sub-section (2) and the right of appeal given by Sub-section (4). However, the wider right of appeal, which is provided by Sub-section (4) was not enacted in Section 111A, which is applicable to public limited companies. The legislature restricted the appeal only in cases of "transfer of shares" under Section 111A and ruled out that the right of appeal provided under Sub-section (4) of Section 111 is to be read in consonance with Sub-sections 2 & 3 of Section 111A bv equating "transfer of shares" with "allotment of shares".

6.2 The Judgment of a Single Judge of the Andhra Pradesh High Court while dealing with forfeiture of shares in Tej Prakash S. Dangi v.Coramandal Pharmaceuticals Limited (1997) 89 CC 270 held that Sections 111 & 111A are considered to deal with two different classes of companies and that Section 111A mainly deals with the remedy against the refusal to register a "transfer of shares". The High Court of Andhra Pradesh held in Karamsad Investment Ltd. v. Nile Limited (2001) 34 SCL 269 that Section 111 applies to private Companies. The Bombay High Court in M. Srinivasulu Reddy v. Kishore R. Chhabria (2001) 34 SCL 1 while dealing with the scope of Section 111A held that the remedy of seeking rectification of the company's register by way of filing of suit would be available, despite existence of other statutory remedies, where matter can be more conveniently decided in suit by reasons of its complexity. This decision was approved by Division Bench of the Bombay High Court in Shirish Finance & Investment (P) Ltd. v. M. Sreenivasulu Reddy (2002) 35 SCL 27 by observing inter-alia, the following: ...We find nothing in Section 111A which has the effect of taking away the common law right of a member of a company to seek rectification of register of members. At best, it can be said that after the insertion of Section 111 A. with effect from 20.9.95. a member of a Company who has no statutory right under the Companies Act to seek rectification of register of members. His common law.' right, however. remains in tact and he can assert that right by filing a suit before a court of competent jurisdiction."... (para 134) The Madras High Court while re-enforcing the principles enunciated by the Bombay High Court in Shirish Finance and Investment P. Ltd. v. M. Sreenivasulu Reddy (supra) held in NEPC Micon Ltd. and Ors. v. Sashi Prakash Khemka and Ors. (2007) 137 CC 917 that the jurisdiction of the CLB under Section 111 A recognizes a right under the provisions of the Companies Act to seek relief in summary manner for rectification. Yet, at the same time, the common law right of an aggrieved person to file a petition, as regards the violation under other laws in force is always available on the date as well as post the date when the amendment was brought forth, with effect from January 15. 1997. The judgements in Gopal Krishna Baliga v. Poona Industrial Hotel Limited and Tej Prakash S. Dangi v. Coramandal Pharmaceuticals Limited (supra) though rendered earlier than the Judgment in Finolex Industries Limited v. Anil Ramchand Chhabria (supra) those cases were not brought to the learned Judge dealing with Finolex Industries Limited v. Anil Ramchand Chhabria (supra). The decision in Finolex Industries Limited v. Anil Ramchand Chhabria (supra) not having been expressly brought to the notice of the Division Bench of the Bombay High Court in M. Srinivasulu Reddy v. Kishore R. Chhabria (supra) should be deemed, by implication to have been overruled or not accepted as good law. The Bombay High Court held in Sahara Fabrics Pvt. Ltd. and Ors. v. Smt. Kailash and Anr. (2006) 134 CC 472 that in the matters of rectification of register on transfer of shares, civil suit is maintainable. In the wake of such judgements and express language used in Section 111A, it has to be held that Section 111A does not cover "a transmission of shares" and a person aggrieved can only seek his relief in common law by way of a suit. Section 111A(3) covers rectification of the register only and not register of members, unlike as in the case of Section 111(4). Section 2(1)(i) of the Depositories Act, 1996 defines the term "record", which includes the records maintained in the form of books or stored in a computer or in such other form as may be determined by regulations. Section 111A(3) refers to only those records, defined in Section 2(1)(i) of the Depositories Act.

The term "register" is defined in Section 11 of the Depositories Act, according to which, every depository shall maintain a register and an index of beneficial owners in the manner provided in Sections 150, 151 and 152 of the Act. However, the petitioners are seeking rectification of the register of members under Section 111A(3), which is not permissible in law.

6.3 The petitioners have no locus standi to file the petitions, Section 111 cannot be invoked by the petitioners, as it only applies to a private company. Section 111A provides two categories of appeals under the law. The first category found in the proviso to Section 111A(2) provides that if a company without sufficient cause refuses to register "transfer of shares", the transferee may appeal to the CLB and it shall direct such company to register "transfer of shares" on fulfilment of the requirements specified therein. This proviso does not cover a refusal to register a transmission of shares. Thus, the language in the proviso rules out the applicability of the provision to a "transmission of shares". There is no power conferred on the CLB to register a transmission of shares under Section 111 A(2), as the claim of the petitioners is based on a right of transmission by virtue of a Will. The second category of remedy contemplated is an application under Sub-section (3) which can be made only by depository, company, participant, investor or Securities and Exchange Board of India. Section 111A uses the expression "investor" and not "member". The petitioners do not come under any one of the five categories of persons mentioned therein. The decision of the learned Single Judge in M. Srinivasulu Reddy v. Kishore R. Chhabria (supra) lays down the proposition that except for the five categories of persons no other person can move the CLB by way of an application or seek redressal under Sub-section (3) of Section 111A. Such other party can only move the civil court in common law for suitable remedy. Therefore, the petitioners, not being one of the five categories of persons, are disentitled to file any application under Sub-section (3) and should be directed to move the proper forum and thus have no locus standi to file the petitions either under Section 111 or 111A of the Act. According to Stroud's Judicial dictionary (3^rd edition), the word "invest" means "to apply money in the purchase of some property from which interest or profit is expected, and which property is purchased in order to he held for the sake of income, which it will yield". Thus, the term "investor" is a positive act of applying one's monies in properties including securities with an intention to make gain, whereas a "transmission of shares" is by way of an inheritance by an operation of law and not by way of one's investment. The petitioners are claiming under a Will and no investment is involved and consequently, the petitioners cannot maintain the petitions, more so when an inheritor cannot be an investor.

6.4 The CLB has no jurisdiction to determine the issues raised in the petition, more so when the instant petitions raise disputes between the third parties inter se and not between the company and the shareholders. When third party rights are involved, the CLB in the exercise of its summary jurisdiction cannot exercise any power or authority to adjudicate the said dispute. This is also clear from Sub-section (7) of Section 111, which is incorporated in Section 111A. By virtue of Sub-section (7) thereof, the CLB may decide any question relating to the title of a person who is a party to the application to have his name entered in or omitted from the register. Thus, the question that can be decided is only with reference to the person's entitlement to become a member and not to adjudicate any disputes between third parties and allocation of shares between family members, as all the heirs of the deceased have moved the CLB not in their capacity as shareholders or potential shareholders. Such disputes can only be decided by a civil court, as reiterated in a number of decisions of various High Courts and the Apex Court in Ammonia Supplies Corporation Private Limited v. Modern Plastic Containers Private Limited where complicated question of facts or law is involved, the CLB cannot exercise its summary jurisdiction and must relegate the parties to civil court. This view has been adopted by this Board in (a) Byra Reddy v. Aaratli Cine Enterprises Private Ltd. (1997) 89 Co. Cases 745; and (b) D.R. Talayarkhan v. Transgene Biotek Ltd. (2006) 71 SC 319, wherein it was held that no relief under Section 111A can be granted if it is found that complicated questions of fact and law, or disputes of complicated nature or serious disputes relating to title are involved. There are serious disputes involving interpretation of the Wills of the deceased S. Sivaramakrishna Aiyar and S. Parvathavardhani Ammal, which shall be tried in a civil court, more so when complicated questions of facts and law are involved in the matter.

6.5 The Limitation Act. 1963 will apply only to a suit, appeal or application made in a court of law after the prescribed period. By virtue of Section 2(a) of the Limitation Act, 1963, "applicant" includes petitioner and "application" in terms of Section 2(b) includes a petition. As per Section 2(1), "suit" does not include an appeal or an application. Section 3 of the Limitation Act provides that subject to the provisions contained in Sections 4 to 24, every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed. By virtue of Section 5 of the Limitation Act, any appeal or any application as specified therein but not any suit may be admitted after the prescribed period, provided the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making application within such period. Section 29 provides that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the schedule forming part of the Limitation Act, the period prescribed by such special or local law will be applied for determining any period of limitation for any suit or appeal or application as the case may be. The Schedule forming part of the Limitation Act consists of three divisions prescribing the period of limitation.

The first division covering Article 1 to 113 deals with the limitation for a suit. The second division comprising Article 114 to 117 pertains to the limitation for filing an appeal, while Article 118 to 137 deals with the limitation for filing an application.

Article 137 is a residuary article which applies to all applications for which no period of limitation is provided and the period starts running from the date on which the right to apply accrues and is enforceable within three years thereof. A reading of these Articles would show that the limitation period is fixed only in connection with the filing of either a suit or petition or an appeal or an application before a civil court. Therefore, the criteria for the applicability of the Limitation Act is whether the Company Law Board is a civil court and whether the CLB, while considering an application under Section 111A. functions as a civil court or not.

In terms of Section 2(11), the "Court" means with respect to any matter relating to a company other than any offence against this Act, the Court having jurisdiction under this Act with respect to that matter relating to that company as provided in Section 10.

