TMI Blog2023 (12) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... well decide, prima facie, the extent of the Estate of the deceased. For such purpose, the Probate Court can definitely decide, although tentatively, as to the extent of the property of the deceased. Such adjudication on the Estate of the deceased, however, does not tantamount to a final adjudication of the title over the property. In KANWARJIT SINGH DHILLON VERSUS HARDYAL SINGH DHILLON AND ORS. [ 2007 (10) TMI 675 - SUPREME COURT ] the Hon ble Supreme Court held that it is well settled law that the functions of a probate court are to see that the will executed by the testator was actually executed by him in a sound disposing state of mind without cohersion or undue influence and the same was duly attested. It was therefore not competent for the probate court to determine whether the person had or had not the authority to dispose of the suit properties which he purported to have bequeathed by his will. The probate court is also not competent to determine the question of title to the suit properties nor will it go into the question whether the suit properties bequeathed by the will were joint ancestor s properties or acquired properties of the testator. Powers of Probate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st should not be confused with personal influence of the testatrix. Whatever might have been the personal influence of the deceased testatrix, the same was intangible and restricted to herself. The charisma or personal influence of the deceased might have helped her in carrying out her will in the affairs of the companies, but do not comprise of tangible incidents of her property or Estate - it cannot be said that her personal influence is, in any manner, a part of the Estate. The Probate Court can direct the APL, personally or through its appointees, to register itself or its agents as members of the companies in the capacity of owners of the shares actually owned by PDB in such companies. Upon such registration, the APL and/or its nominees would function as shareholders in such companies and have all the incidental rights and controlling power which PDB would have had by virtue of such shareholdings, including voting rights, participation rights in decision-making processes and meetings, etc. However, the Probate Court cannot go an inch further than that in interfering with the business of the companies. If the promoter hold majority shares then they are several remedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Probate Court s decisions cannot be decided from the limited perspective of res judicata or estoppel between the parties. Thus, the Probate/Letters of Administration Court has an additional responsibility to independently weigh evidence and adjudicate carefully on all issues before it, prima facie or final. Viewing from such perspective, the question of res judicata or estoppel between the parties cannot restrain the Probate Court from independently assessing the question of extent of Estate of the deceased testatrix. None of the previous adjudications pertained to a final decision on the application under Section 247 of the Succession Act. Since this Court is sitting in appeal over a final decision by the learned Single Judge on the application under Section 247 of the Succession Act, by operation of the principles of Order XLI of the Code of Civil Procedure, the Appellate Court has equivalent powers of finally deciding the said application, co-equal with the learned Single Judge which was deciding the same. Hence, while finally deciding the application for appointment of Administrator Pendente Lite, this Court is not fettered by previous observations by different interlocutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22/2020, WITH OCO/5/2020, AND APO/92/2020 IA NO: GA/1/2020, IA NO: GA/2/2020, IA NO: GA/3/2020, IA NO: GA/4/2021, IA NO: GA/5/2021 WITH OCO/14/2020, OCO/23/2020, OCO/6/2020, APO/94/2020 IA NO: GA/1/2020, OCO/15/2020, OCO/24/2020, OCO/7/2020, AND APO/95/2020 IA NO: GA/1/2020, OCO/16/2020, OCO/25/2020, OCO/8/2020, AND APO/96/2020, OCO/17/2020 WITH OCO/27/2020, OCO/9/2020, APO/98/2020, OCO/10/2020, OCO/18/2020, OCO/26/2020 Appearance : For the Appellant (in APO No. 92 of 2020, 94 of 2020 and 98 of 2020) : Mr. Darius Khambata, Sr. Adv. Mr. Abhrajit Mitra, Sr. Adv. Mr. Abhratosh Majumder, Sr. Adv. Mr. Kunal Vajani, Adv. Mr. Debanjan Mandal, Adv. Mr. Sanjiv Kumar Trivedi, Adv. Mr. Jishnu Chowdhury, Adv. Mr. Subhankar Nag, Adv. Mr. Soumya Ray Chowdhury, Adv. Mr. Sarvapriya Mukherjee, Adv. Mr. Deepan Kumar Sarkar, Adv. Mr. Tushar Hathiramani, Adv. Mr. Satadeep Bhattacharyya, Adv. Mr. Kunal Mimani, Adv. Ms. Mahima Cholera, Adv. Ms. Iram Hassan, Adv. Mr. Sanket Sarawgi, Adv. Mr. Karthikey Bhatt, Adv. Mr. Rachit Lakhmani, Adv. Mr. Subhang Tandon, Adv. For the Appellant (in APO No. 89 of 2020) : Mr. Jishnu Chowdhury, Adv. Mr. Aritra Basu, Adv. Mr. Paritosh Sinha, Adv. Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited (UCL), Birla Cables Limited (BCL) and Vindya Telelinks Limited (VTL) and Birla Corporation Limited (BCRL). All these companies were not parties to the original proceedings before the Learned Single Bench and leave has been granted for them to prefer these appeals. SL.NO. CASE NUMBER PARTIES 1. APO NO. 89 OF 2020 Appeal filed by Universal Cables Limited 1.1 OCO/11/2020 Cross Objection in A.P.O No. 89 of 2020 filed by Pradip Kumar Khaitan, the respondent No. 5 1.2 OCO/20/2020 Cross Objection in A.P.O No. 89 of 2020 filed by Devendra Kumar Mantri and Radha Devi Mohatta, being the respondent Nos. 3 and 4 respectively. 