Amity National Moot Court Comptition, 2016: Semifinalists - Applicants

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THE SUPREME COURT OF EBONY

15TH AMITY NATIONAL MOOT COURT COMPETITION, 2016

CIVIL APPEAL NO. ____ /2015 (Under Article 136 of the Constitution of India, 1950; read with Order XXI, Rule 1, Supreme Court Rules, 2013)

KING DUMAS………………………………………………………………………….………APPELLANT 1 KING DRAGO…………………………………………………………………………………APPELLANT 2 KING DRAKSHIN…………………… ……………………………………………………...APPELLANT 3 v.

PRINCE WILD BILZERIAN………………………………...………………………….RESPONDENT 1 PRINCESS NORTH BILZERIAN………………………………………………………..RESPONDENT 2

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MEMORIAL FOR THE APPELLANTS

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TABLE OF CONTENTS

Table of Authorities......................................................................................................................iv Statement of Jurisdiction...........................................................................................................viii Statement of Facts........................................................................................................................ix Issues Involved............................................................................................................................xiii Summary of Arguments.............................................................................................................xiv Body of Arguments........................................................................................................................1 [I.] The High Court has exceeded its jurisdiction under Section 10F while hearing an appeal against Section 111.........................................................................................................1 [A.] The High Court has jurisdiction to decide a question of law............................................1 [B.] However, such jurisdiction is limited only to the questions of law arising out of the order..........................................................................................................................................2 [C.]The refusal of the Company to transfer the share is arbitrary............................................3 [D.] The High Court has exceeded its jurisdiction in the present case.....................................4 [II.] High Court could not have decided the dispute because § 10 of CPC applies..............6 [A.] The previously instituted suits are still pending...............................................................6 [B.] The matter in issue in the present suit and the pending suits is directly and substantially the same....................................................................................................................................8 [C.] Parties to the suits are the same........................................................................................9 [D.] All these suits have been filed before courts of competence............................................9 [III.] The High Court could not have interpreted the will of King Ray under Section 10F. ....................................................................................................................................................10 [A.] Interpretation of will is not a question of law.................................................................10 [B.] Even if it is a question of law, it does not arise out of the order of Company Law Board. ................................................................................................................................................11 [C.] The power of the Court under Section 111 is summary and limited...............................11

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[IV.] The Succession Certificate, By Virtue Of Queen Kim’s Death, Became Inoperative And Could Not Be Relied Upon..............................................................................................16 [A.] The authority vested in joint-holders can only be exercised jointly...............................16 [B.] Section 383 allows for revocation of certificate upon death of a joint-holder................18 [V.] Probate proceedings instituted by Queen Kim cannot be said to lapse on the basis of the Settlement deed..................................................................................................................19 [A.] Probate proceedings result in a judgment in rem and cannot lapse because of a private agreement...............................................................................................................................19 [B.] The order granting succession certificate based upon the Settlement Deed does not operate as res judicata upon the probate proceedings............................................................21 [VI.] The High Court has erred in directing the Company to transfer the shares in favour of the respondents....................................................................................................................22 Prayer............................................................................................................................................24

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TABLE OF AUTHORITIES CASES 1. Ammonia Supplies Corporation (P.) Ltd. v. Modern Plastic Containers Pvt. Ltd., (1998) 7 SCC 105. 2. Aspi Jal and Anr. v. Khushroo Rustom Dadyburjor, AIR 2013 SC 1712. 3. Bajaj Auto Ltd. v. N.K. Firodia, (1971) 41 Comp Cas 1. 4. Bal Gangadhar Tilak v. Sahwarbau, 1926 Bom. 792. 5. Balbhadra v. Board of Revenue, 1981 AWC 525. 6. Bhura v. Kashi Ram, (1994) 2 SCC 111. 7. Bipin K. Jain v. Savik Vijay Engg P Ltd. (1998) 91 Comp Cas 835. 8. Bishunath Rai v. Sarju Rai, AIR 1931 All 745. 9. Boiron v. SBL Pvt. Ltd., 1999 (48) DRJ 31. 10. Commisioner of Income Tax v. Scindia Steam Navigation Co. Ltd., AIR 1961 SC 1633. 11. Dale and Carrington Invt. (P) Ltd. v. P.K. Prathapan and Ors., (2004) 122 CompCas 161 (SC). 12. Dayagen Pvt. Ltd. v. Rajendra Dorian Punj, (2009) 151 CompCas 92 (Del). 13. E.V Swaminathan v. KMMA Industries & Roadways (P) Ltd., (1993) 1 Com. L.J 291 (Mad.). 14. G. Jayashankaraiah v. T.N. Gangadhariah, AIR 2006 Kant 150. 15. Ghissai Ram v. Barey Lal, AIR 1942 Oudh 490. 16. Gnanambal Ammal v. T. Raju Aiyar, AIR 1951 SC 103. 17. Gopala Menon v. Sivaraman Nair, (1981) 3 SCC 586. 18. Gour Chandra v. Sarat Sundari, 1940 Cal. 50. 19. Gurcharan Singh v. Surjit Singh & Anr. [I.A. No. 2 to 6, in Special Leave Petition (C) No. 7735 of 2010, application decided on 2nd Nov. 2012]. 20. Gurusami Pillai v. Sivakami Ammal, 18 Mad 347: 22 IA 119. 21. In Re goods of Gagan Chandra, AIR 1950 Cal 578. 22. Indian Chemical Products Ltd. v. State of Orissa, (1966) 36 Com. Cases 592 (SC). 23. Janakbati v. Gajanand, AIR 1916 Pat 82. 24. JT Republike v. Rungta & Sons, AIR 1966 Cal 382. 25. Jugeshwar Nath Sahai v. Jagatdhari Prasad, 1917 SCC OnLine Pat 166. 26. K. Muthusamy v. S. Balasubramaniam, 2011 (2) TMI 1279. 27. K.S.Narayana Iyer v.Talayar Tea Co. Ltd., (1995) 83 CompCas 743 (CLB). 28. Kothari Industrial Corpn. Ltd. v. Lazor Detergents Pvt. Ltd., 1994 Com. Law 617. 29. Kurappaswamy & Ors. v. C. Ramamurthy, AIR 1993 SC 2324. 30. Lalta Baksh Singh v. Phool Chand, AIR 1945 PC 113. 31. Lohia Properties (P.) Ltd. v. Atmaram Kumar, (1993) 4 SCC 6. 32. Luxmi Tea Co. Ltd. v. P.K. Sarkar, (1990) 67 Comp Cas 518. 33. M/s Kalinga Mining Corporation v. Union of India, Civil Appeal No. 1013 of 2013. 34. M/s Micromeritics Engineers Pvt. Ltd. v. S. Munusamy, (2002) 3 CTC 661. 35. Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527. 5

36. Manoj Kumar Kanuga v. Marudhar Power Pvt. Ltd., (2013) 179 CompCas 504(AP). 37. Mattulal v. Radhey Lal, AIR 1974 SC 1596. 38. Meena Vasant Patel v. Prithviraj Ambalal Patel, 2010 (6) AIR (Bom) R 314. 39. Monmohini Guha v. Chandra Das, (1904) ILR 31 Cal 357. 40. Mst. Jio v. Mst. Rukhan, 8 Lah 219. 41. Muninanjappa v. R. Manual, (2001) 5 SCC 363. 42. Muniyamma v. Arathi Cine Enterprises (P) Ltd., (1993) Com. L.J 327. 43. N. Kasturi v. D. Ponnammal, AIR 1961 SC 1302. 44. N. S. Chopra v. State of Delhi 2014 Indlaw DEL 1916. 45. Narayanasami v. Kuppusami, (1896) ILR 19 Mad 497. 46. National Institute of M H & NS v. C Parameshwara, AIR 2005 SC 242. 47. National Society for the Prevention of Cruelty to children v. Scottish National Society for the Prevention of cruelty to children, [1915] AC 207. 48. Navneet Lal v. Gokul, AIR 1976 SC 794. 49. Nirmal Singh v. Om Prakash, AIR 1965 J&K 99. 50. Nupur Mitra v. Basubani Pvt. Ltd., (1999) 35 CLA 97. 51. P. Meenambal v. R. Rajeswari, 1998 (1) LWP 736. 52. Perrin v. Morgan, [1943] AC 399. 53. Prankisto v. Nobodip, (1882) ALR 8 Cal 868. 54. Public Passenger Service Ltd. v. M.A Khadar, AIR 1966 SC 489. 55. Rajendra Prasad v. Gopal Prasad, 57 IA 296; Ram Gopal v. Nand Lal (AIR 1951 SC 139). 56. Ram Kala v. Deputy Director (Consolidation) & Ors., (1997) 7 SCC 498. 57. Ram Raj v. Brij Nath, 35 All 479. 58. Ramachandra v. Vijayaragavulu, 31 Mad 349. 59. S. Bhagat Singh v. Piar Bus Service Ltd., [1960] 30 Comp Cas 300. 60. S. Kanthimathy v. Woodlands Estates Ltd., (2008) 144 Comp Cas 830 (CLB). 61. Sequeria v. P. Francisco, AIR 1976 Goa 48. 62. Shanti v. Pankaj, AIR 1995 P&H 14. 63. Shrimant v. Mrunalinidevi, CR.MA/2062/2010. 64. Siddessory Dossee v. Durgacharan Dass, 2 IJ (NS) 22. 65. Smt. Kanta v. State, 1985 SCC OnLine Del 160. 66. Somasundaram v. Venkata Subbayya, AIR 1938 Mad 602. 67. Sosinath v. Krishna, ILR 6 Cal 381. 68. Sree Meenakshi Mills Co. Ltd. v. Commissioner of Income Tax, AIR 1957 SC 49. 69. Sukumar Deb Roy v. Parbati Bala, AIR 1941 Cal 663. 70. Surendra Kaur v. Singh Engg Works Pvt. Ltd., (1977) 47 Com Cases 638 (All). 71. Surendra v. Amrita, 1947 Cal. 115. 72. Suresh Kumar Bansal v. Krishna Bansal & Anr., Civil Appeal No. 8271 of 2009. 73. Surfogi v. Kamalshiamba, 7 Mad 543. 74. Sushila Bala Saha v. Saraswati Mondal, AIR 1991 Cal. 166. 75. Swagath Marine Products Pvt. Ltd. v. K. Muthuswamy, (2006) 134 Comp Cas 182 (CLB). 76. Syed Ahsan v. Mst Sayeeda Begum, 1958 Pat LT 111. 77. Thenappa Chettiar v. Indian Overseas Bank Ltd., (1943) 13 Com Cases 202 (Mad). 78. V.B. Rangaraj v. V.B. Gopalakrishnan, (1992) 73 Comp Cas 201. 6

79. V.K. Kamalam v. Canchali Amma, AIR 1998 Ker 265. 80. V.L. Pahade (Dr.) v. Vinay L. Deshpande, 1999 SCC OnLine AP 187. 81. V.S. Krishnan v. Wertfort Hi-Tech Hospital Ltd., (2008) 83 CLA 371. 82. Vallabh Das v. Madan Lal, AIR 1970 SC 987. 83. Veerattalingam v. Rameth, AIR 1990 SC 2201. 84. Venakata Narsimha v. Parthasarathy, (1913) 15 Bom LR 1010. STATUTES 1. 2. 3. 4. 5. 6.