Section 10 of the Act provides that the Court having jurisdiction under the Companies Act, shall be (a) the High Court, having jurisdiction in relation to the place at which the registered office of the Company is situated; and (b) where the jurisdiction has been conferred on the District Court, the said District Court, in matters falling within the scope of the jurisdiction concerned in respect of the companies having the registered offices in the districts. The Supreme Court in the case of Canara Bank v. Nuclear Power Corporation of India (1995) 2 CLJ 203 (SC), at paragraph 26 (at page 217). the Supreme Court, while dealing with the scope of the Special Court constituted under the Special Court (Trial of offences Relating to Transactions in Securities) Act, 1992, held that the Special Court "is intended to encompass curial or judicial bodies which have the jurisdiction to decide matters or claims, inter alia, arising out of transactions in securities entered into between the stated dates in which a person notified is involved." But there is no decision whatsoever to support the view that the Company Law Board while dealing with an application under Section 111A acts as a civil court.

6.6 By virtue of Section 10E(1) of the Act, CLB being creature of a statute is not a Court. The CLB created by the Central Government is discharging such powers and functions as are conferred on it, by or under the Act or any other law, and shall also exercise and discharge such other powers and functions of the Central Government under the Act or any other law as may be conferred by the Central Government. In terms of Section 10E(4C) every Bench of the CLB shall have the powers which are vested in a Court under the Code of Civil Procedure, 1908 while trying a suit in respect of the matters specified therein. By virtue of Sub-section (4D) of Section 10E, even Bench shall be deemed to be a civil court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure. 1973 and every proceedings before the Bench shall be deemed to a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code and for the purpose of Section 196 of that Code, and not for other purposes. The Company Law Board Regulations, 1991 provides that the CLB is deemed to be a civil court only for the purpose of contempt. The Supreme Court while considering the appellate power of the Central Government under old Section 111 held in (a) Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala and Ors.

that the Central Government is a tribunal; (b)Birla Cement Works v. GM Western Railways Railway Tribunal is the creature of the statute. Therefore, it is not a civil court nor the Limitation Act shall apply. But there is no decision whatsoever to support the view that the CLB while dealing with an application under Section 111A acts as a civil court. The Supreme Court in Nupur Mitra v. Basubani (Pvt) Ltd. (supra) has not given any importance to the applicability of the provisions of the Limitation Act, while dealing with that case and therefore, does not support the view of the petitioners that the Limitation Act applies to a proceeding under Section 111 of the Act.

The Allahabad High Court in Prakash Timbers Private Ltd v. Smt.

Sushma Shingla and Anr. (1997) Vol. 89 CC 770 held that the Company Law Board can only be a tribunal and not a Court. This Board in Harish Kumar Berry v. S. Berry's Automotive Udyog P. Ltd and Ors.

(2006) 129 CC 568 held that the provisions of Limitation Act. are not applicable to the proceedings before the quasi judicial tribunals. In Sundaram Finance Ltd. v. M.K. Kurian (2006) 1 M.L.J. 506 a Division Bench of the High Court of Madras held that. "A particular expression is often defined by the legislature by using the word "means" or the word "include". Sometimes the words "means and includes" are used. The use of the word "means" indicates that definition is hard and fast definition, and no other meaning can be assigned to that expression than is put down in that definition. The word "includes" when used, enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to their natural import, but also those things to which the clause declares they shall include. The words "means and includes" on the other hand, indicate "an exhaustive explanation of the meaning which, for the purpose of the Act. must invariably attach to those words or expression". Thus, even under the Companies Act, the CLB cannot be equated to a civil court. Section 24 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 provides that Limitation Act shall, as far as may be, apply to an application made to Debts Recovery Tribunal. By virtue of Section 36 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act. 2002. the provisions of Limitation Act are applicable to the Debts Recovery Tribunal, whereas there is no such specific provisions in the Companies Act.

Nevertheless, the question of latches will have to be looked into by the CLB, in which case, whether the delay caused by the petitioners causes any prejudices to the respondents shall be considered. If the CLB, being creature of law is not to be treated as a Court, the general law of limitation as contained in the Limitation Act shall not apply. In such case the limitation will apply if there is a special provision in the respective Act for filing an application or an appeal. Although Section 111A(2) does not specifically provide for a period of limitation, it can be inferred from the language used in the provision, by which, the transferee must appeal to the CLB within two months from the date of refusal.

6.7 In the instant case, the refusal must be deemed to have taken place when the company entered into the register of members the name of the second respondent as the holder of the shares claimed by him under the Will. Thus, it is only the period specified in Section 111A(2) that will be treated as the period of limitation and not Article 137, as wrongly contended by the petitioners. The Supreme Court held in (a) The Kerala State Electricity Board v. P. Kunhaliumma : and (b) Major Indar Singh Rekhi v. Limitation Act would apply to any petition or application filed in a civil court. The Supreme Court held in Town Municipal Council, Athani v. Presiding Officer, Labour Court that an Industrial Tribunal or a Labour Court is not Court and that Article 137 will not apply to bodies other than Courts. In this connection, the letter written by S. Gangammal dated 14.2.2005 is very relevant. In that letter, she admits having sent an earlier letter dated 10.2.2005, wherein she did not seriously challenge devolution of the impugned shares, but tried to get over the same by saying that she signed it without knowing the purpose of the letter.

It is also significant to note that Mrs. Gangammal is not one of the petitioners, whereas all the other signatories to the said letters are petitioners. Thus, the petitioners have full knowledge of the impugned transmission, but they have not chosen to file an appeal within two months from the date of their knowledge of the refusal of the Companies to recognize the right of transmission. The petitioners concede in C.P. No. 11 of 2005 that there is a delay of 10 months in filing the petition, by applying the limitation prescribed under Article 137. However, they attempt to get over the same by alleging that there is a fraud committed by the respondents and that the fraud came to be discovered only subsequently, thereby the petitioners attempt to invoke Section 17 for the condonation of the delay. The CLB is not being a Court cannot invoke Section 17 of the Limitation Act. The rights of the petitioners have accrued on the death of S. Sivaramakrishna Aiyer namely, 19.09.2000 and therefore, by virtue of Article 113, they ought to have enforced their rights over the shares within three years of death of S. Sivaramakrishna Aiyer, which has not been done, but enforced only on 26.07.2005, thereby the right of the petitioners is lost. According to the petitioners, as set out in para 1.5 of the application, in C.A. No. 81 of 2005, seeking condonation of delay in filing the company petition (C.P. No. 11 of 2005), they are aware of the disputes between brothers and sisters relating to the Will of (late) S. Sivaramakrishna Aiyer, which is the subject matter of the company petition. There has been no plea of fraud or mistake played by the respondents in relation to the transmission of shares and therefore, the company petition filed after expiry of three years from the date of death of S. Sivaramakrishna Aiyer is not maintainable.

Furthermore, no details of fraud have been either furnished in the company application nor made known at the time of oral submissions made on behalf of the petitioners, which are absolutely essential, as contemplated in Order 6 Rule 4 of the Code of Civil Procedure.

The Delhi High Court in Anil Gupta v. Delhi Cloth and General Mills Co. (1983) Vol. 54 CC 301 that unless there is allegation of fraud against the company petition for rectification would be barred by time running from the date of transfer and not date of knowledge.

The right of the petitioners to the shares having been barred when the matter was under discussion between the sisters and brothers cannot now be enforced. Therefore, the petitions must fail on the ground of limitation.

6.8 The parties are not disputing the execution of the Will left by the deceased S. Sivaramakrishna Aiyar and S. Parvathavardhani Ammal.

but the disputes are in relation to interpretation of certain material clauses contained in the Wills, which do not amount to any contravention of law as per Section 111A(3) of the Act. The CLB cannot distribute shares to the legal heirs of the deceased S. Sivaramakrishna Aiyar under Section 111A. The petitioners can make any claim in respect of the impugned shares only before the District Judge having competent jurisdiction, to entertain any dispute arising out of a Will by examining the witnesses, in view of Section 192 of Indian Succession Act, which gives protection in case of any wrongful claim to the property of the deceased. The District Judge has the exclusive jurisdiction to deal with the disputes arising in connection with the properties of a deceased person. The provisions of Sections 393 and 394 lay down the procedure which may be adopted by the District Judge to resolve the disputes in regard to the property of a deceased person. By virtue of Order XIII Rule 1(a), 8 & 9 of Rules of the High Court of judicature at Madras which stand deleted with effect from 05.10.1994, a legatee has to go to a civil court to adjudicate any question affecting his rights as a legatee.

Thus the CLB is not concerned with the Will of (late) S. Sivaramakrishna Aiyer at all. The entire petitions are based on the construction and interpretation of the Will of (late) S. Sivaramakrishna Aiyer and his deceased wife. The Wills have to be proved in accordance with the mandate prescribed in the Evidence Act and Succession Act and then the Wills have to be interpreted in an appropriate proceeding by a competent civil court. The CLB would relegate the parties to a civil court for the proper adjudication.

6.9 The Supreme Court while dealing with the principles of interpretation of statutes held in (a) Sri Nasiruddin v. State Transport Appellate Tribunal words used are plain and unambiguous, they are bound to be construed in their ordinary sense and further that where the words are plain the Court would not make any alteration; (b) Vemareddy Kumaraswamy Reddy and Anr. v. State of A.P. statute is an edict of the legislature, the elementary principle of interpreting or construing a statute is to gather the means or sentential legis of the legislature. The Court cannot read anything into a statutory provision which is plain and unambiguous; (ii) Courts must avoid the danger of a priori determination of the meaning of a provision based on their own pre-conceived notions of ideological structure of scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation; (iii) while interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. The High Court of Bombay in Ramachandra Vishnu Joshi v. Rama Bai Govind Gadre AIR 1937 Bom.

