(1.) THIS is an appeal filed on March 28, 1990, by Mrs. Pushpa Vadera, an Indian inhabitant (hereinafter referred to as "the appellant") under Section 111 of the Companies Act, 1956, for issuance of necessary directions to Thomas Cook (India) Limited (hereinafter referred to as "the respondent") to register the transmission of shares in the name of the appellant.
(2.) It is stated in the appeal that the appellant is the widow of the late Shri Dev Raj Vadera and the deceased was a registered member of the respondent-company in respect of 2,300 equity shares. The appellant has further stated that the deceased, the late Shri Dev Raj Vadera, who expired on April 1, 1986, leaving behind a will whereby the deceased bequeathed his entire estate to the appellant being his wife. In the appeal details of correspondence exchanged between the appellant and the company have been referred to ; wherein the appellant had all along been informing the respondent-company that probat'e of the will is not necessary to be taken for 'a Hindu in the Union Territory of Delhi. It is further stated that she had also agreed to execute the indemnity bond and obtained no objection from her two sons, namely, Mr. Misha Vadera and Mr. Neeraj Vadera, and other relevant documents to fully secure and protect the interest of the respondent-company. In support of her contention that probate of the will is not necessary in the Union Territory of Delhi, she relied upon the judgment of the Delhi High Court in the case of Chancier Bhati v. Harnuth Singh  20 DLT (SN) 32. It is further stated that the last request made by the appellant to the respondent-company was turned down by the respondent-company, vide its letter dated January 25, 1990, which was received by the appellant on January 30, 1990, and the appeal has been filed within two months thereof. It is submitted that the respondent-company ought to have relied upon the judgment of the Delhi High Court, referred to above and should not have insisted on probate of the will as the same is neither necessary for a Hindu in the Union Territory of Delhi nor in view of the settled position of law. It is further submitted that the judgment though applies to immovable property being subject-matter in that suit yet the consequences thereof are to waive the obtaining of probate, and it is immaterial whether the will relates to immovable property or movable property and that the respondent-company ought to have transmitted the, shares in the name of the appellant on the no-objection certificate from the only heirs of the deceased and on the undertaking of the appellant to execute all indemnity bonds and affidavits and other documents for protecting and securing in full the interest of the respondent-company. It is stated that the respondent-company ought to have transmitted the shares in the name of the appellant in terms of its articles of association on the basis of an indemnity bond and security as would be deemed proper by the board of directors.
In reply, the respondent-company have submitted that the appeal discloses no cause of action against the company and in any event no cause of action has accrued to the appellant to file or maintain the appeal and further stated that the appeal against the respondent is misconceived and not maintainable. It is stated that the appellant is guilty of delay or laches and/or that the claim of the appellant is barred by the law of limitation. In reply the respondent-company stated that they do not admit the appellant as the widow of the late Shri Dev Raj Vadera, as alleged or otherwise. It is stated that the company is not aware whether the said deceased expired on April 1, 1986, as alleged and/or he died leaving behind the alleged will whereby the deceased bequeathed his entire estate to the appellant. It is further stated that the will is not a valid will and is, therefore, of no effect as the will has not been executed and attested in the manner provided under the Indian Succession Act, 1925. The witness clause of the will reads as under :
"In witness whereof, I have signed this will in the presence of undermentioned witnesses, who have submitted thereto as attesting witnesses in my presence".
(3.) IT is further stated that in the present case the testator has signed the will in the presence of witnesses ; it is, however, not stated whether or not the witnesses and/or either of them have attested or signed the will in the presence of each other. Under the circumstances, the respondent-company has stated that the will is void and of no effect. IT is further stated that they are not bound to recognise the will or the validity thereof and or that under the alleged will of the said deceased, his alleged wife, is exclusively entitled to hold the estate of the deceased as an absolute owner with full power of disposition as alleged or otherwise. Under the circumstances, it is stated that unless the legal representatives obtain a probate or letters of administration or succession certificate from a duly constituted court of competent jurisdiction in respect of the said will, the respondent-company cannot give any recognition or way to the said will. Under the circumstances, it is stated that the respondent-company can only treat the said deceased as having died intestate. IT is further stated that in view of the aforesaid position, the transfer agents of the respondent-company have already intimated the appellant on July 26, 1986, that the transmission of shares could only be effected on the appellant obtaining a suitable legal representation from any competent court in India and the shares could not be transmitted to her name on the authority of the certified copy of the will forwarded. The respondent-company has also invited attention to articles 62 and 65 of the articles of association of the company which are reproduced hereunder :
"Article 62.--The executors or administrators or holders of a succession certificate or the legal representatives of a deceased member (not being one or two or more joint holders) shall be the only persons recognised by the company having any title to the shares registered in the name of such member, and the company shall not be bound to recognise such executors or administrators or holders of a succession certificate or the legal representatives unless such executors or administrators or legal representatives shall have first obtained probate or letters of administration or succession certificate, as the case may be, from a duly constituted court in the Union of India ; provided that in any case where the board in its absolute discretion thinks fit, the board may dispense with production of probate or letters of administration or succession certificate, upon such terms as to indemnity or otherwise as the board in its absolute discretion may think necessary and under Article 65 register the name of any person who claims to be absolutely entitled to the shares standing in the name of a deceased member, as a member",
"Article 65.--Subject to the provisions of the Act and articles 61 and 62 any person becoming entitled to shares in consequence of the death, lunacy, bankruptcy or insolvency of any member, or by any lawful means other than by a transfer in accordance with these articles, may, with the consent of the board (which it shall not be under any obligation to give), upon producing such evidence that he sustains the character in respect of which he proposes to act under this Article or of such title as the board thinks sufficient, either be registered himself as the holder of the shares or elect to have some person nominated by him and approved by the board registered as such holder ; provided nevertheless, that if such person shall elect to have his nominee registered, he shall testify the election by executing in favour of his nominee an instrument of transfer in accordance with the provisions herein contained, and until he does so, he shall not be freed from any liability in respect of the shares".;