Code of Civil Procedure, 1908. Hindu Adoptions and Maintenance Act, 1956. Hindu Succession Act, 1956. Sale of Goods Act, 1930. The Companies Act, 1956. The Indian Succession Act, 1925.

BOOKS 1. 2. 3. 4. 5. 6. 7. 8. 9.

A.RAMAIYA, GUIDE TO THE COMPANIES ACT (17th edn., 2011). GOPALAKRISHNAN, LAW OF WILLS (7th edn., 2009). LEXIS-NEXIS: THE COMPANY LAW MANUAL, 1927-2012 (2012). MAYNE, HINDU LAW AND USAGE (16th edn., 2012). MULLA, THE CODE OF CIVIL PROCEDURE (15th edn., 2012). N.D. BASU, LAW OF SUCCESSION (10th edn., 2009). P.L. PARUCK, THE INDIAN SUCCESSION ACT (10th edn., 2011). S.C. SARKAR, THE LAW OF CIVIL PROCEDURE (11th edn., 2006). PARAS DIWAN, INDIAN PERSONAL LAWS-2: LAW OF ADOPTION, MINORITY,

GUARDIANSHIP AND CUSTODY (5TH edn., 2012). 10. PARAS DIWAN, MODERN HINDU LAW (20TH edn., 2009). MISCELLANEOUS 1. BRYAN A. GARNER, BLACK’S LAW DICTIONARY (10th edn., 2014).

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STATEMENT OF JURISDICTION

CIVIL APPEAL NO. _____ / 2015 The Appellant has approached this Honourable Court under Article 136 of the Constitution of India, 1950. Subsequently, the leave has been granted by the Court.

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STATEMENT OF FACTS The Betrothals The Democratic Republic of Ebony is a fully democratic State with twenty different provinces. One of the provinces of Republic was Scion headed by King Igusthus. He had three daughters, the eldest being Princess Khloe, followed by Princess Kourtney and then Princess Kim. All three sisters were married one after another to King Big Bilzerian, head of the royal family of the province of Thelesalonica. Consequently, they had four children. From Queen Khloe were born Prince Dumas and Princess Dumagoli. From Queen Kourtney were born Prince Drago and Prince Drakshin. Marriage with Queen Kim resulted in the birth of Prince Ray. Prince Ray was given up on adoption to King Dueta of the royal family of Thalai who was issueless himself. Princess Dumagoli was married into the Royal Family of Dakshin and gave birth to Princess Duma. Prince Ray married Princess Carlen of the Province of Malay, who gave birth to Prince Wild Bilzerian and Princess North Bilzerian. The Formation of the Company After the demise of King Big Bilzerian, the management and administration of the estate of the Royal Family of Thelesalonica came under the control of King Dumas, King Drago and King Drakshin. In the year 1981, all the brothers decided to bring up a business by establishing a Company to which their former residence would be leased and would be converted into a Heritage Hotel wherein the general public would be allowed to visit the Royal Fort and stay as their guest. Thus, the family property was leased to the Company which was named “Royal Retreat Group of Hotels Resorts and Palaces Pvt. Ltd.” In 1983, the brothers, on the request of Queen Kim, added another promoter by amending the Articles of Association of the company. This new promoter was King Ray. The amended Articles of Association stated that in the event of death or legal disability of a promoter, the shares of this promoter director shall be transferred to the company in the interim and eventually transferred to the legal representatives of such promoter director. In the year 1986, a Partition Suit was filed amongst the family members of the Royal Family of Thelesalonica seeking a partition by metes and bounds. During the course of the Suit, the validity of the adoption of Prince Ray and his right of inheritance also came under dispute. 9

Will and Succession Disputes Amidst all this, owing to serious differences arising between King Ray and Queen Carlen, the marriage ended in an irretrievable breakdown. In the year 1997, King Ray succumbed to illhealth. After his death, Prince Wild Bilzerian and Princess North Bilzerian filed a case for succession before the District Court seeking one-third share in the estate of King Ray along with Queen Kim. In the same year, King Dumas filed an Impleadment Application and objected to the succession certificate. In December 2005, Queen Kim found a Will dated June 23, 1996 wherein King Ray had stated that upon his demise, since he did not want his former wife to grab the property, both his children would be disinherited and all his property would go to his mother. In the Month of May 2006, the company received a letter from Queen Kim requesting transmission of all the shares standing in the name of late King Ray in her favour in view of the Will dated June 23, 1996 and she further filed an Application for Probate before the District Judge of Thelesalonica on the basis of the aforesaid Will. However, the Company decided that in light of the dispute and the civil cases pending before the courts, any person requesting for the transmission of shares would be required to produce the evidence by way of appropriate title through a Probate, failing which the Company would not transfer the shares in dispute to any individual. On May 8, 2009, the grandchildren of Queen Kim entered into a Settlement Deed with her before the District Court with regards to the share in the property of King Ray, wherein it was agreed that the assets would be divided equally in a one-third share amongst themselves. They obtained a succession certificate for the same. Queen Kim expired in late 2009. Upon her death, Prince Wild Bilzerian moved an Application before all the Courts wherein a dispute was pending an Application for Substitution as her Legal Heir along with his sister Princess North. Similar applications were filed by the rest of the family. Prince Wild and Princess North also claimed that Queen Kim vide her Will dated 10.05.2009 had bequeathed all her properties in favour of her two grandchildren and to no one else. Thus, on the 10

basis of the said Will a Probate Petition was filed before the District Court wherein all the other members of the family raised objections, challenging the authenticity of the said Will. In the interim, all the above parties wrote to the Company seeking transfer of the shares of the late King Ray in their own name. The Company, pointing to the various disputes pending between the parties herein again declined to transfer any shares unless conclusive proof or evidence by way of a Probate from a Court of competent jurisdiction was brought before it. Orders of the Court and Appeals thereof The High Court of Thelesalonica gave an Interim Order that both the groups before the Court i.e. her grandchildren as well as her step sons were her legal heirs. Aggrieved by the same both the grandchildren filed a Review Petition. The Company yet again refused to transfer the shares in favour of any party. As a result, the parties, dividing themselves into two groups, one comprising of the step sons and the other comprising of the grandchildren, moved Applications before the Company Law Board under Section 111 of the Companies Act, 1956 praying for the transfer of shares in favour of the respective Applicants. Subsequently, in the year 2011 a Civil Suit was filed against Prince Wild and Princess North, being a Suit for Declaration and Permanent Injunction, praying for a declaration that the alleged Will of the Late Queen Kim dated 10.05.2009 was forged and fabricated. The Company Law Board held that it cannot, while exercising summary jurisdiction, decide complicated questions of fact and law which arise before it. The parties then approached the Hon’ble High Court wherein the Court held that succession certificate was prima facie proof of title of the Prince and Princess and accordingly ordered for transfer of the assets and shares of late King Ray in their favor. The Hon’ble High Court also interpreted the will of late King Ray to mean that the concern of the testator was that his estranged wife should not grab his property through his children. The

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court further held that there appeared to be no fraud or forgery of the will and thus a Petition under Section 111 was very much maintainable. Aggrieved by the above findings and Judgement and Order of the Hon’ble High Court of Thelesalonica, the aggrieved group filed Special Leave Petitions before the Hon’ble Supreme Court of Ebony where leave was granted.

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ISSUES INVOLVED I. WHETHER THE HIGH COURT HAD RIGHTLY EXERCISED ITS JURISDICTION UNDER SECTION 10F WHILE HEARING AN APPEAL AGAINST

SECTION 111 OF THE COMPANIES ACT?

II. WHETHER THE HIGH COURT COULD HAVE HEARD AND DECIDED VARIOUS ASPECTS AND DISPUTES PENDING ADJUDICATION IN THE COURTS BELOW WHICH WERE IN THE NATURE OF CIVIL DISPUTES?

III. WHETHER THE HIGH COURT COULD HAVE INTERPRETED A WILL WHILE EXERCISING JURISDICTION UNDER

SECTION 10F? IV.

CAN A JOINT SUCCESSION CERTIFICATE BE RELIED UPON WHEREIN ONE OF THE MEMBERS TO THE VERY SAME CERTIFICATE HAD EXPIRED?

V. CAN PROBATE PROCEEDINGS BE TERMED AS LAPSED ON THE BASIS OF SETTLEMENT ENTERED INTO BETWEEN SOME OF THE PARTIES?

VI. WHETHER THE HIGH COURT WAS RIGHT IN DIRECTING THE COMPANY TO TRANSFER THE SHARES OF

KING RAY IN FAVOUR OF THE RESPONDENTS?