341, held that in all cases involving construction of a Will, the primary duty of a Court is to ascertain from the language of the testator what were his intentions, for which the Court must consider the surrounding circumstances, the race and religious opinions, the position of the testator, his family relationship, the probability that he would use words in a particular sense, in short " the Court is entitled to put itself into the testator's armchair". The High Court of Judicature at Madras in Tamalarasi v. S. Kumarasamy Gounder 2003-4 L.W. 129 held that no word used by the legislature can be ignored as meaningless, unless the Court is driven to such a conclusion having regard to the scheme, object and other relevant circumstances of the statutory provision. While interpreting the statute what is stated has to be taken and what is excluded must be ignored. The legal position regarding the interpretation of Wills is governed by chapter 6 comprising of Sections 74 to 111 of the Indian Succession Act which contemplate, while construing a Will, the following fundamental principles:- (a) The intention from the words used is to be ascertained and the surrounding circumstances are to be considered, according to which controlling interest over the companies must be given to his sons.

(b) The Court has to put itself into the testator's armchair and is bound to bear in mind also other matters than merely the words used.

It must consider the surrounding circumstances, the position of the testator, his family relationship and the probability that he would use words in a particular sense, in order to arriving at a right construction of the Will and to ascertain the meaning of the language when used by that particular testator in that document.

(c) The true intention of a testator has to be gathered not by attaching importance to isolated expressions but by reading the Will as a whole with all its provisions and ignoring none of them as redundant or contradictory.

(d) The Court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The Court will look at the circumstances under which the testator makes his Will such as the state of his property, of his family and the like.

(e) To the extent that it is legally possible effect should be given to every disposition contained in the Will, unless the law prevents effect being given to it. If there are two repugnant provisions conferring successive interest, if the first interest created is valid the subsequent interest cannot take effect but a court of construction will proceed to the farthest extent to avoid repugnancy.

6.10 It was on the ground of such non-impeachable principles and statutory mandate, as envisaged in Chapter 6 of the Indian Succession Act the transmission of the impugned shares to the second respondent was effected. The dispute as to who is entitled to the shares falls within the testamentary jurisdiction of the civil court and not within the jurisdiction of the Company Court under the Act.

(Late) S. Sivaramakrishan Aiyer and (late) Mrs. Sivaramakrishna Aiyer simultaneously executed the Wills on the same day in the presence of the same witnesses. The two Wills are more in the nature of a partition disclosing the intention of the two testators with regard to the devolutions of the shares in the respective companies The preamble to the two Wills is almost identical and indicates that the testators desired the seven companies to be managed by their children as mentioned therein.

6.11 Clause 8 of the Will of (late) S. Sivaramakrishna Aiyer deals with control of the management of companies, as specified therein.

By means of an adhoc arrangement his sons are in the management of the companies under his overall supervision. There is also a desire expressed as to how the management should be distributed among the children. In Clause 9, the shares held by him in various companies are listed. The testator has desired that the right of management should be distributed and exercised in the manner indicated in Clause 9 of the Will and further provides that the apportionment has been made on the basis of the assets and liabilities, profitability, convenience and other circumstances. By virtue of Clause 10, (late) S. Sivaramakrishna Aiyer bequeaths his shares in TRTL. Harrison Malayalam Limited; TWEL and the Vaikuntam Rubber Company, equally to his three sons, namely, (late) Veerasubramonia Sarma and respondents 3 & 4. The intention of the testator under Clause 10 is that his shares in the companies specified therein, as on the date of his death Will go to his sons. There are other clauses bequeathing movables in favour of legatees as contained therein. By Clause 11, the shares held by him in TPPL have been bequeathed to the second respondent. Clause 12 makes a bequest to his wife and daughters thereby shares held by him in Kanthimathy Plantations Private Limited and Vardhani Plantations Private Limited go to his wife and daughters. The main dispute revolves around the interpretation of Clause 26 of the Will of (late) S. Sivaramakrishna Aiyer which provides that any property left out in this Will and also the properties acquired after the date of the Will shall be divided between the daughters and daughters-in-law equally. Accordingly, (late) S. Sivaramakrishna Aiyar's daughters and daughters-in-law shall take equally any items of properties which have been left out in his Will and also the properties acquired after the execution of his Will. The words "I may hereafter acquire" forming part of Clause 26 should be construed as only shares which are not specifically bequeathed under the Wills of both the deceased. The Wills upto Clause 9 are identical. It is the wish of the testators that the management and control of the four companies, namely TRTCL, The Peermade Tea Company Limited, TPPL and TWEL are to be in the control of the respective legal heirs to whom the shares are bequeathed. By virtue of Clause 14, (late) S. Parvathavardhani Ammal, bequeathed to her husband all her shares in TRTCL, TPPL and TWEL. In Clause 15 she bequeathed the balance of shares in the other companies to her five daughters equally. Thus, there is a consensus between the two deceased testators that the companies, which are divided as above, should be managed and controlled by the respective legal heirs. In terms of the principles governing Section 83 of the Indian Succession Act, as borne out by the first illustration therein, the respondents are entitled for the shares which have been acquired by the testator after execution of the Will. Section 87 envisages that the intention of the testator may be given effect to "as far as possible". According to the Law Lexicon by P. Ramanatha Iyer the phrase "so far as may he" means "to the extent possible".

6.12 By virtue of Section 2(bb) and Section 75 of Indian Succession Act, 1925 any question as to the object or subject of Will shall be enquired into by the District Judge. Section 82 of the Indian Succession Act. provides that the meaning of any clause in a Will has to be collected from the entire instrument. In the case of the present Will left by the testator the intention was with reference to management of the companies in the hands of his sons. If the version of the petitioners is accepted the controlling interest of the concerned respondents will be lost over the Companies. Section 95 of the Indian Succession Act provides that where property is bequeathed to any person he is entitled to the whole interest of the testator therein, unless it appears from the Will that only restricted interest was intended for him. These principles must be applied while tracing out the intention of the testator, namely, (late) S. Sivaramakrishna Aiyer. The shares of (late) S. Sivaramakrishna Aiyer in the Companies bequeathed in favour of his sons, being specific legacy, as specified in Section 142 of the Indian Succession Act, the respondents are entitled for all the shares held by (late) S. Sivaramakrishna Aiyer, at the time of execution of the Will as well as the shares subsequently acquired by him in the Companies.

6.13 (Late) S. Sivaramakrishna Aiyer appointed the second respondent as the executor under the Will who shall have power and discretion to dispose of or sell or otherwise transfer shares or execute the Will to greater advantage of management of the companies for administering the Will as reflected in Clauses 29 and 30 of the Will. By virtue ofegulations 25 & 26 of Table A, applicable to the Companies executor is always recognised as the owner of the shares of the deceased. Section 211 of the Indian Succession Act, explicitly provides that the executor of a deceased person is his legal representative for all purposes and all the property of the deceased person vests in him as such. In view of this, all the properties of (late) S. Sivaramakrishna Aiyar are vested in the executor who is alone competent to maintain the petitions. Section 213 of the Indian Succession Act provides that the right as executor or legatee can be established in any court of justice only if probate or letters of administration is obtained. By virtue of Section 307 of the Indian Succession Act an executor has wide powers to dispose of the property of the deceased, vested in him under the Will either wholly or in part, in such manner as he may deem fit.

Section 332 contemplates the assent of the executor to complete a legatee's title to his legacy. By virtue of Section 333, the assent of the executor is essential to divest his interest as executor and to transfer the subject of the bequest of the legatee. Therefore, the petitioners must make a claim with the executor, being the legal representative of (late) S. Sivaramakrishna Aiyer, who is legally charged with duty of distributing the estate of (late) S. Sivaramakrishna Aiyer and not CLB. The petitioners cannot make any request with the Companies for transmission of the impugned shares, ignoring the statutory right of the executor. The transmission of shares has been done with concurrence of the executor and hence the executor shall be deemed to have applied for transmission of shares.

The only remedy available to the aggrieved person is to challenge such transfer of shares by filing a suit in a civil court. The dispute raises complicated questions of law and fact which cannot be decided by the CLB exercising its summary jurisdiction and the parties must be relegated to the civil court for adjudication of their rights. Furthermore, Sections 75, 82, 83, 142, 211, 307 of Indian Succession Act also contemplate legal proceedings under the testamentary jurisdiction of the civil court for settlement of disputes among the legal heirs.

6.14 The transmission of shares in TPPL to the second respondent, was based on legal advice obtained and acted upon, by the executor of the Will of (late) S. Sivaramakrishna Aiyer. The second respondent applied to TPPL seeking transmission of 39,388 shares in his favour in September 2001, with copies of the Will, share certificates, death certificate and transmission form. The share transfer committee of TPPL had on 27.09.2001 approved the transmission of shares in favour of the second respondent and later on 19.12.2001, the board of directors of TPPL consisting of among other two independent directors, the fourth petitioner unanimously approved the decision of the share transfer committee for transmitting those shares. The second respondent did not participate in the said board meeting, wherein the transmission of shares was duly approved. The transmission of shares was carried out following a proper interpretation of the Wills and in accordance with the regulations of the Company and in terms of the procedure contemplated in the Act. Thus, the transmission of shares is not in contravention of any law. After the transmission of shares, the second respondent has been receiving dividends on his shareholding for the past four years since the year 2001. Section 111A provides for rectification of the register of a public company only if a transfer is in contravention of any provisions of law. The petitioners have not proved the violation of any law and therefore, no rectification can be allowed.. The shares namely, 32,492. shares acquired by (late) S. Sivaramakrishna Aiyer subsequent to the execution of the Will do not fall within Clause 26 of the Will of (late) S. Sivaramakrishna Aiyer. Therefore, the second respondent is entitled to the entire 39,388 shares held by (late) S. Sivaamakrishan Aiyer in TPPL and neither the petitioners nor the fifth respondent nor the daughters-in-law are entitled to any portion of the impugned shares. In TWEL only 15 shares are held in the name of the deceased S. Sivaramakrishna Aiyar as per the register of members, but the prayer of the petitioners is far more number of shares. The petitioners never approached the companies for transmission of the impugned shares. There has been no cause of action for the present company petitions.