1.3 OCO/3/2020 Cross Objection in A.P.O No. 89 of 2020 filed by Arvind Kumar Newar and Nand Gopal Khaitan, being the respondent Nos. 1 and 2 respectively. 2. APO NO. 90 OF 2020 Appeal filed by B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the learned Single Bench. APO No. 98 of 2020 has been filed by Mr. Aditya Vikram Lodha, the second plaintiff. In all these appeals, cross objections have been filed the details of which are furnished in tabulated form for convenience. SL.NO. CASE NUMBER PARTIES 1. APO NO. 92 OF 2020 Appeal filed by Harsh Vardhan Lodha 1.1 OCO/14/2020 Cross Objection in A.P.O No. 92 of 2020 filed by Pradip Kumar Khaitan, being the respondent No. 5 1.2 OCO/23/2020 Cross Objection in A.P.O No. 92 of 2020 filed by Devendra Kumar Mantri and Radha Devi Mohatta, being the respondent Nos. 3 and 4 respectively. 1.3 OCO/6/2020 Cross Objection in A.P.O No. 92 of 2020 filed by Arvind Kumar Newar and Nand Gopal Khaitan, being the respondent Nos. 1 and 2 respectively. 2. APO NO. 94 OF 2020 Appeal filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of Madhav Prasad Birla contended that Priyamvada Devi Birla had executed a will on 13.07.1982. 4. Shri Madhav Prasad Birla (MPB) and Smt. Priyamvada Devi Birla (PDB) as a couple executed mutual wills in 1981. In 1982, they executed mutual will revoking earlier mutual wills. Shri Madhav Prasad Birla passed away on 30.07.1990. Smt. Priyamvada Devi Birla executed her last will testament dated 19.04.1999 in which Mr. Rajendra Singh Lodha (RSL) was named as executor. This will was registered on 21.04.1999. PDB passed away on 03.07.2004. RSL as executor of PDB s will dated 18.04.1999 filed PLA No. 204 of 2004 seeking grant of probate of the will and the letter dated 15.04.2003 if held to be a codicil. The defendants, sisters of MPB as executors of the earlier will of PDB dated 13.07.1982 resisted such a prayer. Thus, the core of the dispute is the will executed by PDB which has given rise to a spate of litigation before this court and even after the lapse of more than 18 years after the demise of PDB, the litigation has not seen the end of the day. 5. In the probate proceedings, four applications were filed two by the defendants and two by the plaintiffs who shall be referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be read according to the affidavit of assets in PLA 242 of 2004. PDB s share holding in any company was never included in the estate of PDB, the majority decision of APL dated 19.07.2019 is not valid. 10. The learned Single Bench by the impugned order rejected the prayer sought for in GA No. 1761 of 2019 by observing that the application is without any merit as the Division Bench never intended that the decision which was to be taken by the APL, should not be moved by majority but by unanimity. For the same reason, GA No. 1786 of 2019 was also dismissed. After considering the facts and circumstances, the learned Single Bench held that (i) Section 247 of the Indian Succession Act (Succession Act) demonstrates the largest scope for the Court to exercise its jurisdiction to protect and preserve the estate of the deceased through such machineries it deems fit and in the present case through APL without the right of distributing the assets; (ii) Section 247 of the Succession Act enjoins the duty upon the Court as guardian of the estate of the deceased to not only appoint an administrator, but to render all protection to the administrator during pendency of the suit or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e estate of the deceased subject to entertainability of the prayers made in the application filed by the defendants. (xi) It was further held that since, the APL is under the immediate control of the Court and its decision has not been implemented or could not be implemented by reason of objection by the nominee member of the plaintiff on the ground that it is not a unanimous decision of the APL and therefore, the defendants have come forward with a prayer to direct implementation of the decision of the APL and considering the facts and the other circumstances, (which we will deal in the later part of this judgment and order), the learned Single Bench directed implementation of the decision of the APL dated 19.07.2019 and 30.07.2019 taken by majority and also all consequential decisions of the APL in furtherance to the decision and by also restraining from drawing any benefit personally out of the assets of the estate of the deceased during the pendency of the testamentary suit. (xii) The plaintiffs were restrained from interfering with the decisions of the APL and any decision which will be taken by it in future by majority if the same directly or indirectly relates to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d therefore they cannot be made or added as parties to the testamentary suit and they have not been added as parties and consequently no order can be passed by the testamentary court against third parties, even if it is necessary to protect