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SUMMARY OF ARGUMENTS I. The High Court has exceeded its jurisdiction under Section 10F while hearing an appeal against Section 111 It is submitted the High Court had not exercised the jurisdiction conferred on it under Section 10F rightly. Section 10F envisages an appeal to the High Court only on a question of law that arises out of the order of the Company Law Board. In the present case, the Company Law Board has exercised its discretionary powers given to it under Section 111 of the Act to reject a petition as it is convinced that it involves complicated questions of fact and law. However, such exercise of discretion is appealable to the High Court as the non-maintainability itself is a question of law. The appeal to the High Court has been made on this very issue. Moreover, since the Company Law Board has not recorded any findings with regards to the facts or merits of the case, no other questions arise out of its order. Therefore, the High Court has exceeded its jurisdiction while deciding the appeal. Furthermore, the correct course of action in such a situation is to remand the matter back to the Company Law Board after deciding the issue of maintainability positively. II. The High Court could not have heard and decided various aspects and disputes pending adjudication in the courts below which were in the nature of civil disputes Section 10 of the Civil Procedure Code, 1908 says that a court shall not proceed with the trial of a suit to which the Code applies when all of the following conditions are fulfilled: one, there is a previously instituted suit which is still pending adjudication; two, the matter in issue in the subsequent suit is directly and substantially the same as in the previously instituted suit; three, both suits are either between the same parties or their privies; and four, the courts before which suits have been filed are of competent jurisdiction. First, there are three previously instituted suits, which are still pending and relevant for this case, namely, probate for King Ray’s Will along with the Application for Substitution as Legal Heir, probate for Queen Kim’s Will and Review Petition in High Court (2010). Secondly, there is similarity of subject matter between the pending suits and the subsequent suits because the test of res judicata is applicable. Thirdly, both in the previously pending suits and the present suit, Princess North Bilzerian and Prince Wild Bilzerian are parties on one side and the stepsons of

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Queen Kim are parties on the other side. Lastly, the courts before which suits have been filed are courts of competence by virtue of Section 264 of the Indian Succession Act, 1925. III. The High Court could not have interpreted the will of King Ray under Section 10F. It is submitted that the High Court could not have interpreted a will while exercising its jurisdiction under Section 10F. The jurisdiction under Section 10F is limited to questions of law only. Moreover, it is limited to only those questions of law that arise out of the order of the Company Law Board. A will is not a question of law. Since the interpretation of a will is done through inferences drawn from the facts present, it is a question of fact and not law. Neither has the question of interpretation of this will arisen out of the order of the Company Law Board as it was never raised or dealt with by it. Therefore, the High Court could not have interpreted the will of King Ray. Furthermore, the jurisdiction under Section 111 being summary in nature, interpretation of will which requires investigation into facts, cannot be undertaken by the High Court. Even if the interpretation of will could have been done, the High Court has erred in the interpretation of will of King Ray. The intent of the testator was to disinherit is children since their actions, whatever may be the cause, had ultimately led the King to dislike them. Moreover, the words in the will being clear and unambiguous, do not need the supply of intent that has been given to it by the High Court. IV. The Succession Certificate, by virtue of Queen Kim’s death, became inoperative and could not be relied upon. A succession certificate does not confer any title upon the grantee as an heir to the deceased. Its purpose is limited to facilitation of collection of debts. In a grant of a joint succession certificate, the authority vested in the multiple holders of the certificate can only be exercised jointly. The certificate loses validity upon the death of one of the joint-holders, as illustrated in the case of Sukumar Deb Roy v. Parbati Bala. Further, Section 383(d) of the Indian Succession Act provides for revocation of certificate when it becomes “useless and inoperative through circumstances” which would include the event of death of a joint-holder. Thus, the death of a holder necessitates revocation and a new certificate must be applied for. Therefore, by virtue of Queen Kim’s death 15

the succession certificate inoperative and ceased to be in force. It could not have been relied upon by the High Court. V. Probate proceedings instituted by Queen Kim cannot be said to lapse on the basis of the Settlement deed. Probate proceedings cannot be said to lapse because of a private agreement between the parties. First, the judgment produced through the course of a probate petition is a judgment in rem. The issue for enquiry before a Probate Court is limited to the valid execution and genuineness of the will. The fact of a settlement entered into by the consent of the parties is immaterial and falls outside the scope of enquiry. Neither the provisions nor the prescribed form of probate under the Indian Succession Act makes any allowance for a private compromise to affect the probate proceedings. Withdrawal of the petition without the decision upon the grant of probate amounts to improper withdrawal. Secondly, the order granting succession certificate based upon the Settlement Deed does not operate as res judicata upon the probate proceedings. The grant of the succession certificate does not bar the institution or continuance of a suit to determine the heirship to debts and property of King Ray, like the probate petition. Therefore, the pendency of the probate petition is not affected. The proceedings did not lapse and continue to be pending till date. VI. By virtue of being the legal heirs, the transfer of shares should be ordered in favour of the appellants. Queen Kim is the sole heir of King Ray by virtue of his Will. Moreover, the succession certificate is inoperative, thus, divesting any interest that King Ray’s children could have had in in his property. Also, the children of King Ray are not the heirs of Queen Kim due to the presumption of validity of the adoption. Therefore, it is the appellants who are entitled to get the shares transferred in their favour by virtue of being the legal heirs of Queen Kim.

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BODY OF ARGUMENTS

[I.] THE HIGH COURT HAS EXCEEDED ITS JURISDICTION UNDER SECTION 10F WHILE HEARING AN APPEAL AGAINST

SECTION 111

1. An appeal was made against the order of the Company Law Board to exercise jurisdiction in the matter before it stating that there were complicated questions of fact and law involved. The decision of the High Court in favour of the children of King Ray was rendered in an appeal made to the Court under Section 10F of the Companies Act, 1956. 2. It is submitted that the High Court has jurisdiction to decide a question of law [A.]. However, such jurisdiction is limited only to the questions of law arising out of the order of the Company Law Board [B.]; The High Court has exceeded its jurisdiction in the present case [C.]. [A.] The High Court has jurisdiction to decide a question of law 3. An appeal to the High Court under Section 10F lies on a question of law that arises out of the order of the Company Law Board.1 In the present case, there is a question of law that has been appealed to the High Court. 4. Section 111 of the Companies Act, 1956 provides discretionary powers to the Company Law Board.2 The Board, on examination of the facts may refuse to adjudicate upon certain matters. However, such discretion to refuse relief by denying exercise of powers under the aforesaid section cannot be exercised by the Board arbitrarily.3 In the present case, the Board has passed the order stating that it does not have jurisdiction since there are disputed questions of title. 4 The Company Law Board cannot refuse to exercise jurisdiction merely by stating that the matter 1 The Companies Act, No. 1 of 1956, §10F (1956) (“Appeals against the orders of the Company Law Board- Any person aggrieved by any decision or order of the Company Law Board 2 [made before the commencement of the Companies (Second Amendment) Act, 2002] may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Company Law Board to him on any question of law arising out of such order: Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days.”).

2 V.L. Pahade (Dr.) v. Vinay L. Deshpande, 1999 SCC OnLine AP 187; S. Bhagat Singh v. Piar Bus Service Ltd., [1960] 30 Comp Cas 300; Ammonia Supplies Corporation (P.) Ltd. v. Modern Plastic Containers Pvt. Ltd., (1998) 7 SCC 105. 3 Public Passenger Service Ltd. v. M.A Khadar, AIR 1966 SC 489; Indian Chemical Products Ltd. v. State of Orissa, (1966) 36 Com. Cases 592 (SC). 1

involves complicated questions of law and fact.5 The Board has to examine whether the complicated questions are in fact present, or prima facie appear to be.6 The mere presence of a dispute regarding title of the shares does not always mean that the Company Law Board will not have jurisdiction to deal with it. If that is the case then any dispute that is present would be presented as a complicated question to oust the jurisdiction of the Company Law Board.7 5. The order of the Company Law Board holding that it does not have jurisdiction to decide the present matter is an exercise of the discretion conferred upon it by Section 111. The question whether the discretionary power of the Board is rightly exercised is, therefore, a question of law. [B.] However, such jurisdiction is limited only to the questions of law arising out of the order. 6. An appeal lies to the High Court only on a question of law arising out of the order of CLB. 8 The jurisdiction of the High Court under Section 10F is limited to the questions of law that arise out of the order of the Company Law Board. A question of law arises out of the order of the Board in three instances: first, the question has been raised before the board, and dealt with by it; secondly, the question is raised before the board, but not dealt with by it in its order, and; thirdly, the question is not raised before the tribunal, but is dealt with by it.9

4 Factsheet ¶ 24. 5 Muniyamma v. Arathi Cine Enterprises (P) Ltd., (1993) Com. L.J 327; E.V Swaminathan v. KMMA Industries & Roadways (P) Ltd., (1993) 1 Com. L.J 291 (Mad.); Kothari Industrial Corporation Ltd. v. Lazor Detergents Pvt. Ltd., (1994) Com. Law 617. 6 Ammonia Supplies Corporation (P.) Ltd. v. Modern Plastic Containers Pvt. Ltd., (1998) 7 SCC 105; Boiron v. SBL Pvt. Ltd., 1999 (48) DRJ 31. 7 Kothari Industrial Corpn. Ltd. v. Lazor Detergents Pvt. Ltd., 1994 Com. Law 617 8 The Companies Act, No. 1 of 1956, § 10F. 9 Commissioner of Income Tax v. Scindia Steam Navigation Co. Ltd., AIR 1961 SC 1633; Ammonia Supplies Corporation (P.) Ltd. v. Modern Plastic Containers Pvt. Ltd., (1998) 7 SCC 105; Manoj Kumar Kanuga v. Marudhar Power Pvt. Ltd., [(2013) 179 CompCas 504(AP); M/s Micromeritics Engineers Pvt. Ltd. v. S. Munusamy, (2002) 3 CTC 661. 2

