SANJEEV JOY AND Vs. PEREIRA ROCHE PRIVATE LIMITED AND MR BONOVENTURE ROCHE

JUDGEMENT

(1.) IN this order, we are dealing with two petitions - CP 11/2000 by (i) Sanjeev Joy andShri Yeshwant Joy and CP 1/2001 by Mrs. Hilwiah Roche - filed under Section 111 of the Companies Act, 1956 ("the Act") against M/s Pereira & Roche Private Limited ("the Company") seeking directions to register the transfer of 25 shares of the Company in favour of the petitioners (CP 11/2000) and 19 shares of the Company (which form part of 25 shares stated supra) in favour of the petitioner (CP 1/2001). The first respondent company is common in both the petitions. The shares impugned in both the petitions are the same excepting six shares of the Company. Moreover, the facts and circumstances of these petitions are common. Hence, both the petitions are disposed of by this common order.

(2.) The facts as stated in the petition (CP 11/2000) and reiterated by Shri Arvind P. Datar, Senior Counsel for the petitioners are that Shri J.M.B. Roche holding 25 shares died in the year 1996 leaving behind a registered Will dated 15.09.1993, bequeathing, inter-alia, the impugned shares in favour of his grand children, being the petitioners. The second respondent being the Managing Director of the Company and brother of the deceased testator was appointed as the executor of the Will. The Will was probated by the second respondent by filing probate Original Petition No. 65/98 before the Court of Subordinate Judge, Tuticorin. By virtue of the Will duly probated, the petitioners became entitled to the impugned shares. In spite of the repeated demands, the respondents failed to transmit the impugned shares held in the name of late J.M.B. Roche in favour of the petitioners. Shri Datar, while elaborating the principle of Section 3 of the English Wills Act, 1837, has reiterated that a person may be his will devise, bequeath or dispose of property of whatever kind that he shall be entitled to, a the time of his death, and which, if not so devised, bequeathed or disposed of would devolve by intestacy. He further relied on <i> Rukmani Devi v. Narendra Lal Gupta -- AIR 1984 SC 1866 </i> -- to show that a probate granted by a competent court is conclusive proof of the validity of such will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. At this juncture, he pointed out that the second respondent being the executor of the Will had got the Will probated in a competent court, and that the impugned shares are explicitly forming part of the schedule attached to the order of the probate in probate Original Petition No. 65/98. He, therefore, urged that the Company should be directed to register the transmission of the impugned shares in favour of the petitioners, notwithstanding the revocation proceedings initiated in regard to the probate before the Sub Court at Tuticorin by the petitioner in CP 1/2001.

(3.) SHRI V. Venkadasalam, Counsel appearing for the Company has contended that the Will executed by the deceased J.M.B. Roche does not explicitly disclose 25 shares in the Company. Moreover, the late J.M.B. Roche, before his death had transferred 19 shares to Mrs. Hilwiah Roche (Petitioner in CP 1/2001), who had submitted a transfer deed for the 19 shares. The Company could not register the transfer in respect of 19 shares on account of various defects. Consequently, the petitioner in CP 1/2001 had filed a petition before the sub-court, Tuticorin to revoke the probate granted in respect of the 19 shares. The said petition is pending before the Civil Court at Tuticorin. In view of the rival claim for the 19 shares, the Company could not register the transfer in favour of the petitioners (CP 11/2000 &amp; CP 1/2001) in respect of the impugned shares.