the estate. It is submitted that in the impugned order, the learned single bench has accepted this proposition and in this regard, the learned senior counsel referred to various paragraphs of the impugned order. It is submitted that in the intra party judgment reported in 2016 SCC Online Calcutta 1541 it has been held that a probate court cannot pass any injunction order against the third party as third party who has no caveatable interest in the probate proceedings cannot be allowed to be added as a party in the probate proceedings and also for the reason that no order can be passed affecting the right of the stranger without adjudicating his right and adjudication of his rights in the probate proceedings is impossible as probate court cannot decide any foreign issue unconnected with the probate proceedings. 12. With the above reasoning, the learned single bench of this court refused to grant injunction against BCL as being the third par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... included in the affidavit of assets filed on behalf of RSL in TS No. 06 of 2004. RSL applied for amendment of the affidavit of assets to include this asset in Uttaranchal/Himachal Pradesh and the affidavit of assets was amended on the basis of a consent order dated 16.12.2004 in GA No. 4345 of 2004. It is submitted that when the amendment application was moved it was not the case of the Birla s that certain other assets such as any alleged right to control certain trust and societies have been left out on the other hand, the order allowing the amendment was not opposed by Birla s. It is further submitted that the APL represents the estate of the deceased and thus is required to carry out and file proceedings only with the permission/directions of the probate court before competent courts to protect and preserve the assets forming part of the estate. After referring to the Section 211, 305 and Section 306 of the Indian Succession Act, it is submitted that in terms of the said provision the Joint APLs stepped into the shoes of estate/deceased. Further in view of Section 247 of the Hindu Succession Act an administrator acts as a general administrator (barring the power of distribution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is entitled to exercise the rights of a shareholder and no person can claim to be legally entitled to this right. To explain the meaning and scope of control , reference was made to Section 2(27) of the Companies Act 2013 and Section 2(1)(e) of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations. It is further submitted that as per Section 152(2) of the Companies Act, 2013, directors are appointed by the company in the General Meeting of its shareholders. As per Section 101(3) the notice of every meeting is given to every member, legal representative of the deceased member or the assignees of the member (apart from auditors and directors) of the company. Thus, the right to appoint a Director only vest in a member as defined under Section 2(55) of the said Act that is a person whose name is entered in the Register of Members or the beneficial owner in the records of the depository. It is submitted that in the instant case even by the respondent s own showing since the estate does not hold or even control directly by strength of shares of the estate or along with the companies in Tier 1 and Tier 2, majority shares in the four lis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he directions of PDB and not independently. Therefore, in the absence of any right, the estate and its administrator cannot be legally entitled to do what even PDB could not have herself enforced. It is further submitted the estate by itself does not exercise control as alleged over the entire promoter group shareholding in the companies of the MP Birla group. The only other way in which the estate along with the other members of the promoter would exercise de facto control over the entire promoter group shareholding in the companies of MP Birla Group assuming (while denying that they could) would be by acting in concert with other members of the promoter group. Regulations 2(1)(q) of the Takeover regulations defines person acting in concert . The definition indicates that persons acting in concert require two or more persons to act with a common objective or purpose. This, itself predicates the exercise of control by at least two or more distinct persons. Thus, estate of PDB alone does not exercise even de facto control over the listed companies of the MP Birla Group. Further it is submitted that an analysis of the break-up of shareholding in the relevant companies demonstrates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mposed thereunder, namely, (i) a right to control does not flow from the position of promoter as per Section 2(27) of the Companies Act and Section 2(69) clarifies that a person who already has control over the affairs of the company can be termed as a promoter , (ii) the Companies Act as well as SEBI Regulations provide various obligations for the promoters and in this regard, reference was made to Sections 7(6), 35(1), 42(10) and 120(4) of the Companies Act which deal with liabilities of promoters. Sections 168(3), 257(3), 284(10, 300(1) and 340 of the Companies Act and Regulations 7 and 9 of the SEBI (Prohibition