6.15 (Late) S. Sivaramakrishna Aiyer held 70,902 shares in TRTCL on the date of his death, which includes the shares purchased and acquired by him from (late) S. Parvathavardhini Ammal as per her Will. The transmission of shares in TRTCL to the respondents 3 & 4 and (late) S. Veerasubramonia Sarma was based on legal advice obtained and acted upon, by the executor of the Will. The respondents 3 & 4 had duly applied to TRTCL on 20.11.2002 and (late) S. Veerasubramonia Sarma on 29.03.2003 seeking transmission of the shares, in accordance with the regulations of TRTCL. The share transfer committee had on 29.03.2003 approved the transmission of the shares to the transferees, which was ratified on the very same date unanimously by the board of directors consisting of the petitioners 2 & 3 apart from two independent directors out of a totai strength of seven directors. At the board meeting held on 27.06.2003. the minutes of the aforesaid board meeting, ratifying the transmission of shares was approved. The petitioners 2 & 3. as directors of TRTCL had acquiesced to the transmission of shares.

After the transmission of shares to the transferees, the transferees have been receiving dividends on their shareholding for the financial years ended 31.03.2003 and 31.03.2004. In the meanwhile, the respondents 4 & 5 had entered into an arrangement whereby the fourth respondent solo 20,479 equity shares of the TRTCL to the fifth at Rs. 25 per share and the fifth respondent in turn had sold 10,620 equity shares of M/s. Kanthimathy Plantations Pvt. Ltd. to the fourth respondent at Rs. 35 per share. Thus, the total amount payable by the fourth h respondent to the fifth respondent was Rs. 3,71,700, while the amount payable by the fifth respondent to the fourth respondent was Rs. 5,11,975. The net consideration after adjustment was Rs. 1,40,275 payable by the fifth respondent to the fourth respondent, which was paid by way of demand draft bearing No. 3045 drawn on Bank of India, Malleswaram, Bangalore, dated 02.05.2005 even though the documents signed by both the parties indicated the issue of a cheque which was never encashed. The transfer in respect of 20.479 was 1 registered on 28.02.2005. The fifth respondent is a bonafide purchaser for valuable consideration without notice of any defect in title, the correctness of which is difficult to be considered by the CLB and therefore, the matter may be delegated to the civil court. If title to the shares is disputed, the civil court only will have to try the contentious matter. Clause 26 of the Articles of association of TRTCL makes it clear that the executor of the deceased shareholder shall be entitled to be recognized by TRTCL as having any title or interest in the shares registered in his name. By virtue of Section 2(1) of the Code of Civil Procedure an executor is deemed to be a legal heir of a deceased. The petitioners cannot, therefore, approach the CLB invoking Section 111A. (Late) S. Sivaramakrishna Aiyer. held as on the date of his death only 15 shares in TWEL, which remain un-transmitted in favour of his legal heirs, and therefore, the petitioners must go against the executors for any relief in respect of the shares of (late) S. Sivaramakrishna Aiyer held in TWEL.

The judgements of the Bombay High Court in (a) M Srinivasulu Reddy v. Kishore R Chhabria; (b) Shirish Finance & Investments P Ltd v. M. Srinivasulu Reddy (Division Bench); and (c) Gopal Krishna Baliga v. Poona Industrial Hotel Ltd (supra) would categorically show that the civil court is also competent to entertain a suit for the rectification of register of members at the instance of a member, while the CLB may pass orders in a proceeding under Section 111A of the Act. The Judgment in Karamsad Investments Ltd v. Nile Limited and Ors. (supra) dealing entirely with different set of facts and concerning mainly with violation of the mandatory provisions of Section 108A of the Act, is inapplicable to the facts of the present cases. The High Court of Andhra Pradesh in Tej Prakash Dangi v. Coromandal Pharmaceuticals Ltd. (1997) CC 270 when considered the validity of the forfeiture of shares owned by the petitioners in M/s Coromandel Pharmaceuticals Ltd. held that the petition was not maintainable as the petitioners were unable to indicate the section under which the petition was required to be filed before the company court. The decision in Finolex Industries Limited v. Anil Ramchand Chhabria has not been considered in Gopal Krishna Baliga v. Poona Industrial Hotel Limited (supra) and this judgment is dated 17.02.1909. whereas the judgment in Finolex Industries Limited v. Anil Ramchand Chhabria is dated 15.03.2000. in which case the latter judgment will have precedence over the earlier judgment. Similarly, the judgment in Tej Prakash S Dangi v. Coramandal Pharmaceuticals Limited (supra) has been rendered on 20.08.1996, prior to the Judgment in Finolex Industries Limited v. Anil Ramchand Chhabria (supra). There was no relevance to consider the case of Finolex Industries Limited v. Anil Ramchand Chhabria in Shiris Finance and Investments (P) Ltd. v. M. Sreenivasulu Reddy (supra), since the lis in these two cases is entirely a different one. The decision in Finolex Industries Limited v. Anil Ramchand Chhabria has not been considered in any of the judgments cited by Counsel for the respondents and therefore, the principles laid down in Finolex Industries Limited v. Anil Ramchand Chhabria must be followed.

Moreover, several of the observations made in these judgments being only obiter-dicta, are not binding on the CLB. The issue involved in Finolex Industries Limited v. Anil Ramchand Chhabria as well as the present company petitions is one and the same, namely, whether Section 111A can be invoked while challenging the transmission of shares before the CLB.8. I have considered the pleadings and elaborate arguments advanced for the parties. The issue before me is whether the Companies be directed to rectify the register of members, as claimed by the petitioners, in the facts and circumstances of the present cases. Before considering the rival claims, there is a need to deal with the preliminary objections regarding the maintainability of the company petitions on various accounts, raised by the petitioners.

9. While according to the respondents the Companies herein being public companies cannot invoke the provisions of Section 111 read with Section 111A for the relief of rectification of the register of members, it is asserted by the petitioners that Section 111A has to be read in conjunction with Section 111 and not independent of each other. In this context the relevant provisions of Sections 111, 111A and various case laws cited by both sides assume relevance.

10. Section 111 deals with power to refuse registration and appeal against refusal, relevant clauses of which read thus: 111(1) If a company refuses, whether in pursuance of any power of the company under its articles or otherwise, to register the transfer of, or the transmission hy operation of law of the right to, any shares or interest of a member in, or debentures of the company, it shall, within two months from the date on which the instrument of transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be, giving reasons for such refusal.

(2) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be may appeal to the Company Law Board against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in Sub-section (1), either to register the transfer or transmission or to send notice of its refusal to register the same.

(3) An appeal under Sub-section (2) shall be made within two months of the receipt of the notice of such refusal or, where no notice has been sent by the company, within four months from the date on which the instrument of transfer, or the intimation of transmission, as the case may be was delivered to the company.

(4) If - (a) the name of any person - (i) is, without sufficient cause, entered in the register of members of a company, or Hi) after having been entered in the register, is, without sufficient cause, omitted therefrom: or (b) default is made, or unnecessary delay takes place, in entering in the register the fact of any person having become, or ceased to he a member (including a refusal under Sub-section (1).

the person aggrieved, or am' member of the company, or the company, may apply to the Company Law Board for rectification of the register (5) The Company Law Board, while dealing with an appeal preferred under Sub-section (2) or an application made under Sub-section (4) may, after hearing the parties, either dismiss the appeal or reject the application, or by order- (a) direct that the transfer or transmission shall he registered by the company and the company shall comply with such order within fen days of the receipt of the order; or (b) direct rectification of the register and also direct the company to pay damages, if any, sustained by any party aggrieved.

(a) may decide any question relating to the file of amperson who is a parry to the application to have his name entered in. or omitted from, the register.

(b) generally, may decide any question which it is necessary or expedient to decide in connection with the application for rectification.

(9) If default is made in giving effect to the orders of die Company Law Board under this section, the company and every officer of die company who is in default shall he punishable with fine which nun extend to one thousand rupees, and with a further fine which may extend to one hundred rupees for every day after the first day after which the default continues.

(10) Every appeal or application to the Company Law Board under Sub-section (2) or Sub-section (4) shall be made by a petition in writing and shall be accompanied by such fee as may be prescribed.

(12) If default is made in complying with any of the provisions of this section, the company and every officer of the company who is in default, shall he punishable with fine which may extend to fifty rupees for every day during which the default continues.

...

(14) In this section "company" means a private company and includes a private company which had become a public company by virtue of Section 43A of this Act.

Section 111A dealing with rectification of register on transfer runs as follows: (1) In this section, unless the context otherwise requires "company" means a company other than a company referred to in Sub-section (14) of Section 111 of this Act.

(2) Subject to the provisions of this section, the shares of debentures and any interest therein of a company shall he freely transferable, provided that if a company without sufficient cause refuses to register transfer of shares within two months from the date on which the instrument of transfer or the intimation of transfer, as the case may he is delivered to the company, the transferee may appeal to the Company Law Hoard and it shall direct such company, to register the transfer of shares.