7. In the present case, the only question of law that arises out of the order given by the Company Law Board is the scope and exercise of the jurisdiction of the Company Law Board. 10 Therefore, the High Court has jurisdiction under Section 10F to decide whether the Company Law Board was correct in holding that it does not have jurisdiction due to the presence of complicated questions. The jurisdiction of the High Court, however, is limited to this question only.11 [C.]The refusal of the Company to transfer the share is arbitrary. 8. It is submitted that the Company has refused the transfer of shares in the favour of the step-sons of Queen Kim without reasonable justification for the same as: (i.) The power to refuse is not present in the Articles of Association; (ii.) Even if it is present in the Articles of Association, it has been exercised arbitrarily. [i.] The power to refuse is not present in the Articles of Association. 9. A private company has power to restrict the transfer of shares in accordance with its Articles of Association.12 In cases where the Articles of Association of the company confer powers on the directors to refuse registration of the shares, the court has held that such a power should be exercised reasonably.13 However, the directors have no inherent power to refuse the transfer of shares or the registration thereof.14 Such a power has to flow from a source and is exercisable only when it is either specified or traceable in the Articles of Association of the Company.15 10. In the present case, Clause 11, which deals with the transfer of shares of a promoter director in case of death or resignation, does not provide for any powers to the directors to refuse the

10 Argued Above. 11 LEXIS-NEXIS: THE COMPANY LAW MANUAL 1927-2012, 145 (2012). 12 V.B. Rangaraj v. V.B. Gopalakrishnan, (1992) 73 Comp Cas 201. 13 Bajaj Auto Ltd. v. N.K. Firodia, (1971) 41 Comp Cas 1. 14 A. RAMAIYA, GUIDE TO THE COMPANIES ACT, 1580 (17th edn., 2011). 15 Luxmi Tea Co. Ltd. v. P.K. Sarkar, (1990) 67 Comp Cas 518; V.B. Rangaraj v. V. B. Gopalakrishnan, (1992) 73 Comp Cas 201. 3

transfer of shares.16 Hence, the Company has exceeded the scope of the powers given to it under the Articles of Association while refusing the transfer of the shares to the applicants. Therefore, a petition under Section 111 was rightly maintainable before the Company Law Board, where clearly, on the face of it, the Company has declined registration without any power in this regard.17 [ii.] Even if it is present, it has been arbitrary. 11. Even if it is assumed that the Company did have the power to refuse the transfer, the power has been exercised by it arbitrarily. The Company was not justified in insisting on a Probate when the High Court has, through an Interim Order, declared the heirs of Queen Kim. 18 When an order regarding the heirs has been given, and there is no stay granted by any Court, the Company is not justified in refusing the transfer of shares despite of the Interim Order.19 12. Admittedly, the transfer on the basis of the Interim Order will divide the shares of King Ray, willed in favour of Queen Kim, between both the parties. However, the fact that Company has refused to give effect to the transfer even then, and has insisted on a probate which is not required as the will of King Ray was never under challenge and the High Court has, in the interim, ordered both the parties to be legal heirs, is an arbitrary restriction on the transfer of shares. 13. Therefore, where the refusal to transfer the shares by the Company, and to register the transfer, is arbitrary, a petition to the Company Law Board was maintainable. 20 There were no complicated questions involved. However, the Board failed to see the arbitrary exercise of the power of refusal by the Company. The Company Law Board did not take into account the Interim Order of the High Court. The Company Law Board had the jurisdiction to decide the issues and ought to have exercised the same. 16 Factsheet ¶ 12. 17 RAMAIYA, supra note 14, at 1581. 18 Factsheet ¶ 22. 19 RAMAIYA, supra note 14, at 1581. 20 Luxmi Tea Co. Ltd. v. P.K. Sarkar, (1990) 67 Comp Cas 518. 4

[D.] The High Court has exceeded its jurisdiction in the present case 14. The matters that are presented before the High Court in an appeal under Section 10F against an order of the Company Law Board is to be limited to the questions of law that have been either raised before the Company Law Board or have been dealt with by it in its order. 15. In the present case, the Company Law Board concluded that it did not have jurisdiction to decide the matter.21 Since, the order of the Company Law Board was limited to the non-maintainability of petition due to the want of jurisdiction to decide complicated matters; the question of law that arises out of the order is limited to this issue of non-maintainability. 22 The arbitrary exercise of the power to refuse the transfer is not a question of law, but an analysis based on the facts. The High Court did not have jurisdiction to venture beyond the issue of the scope of jurisdiction of the Company Law Board and the correctness of the exercise of such jurisdiction in the present case. 16. In case the High Court came to the conclusion that there were no complicated questions of fact and law involved, the High Court is empowered to set aside the order of Company Law Board. 23 However, the jurisdiction of the High Court is limited to this order. The High Court could not have examined the facts and rendered a decision on the matter itself. The High Court does not have the power to decide the disputes regarding the facts. 24 In the present case, the High Court has gone into the depth of the matter and has dealt with the facts of the case, recording its own findings in the process.25 The High Court, instead of going into an analysis of the facts, ought to have remanded the matter back to the Company Law Board and directed it to re-examine the matter.26

21 Factsheet ¶ 24. 22 K. Muthusamy v. S. Balasubramaniam, 2011 (2) TMI 1279. 23 Dale and Carrington Invt. (P) Ltd. v. P.K. Prathapan & Ors., (2004) 122 CompCas 161 (SC). 24 Nupur Mitra v. Basubani Pvt. Ltd., (1999) 35 CLA 97. 25 Factsheet ¶ 25. 26 Dayagen Pvt. Ltd. v. Rajendra Dorian Punj, (2009) 151 CompCas 92 (Del); K.S.Narayana Iyer v.Talayar Tea Co. Ltd., (1995) 83 CompCas 743 (CLB).; RAMAIYA, supra note 14, at 1623. 5

17. Furthermore, the Company Law Board had not gone into the merits of the case and had not recorded any finding of facts.27 The High Court can deal with the facts only when the finding by the Company Law Board is perverse.28 In the instant case, the Company Law Board has rejected the petition at the threshold of admission. Hence, it has not recorded any finding of fact for it to be hit by perversity. Therefore, the High Court cannot decide based upon the facts of the case. 29 The High Court cannot embark upon consideration of evidence with reference to shares and their title. It is outside the purview of its jurisdiction.30 18. In addition, the power of the High Court to hear an appeal under Section 10F is analogous to the power of High Court under Section 100 of Civil Procedure Code.31 Therefore, it would also be subject to the same limitations. The High Court is not competent to deal with the facts and record its findings. The correct course of action was for the court to relegate the matter so that the Company Law Board could have exercised its power under Section 111 to determine the disputed facts.32 19. It is therefore, submitted that the High Court had not exercised its power rightly while deciding the appeal presented before it and has exceeded the jurisdiction conferred upon it by the law. It did not have the jurisdiction to go beyond the questions of law that arose out of the order of the Company Law Board. [II.] HIGH COURT COULD NOT HAVE DECIDED THE DISPUTE BECAUSE § 10 OF CPC APPLIES. 20. It is submitted that the High Court could not have heard and decided various aspects and disputes pending adjudication in the courts below because bar on trial of suit as given in Section 10 33 of

27 Factsheet ¶ 24. 28 Sree Meenakshi Mills Co. Ltd. v. Commissioner of Income Tax, AIR 1957 SC 49; M/s Micromeritics Engineers Pvt. Ltd. v. S. Munusamy, (2002) 3 CTC 661. 29 V.S. Krishnan v. Wertfort Hi-Tech Hospital Ltd., (2008) 83 CLA 371. 30 Mattulal v. Radhey Lal, AIR 1974 SC 1596. 31 Lohia Properties (P.) Ltd. v. Atmaram Kumar, (1993) 4 SCC 6. 32 Lohia Properties (P.) Ltd. v. Atmaram Kumar, (1993) 4 SCC 6; Nupur Mitra v. Basubani Pvt. Ltd., (1999) 35 CLA 97. 6

Civil Procedure Code, 1908 applies. All the four elements of Section 10 34 are fulfilled- first, the previously instituted suits are still pending [A.]; secondly, the matter in issue in the present suit and the pending suits is directly and substantially the same [B.]; thirdly, parties to the suits are the same[C.]; and fourthly, the suits have been filed before courts of competence [D.].

[A.] The previously instituted suits are still pending. 21. The previously instituted suits include Partition Suit of 1986, 35 Succession Case No. 413 of 1998,36 Probate Petition No. 72 of 200637 (for King Ray’s Will), Applications for Substitution as Legal Heirs of Queen Kim (2009),38 Probate Petition No. 3983 of 201039 (for Queen Kim’s Will), Review Petition No. 76347 of 201040 and Civil Suit for Declaration and Permanent Injunction (2011)41. Except the Succession Case of 1998, all other above mentioned suits are pending in nature.

33 Code of Civil Procedure, Act No. 5 of 1908, § 10 (1908) (“Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court: Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question.”). 34 See also Swagath Marine Products Pvt. Ltd. v. K. Muthuswamy, (2006) 134 Comp Cas 182 (CLB) (elements of § 10 have been enlisted). 35 Factsheet ¶ 13. 36 Factsheet ¶ 15. 37 Factsheet ¶ 17. 38 Factsheet ¶ 19 (filed before all the courts wherein a dispute was pending). 39 Factsheet ¶ 20. 40 Factsheet ¶ 22. 41 Factsheet ¶ 23. 7

22. The Succession Case No. 413 of 199842 can be said to have been concluded on the issuance of the Succession Certificate by the District Court of Thelesalonica to Princess North Bilzerian, Prince Wild Bilzerian and Queen Kim.43 23. Now five other suits are pending which include Probate Petition for Queen Kim’s Will in the District Court, Partition Suit of 1986, Review Petition against the Interim Order of the High Court and Civil Suit for Declaration and Permanent Injunction (2011) are also clearly pending adjudication.44 The probate proceedings for King Ray’s Will continue to exist and do not lapse as a result of the issuance of the succession certificate to Princess North and Prince Wild along with Queen Kim because the judgment produced as a result of a probate petition is a judgment in rem and the fact of a settlement entered into by the consent of the parties is immaterial and falls outside the scope of enquiry. From amongst these, there are only three suits relevant for Section 10, viz., both the probate proceedings and the Review petition in the High Court. 24. Applications for Substitution as Legal Heirs of Queen Kim were filed in all those courts wherein a dispute was pending adjudication.45 At the time these applications were filed, the pending suits included the Succession Case No. 413 of 1998, 46 Probate Petition for King Ray’s Will 47 and the Partition suit of 198648. Thus, the courts before which these Applications were filed include the District Court of Thelesalonica and the High Court. Order 22, Rule 5 of the Code of Civil Procedure, 190849 empowers the Court to decide questions as to who the legal representatives of a deceased plaintiff or a deceased defendant are. 50 The objective of this provision is the sustenance of suits to which the deceased was a party. Therefore, these applications also lapse when the corresponding proceedings come to an end. As has been argued above, only the 42 Factsheet ¶ 15. 43 Factsheet ¶ 18. 44 Factsheet ¶¶ 13, 20, 22, 23. 45 Factsheet ¶ 19. 46 Factsheet ¶ 15. 47 Factsheet ¶ 17. 48 Factsheet ¶ 13. See also factsheet ¶¶ 19,20 (Probate petition for Queen Kim’s Will was filed after the Applications for Substitution as Legal Heirs were filed). 8

Succession case has come to an end while the probate for King Ray’s Will and Partition suit are still pending. Thus, Applications for Substitution as Legal Heirs now exist corresponding to these two suits but of these only the one related to probate for King Ray’s Will is relevant. 25. Therefore, the previously instituted suits, which are still pending and relevant for this case are probate for King Ray’s Will along with the Application for Substitution as Legal Heir, probate for Queen Kim’s Will and Review Petition in High Court (2010).