of Insider Tradings) Regulations, 2015 were also referred to for the obligations of the promoters, (iii) the Companies Act and the SEBI Regulations do not provide any right to the promoters, except certain limited exemption as contained in Section 3(4) of the Takeover Regulations, (iv) promoters do not have any right to control other Members of the promoter group by virtue of their status as promoter , (v) the doctrine of identification does not apply to large listed companies and (vi) this has been so and so held in the inter-party dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of PDB in respect of the affidavits of assets. In this regard, the affidavit of assets filed by the defendants in PLA No. 242 of 2004 was referred to and it was submitted that it does not disclose the share holding of trusts and societies as part of the estate of PDB. Further, unanimous inventory report filed by the Joint APLs on 15th October, 2013 does not include share holding of trusts and societies as part of the estate. The trusts and societies are controlled and managed by their respective trustees/ managing committee members as per the deeds of the trusts and rules and regulations of the societies. After referring to various clauses of the deed of trust of MP Birla Foundation, it is submitted that the analysis of the deed of trust and the rules and regulations of the society would show that the societies/ trusts are not controlled by the estate. Further, the Joint APLs did not come to any finding that there is any clause in any of the documents furnished by the defendants which gave the estate of PDB a right to control the affairs of the trusts and societies and the respondents have not pointed out any clause in any trust deed or rules and regulations which gives such a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a company. Share holders have no right to direct how directors should act or how a company should be managed. They can control management of a company only by electing or removing the directors at a general meeting of the company. 19. In the inter-party decision in Harsh Vardhan Lodha Versus Ajay Kumar Newar 2016 SCC Online Cal 1541, it has been held that Probate Court has no jurisdiction to pass orders against individuals or entities acting in different capacities. Further, it is submitted that the Probate Court had no jurisdiction to pass orders in respect of the management and affairs of corporate/ contractual rights of other entities holding shares in MP Birla Group namely, trusts/ societies and other share holding companies. The Court only in exceptional circumstances appoints receiver to run businesses or partnership firms and the Court will never appoint a receiver for the purpose of running a business. The Court only in exceptional circumstances pierces the corporate veil and this power is beyond the scope of testamentary jurisdiction. It is submitted that without piercing the corporate veil of either corporate companies, trusts and societies, it could not have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with Section 2(55) of the Companies Act, if accepted, would amount to rectification of the share register of the company. That apart the joint APLs have not sought rectification and the share register. Grievances regarding rectification of the share registers are entrusted to the National Company Law Tribunal (NCLT), and the jurisdiction of the Court to grant rectification of share register has been ousted by Section 430 of the Companies Act, 2013. Therefore, it is submitted that the questions to be decided in GA No. 1735 of 2019 and GA No. 1845 of 2019 are whether the prayers or reliefs as claimed in those applications are contrary to law and whether any Civil Court would have jurisdiction to grant such relief; whether the Probate Court has jurisdiction to entertain the two applications which contained prayers which are not relevant for deciding the genuineness of the will which is the subject matter of TS No. 6 of 2004; can any group of share holders, even if they have more than 62% shares in the companies, direct the directors of the company to appoint directors nominated by them or can cast votes on shares not registered in their names and registered in the names of other per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. Therefore, the direction as prayed for in prayer (a) in GA No. 1735 of 2019 is clearly contrary and repugnant to the Company Law and wholly illegal. It is submitted that HVL, the appellant is a party to TS No. 6 of 2004 as a legatee under the will sought to be propounded and not as a share holder or Director of any of the companies within MP Birla Group. This aspect has been clarified by the judgment of the Single Bench of this Court dated 19th May, 2016. It is submitted that the Probate Court cannot give any direction to HVL by treating him as Director of any company. Furthermore, the Probate Court has no jurisdiction to give any direction to any Director of any company even within MP Birla Group. Companies are separate juristic entities. Furthermore, direction sought for by the other Birlas are not relevant for considering the question of genuineness of PDB's will. It is submitted that the Joint APLs cannot act by majority. The learned Single Judge in the order dated 27th August 2010 appointing