(3) The Company Law Board may. on an application made by u depository, company, participant or investor or the Securities and Exchange Board of India, if the transfer of shares or debentures is in contravention of any of the provisions of the Securities and Exchange Board of India Act, 1992 (15 of 1992).or regulations made thereunder or the Sick Industrial Companies (Special Provisional Act, 1985 (I of 1986), or any other law for the time being in force, within two months from the date of transfer of any shares or debentures held by a depository or from the date on which the instrument of transfer or the intimation of the transmission was delivered to the company, a the case may be. after such inquiry as it thinks fit direct any depository company to rectify its register or records.

(7) The provisions of Sub-sections (5), (7), (9), (10) and (12) of Section 111 shall, so far as may be apply to the proceedings before the Company Law Hoard under this section as they apply to the proceedings under that section.

11. The single Judge of Bombay High Court in Finolex Industries Limited v. Anil Ramchand Chhabria (supra), while considering the jurisdiction of the CLB to entertain a petition under proviso to Section 111A(2) in matters of refusal of listed company to register transmission of shares came to the conclusion that the absence of the term "intimation of transmission" in proviso to Section 111A(2) cannot be construed to mean that no remedy of appeal is available to shares which are transmitted by operation of law for the reason that "This construction of the proviso is to be avoided, as it would rob Section 111A(7) and Section 28 of the Depositories Act, 1996, of any meaning and content. It would not give effect to the intention of the legislature to make law in addition to and not in derogation of any law for the time being in force. Better course would be to interpret the provisions in such a way that the term "intimation of transmission" is included in the proviso by virtue of Section 28 read with Section 111A(7). This would harmonise the text of the proviso with the context of the whole statute, i.e., Depositories Act, 1996. Viewed in this manner, if is to be seen that both the terms "instrument of transfer" and "intimation of transmission are mentioned in Section 111(1) and Section 111(2) By virtue of Section 111A(7) the appeal by applying the provisions of Section 111(5), (7), (9), (10) and (12). Thus the terms "intimation of transmission" is deemed to be included in the proviso to Section 111A(2) by necessary implication. This in my view is the only harmonious construction which can he put on proviso to Section 111A(2) of the Act to give effect to the intention of the legislature. The proviso cannot be read in isolation. It has to be in the manner indicated above. No dichotomy or disharmony can be created in the rights and remedies of the shares held in public companies object of the Depositories Act (Section 28) is lo make law in addition and not in derogation of the "law for the time being in force".

12. A combined reading of Section 111(5) and Section 111A(7) would show that transmission of shares by operation of law is also governed by Section 111A, as borne out by the decision in Finoiex Industries Limited v. Anil Ramchand Chhabria (supra) the relevant portion of which reads thus: "By virtue of provisions of Section 28 of the Act, if cannot be held that Section 111A(3) is restricted to rectification of the register only in transfer matter. This would mean that no remedy 1 rectification is available in case of loss of shares, bad deliveries, theft and forgery This would be in derogation of the law for the lime being in force. Remedy provided in Section 111A(3) is in addition to the reined) provided in Section 111(4). It is, therefore, held that the remedies of appeal and rectification are available to all kinds of shares held in a public company under the proviso to Section 111A(2) and 111A(3) read with Sub-section (7) of Section 111A of the Act which would make applicable the provisions of Section 111(1), (2) and (4) by virtue of Section 111(5) of the Act." The learned Single Judge, while considering in Finolex Industries Limited v. Anil Ramchand Chhabria (supra) the question whether Section 111 is only applicable to private limited companies in view of Sub-section (14) came to the conclusion that this sub-section cannot exclude the application of Sub-sections (1), (2) and (4) of Section 111 to shares held in public company, as n would then be in conflict with Section 28 of the Depositories Act. This Board in Hero Honda Motors Limited v. Unit Trust of India and Ors.

(supra) following the decision in Finolex Industries Limited v. Anil Ramchand Chhabria (supra) has held that the remedies under the proviso to Sub-sections (2) & (3) of Section 111A are available to transfer as well as transmission matters. Section 111A(7) provides that the provisions of Sub-sections (5), (7), (9), (10) and (12) of Section 111 shall, so far as may be apply to the proceedings before the CLB under this section as they apply to the proceedings under Section 111. In this connection, beneficial reference is invited to Vijaya Finance Corporation v. Peerless General Finance (2006) Vol. 129 CC 735, wherein this Board after considering elaborately the applicability of the provisions of Sections 111 & 111A of the Act. on the analog of the judgment in Finolex Industries Limited v. Anil Ramchand Chhabria (supra) concluded that in view of the fact that Section 111A was inserted in the Act pursuant to the enactment of the Depositories Act which is applicable to listed companies, all the provisions as are applicable to a private company should also be applicable, in case of unlisted public companies.

13. Shri Dulip Singh, learned Senior Counsel, since deceased, and Shri T.K. Seshadri, learned senior Counsel, while tracing the history of the provisions of Sections 111 and 111A. before as well as after enactment of the Depositories Act, 1996, pointed out that the right of appeal provided under the proviso to Section 111A(2) is conferred only on the transferee in respect of a refusal to register a transfer or the intimation of transfer and not of transmission of shares by operation of law. Any person, who is aggrieved on account of a company refusing to accept transmission of shares can only seek his remedy only through a civil court, (whose jurisdiction is not barred in Sections 111 & 111A of the Act), in support of which a number of decision has been cited by learned Senior Counsel. The lis in - (i) Gopai Krishna Baiiga v. Poona Industrial Hotel Limited (supra) is whether the civil court has jurisdiction to entertain a suit for rectification of register of member, in view of the provisions of Section 111 of the Act. (ii) Tej Prakash S Dangi v. Coramundal Pharmaceuticals Limited (supra) pertains to the validity of the forfeiture of shares held by the petitioners in Mrs. Coromandal Pharmaceuticals Ltd.; (iii) Karamsad Investment Ltd. v.Nile Limited (supra) mainly deals with (a) justification of the company for refusal of registration of shares on account of violation of the provisions of Section 108A and Securities and Exchange Board of India Takeover Regulations 1997 and (b) whether the "expression" sufficient cause occurring in proviso to Sub-section (2) of Section 111A takes within its sweep not only those contingencies contemplated under Sun-section (3) but also whether there can be other circumstances and reasons which might require the company to refuse to register transfer of shares and whether such refusal would be refusal for sufficient cause, (iv) M. Srinivasuiu Reddy v. Kishore R. Chhahria, (supra) relates to (a) remedy of seeking rectification of register of members by way of filing a civil suit as recognized in common law, in spite of the changes in Section 111A of the Act: (b) remedy under Section 111A(3), by way of a necessary application to CLB, to live categories of entities and persons and third parties cannot approach the CLB. but they can have access to civil court: and (c) whether the acquisition of disputed shares without making any public announcement fell under the mischief of Regulations 10 of Securities and Exchange Board of India Takeover Regulations 1994: (v) Shirish Finance & Investment (P) Ltd. v.M. Sreenivasulu Reddy (supra) deals, inter-alia, with (a) whether the jurisdiction of the civil court is barred where complicated question of law and fact arise in an application under Section 155 and whether it is not possible to grant relief without first adjudicating disputed question of Saw and fact: (b) whether the court exercising jurisdiction under Section 155 can exercise its discretion to relegate parties to a suit for adjudication of those issues which could not be decided in a summary jurisdiction: (c) whether Section 111A takes away the common law right of a member of a company to seek rectification of register of members; and (d) whether the civil court is also competent to entertain a suit for rectification of register of members at the instance of a member and pass such orders as the CLB may pass in a proceeding under Section 111A: and (vi) NEPC Micon Ltd. and Ors. v. Sushi Prakash Khemka and Ors. (supra) concerned with the jurisdiction of the CLB under Section 111A recognising a right under the Companies Act. to seek relief for rectification of register of members and the common law right of an aggrieved person to file a petition in a competent civil Court for rectification. In this connection, the judgment in Kesha Appliances (P) Ltd. v. Royal Holdings Services Ltd. and Ors. (2006) 71 CLA 189, assumes utmost relevance, wherein the learned single Judge of the Bombay High Court while considering the legal proposition whether a judgment is an authority on proposition of law, which it decides, found that the lis in the judgment of the learned single Judge in M.Srinivasulu Reddy v. Kishore R. Chhahria. (supra) and of the Division Bench in Shirish Finance & Investment (P) Ltd. v. M. Sreenivasulu Reddy (supra) is that the right of rectification of the shares is common law right and such right is not affected by the provisions of Section 111A, which inter-alia, confers on the CLB, the power to rectify the register. The learned single Judge of the Bombay High Court in this judgement, after considering a series of decisions of various High Court, Apex Court and of Privy Purse pointed out that a decision is only an authority for what it actually decides. The essence in a decision is its ratio and not every observations found therein nor what logically follows from the various observations made in it.