[B.] The matter in issue in the present suit and the pending suits is directly and substantially the same. 26. Subject matter refers to a “bundle of facts”51 that are required to be proved to “entitle the plaintiff to the relief claimed by him”52. The issue in the current suit revolves around the dispute between the parties regarding transfer of shares of King Ray. For these shares to be transferred, the parties are required to show the existence of a proof entitling them to such transfer. 53 A probate54 or a succession certificate55 can be considered to be sufficient proof for such transfer. Therefore, proof 49 Code of Civil Procedure, Act No. 5 of 1908, Order 22, Rule 5 (1908) (“Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court: Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question.”) 50 Code of Civil Procedure, Act No. 5 of 1908, Order 22, Rule 5 (1908). Gurcharan Singh v. Surjit Singh & Anr. [I.A. No. 2 to 6, in Special Leave Petition (C) No. 7735 of 2010, application decided on 2nd Nov. 2012]; Kurappaswamy & Ors. v. C. Ramamurthy, AIR 1993 SC 2324; Ram Kala v. Deputy Director (Consolidation) & Ors., (1997) 7 SCC 498. 51 Vallabh Das v. Madan Lal, AIR 1970 SC 987. 52 Vallabh Das v. Madan Lal, AIR 1970 SC 987. 53 Factsheet ¶¶ 17, 21. 54 See factsheet ¶ 17 (Company itself asks for a Probate in its Annual General Meeting). 55 See generally Thenappa Chettiar v. Indian Overseas Bank Ltd., (1943) 13 Com Cases 202 (Mad). 9

of entitlement to shares and consequently, succession certificate obtained by Princess North Bilzerian and Prince Wild Bilzerian along with Queen Kim, can be said to be the subject-matter in this case. In other words, it is imperative as per the Articles of Association of the Company to prove who the legal representatives of King Ray are.56 27. An important test to determine the applicability of Section 10 is the test of res judicata according to which if the decision in the previous suit would act as res judicata57 on the subsequent suit, then the latter is bound to be stayed. 58 The “matter in controversy” 59 should be the same in both suits and not the relief claimed.60 Complete identity of prayers is not essential. The subject matter should be directly and substantially the same to the extent of affecting the decision in the subsequent case.61 Decisions in all the pending cases were bound to have an impact on the decision of the High Court in the present case. Completion of trial in any of the three pending cases would conclusively determine who the heirs of King Ray are and consequently who is entitled to get the shares transferred. There could also have been a conflict of decisions which goes against the object of Section 10 which is to avoid parallel adjudication and prevent conflicting decisions.62 28. Therefore, there is similarity of subject matter between the pending suits and the subsequent suits.

56 Factsheet ¶ 12. 57 See generally BRYAN A. GARNER, BLACK’S LAW DICTIONARY, 1470 (10th edn., 2014) (“Rule that final judgment or decree on merits by court of competent jurisdiction is conclusive of rights of parties or their privies in all later suits on points and matters determined in former suit”). 58 National Institute of M.H. & N.S. v. C Parameshwara, AIR 2005 SC 242. 59 Aspi Jal and Anr. v. Khushroo Rustom Dadyburjor, AIR 2013 SC 1712. 60 Aspi Jal and Anr. v. Khushroo Rustom Dadyburjor, AIR 2013 SC 1712. 61 Swagath Marine Products Pvt. Ltd. v. K. Muthuswamy, (2006) 134 Comp Cas 182 (CLB). 62 National Institute of M H & NS v. C Parameshwara, AIR 2005 SC 242. 10

[C.] Parties to the suits are the same. 29. Parties to the suits are same. Both in the previously pending suits and the present suit, Princess North Bilzerian and Prince Wild Bilzerian are parties on one side and the stepsons of Queen Kim are parties on the other side, contesting under the same title in all these suits.63

[D.] All these suits have been filed before courts of competence. 30. The previous suits are before courts of competence. A court is said to be one of competence when it has the power to grant a relief claimed in a particular suit. 64 A District Court has the power to grant probate because of two main reasons. Firstly, it is the ‘District Court’ which is competent to grant probate according to Section 264 of Indian Succession Act, 1925. 65 Secondly, in order for such District Court to have territorial jurisdiction, the deceased should either have place of abode or property (whether movable or immovable) within its jurisdiction. 66 Shares are movable property according to Section 82 of the Companies Act, 1956 and Section 2(7) of the Sale of Gods Act, 1930.67 In this case, the property under consideration in the probate proceedings includes the shares of King Ray in the Company registered in Thelesalonica. 68 Therefore, the District Court of Thelesalonica is a court of competence for the purposes of Section 10. 31. In case of the Review Petition of 2010, the High Court has the power to declare who the legal heirs of a deceased person are.69 Therefore, it is a court of competence.

63 Factsheet ¶¶ 15, 20, 22. 64 Nirmal Singh v. Om Prakash, AIR 1965 J&K 99; JT Republike v. Rungta & Sons, AIR 1966 Cal 382; Somasundaram v. Venkata Subbayya, AIR 1938 Mad 602. 65 The Indian Succession Act, No. 39 of 1925, §264 (1925). 66 The Indian Succession Act, No. 39 of 1925, §270 (1925). 67 Companies Act, No. 1 of 1956, § 82 (1956); Sale of Goods Act, No. 3 of 1930, § 2(7). Smt. Kanta v. State 1985 SCC OnLine Del 160; N. S. Chopra v. State of Delhi, 2014 Indlaw DEL 1916. 68 Factsheet ¶ 9. 11

32. Moreover, it has also been held by the Supreme Court that even though Section 10 is a rule of procedure, it is still a mandatory provision. 70 As all the conditions of Section 10 stand fulfilled, bar on trial of the present suit in High Court applies. 33. Therefore, the High Court erred in continuing with the trial of this case and should have, instead, stayed the proceedings keeping in view the pendency of the previous civil suits. [III.] THE HIGH COURT COULD NOT HAVE INTERPRETED THE WILL OF KING RAY UNDER SECTION 10F. 34. The decision of the High Court in the appeal has been given in the favour of the children of King Ray, directing the Company to transfer the shares in their favour and register the same. The judgement also ventures on to decide the title to the property of King Ray through the interpretation of his will in favour of Queen Kim. 35. It is submitted that the High court did not have jurisdiction under Section 10F to interpret the will of King Ray as: first, interpretation of will is not a question of law [A.]; secondly, it is not arising out of the order of Company Law Board [B.], and; thirdly, the power of the court under Section 111 is summary and limited [C.]. Even if the will could have been interpreted, the High Court erred in the interpretation [D.]. [A.] Interpretation of will is not a question of law. 36. The jurisdiction of the High Court under Section 10F is limited to a question of law. As submitted earlier, the High Court cannot rule on the facts of a case. In the present case, the High Court has, in its decision while hearing the appeal, has interpreted the Will of King Ray. The interpretation of a will is not a question of law, but of fact. The intent of the testator is to be inferred through the facts and circumstances of the case. An inference from the facts is a question

69 M/s Kalinga Mining Corporation v. Union of India, Civil Appeal No. 1013 of 2013; Shrimant v. Mrunalinidevi, CR.MA/2062/2010; Suresh Kumar Bansal v. Krishna Bansal & Anr., Civil Appeal No. 8271 of 2009; Sequeria v. P. Francisco, AIR 1976 Goa 48. 70 Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527. 12

of fact.71 It does not change its nature unless it is found to be perverse. 72 Therefore, the High Court could not have interpreted a will under Section 10F. [B.] Even if it is a question of law, it does not arise out of the order of Company Law Board. 37. An appeal to the High Court lies only on question of law arising out of the order of the Company Law Board.73 It is a settled principle in law that a question of law does not arise out of the order of the Company Law Board if it was neither raised nor dealt with by the Board during the proceedings before it.74 38. In the present case, the Company Law Board has not heard the parties on merits of their appeal. It has refused to adjudicate upon the petition due to the reason that it lacks jurisdiction as well as not given any finding in relation to the facts of the case.75 Therefore, where the Company Law Board has not considered the matter before it, nor has passed any order on it, the question of interpretation of the will does not arise. [C.] The power of the Court under Section 111 is summary and limited. 39. The Appeal, in the instant case, is against Section 111 of the Companies Act, 1956 on the refusal of the Company to register the transfer of the shares of late King Ray. 76 The jurisdiction of the court under this Section is summary in nature.77 The genuineness of a will and its interpretation 71 Sree Meenakshi Mills Co. Ltd. v. Commissioner of Income Tax, AIR 1957 SC 49. 72 Dale and Carrington Invt. (P) Ltd. v. P.K. Prathapan and Ors., (2004) 122 CompCas 161 (SC). 73 Manoj Kumar Kanuga v. Marudhar Power Pvt. Ltd., (2013) 179 CompCas 504(AP); Commisioner of Income Tax v. Scindia Steam Navigation Co. Ltd., AIR 1961 SC 1633. 74 Commisioner of Income Tax v. Scindia Steam Navigation Co. Ltd., AIR 1961 SC 1633; Ammonia Supplies Corporation (P.) Ltd. v. Modern Plastic Containers Pvt. Ltd., (1998) 7 SCC 105; Manoj Kumar Kanuga v. Marudhar Power Pvt. Ltd., (2013) 179 CompCas 504(AP); M/s Micromeritics Engineers Pvt. Ltd. v. S. Munusamy, (2002) 3 CTC 661. 75 Factsheet, ¶ 24. 76 Factsheet ¶ 23. 77 Ammonia Supplies Corporation (P.) Ltd. v. Modern Plastic Containers Pvt. Ltd., (1998) 7 SCC 105; Public Passenger Service Ltd. v. M.A Khadar, AIR 1966 SC 489. 13