the Joint APLs directed that the Joint Administrators will act ordinarily, jointly but in the case of non-availability of any of the Joint Administrators, remaining Administrators ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s specific direction to act by majority was given by the Hon'ble Court, the Joint APLs had no such power, like Joint Receivers would have to act unanimously. Further, referring to the order dated 10th April, 2019 by which the Joint APLs were reconstituted, it is submitted that in the said order it had been observed that for effective functioning of the APL committee which shall consist of a retired Judge of the Court and two nominees of the respective parties, it was directed that the two nominees will render fullest to cooperation with the Hon'ble Judge in order to enable His Lordship to effectively discharge his duties for the purpose of smooth administration of the estate and also to prevent any stalemate in the process of such smooth administration. 22. It is submitted that the impugned order cannot alter the order dated 27th August, 2010 by which the Joint APLs were appointed and therefore, the directions were issued in Sub-Para (a), (b) and (c) in the impugned order enforcing the APLs' decision by majority and recognizing the power of the Joint APLs to act by majority is contrary to law and to the order of appointment of the APLs. 23. It is submitted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard, the learned Senior Counsel referred to the affidavit-in-opposition filed by RSL dated 10th May, 2005 to state that the consistent stand from the very beginning was that the estate of the testatrix does not directly or indirectly hold majority block of shares in UCL, BCrL and VTL. Charitable societies and trusts are not part of the estate of the testatrix which are managed by the respective managing committees and trustees of the societies or trusts. The companies are separate legal entities controlled by their Board of Directors and the affairs of the estate of the testatrix do not include the right to control the affairs of BCrL and/or its assets or properties as alleged. It is submitted that similar submissions were made by HVL before the Joint APLs which is evidenced by the Minutes of the meeting dated 21st July, 2017, similar stand was taken in his affidavit-in-opposition to the administrator's proceedings filed by the respondents in 2008 which culminated in judgment of the Division Bench dated 23rd August, 2012, apart from similar stand being taken in all the matters which were filed before the Joint APLs. 26. It is submitted that the non-cooperation of HVL compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... share of the estate of PDB would be transferred or disposed of by HVL or any party to the suit. In fact the Hon'ble Division Bench in the judgment dated 4th May 2020 has held that the shares are protected in all respects as APL has been appointed and as such interfering with such shares is difficult at that stage. Further, it is contended that the ad interim order has been misconstrued to be a direction against third party companies. A direction was given to RSL who was then the executor of the estate and the sole plaintiff in TS No. 6 of 2004. In this regard, the order passed by the learned Single Bench dated 23rd March, 2005 in GA No. 4374/ 4376 of 2007 was referred to. 28. With regard to the reliance placed by the respondents to the order passed by the CLB, it is submitted that incomplete reliance of the said order is devoid of merit in view of the judgment of this court dated 24.08.2005. It is further submitted that the CLB is not the competent forum to adjudicate upon the extent of PDBs estate; the observations made in the orders dated 25.04.2005 and 24.08.2005 do not even purport to take away the voting right of any of the promoter group shareholders or in any way cast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost, a mixed question of law and fact does not amount to an admission made by a party. In any event no title can be created/extinguished by admission. Further there can be no estoppel against the statute. The statutory right to vote on shares held by the promoter group entities in BCL cannot be taken away by applying the doctrine of estoppel and these issues had been finally settled by the Hon ble Division Bench in its judgment dated 04.05.2020 holding that the assets of the estate are as per schedule of assets. The Learned Senior Counsel referred to the written submission which were made on behalf of the RSL during 2005 and 2007 before the learned Single Bench as well as the Hon ble Division Bench and submitted that these submissions were relied upon by the respondent as an admission of RSL of their case of control and controlling interest and such submission is mis-conceived. These are the written submissions and not affidavit of RSL as in the affidavit in opposition of RSL dated 10.05.2005 to the petition in GA No. 4375 of 2004, it has been categorically stated that PDB did not own majority block of shares in the operating companies. Both sets of the written submissions on behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the impugned order is beyond the jurisdiction of the court and also beyond the scope of the GA No. 1735 of 2019 and GA No. 1845 of 2019. It