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2006 (8) TMI 655 - Board - Companies LawOppression and mismanagement - qualifications prescribed u/s 399 - right of legal heirs of a deceased member - petitioners constitute more than 1/10th of the total membership - HELD THAT:- According to the petitioners, their father held 99% shares in the company and they are the legal heirs along with Rajmata. All the three of them together have sought for grant of a succession certificate and the 2nd respondent and other brothers being the near relations of the deceased have filed no objection to the grant of succession certificate in favour of the petitioners and Rajmata and that the shares held by the deceased of 5050 equity shares are also part of that application. Thus, without any additions or subtractions, the pleadings reveal that the petitioners are entitled to 2/3rd of the shares held by the deceased which is in excess of 10% of the then existing issued and paid up share capital. Even after the allotment of the shares impugned in the petition, the petitioners constitute more than 1/10th of the total membership. Thus, in the pleadings, the petitioners have established that they are qualified in terms of Section 399 of the Act to file this petition. In view of this, I need not have to consider any of the objections raised by the respondents on the maintainability. Yet, the main ground for challenge on the maintainability is the discovery of the alleged Will subsequent to the date of filing of this petition. However, in the application seeking for dismissal, there is no mention about the Will nor the prayer for dismissal is based on the alleged Will. Only in the rejoinder, a copy of the alleged Will has been enclosed. The learned Counsel for the petitioners relevantly cited certain decisions to the effect that the maintainability of the petition in terms of Section 399 has to be examined with reference to the facts that stood on the date of filing the petition. Therefore, I hold that the present petition, in terms of the averments in the petition, is maintainable and cannot be dismissed on the basis of the demurer application by the respondents. All the objections of the respondents will be considered while considering the petition on completion of pleadings. Accordingly, I direct the respondents to file their counter to the petition and rejoinder will be filed. The petition will be heard.
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