cannot be decided in a summary proceeding. 78 Furthermore, the jurisdiction of the court is limited to the transfer of shares and the refusal thereof. The court cannot decide matters that are not within the domain of such powers of the court under Section 111. 79 The interpretation of the will is a matter to be decided by the civil court. 80 The High Court, under an appeal, only has jurisdiction to decide questions of law arising out of company matters. The interpretation of the will is not such and therefore, the High Court could not have interpreted the will of King Ray. 40. Furthermore, it has been held that intervention of civil court is required when interpretation of will is sought.81 The interpretation of such words that can cause ambiguity in the will and the meaning to be inferred from them cannot be adjudicated upon in a company petition.82 Therefore, the court had no power to interpret a will while hearing a Company Appeal. 41. Therefore, the Court has stepped out of its jurisdiction when interpreting the will of King Ray. As per the limitations placed on its powers by the Act, it could not have done the same while hearing an appeal under Section 10F. [D.] Even if the will could have been interpreted, the High Court erred in the interpretation. 42. It has already been submitted above that the High Court did not have jurisdiction to interpret King Ray’s Will under Section 10F. However, even if it had the jurisdiction to interpret the Will, the actual interpretation put forth by the High Court is erroneous. 43. It is an established position of law in terms of construction of wills that when the language of the will is clear and consistent, the interpretation it receives must be based on a literal construction. This is subject to the condition that there is nothing in the will to suggest a departure from such construction.83 Where the language and the words of the will are clear, it is not proper for the 78 Surendra Kaur v. Singh Engg Works Pvt. Ltd. (1977) 47 Com Cases 638 (All). 79 RAMAIYA, supra note 14, at 1623. 80 Bipin K. Jain v. Savik Vijay Engg P Ltd. (1998) 91 Comp Cas 835. 81 S. Kanthimathy v. Woodlands Estates Ltd., (2008) 144 Comp Cas 830 (CLB). 82 S. Kanthimathy v. Woodlands Estates Ltd., (2008) 144 Comp Cas 830 (CLB). 83 Gurusami Pillai v. Sivakami Ammal, 18 Mad 347: 22 IA 119. 14

court to either supplement the words or read it down to give benefit to either of the contesting parties.84 It is only when the contents are not clear that the question of taking recourse to the application of principles of construction of a document may have to be applied. Taking this perspective, it must be noted that King Ray’s will is worded very clearly and in an unambiguous manner. None of the expressions employed have multiple possible constructions. With respect to the fact of disinheriting North and Wild Bilzerian which is in question, King Ray through his will, in plain words, disinherited his children from getting or claiming any part of his estate. 44. A rational construction of a will is one which involves a detailed examination of the natural and grammatical meaning of the language used by the testator in the will. In the case of presence of such clear and unambiguous dispositive words in the language of the will, it is not to be controlled or qualified by any general expression of intention.85 Such lucid and unambiguous language necessitates the will to be construed in accordance the language.86 45. The reasoning provided by the High Court to support its construction was stated to be that the intent of the testator had to be gathered from wholesome reading of the document and the circumstances of the case. However, the “intent of the testator” only indicates the intention as expressed in the will and none other.87 It is mode of expression of the intention of the testator and the form and language of the will which hold utmost importance. 88 Taking into account the intention of the testator does not mean to explore into what the testator meant to do when he made the will. The court cannot speculate what the testator might have intended to write but only what can be expressly or implicitly inferred from the words of the testator. The background and the circumstances surrounding the disposition should be used only to construe the meaning of the words that have actually been employed in the Will. 89 The meaning of intention is restricted to 84 Muninanjappa v. R. Manual, (2001) 5 SCC 363. 85 National Society for the Prevention of Cruelty to children v. Scottish National Society for the Prevention of Cruelty to Children, [1915] AC 207. 86 Mst. Jio v. Mst. Rukhan, 8 Lah 219. 87 Gnanambal Ammal v. T. Raju Aiyar, AIR 1951 SC 103; Balbhadra v. Board of Revenue, 1981 AWC 525; Veerattalingam v. Rameth, AIR 1990 SC 2201. 88P.L. PARUCK, THE INDIAN SUCCESSION ACT, 262 (10th edn., 2011). 89 Rajendra Prasad v. Gopal Prasad, 57 IA 296; Ram Gopal v. Nand Lal (AIR 1951 SC 139). 15

the expressed intentions of the testator to account for what the written words in the particular will can be interpreted to mean.90 46. The interpretation of the High Court highlights the grabbing of the property by the wife as the only major concern. It mentions the ‘urgent need to address the reckonings on his mind’ as the reason for the disposition. Such interpretation amounts to going beyond the restricted meaning of ‘intention of the testator’. The primary duty of the court is, in fact, to not indulge in any conjecture or speculation to ascertain intention of the testator from the will itself.91 47. Upon the question of the ‘wholesome reading of the document’, it is acknowledged that the intention of the testator and the effect of the dispositions contained in the will must be decided by construing the will as a whole. This is meant to consider all the relevant clauses in the will, in their plan grammatical meaning considered together.92 However, such harmonious construction shall not be over-stretched to mean what could not have been intended by the testator. 48. The High Court itself has missed the very essence underlying the idea of ‘wholesome reading’. In fact, the High Court order gave a rather limited interpretation of King Ray’s will. It held that the intention of the testator was only to prevent his estranged wife, Queen Carlen, from getting his property through his children who, being minors at that point of time, were said to be under the influence of their mother. 93 49. Although the court did look at the surrounding circumstances and the family relations of the testator, this cannot be said to be an actual wholesome interpretation of the will. The surrounding circumstances are to be considered only for the purpose of finding out the intended meaning of the words which have actually been employed. They are only an aid to arrive at the right construction.94 50. Further, in the first paragraph of the Will, late King Ray makes three main statements- first, that he tried to contact his children, Princess North Bilzerian and Prince Wild Bilzerian, but they

90 Perrin v. Morgan, [1943] AC 399. 91 Lalta Baksh Singh v. Phool Chand, AIR 1945 PC 113. 92 N. Kasturi v. D. Ponnammal, AIR 1961 SC 1302. 93 Factsheet ¶ 25. 94 Navneet Lal v. Gokul, AIR 1976 SC 794. 16

refused to speak to him95; second, that the these state of affairs (of having estranged relations with his children) disturbed him96; and third, that his children were influenced by their mother who according to him wanted to grab his property through the device of his children. 97 It is on the basis of all these reasons that King Ray, in the concluding paragraph of the Will disinherits his children and bequeaths all his property to Queen Kim. Therefore, King Ray disinherited his children not only because he wanted to prevent Queen Carlen from grabbing his property but also because he had, by then, garnered a strong dislike towards his children.98 51. Another cardinal principle for the legal construction of wills is to the extent that is legally possible, effect should be given to every disposition contained in the will. 99 No word that has a clear and definite operation in the disposal of the testator’s property should be struck out. The testator could not have intended to make any bequest in the will as an exercise in futility. A construction which would advance the intention of the testator has to be preferred. The only condition is that the disposition should not be such that the law prevents the required effect being given to it. 100 Thus, the court should not reject any part of the will as being a surplusage. 52. In the instant case, the disinheriting of the children, North and Wild, from claiming or getting any part of the estate of King Ray amounts to one such disposition in the will. The order of the High Court order disregarding this disposition is flawed. 53. As stated earlier, full effect should be given to every portion of the will unless it makes the provisions of the will inconsistent with each other or is repugnant to the testator’s ideas of property.101 In this situation, the act of disinheriting is consistent with the underlying idea in the whole of the will being the strained relationship with the children, which actually is indicative of

95 Factsheet ¶ 16. 96 Id. 97 Id. 98 Factsheet ¶¶ 14, 16. 99 Gopala Menon v. Sivaraman Nair, (1981) 3 SCC 586. 100 Bhura v. Kashi Ram, (1994) 2 SCC 111. 101 Ramachandra v. Vijayaragavulu, 31 Mad 349. 17

the reason behind this act of disinheriting them. Thus, it is not repugnant to, and is in fact in consonance with King Ray’s idea about inheritance to his property. 54. Further, a principle which governs the construction of wills is the ‘Armchair rule’. 102 The court should “put itself in the testator’s armchair” 103. This indicates that the court should determine the facts and circumstances respecting the testator’s property and his family and other persons and things as at the date of the will in order to give effect to the words used in the will. It should look at the surrounding circumstances of the testator, his or her position, family relationship, probability of using certain words in a particular sense. In simple terms, it means taking the perspective of the testator to understand the will. 104 In the instant case, such a view would take note of the fact that after the irretrievable breakdown of marriage of King Ray, his children along with Queen Carlen had gone back to the Province of Malay back in the year 1990. His attempts to contact the children had been steadfastly resisted. He developed a strong dislike against North and Wild which is also acknowledged by the words “disturbed by the children’s attitude” in his will. Such a scheme of facts is indicative of the intention of King Ray to disinherit them from claiming or getting any part of his estate. 55. Therefore, the interpretation of King Ray’s will by the High Court fails on all counts of rules of construction. Hence, the order of the High Court ordering for rectification while relying upon such flawed interpretation must be set aside. [IV.] THE SUCCESSION CERTIFICATE, BY VIRTUE OF QUEEN KIM’S DEATH, BECAME INOPERATIVE AND COULD NOT BE RELIED UPON 56. It is submitted that by reason of Queen Kim’s death, the succession certificate dated May 8, 2009 obtained jointly by her along with North and Wild Bilzerian 105 became wholly inoperative. Consequently, High Court of Thelesalonica could not have relied upon the certificate to decide the question of rectification with respect to the shares of King Ray. The decision ordering rectification based upon the succession certificate was flawed. This is because the authority