is submitted that the decision of the majority APL dated 19.07.2019 is beyond their jurisdiction and competence and was erroneously made without even having conclusively determined the extent of the estate. The decision of the majority APLs dated 30.07.2019 is beyond the relief claimed in the master summons taken out in GA No. 1735 of 2019 or GA No. 1845 of 2019 and therefore the court had no jurisdiction to pass any order of implementation of the decision dated 30.07.2019. Without prejudice, it is contended that even if such prayer was contained in the master summon s, the said relief would have been beyond the jurisdiction of the testamentary court to grant. In any event, the direction contained in the impugned order runs contrary to the findings of the learned single bench which accepted the decision of the coordinate bench that probate court at best can pass necessary directions upon APL to initiate appropriate proceedings before appropriate forum for seeking appropriate reliefs in accordance with law. It is further submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king an order restraining reappointment of HVL as director of BCRL and UCL at the annual general meeting proposed on 25.08.2020 and 18.08.2020 respectively and no order of interim injunction was passed and HVL contested and was reappointed as a director. More importantly, none of these resolutions reappointing HVL as director have been set aside. It is submitted that despite the aforementioned facts as well as the fact that the learned single bench accepted that probate court has no jurisdiction to pass any order against third parties and without prejudice to the fact that a supplementary affidavit does not serve to amend a notice of motion or enable a party to seek new relief therein. It is submitted that the impugned order erroneously and indirectly restrains HVL from holding any part in any of the entities of the MP Birla Group during the pendency of the suit. Thus, the directions contained in the sub para (b) (ii)of the impugned order exceeds the jurisdiction of a probate court and erroneously curtails the tenure of office of a director in contravention of Section 152 of the Companies Act, 2013 which fixes the tenure of a director appointed or reappointed at the annual general ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... senior advocate appearing for the appellants elaborated his submissions in the following manner. It is reiterated that the will sought to be probated by the Birla s contained identical list of properties and in this regard referred to the probate petitions of Shri Ganga Prasad Birla in PLA No. 242 of 2004 and in particular the affidavit of executors Shri G.P. Birla and Shri S.N Tapuriah which contains the list of assets and its valuation. In Annexure-A therein, the valuation of the movable and immovable properties of PDB as on 03.07.2004 and in column 5 therein, the properties in public companies have been given as the number of shares in each of those companies. The learned senior advocate wanted us to compare the same with the affidavit of Shri G.P. Birla and another along with Annexure A of the affidavit filed by the RSL to show that both the annexures contained the identical list of properties. It is further submitted that in the affidavit filed in support of GA No. 4375 of 2004 for the first time the word control comes up and a prayer is sought for to appoint an independent person as administrator to exercise control and management over and in respect of the shares standing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y referring to the paragraph 75 of the said decision, it is submitted that the court held that the APL (Joint Administrators, Pendente lite) should function strictly in accordance with the Companies Act. Reference was made to the decision of the Hon ble Division Bench reported in 2007 Calcutta Law Series page 377 and in particular the findings/observations made by the court in paragraph 253 to 262 and ultimately the court held that the respondents therein has not been able to make out a case of necessity for appointment of APL on the ground of waste, mismanagement, misconduct of the executor. Further paragraphs 275 to 287 of the judgment were referred to and it was submitted that the court held that the Board of Management of the companies cannot be dislodged and the court has no jurisdiction to appoint APL and in paragraph 287, the court specifically dealt with Section 247 of the Succession Act and in paragraph 294, the court rendered a finding that there is no finding of waste and mismanagement or siphoning out of money, dilution of properties by the named executor and there is no reason to appoint APL for a part of the estate i.e. the controlling block of shares and allow the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 42 of 2004. It is submitted that the in terms of the prayer (c) in paragraph 42 of said application/petition what was sought for was appointment of APL with a direction to take all decisions and exercise all his rights in regard to the shareholdings of PDB in the companies referred to in annexure C. It is submitted that from the averments made in the said petition, more particularly in paragraph 33, it is submitted that when it suits the Birla s, they seek to take shelter under the provisions of the Companies Act. It is stated that what is sauce for the goose is sauce for the grandeur . The appellant had filed an affidavit in the said application specifically denying that PDB was in control of the management or business of the companies mentioned in annexure B with the petition. It was stated that all the companies are managed by their respective Board of Directors and the question of either PDB or RSL or HVL controlling or attempting to take over all these companies does not arise. Further it was denied that the estate of PDB is in medio or that there is no person to manage and administer or oversee the estate as alleged. 