14. Applying this golden rule, the various Judgments cited by learned Senior Counsel for the respondents do not decide the proposition of law laid down in Finolex Industries Limited v. Anil Ramchand Chhahria (supra), which primarily relates to among other things: (a) whether the absence of the term "intimation of transmission", in proviso to Section 111A(2) cannot be construed to mean that no remedy of appeal is available to shares which are transmitted by operation of law; (b) whether the remedies of appeal and rectification are available to all kinds of shares held in a public company under the proviso to Section 111A(2) and 111A(3) read with Sub-section (7) of Section 111A of the Act: (c) whether the provisions contained in Sub-sections (2) and (4) of Section 111 will be applicable while considering the petitions under Section 111A of the Act: and (d) whether Section 111 is applicable only to private limited companies in view of Sub-section (14). Thus, the lis in the judgments cited for the respondents and the lis in Finolex Industries Limited v. Anil Ramchand Chhabria (Supra) being entirely a different one, it cannot be said that the judgment in Finolex Industries Limited v. Anil Ramchand Chhabria (Supra) stands over ruled by implication. The observations of the High Court made in--(i) Gopal Krishna Baliga v. Poona Industrial Hotel Limited (supra) that (a) under Section 111A in relation to public limited companies, the legislature restricted the right of appeal only to cases of transfer of shares and the wider right of appeal provided by Sub-section (4) was not enacted in 111A: and (b) there is no right of appeal provided by Section 111A in relation to public limited companies, which was contained in Section 111(4); (ii) Tej Prakash S Dangi v. Coramandal Pharmaceuticals Limited (supra) that Section 111 has been confined to a private company and the new section, namely, 111A empowers the CLB to direct am company to rectify the register or the records if the transfer of shares is in contravention of the provisions of the Securities and Exchange Board of India Act. 1992 or regulations made there under or in the Sick Industrial Companies (Special Provisions) Act. 1985: (iii) Karamsud Investment Ltd. v. Nile Limited (supra) that private companies are governed by Section 111; and (iv) M. Srinivasulu Reddy v. Kishore R.Chhabria (supra) that while private company is governed by the mechanism as contemplated under Section 111, public company is covered by a different mechanism under 111A; and (v) Tej Prakash S. Dangi v.Coramandal Pharmaceuticals Limited (supra) that by a recent amendment brought about by the Depositories Ordinance, 1996, Section 111 has been confined to a private company and a new Section 111A empowers the Company Law Board to direct any company to rectify the register or the records if the transfer of shares is in contravention of the provisions of the Securities and Exchange Hoard of India Act or regulations made there under or in the Sick Industrial Companies (special provisions) Act, 1985, being obiter-dicta will not render any assistance to this Bench, while adjudicating the lis between the contesting parties before me. Consequently, the petitioners are entitled to invoke the provisions of Section 111 read with Section 111A for the relief of rectification of register of members of the Companies for the reason that the remedies are available to all kinds of shares held in a public limited company under the proviso to of Section 111A(2) and 111A(3) of the Act, which would make applicable the provision of Section 111(1), (2) and (4) by virtue of Section 111(5) of the Act. It cannot be therefore, argued that Section 111A does not en-com-pass, transmission of shares and that an aggrieved person can only seek his relief in common law by way of suit.

15. The arguments of learned Senior Counsel that while Section 111(4) covers rectification of the register of members, Section 111 A empowers the CLB only to direct any depositor) or company to rectify its register or records but not the register of members, must be considered in the light of the provisions of Sub-sections (4) and (8) of Section 111 and Sub-section (3) of Section 111A of the Act. By virtue of Sub-section (4) of Section 111, any person aggrieved, or any member of the company, or the company, may apply to the CLB for rectification of the register of members, pursuant to the grievances specified under Clauses (a) and (b) therein. However, the remedy in relation to rectification of the register of debenture holders is envisaged in Sub-section (8) of Section 111 of the Act. Whereas, Section 111A(3) combines rectification of the register of members as well as of debenture holders, on happening of the events specified therein, and therefore, in my considered view, the legislature uses the terms "register or records", which will be applicable both to the register of members and the register of debenture holders. Otherwise, there would have been separate provisions, one for rectification of the register of members and the other for rectification of the register of debenture holders, as in the case of Section 111(4) and 111(8) of the Act. If, the arguments of learned Senior Counsel are accepted, no rectification can be ordered under Section 111A(3) in respect of the register of debenture holders and also in the case of shares existing in physical form. Accordingly, it cannot be said that the petitioners cannot seek rectification of the register of members of the Companies invoking the provisions of Section 111A(3).

16. The petitioners, it is contended by the respondents, not being investors have no locus standi to seek redressal under Section 111A(3) for rectification of the register of members. The term "investor" going by the Stroud's Judicial Dictionary would mean any person who applies one's monies in properties with an intention to make gain. The petitioners herein, undoubtedly never invested any of their own funds to acquire the impugned shares, but are claiming by way of operation of law under the Will of (late) S. Sivaramakrishna Aiyer. The issue now is whether an inheritor can be treated to be an investor. The underlying principles governing Section 399 on the right of members to apply under Sections 397 and 398 as pointed out by Shri Ramaknshnan, learned Counsel will be of some assistance to reach a definite conclusion. The applicants must hold the requisite number of shares in terms of Section 399 at the time of invoking the provisions of Section 399. The Apex Court, while considering the right of legal representatives of a deceased member in World Wide Agencies P. Ltd and Anr. v. Mrs. Margaret T. Desor and Ors. (supra) held that when a shareholder dies, his estate is entrusted in the legal representatives. Where a member dies and his name being still reflected in the register of member, his legal representatives are entitled to proceed under Section 397/398, even if their names are not yet entered in the register of members. It could not be a just construction of the provisions to deny the legal representatives of the deceased member the right to maintain a petition under Section 397/398. Applying the same principles, it is not necessary for am person to invest his own funds to gain the status of an investor, but is would be sufficient, if one's predecessor interest had invested funds in the Company. Thus, any person succeeding to shares by operation of law could be treated as an investor. The petitioners, being the legal representatives of (late) S.Sivaramaknshna Aiyer, shall, therefore be deemed to be investors, entitled to invoke the provisions of Section 111A(3) of the Act.

17. Clause (a) of Sub-section (7) of Section 111 provides that the CLB may on an application made for rectification of the register of members, decide any question relating to the title of any person, who is a part) to the application to have his name registered in. or omitted from the register. The language of this sub-section is clear and unambiguous, an ordinary reading of which shows that the CLB is empowered to decide any disputed question of title during the course of proceedings for rectification of the register of members, as could be gauged from Clause (b) of Sub-section (7) of Section 111. By virtue of this provision, the CLB generally, may decide any question which is necessary or expedient to decide in connection with the application for rectification. Section 111(7) is not confined to the determination of disputes between the Company and shareholders alone, but extends to any disputed question of title in connection with the application for rectification. It cannot, therefore, be concluded that the CLB in exercise of its summary jurisdiction, cannot adjudicate the disputed question of title raised by the petitioners in relation to the impugned shares. In this background, the plea of the respondents that the disputes raised in the company petitions can only be decided by a civil court does not merit any consideration.

18. The issue whether the CLB is bound to give any relief under Section 111/111A, if it is found that complicated questions of fact or law or disputes of complicated nature or serious disputes relating to tile are involved when came to be considered by this Board in D.R. Talayarkhan v. Transgene Biotek Ltd. There are judicial pronouncements that the jurisdiction of the CLB under Section 111 (old Section 155) is discretionary in nature, providing a summary remedy in non-controversial matters or in matters where a quick decision is necessary so as to obviate an irreparable injury to a party. The CLB is not bound to give any relief under Section 111, 111A, if it is found that complicated questions of facts or law or disputes of complicated nature or serious disputes relating to title arc involved. Where the allegations are forgery and fabrication of documents, which could only be resolved by oral testimony tested by cross examination cannot be resolved on the strength of the averments made in the affidavits, defeating the purpose and object of the summary procedure prescribed by Section 111, 111A. The proper course in such cases of complexity, necessitating investigation is to relegate the parties to a civil suit. The Full Bench of the Delhi High Court in Ammonia Supplies Corporation (Private) Limited v. Modern Plastic Containers Private Limited (supra) held that the jurisdiction exercised by the Company under Section 155 (now under Section 111, 111A) is discretionary and summary in nature. In exercise of its discretionary and summary jurisdiction, the Company Court can decline to entertain any petition for rectification of the register of members involving disputed and complicated questions requiring examination of evidence and would be justified to reject the petition and relegate the parties to a civil suit Tin-Apex Court, while affirming the judgment of Full Bench of the Delhi High Court unequivocally observed that it would be appropriate, it the court would see for itself, whether the disputed documents are forged or fabricated and examine whether even prima facie what is pleaded is complicated question or not without relegating the parties la a civil court. The Division Bench of the Karnataka High Court in Muniyamma v. Arathi Cine Enterprise (P.) Ltd. (1992) 9 CLA 148 held that even though proceeding under Section 155 is a summary proceeding since n is a relief provided under the statute, in a proper and appropriate case, it is open to the court to grant relief even though it may involve complicated questions of law and fact.

Whether in a particular case relief should he granted or not would depend upon the facts and circumstances of the case This Board in Bipin K. Jain's case (supra) and A. Akilandan and A. Nagalakshmi Co's case (supra) held that it complicated questions of facts or law arise in a Section 111 petition, which cannot he adjudicated on basis of the available documents, the CLB would relegate the controversies to a civil suit. This Board in Truestar Investments Ltd's case (supra) while examining the issue whether in a petition under Section 111 for rectification of the register in members involving serious disputed questions of facts or law and allegations of fraud, mala fides etc., the parties must be relegated to a civil suit, considered plethora of judgments and concluded that no restrictions could be put on the discretion of the CLB in dealing with matters under Section 111(4) of the Act. The decision to relegate the parties in a petition under Section 111(4) to a civil suit depends on the facts and circumstances of each case. It is not mandatory that whenever allegations of fraud are made, the parties should be relegated to a civil suit. Thus, the legal position is well-settled that the CLB in exercise of its discretion would decide, on the facts of each case, whether to entertain a petition for rectification under Section 111A, despite seriously disputed controversies or to relegate the same to a civil suit.

19. This Board in that case found that the issues involved therein were so complicated that they could not be decided in a summary manner, and accordingly refused the relief of rectification of the register of members under Section 111A as claimed by the petitioner therein and relegated the parties to a civil suit. In this connection, the categorical findings of this Board, in Khurshid Alam v. P. Pagnon Co.

Private Limited and Ors.