102 GOPALAKRISHNAN, LAW OF WILLS, 457 (7th edn., 2009). 103 Venakata Narsimha v. Parthasarathy, (1913) 15 Bom LR 1010. 104 Meena Vasant Patel v. Prithviraj Ambalal Patel, 2010 (6) AIR (Bom) R 314. 105 Factsheet ¶ 18. 18

vested in joint-holders can only be exercised jointly [A.] and Section 383 of the Indian Succession Act allows for revocation of certificate upon death of a joint-holder [B.]. [A.] The authority vested in joint-holders can only be exercised jointly 57. The grant of a succession certificate does not confer title upon the grantee as an heir to the deceased.106 Section 374 of the Indian Succession Act lays down that the certificate empowers the grantee to receive interests or dividends and negotiate or transfer the securities specified in the certificate.107 Such ‘security’ includes shares in a company, like those in the present case, by virtue of Section 370(2) of the Indian Succession Act.108 58. The grant of a succession certificate is ordinarily made to a single individual. Section 373(4) of the Indian Succession Act provides that in case of multiple applicants for a certificate, it lies within the discretion of the judge to decide the grant to a person, having regard to the extent of interest and fitness of the applicants in other respects. 109 But it is acknowledged, here, that the grant of a succession certificate jointly is not unlawful, 110 particularly when several applicants have the same degree of interest in the estate of the deceased. 111 However, it cannot be denied that the grant of a certificate to multiple persons, jointly, is inevitably fraught with considerable inconvenience in the event of death of one of them. 112 In fact, the practice of granting such joint certificates has been condemned because of such obvious hassles that can be foreseen upon the grant.113 The inconvenience caused because of the certificate losing validity upon one such death 106 Prankisto v. Nobodip, (1882) ALR 8 Cal 868; N.D. BASU, LAW OF SUCCESSION, 1941 (10th edn., 2009). 107 Section 374, The Indian Succession Act, 1925. 108 Section 370(2), The Indian Succession Act, 1925. 109 Section 373(4), The Indian Succession Act, 1925. 110 Ram Raj v. Brij Nath, 35 All 479; Syed Ahsan v. Mst Sayeeda Begum, 1958 Pat LT 111. 111 Narayanasami v. Kuppusami, (1896) ILR 19 Mad 497. 112 Shanti v. Pankaj, AIR 1995 P&H 14. 113 Sukumar Deb Roy v. Parbati Bala, AIR 1941 Cal 663. 19

cannot be done away with. The existing holders can longer rely upon the joint succession certificate for their claims because it becomes inoperative. 59. The same can be illustrated through the decision of the Calcutta High Court in the landmark judgment of Sukumar Deb Roy v. Parbati Bala.114 This case involved three daughters who jointly held a succession certificate with respect to their mother’s property. On the death of one of the daughters, the other two joint-holders filed for a succession certificate with respect to the onethird share held by the deceased daughter. The question before the court was whether the validity of the original joint succession certificate had been affected by the death of one of the joint holders to the certificate. The court decided that the death invalidated the succession certificate for further purposes. The joint certificate could no longer be said to be in force.115 60. This is so because, if two or more people jointly hold a succession certificate, and when one of them dies, the existing certificate holders cannot exercise the powers under the certificate. 116 The authority vested in the joint-holders can only be exercised by all of them together. The death of one of them renders the certificate wholly inoperative. 117 The principle stated above was endorsed by the Calcutta High Court in a subsequent case,118 wherein the Court observed that when there are multiple grantees to a succession certificate, no two of them can give proper discharge by themselves. 61. In the instant case, the succession certificate jointly vests a one-third share each of King Ray’s assets in Queen Kim and the two grandchildren.119 This fact of three grantees holding one-third share each is, in fact, analogous to that of the Sukumar Deb case120 detailed above. Subsequently, Queen Kim, a joint holder, has died.121 Applying the principle laid down in the aforementioned

114 Sukumar Deb Roy v. Parbati Bala, AIR 1941 Cal 663. 115 Sukumar Deb Roy v. Parbati Bala, AIR 1941 Cal 663. 116 Sukumar Deb Roy v. Parbati Bala, AIR 1941 Cal 663. 117 PARUCK, supra note 81, at 1214. 118 In Re goods of Gagan Chandra, AIR 1950 Cal 578. 119 Factsheet ¶ 18. 120 Sukumar Deb Roy v. Parbati Bala, AIR 1941 Cal 663. 20

case, the joint succession certificate granted to them with respect to King Ray’s assets, on Queen Kim’s death, becomes wholly inoperative, and cannot be relied upon. [B.] Section 383 allows for revocation of certificate upon death of a joint-holder 62. It is submitted that a succession certificate is not an irrevocable grant. It can be revoked under the circumstances stipulated under Section 383 of the Indian Succession Act, 1925. 122 Clause (d) of Section 383 allows revocation when the certificate becomes “useless and inoperative through circumstances”.123 The same has been construed to mean the discovery of a fact which, if known at the date of the grant, would have been good grounds for refusing it.124 For the purpose of revocation under this section, the circumstances which render the grant useless and inoperative “may have come into existence after the original grant was made”. 125 The death of a joint-holder is one such circumstance arising subsequent to the grant which would render the certificate useless. Clearly, such a circumstance of death of a grantee falls within the ambit of Section 383(d). The situation would justify revocation upon such a death. 63. Hence, the death of one of the holders in the case of a joint succession certificate necessitates revocation of the certificate to be sought under Section 383(d) of the Indian Succession Act. It is after the conclusion of such revocation that a new certificate may be applied for.126 Similarly, by reason of Queen Kim’s death, Wild and North have to obtain a fresh succession certificate which could empower them to give discharge with respect to King Ray’s assets. 64. Therefore, the existing joint-holders cannot exercise the powers under the succession certificate after the death a joint-holder and the certificate is required to be revoked under Section 383(d). It is, thus, clear that Queen Kim’s death meant that the succession certificate ceased to be in force. Wild and North Bilzerian’s applications to claim transmission of shares based upon the 121 Factsheet ¶ 19. 122 The Indian Succession Act, No. 39 of 1925, § 383. 123 The Indian Succession Act, No. 39 of 1925, § 383(d). 124 Bal Gangadhar Tilak v. Sahwarbau, 1926 Bom. 792; Gour Chandra v. Sarat Sundari, 1940 Cal. 50. 125 Surendra v. Amrita, 1947 Cal. 115. 126 Sukumar Deb Roy v. Parbati Bala, AIR 1941 Cal 663. 21

certificate are infructuous. The order of the Company Law Board not entertaining such applications under Section 111 of the Companies Act, 1956 127 did not suffer from any infirmity. The High Court ought to have ignored the certificate for the purpose of deciding the proceedings ordering transmission. The reliance by the Court upon the same joint certificate to order for rectification in relation to King Ray’s shares in the company is without any basis and genesis. [V.] PROBATE PROCEEDINGS INSTITUTED BY QUEEN KIM CANNOT BE SAID TO LAPSE ON THE BASIS OF THE

SETTLEMENT DEED

65. It is submitted that the probate proceedings under Petition No. 72 of 2006 128 cannot be termed as lapsed on the basis of the Settlement Deed dated May 8, 2009 entered into by Queen Kim and the grandchildren.129 The argument put forth in this regard is two-fold. [A.] First, probate proceedings result in a judgment in rem and cannot lapse because of a private agreement. [B.] Secondly, the order granting succession certificate based upon the Settlement Deed does not operate as res judicata upon the probate proceedings. [A.] Probate proceedings result in a judgment in rem and cannot lapse because of a private agreement 66. It is a settled proposition of law that proceedings under a Probate petition produce a judgment in rem.130 The question of authenticity of will decided under such proceedings is conclusive against the world, and not just the private parties involved. 131 It can be subject to challenge by a third person. Because they are not proceedings in personam, the Court cannot, by the mere consent of the parties involved or a settlement entered into between them, decide the fate of the probate proceedings.132 127 Factsheet ¶ 21. 128 Factsheet ¶ 17. 129 Factsheet ¶ 18. 130 Bishunath Rai v. Sarju Rai, AIR 1931 All 745. 131 MULLA, THE CODE OF CIVIL PROCEDURE, 1484 (15th edn., 2012). 132 Monmohini Guha v. Chandra Das, (1904) ILR 31 Cal 357. 22

67. The only issue before the Probate Court is the proof of valid execution and genuineness of the will.133 The function of the probate court is limited to enquiry into the legal execution of the will, the sound and disposing state of mind of the testator, his understanding of the nature and effect of such disposition, and his signature as mark of his freewill and volition. 134 It is wholly immaterial if the parties involved desire to compromise their dispute by way of a settlement or not. All such matters fall outside of the scope of such inquiry.135 68. Moreover, none of the provisions of the Indian Succession Act, 1925 relating to probate admit the incorporation of any kind of private terms into such proceedings. The form of probate has been prescribed in Schedule 6 of the abovementioned Act. It, too, makes no allowance for a private compromise, like one providing for division of estate of the testator, to influence, or be embodied in probate order of the Court. A court of probate always shies at terms of a settlement.136 69. In fact, the Probate Court has been noted to be a court of conscience, which is not to be influenced by any sort of private arrangements entered into between the parties. The decision of the probate petition is limited to either the grant of the will or rejection of such grant. There is no middle path open to settle the dispute by way of an agreement resolving the dispute. 137 The only effect that a compromise can have is to reduce a contentious proceeding to a non-contentious one. It does not absolve the Court from the task of either granting the probate or refusing it. It does not lead to a dismissal of the probate case.138 70. Further, on the filing of a probate petition, the Court assumes upon itself the duty of determining whether the will is genuine or not. As the court had observed in the case of Jugeshwar Nath Sahai v. Jagatdhari Prasad,139 in so far as the disposal of assets by an agreement is concerned, it 133 S.C. SARKAR, THE LAW OF CIVIL PROCEDURE, 1998 (11th edn., 2006). 134 PARUCK, supra note 81, at 1230. 135 Bishunath Rai v. Sarju Rai, AIR 1931 All 745. 136 Sushila Bala Saha v. Saraswati Mondal, AIR 1991 Cal. 166; PARUCK, supra note 81, at 552. 137 Sushila Bala Saha v. Saraswati Mondal, AIR 1991 Cal. 166. 138 Janakbati v. Gajanand, AIR 1916 Pat 82. 139 Jugeshwar Nath Sahai v. Jagatdhari Prasad, 1917 SCC OnLine Pat 166. 23

has nothing to do with the question of whether the will is genuine or not. The Judicial Commissioner was, therefore, required to express his opinion on the issue of genuineness of the will irrespective of the agreement providing for the disposal of assets. 71. Likewise, the applicant to the probate acquires the duty to obtain the opinion of the Court upon the authenticity or otherwise of the will. If he fails to obtain the finding of the court in the respect of this matter, and moves for withdrawal, it amounts to improper withdrawal of the probate application.140 72. In the instant case, King Ray’s will under Petition No. 72 of 2006 has neither been proved nor disproved. The Probate proceedings have not been dropped or dismissed by the District Court before which they were instituted. They cannot be implied to have been legally disposed of by the agreement entered into. The Settlement deed entered into between Queen Kim and the grandchildren141 is no ground for the lapse of the proceedings. It, thereby, means that the proceedings have not lapsed. 73. Thus, it would be a dereliction of duty on part of the Court to declare the proceedings to have lapsed merely based upon the settlement, without deciding upon the grant or the rejection of the probate. The proceedings continue to exist as even on the date when the respondents file petitions for rectification before the Company Law Board. [B.] The order granting succession certificate based upon the Settlement Deed does not operate as res judicata upon the probate proceedings. 74. It is on the basis of the Settlement Deed dated May 8, 2009 that Queen Kim, North and Wild Bilzerian had obtained the joint succession certificate in respect of King Ray’s shares. 142 But the nature of probate proceedings that were pending was very different from those relating to grant of the succession certificate. As the procedure prescribed under Section 373 of the Indian Succession Act indicates, the proceedings granting succession certificates are summary in nature.143 It is only an enquiry into whether the applicant, prima facie, has the best title thereto.144 Thus, as laid down in Section 387 of the Act, no such decision upon any question of right bars 140 Jugeshwar Nath Sahai v. Jagatdhari Prasad, 1917 SCC OnLine Pat 166. 141 Factsheet ¶ 18. 142 Factsheet ¶ 18. 143 The Indian Succession Act, No. 39 of 1925, §373(d). 24

the trial of the same question in any suit or in any proceeding between the same parties. 145 The adjudication made, in effect, does not operate as res judicata upon other proceedings.146 75. On the other hand, the judgment in probate proceedings deciding the validity of a will is final and conclusive in nature.147 It establishes the authenticity of the will based upon evidence of execution. But a succession certificate does not confer ownership right of the party in question. Any disposition made through a will by a person with regard to the property is immaterial for the proceedings initiated to obtain a succession certificate.148 76. Thus, the grant of a succession certificate in the instant case does not bar the institution or continuance of a suit to determine the heirship to debts and property of King Ray, like the probate proceedings. In conclusion, the entering into of settlement deed and the issuance of the succession certificate does not affect the pendency of the probate petition filed earlier before the District Court. The proceedings cannot be said to have lapsed by virtue of the settlement entered into by Queen Kim and the grandchildren. Until the time the Court determines the validity and authenticity of the will, the probate proceedings have to be held to be pending in the District Court of Thelesalonica. They continue to exist till date even as the matter is currently heard before the Supreme Court. [VI.] THE HIGH COURT HAS ERRED IN DIRECTING THE COMPANY TO TRANSFER THE SHARES IN FAVOUR OF THE RESPONDENTS.

77. As has been already submitted, the succession certificate became inoperative and could not be relied upon. It is further submitted that the appellants are entitled to get the shares transferred in their name. King Ray in his Will bequeathed all his property to Queen Kim alone. As this Will has not been challenged, probate is not necessary149 and thus, presumption of validity of the Will stands. Now that the succession certificate has become inoperative, any right vested with the 144 V.K. Kamalam v. Canchali Amma, AIR 1998 Ker 265; Surfogi v. Kamalshiamba, 7 Mad 543. 145 P. Meenambal v. R. Rajeswari, 1998 (1) LWP 736; G. Jayashankaraiah v. T.N. Gangadhariah, AIR 2006 Kant 150. 146 V.K. Kamalam v. Canchali Amma, AIR 1998 Ker 265; PARUCK, supra note 81, at 1236. 147 PARUCK, supra note 81, at 1230. 148 BASU, supra note 106, at 1941. 25

children of King Ray by virtue of the said succession certificate ceases to exist and Queen Kim alone becomes the heir to King Ray’s property by virtue of his Will. It is also argued that the Will of Queen Kim, in which she bequeathed all her property to the children of King Ray, is fabricated and forged.150 In such a scenario, the property of Queen Kim shall come down through intestate succession. 78. Had there been no adoption of King Ray, Prince Wild and Princess North would have been heirs of Queen Kim according to Section 15 151 of the Hindu Succession Act by virtue of being the children of predeceased son. However, the adoption of King Ray is, in fact, valid due to a multiplicity of reasons. 79. First, under Hindu law, mere act of giving and taking, though mandatory, is enough for a valid adoption to take place.152 Thus, King Ray is said to have been adopted the moment he was given by King Big Bilzerian and Queen Kim to King Dueta, who readily accepted Ray as his son.153 80. Secondly, under classical law wherein a father could alone give a child for adoption without the mother’s consent.154 Assuming that King Ray was given up for adoption before 1956, 155 Queen Kim’s consent does not matter. Alternatively, if the adoption is considered to have happened after 1956, the consent of the mother of a child becomes equally important for adoption. 156 But once the child is given to another family and the mother willingly participates in the ceremony of

149 The Indian Succession Act, No. 39 of 1925, §213 (1925). 150 See also factcheet ¶ 23 (Civil Suit for Declaration and Permanent Injunction, declaring that the Will of Queen Kim has been forged and fabricated, is pending adjudication). 151 Hindu Succession Act, No. 30 of 1956, § 15(1)(a) (1956). 152 See Ghissai Ram v. Barey Lal, AIR 1942 Oudh 490; Siddessory Dossee v. Durgacharan Dass, 2 IJ (NS) 22; Sosinath v. Krishna, ILR 6 Cal 381. 153 Factsheet ¶ 6. 154 MAYNE, HINDU LAW AND USAGE, 226 (16th edn., 2012). 155 Clarification no. 31: adoption of King Ray was done ‘at an early age’ making it a safe assumption that it happened before 1956. 156 The Hindu Adoption and Maintenance Act, No. 78 of 1956, § 9(2) (1956). 26

giving the child and does not contest such an adoption, her consent is considered to be implicit. 157 Even in this case, there being no objection from Queen Kim to the adoption, her consent can be implied. 81. Thirdly, having close relations with one’s birth family, as in this case, 158 even after adoption does not, in any way, invalidate such an adoption; nor does retention of surname/title of the birth family.159 82. Lastly, there is always a presumption of validity of adoption which is not negated by mere challenge to such adoption.160 Thus, the challenge to King Ray’s adoption in the Partition suit does not make the adoption itself invalid. 83. Thus, the adoption of King Ray leads to severance of all ties from the birth family. 161 Therefore, the stepsons of Queen Kim become her legal heirs as per the Hindu Succession Act by virtue of being heirs of her husband.162 Hence, the High Court has erred in holding the children of King Ray as legal heirs of Queen Kim, whose intestate death would render her step-sons as her legal heirs. Therefore, the High Court has erred in directing the Company to transfer the shares in favour of the respondents.

157 PARAS DIWAN, INDIAN PERSONAL LAWS-2: LAW OF ADOPTION, MINORITY, GUARDIANSHIP AND CUSTODY, 53 (5th edn., 2012). 158 There are incidents which indicate the closeness of King Ray with his birth mother even after adoption. For example, giving her a say in the naming of his two children, addressing her as “My Dear Mommy” in his Will and subsequently bequeathing all his property in her name etc. 159 Factsheet ¶ 7 (surname of King Ray’s is ‘Bilzerian’) 160 PARAS DIWAN, MODERN HINDU LAW, 247 (20th edn., 2009). 161 Hindu Adoptions and Maintenance Act, No. 78 of 1956, § 12 (1956). 162 Hindu Succession Act, No. 30 of 1956, § 15(1)(b) (1956). 27

PRAYER Wherefore in light of the issues raised, arguments advanced and authorities cited, it is humbly prayed that this Honourable Court may be pleased to adjudge and declare that: 1. The High Court had incorrectly exercised its jurisdiction under Section 10F while hearing an Appeal against Section 111 of The Companies Act. 2. The High Court could not have heard and decided various aspects and disputes pending adjudication in the courts below which were in the nature of civil disputes. 3. The High Court could not have interpreted a will while exercising jurisdiction under Section 10F. 4. The High Court could not have relied upon the joint succession certificate after one of the members to the very same certificate had expired. 5. Probate proceedings cannot be said to have lapsed on the basis of settlement entered into between some of the parties. 6. The High Court has erred in directing the transfer of shares of King Ray in favour of the respondents. And pass any other order that this Honourable Court may deem fit in the interests of justice, equity, and good conscience. All of which is humbly prayed, 1612 A, Counsel for the Appellants.

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