Whether to deal with the issues under Section 111 ot the Act or relegate the parties to a suit, depends purely upon the facts and issues involved in a proceeding and there can be no rigid yardstick to decide the same in one way or the other. In fact as held by the apex court in the case of Ammonia Supplies Corporation (P.) Ltd v. Modern Plastic Containers Pvt. Ltd. the court dealing with the matter to be prima facie satisfied whether realty it was a complicated question or made to look as one It is also n be borne in mind that if any rigid rule is to be followed that complicated issues should always he relegated to suit, the very objective of the Legislature in conferring jurisdiction to the Company Law Board under Section 111 and providing such wide power would he defeated making the same purposeless and nugatory. In most cases, under this section one or more complicated issues always arise and the jurisdiction of the Board can he sought to he ousted by the conduct of the parties by setting up the plea of involvement of complex questions of law and or facts Therefore, considering the fact that the Company Law Board is the specified forum to exercise jurisdiction under Section 111; it would not be in order to find itself with any specific provisions. Whether an issue be it a fact or a point of law - is complicated or not itself is a matter to be established.

20. In view of the above legal position, the parties before me are not to he relegated to a civil court, without even examining whether prima facie what is pleaded is complicated question or not, or whether such disputed issues are, or not peripheral to rectification or, whether such issues will be beyond the jurisdiction of the CLB.Duroflex Ltd. v. Johnny Mathew (2007) 77 CLA 261, upholding the order of CLB. condoned the delay in tiling an appeal under Section 111(2) rejecting the contention that since the CLB is not a court, it cannot condone the delay by exercising power under Section 5 of the Limitation Act which empowers the court to condone the delay for sufficient reasons and after considering judgments of different High Courts and the Apex Court, held that the CLB is vested with judicial and curative powers while deciding applications under Section 111 of the Act. Apart from the trappings of the court, the CLB has got power to take decision or a power, which has got essential tests of finality and authoritativeness, even though on question of law. further appeal will lie before the High Court. The provisions of Section 1 of would show that the Bench of the CLB has not only the trapping of the court but vested with judicial powers while deciding an application under Section 111 of the Act. The findings of the Kerala High Court, assume greater importance in deciding the applicability of the provisions of the Limitation Act to the proceedings before the CLB, which read as under: Power of the CLB while dealing with Section 111 of the Act was considered by the Apex Court in Canara Bank v. Nuclear Power Corporation of India Ltd. (1995) 16 CLA 417. After considering the powers, a three-member Bench of the Supreme Court found that it is a court for the purpose of trial of offence relating to transaction in the Special Court (Securities) Trial of offences Relating to transactions in Act, 1992. Power of rectification under Section 111 before tin amendment was exercised hy the court under Section 155 Noncing the history of enactment of Section 111, it was observed as follows: Section 111, as set out above, was incorporated in the Act subsequent to the report of a committee appointed to consider amendments to the Companies Act. The Sachar Committee, as it came to be called, said.

Under the existing law, there are two remedies open to an aggrieved person to file an appeal under Section 111, or to apply to the court for rectification of the share register under Section 155 We think that these two remedies should now be assimilated and provision be made tat one placer for a person aggrieved (including any person aggrieved by (sic) refusal of the Board of directors to register a transferor transmission of shares) to apply to the CLB as proposed to be consmuted for rectification of the share register on any of the grounds mentioned in Sub-clause (a) or (b) or Sub-section (1) of the present Section 155 Our proposals are (sic) Accordingly, we would recommend as follows Sections 111 and 155 should he assimilated into a single statutory provisions.

Section 155, as it read before 31^st May 1991 entitled a person aggrieved or any member of a company or a company to apply the court for rectification of the company's register of members if the name of any person was, without sufficient cause, entered in it or after having been entered in it, was without sufficient cause omitted therefrom or default was made or unnecessary delay took place in entering on it the fact of any person having become or ceased lo be a member The court was entitled to order rectification of the register and to direct the company to pay the damages, it any sustained by a party aggrieved. The court was entitled to decide am question relating to the title of any person who was a party to the application to have his name entered in or omitted from the register. An appeal from the order of the court was provided for.

It will be seen that the CLB now exercise the powers that were exercisable by the court under Section 155 it is entitled to direct rectification of the register and the payment of damaged by the company. It is entitled to decide any question relating to the title of any person who is a parry to the apple, anon to have his name entered in or omitted from die register and to decide any question which it is necessary or expedient to decide in this connection. An appeal to the High Court against any decision or order of the CIS on a question of law is available to any person aggrieved thereby under the provisions of Section 10F of the Companies Act.

Thereafter, court held that notwithstanding the term "appeal" is used in Sub-section (2), if should be considered as an application.

At paragraph 17, it was observed as follows: 17. Whereas Sub-sections (2) and (3) of Section 111 term the pleading that the person aggrieved has to file before the C.I.B an "appeal", Sub-section (4) requires the person aggrieved to apply, Sub-section 4 speaks of it as an "appeal" or an "application" Sub-section (sic) as an "application and Sub-section (10) as an "appeal or application" which shall be made "by a petition in writing The words appeal and "application" in the context of the pr visions of Section 111 have the same meaning Plainly, it is an application that has to be made.

31. Now, under Section 111 of the Act as amended with effect from 31^st May. 1991 the CLB performs the functions that were theretofore performed by courts of civil judicature under Section 155. It is empowered to make order directing rectification of the' company's register, as to damages costs and incidental and consequential orders It may decide any question relating to the title of any person who is a party before it to have his name entered upon the company's register and any question which it is necessary or expedient to decide, it may make interim orders. Failure to comply with any order visits the company with a fine. In regard to all these matters it has exclusive jurisdiction (except under the provisions of the Special Courts Act, which is the Issue before us).

In exercising its function under Section 111 the CLB must and does, act judicially. Its orders are appealable The CLB, further, is a permanent body constituted under a statute. It is difficult to see now it can he said to he anything other than a court, particularly for the purposes of Section 9A. 10. We are of the view that same principle is applicable in the Limitation Act also. Orders of the CLB under Section 111 is further appealable to the High Court and if is curative in nature. Not acting as persona designata the CLB functions as a court while dealing with an application under Section 111 Therefore time limit prescribed by Section 111(3) for application filed under Section 111(2) can he extended for sufficient reasons under Section 5 read with Section 29(2) of the Limitation Act. It is true that if a maximum time limit that can be extended is provided under the special or local law, further extension of time under Section 5 of the Limitation Act is not possible as it will amount to an express exclusion of Section 5.

11. But, in Act, there is no express provision extending any ot Hit-provisions of Limitation Act Even for applications tiled under Section 111(4) merely because no time limit is provided under that section it cannot be staled that application can be filed with undue delay. It there is unexplained long delay, application for rectification cart be rejected The absence of specific provision covering application under Section 111(4), residuary article, namely, Article 137 would apply and, no doubt, that if Section 137 is applicable. Section 5 of the Limitation Act also will be applicable.

22. It may be observed that the registered office of the Companies herein is located in the state of Kerala and therefore, the above Judgment of the Kerala High Court is binding on me. I am. thus, hound to consider the only factor whether the petitioners have shown sufficient cause for the delay in having filed the company petition (C.P. No. 11 of 2005) after a delay of 10 months, which must receive liberal consideration in order to advance substantial justice. The settled law is that delays in bringing the appeals are required to be condoned in the interest of justice, whose no gross negligence or deliberate in action or lack of bonafidies is imputable to the parties seeking condonation of delay in the present case. I could see that the legal heirs of (late) S. Sivaramakrishna Aiyer were engaged in resolving the disputes before approaching the CLB, as borne out by the various communications produced before the Bench, leaving apart the disputed correspondence. There is, therefore, justification 10 condone the delay of ten months, which is according condoned in the interest of justice. Therefore, the company petitions cannot be dismissed on the ground of limitation.

23. The Wills left by (late) S. Sivaramakrishna Aiyer and (late) S.S.Parvathavardhani Ammal are not being challenged by any of the legal heirs, but serious disputes are in relation to the interpretation of certain material clauses forming part of the Wills. While according to the petitioners, a Will can be interpreted by all judicial/quasi judicial authorities, it is vehemently opposed by the respondents that a Will has to be interpreted in an appropriate proceeding by a competent civil court. In this connection, Section 75 of the Indian Succession Act, 1925 states as follows: For the purpose of determining questions as to what person or what property is denoted by any words used in a Will, a court shall inquire info every material fact relating to the persons who claim to he interested under such Will, the property which is claimed as the subject of disposition, the circumstances of the testator and of his family, and into every fact a knowledge of which may conduce to the right application of the words which the testator has used.

(Section 75) 24. A combined reading of Section 2(bb) and Section 75 of the Indian Succession Act, as observed by Shri T.K. Seshadri, learned Senior Counsel, would only mean that for the purpose of determining as to "what person or what property is denoted by any words used in a Will" the District Court having the jurisdiction shall enquire into (a) even material fact relating to the persons who claim to be interested under such a Will: (b) property which is claimed as the subject of disposition: (c) circumstances of the testator and of his family: and (d) the right application of the words which the testator has used. The illustrations explaining Section 75 would categorically reveal that the Court may enquire in order to ascertain as to what person the property is bequeathed by a deceased and what is the subject matter of the bequest, by taking necessary evidence in the matter. The disputes involved in these company petitions are on account of the shares inherited by (late) S. Sivaramakrishna Aiyer from his wife and the shares purchased by (late) S. Sivaramakrishna Aiyer after the date of his Will. The contentious interpretation whether such shares devolve on the sons under Clause 10 of the Will, as claimed by the respondents or whether these shares devolve equally on the daughters and daughters-in-law of the testator under Clause 26 of the Will, going by letter and spirit of Section 5 cannot be resorted to in the present proceedings. A careful reading of the decisions in (i) Khurshid Alum v.P. Pagnon Co. Pvt. Ltd. and Ors.Mrs. Pushpa Vadora v. Thomas Cook (India) LimitedNarinder Kumar Sehgal v. Leader Valves Limited (supra) - reveals that there was no question of interpretation of and clauses contained in the Will left by the deceased testators therein, which came to be considered or adjudicated in any of these cases and therefore. Shri Ramakrishnan, learned Counsel cannot draw support from and of them. In view of this statutory bar found in Section 75 of the Indian Succession Act, the plea of the petitioners, that the C.I.B is empowered to interpret the Will of (late) S.Sivaramakrishna Aiyer, in the light of the principles enunciated by the Supreme Court in Ammonia Supplies Corporation (P) Ltd. v. Modern Plastic Containers Pvt. Ltd. and Ors. (supra) that complicated question of fact or law can be adjudicated in a summary proceeding cannot be appreciated. The petitioners must necessarily seek the intervention of a competent civil court for adjudication of their rights over the shares impugned in the company petitions. There is, therefore, no need to deal with the exhaustive arguments advanced for both sides on interpretation of the relevant clauses of the Will of (late) S.Sivaramaknshna Aiyer supported by a number of case laws and various provisions of the Indian Succession Act, justifying their respective stand taken in the matter.

25. Having found that it is only a civil court which has jurisdiction to determine questions as to what person or what properly is denoted by any words in a Will, it shall now be considered whether the action of the board of directors of TPPL and TRTCL in transmitting the impugned shares, on the strength of the Will left by (late) S. Sivaramakrishna Aiyer, in favour of the second and other respondents, calls for the intervention of the CLB, requiring rectification of the register of members of TPPL, and TRTCL. Against the background of arguments advanced by learned Senior Counsel that the fundamental principles governing interpretation of a Will as contemplated in Chapter 6 of the Indian Succession Act and laid down by various High Courts and the Apex Court have been properly followed, in accordance with the regulations of the Companies, by the board of directors of TPPL and TRTCL before effecting the transmission of impugned shares. I am not convinced that the board of directors of TPPL and TRTCL has either authority or competency to interpret any of the material clauses, forming part of the Will before approving the transmission of shares in favour of the second and other respondents, in this connection, a careful perusal of the minutes of meeting of - (i) share transfer committee of TPPI dated 27.09.2001: (ii) hoard of director of TPPL dated 19.12.2001: (iii) share transfer committee of TRTCL dated 29.03.2003 and (iv) board of directors of TRTCL, dated 29.03.2003 reveal the state of affairs thus: The share transfer committee of TPPL, on receipt of a request from the second respondent herein, along with photostat copies of (a) Will executed by (late) S. Sivaramakrishna Aiyer: (b) death certificate dated 25.10.2000 and transmission forms; (c) 206 share certificates covering 39,388 equity shares of TPPL. resolved that 39.388 equity shares standing in the name of (late) S. Sivaramakrishna Aiyer be transmitted in the name of the second respondent. The board of directors of TPPL at the board meeting held on 19.12.2001, simply confirmed the minutes of meeting of the share transfer committee approving the transmission of shares. The share transfer committee of TRTCL on receipt of requests from the respondents 3, 4 and (late) S.Veerasubramonia Sarma along with transmission forms and copies of death certificate as well as the Will executed by (late) S. Sivaramakrishna Aiyer, approved the transmission of 23.634 equity shares each in favour of the respondents 3, 4 and (late) S. Veerasubramonia Sarma respectively. The board of directors of TRTCL at the board meeting held on the same day namely, 29.03.2003, perused the minutes of the share transfer committee and without any discussion whatsoever, approved the same without even endeavoring to comply with the requirement of Article 18, which stipulates that "Even transmission of a share shall he verified in such a manner as the Board of Directors may require and the Company may refuse to register any such transmission until the same he so verified." 26. It is clear from the above minutes that there was no deliberation at all both at the share transfer committee and at the board meetings on devolvement of the impugned shares under Clause 1 0 or any other clause of the Will of (late) S. Sivaramakrishna Aiyer before giving effect to the transmission of shares at such meetings. All the relevant minutes are silent as to whether the board of TPPL and TRTCL have ascertained the details in relation to - (i) number of shares held by (late) S. Sivaramakrishna Aiyer at the time of execution of his Will; (ii) number of shares acquired by (late) S. Sivaramakrishna Aiyer after the date of his Will: and (iii) number of shares held by (late) S.Sivaramakrishna Aiyer at the time of his death, in these Companies, which are absolutes essential before according approval for transmission of the impugned shares. None of the clauses of the Will was ever interpreted, before approving the transmission of shares, as founded reflected in, even one of the minutes discussed supra. The categorical assertion of Sri Ramakrishnan, learned Counsel, that the share transfer committee meeting was allegedly held at 3 p.m. on 29.03.2003, approving the transmission of shares in TRTCL and that the board meeting of TRTCL, which reported I ratified the minutes of the share transfer committee, was held on the same day at 3.30 p.m. The minutes of the share transfer committee consist of 30 handwritten pages and hence n would he physically impossible to write these minutes in hall an hour and then place the minutes for approval before the meeting of the board of directors of TRTCL which however, without application of its mind registered the transmission of shares, has not been satisfactorily met by the respondents. Clause 26 of articles of association of TRTCL contemplates that the legal heir, executor or administrator of a deceased shareholder shall only be the person entitled to be recognized by TRTCL as having title to or interest in the shares registered in his name the second respondent is the executor under the Will of (late) S. Sivaramakrishna Aiyer and therefore, the request made by his legal heirs for transmission of the shares held in the name of late S. Sivaramakrishna Aiyer is in violation of Clause 26 of the articles. By virtue of Section 211 the Indian Succession Act, the second respondent being the executor of (late) S. Sivaramakrishna Aiyer, is his legal representative, it is only the legal estate that vests in the executor and not of the beneficial interest. The transferees and not the executor, in case of TRTCL, admittedly applied for transmission of the impugned shares, upon which transmission was reported effected in respect of 70,902 equity shares in TRTCL in favour of the respondents 3, 4 and S. Veerasubramonia Sarma, since deceased, contrary to the provisions of Section 211 of the Indian Succession Act.

The plea of the respondents, that the transferees, with consent of the executor of the deceased S. Sivaramakrishna Aiyer, namely, second respondent, applied to the Company for transmission of the impugned shares does not meet the legal requirement. Consequently, the sale of 20,470 equity shares of TRTCL by the fourth respondent, pursuant to the irregular transmission, in favour of the fifth respondent, is hit by Section 27 of the sale of Goods Act, 1930. on account of which the fifth respondent, the buyer acquired no better title to those shares than the seller, namely, the fourth respondent had and therefore, the acquisition of 20.479 shares of TRTCL by fifth respondent is bad in law. I am not constrained to accept the plea of ignorance on the part of the fifth respondent, of the disputes among the legal heirs of (late) S. Sivaramakrishna Aiyer in relation to the impugned shares, in the light of the correspondence which remain undisputed before the Bench and cannot, therefore, be said that the purchase of shares by the fifth respondent was without notice of any defect in title therein.

Thus, the names of the transferees are found, without sufficient cause, entered in respect of the impugned shares at the instance of the board of directors, in the register of members of TPPL, and TRTCL. The prayer in C.P. No. 10 of 2005 is for (i) rectification of the register of members of TWEL in respect of (a) 2429 shares of TWEL reportedly held by (late) S. Sivaramakrishna Aiyer at the time of execution of his Will by substituting names of the respondents 3, 4, 6 & 10 to 13 in the place of the second respondent: and (b) 9081 shares of TWEL acquired by (late) S. Sivaramakrishna Aiyer subsequent to the execution of his Will by substituting the names of petitioners, and the respondents 5 to 9, whereas the register of members of TWEL reportedly reflects only 15 shares held in the name of (late) S. Sivaramakrishna Aiyer. It is far from doubt that there was no cause of action in respect of this company petition for the reason that the shares of TWEL continue to remain in the name of (late) S. Sivaramakrishna Aiyer.

27. In view of the foregoing conclusions and in exercise of the power under Section 111A read with Section 111 of the Act, the following, order is passed: (i) 'TPPL' shall rectify its register of members in respect of 39.388 equity shares impugned in C.P. No. 11 of 2005 by restoring the name of (late) S. Sivaramakrishna Aiyer in the place of the second respondent: (ii) The second respondent shall restore dividends received, if any, in respect of 39.388 equity shares in favour of TPPL.

(iii) 'TRTCL' shall rectify its register of members in respect of 70.902 equity shares, impugned in C.P. No. 12 of 2005 by restoring the name of (late) S. Sivaramakrishna Aiyer in the place of respondents 3 to 6: (iv) The respondents 3 to 6 shall restore dividends received, if any, in respect of 70.902 equity shares in favour of TRTCL: (v) The legal heirs of (late) S. Sivaramakrishna Aiyer are at liberty to agitate their rights in respect of the impugned shares in a competent civil court; and With the above directions, all the three company petitions and the connected applications stand disposed of. All the interim order are vacated. No order as to cost.

Court	Company Law Board CLB
Decided On	Aug-20-2007
Judge	K Balu
Reported in	(2008)144CompCas830
Appellant	S. Kanthimathy, S. Lakshmi, S.
Respondent	The Woodlands Estates Limited and

S. Kanthimathy, S. Lakshmi, S. Vs. the Woodlands Estates Limited and - Court Judgment