33. Nextly, the learned senior counsel referred to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the parties that only point which will be left for decision of the court is the power of APL vis-a-vis, the exercise of nature of rights relating to the shares which form the major part of the estate. Reference was made to the decision of the first court dated 23.08.2012 which was a decision rendered in the appeals arising out of the common judgment and order dated 27.08.2010 whereby the applications were disposed of putting the estate in the custody of three independent persons who would Act as a Joint Administrators pendente lite in and over all the estates left by the deceased. The learned senior counsel elaborately referred to the said decision and submitted that the Division Bench has pointed out that the possession of an APL is similar to that of receiver with the distinction that the APL represents the estate for all purpose (except distribution) whereas the receiver does not represent the estate nor the parties but simply holds the estate for the benefit of the successful litigant. The Learned senior counsel laid much emphasis on the last three pages of the judgment and submitted that in seven places in the said judgment the court has used the words ownership of share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016 SCC Online Cal 1541 (Hon ble Justice Jyotirmay Bhattacharya). After referring to the several paragraphs of the decision commencing from paragraph 111 it is submitted that control and management has a facet of holding shares and nothing can be done in derogation of the provisions of the Companies Act. It is submitted appeal has been filed against the said judgment. However, the learned senior counsel seeks to rely upon certain findings rendered in the judgment as his arguments. It is further submitted that the probate court cannot issue an order of injunction against the third party and the jurisdiction is available only against a party to the proceedings who has caveatable interest. It is submitted that the Hon ble Justice R.V. Raveendran resigned and Hon ble Justice A.P. Shah was appointed by order dated 28.11.2016. Reference was made to the minutes of the 31st APL Committee meeting held on 21.07.2017 with particular reference to the decision of the APL on the objections raised for re-nomination of Directors. Subsequently, GA No. 1964 of 2018 was filed to constitute a new APL over the estate of PDB and for other reliefs in which the Hon ble Division Bench passed the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght of a shareholder in a company, reliance was placed on the decision of the Hon'ble Supreme Court in Life Insurance Corporation Versus Escorts Ltd. Ors. (1986) 1 SCC 264. Reliance was placed on the decision of this Court in Murarka Paint Varnish Works (Private) Ltd. Versus Mohanlal Murarka Ors. 1960 SCC Online Cal 181 and in the said decision among other things it was held that the law is that directors can be denuded of their powers of control and management either by alteration of the articles or by their removal. To further explain the rights of a shareholder in a company, reliance was placed on the decision in Shanti Prasad Jan Versus Union of India 1973 SCC Online Bom 71. The next aspect dealt with by the learned Senior Counsel is to explain as to what would mean by the word control . It is submitted that control means ownership of shares. Reference was made to Sections 2 (27), 2(69) which defines promoter , 2(69) (c) which deals with the separate category as defined in Section 2(27) which speaks of a right which is not found in section 2 (69) of the Companies Act, 2013. Reliance was placed on the decision of the Hon'ble Supreme Court in V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reliance was placed on the decision of the High Court of Bombay in K.K. Modi Versus Securities Appellate Tribunal Ors. 2001 SCC Online Bom. 969. To explain the same proposition, reference was made to Sections 2(69), 7(6), 35, 42(10), 120(4), 168(3), 284(1), 300(1) and 340 of the Companies Act, 2013. Nextly, the learned Senior Advocate referred to Regulation 2(1)(q) of the Takeover Regulations which defines persons acting in concert and submitted that the definition clearly indicates that persons acting in concert requires two or more persons to act with the common objective or purpose. This itself predicates the exercise of control by at least two or more distinct persons. Thus, the estate of PDB alone does not exercise even de facto control over the listed companies of MP Birla Group. To explain control further once again the Learned Senior Advocate has drawn our attention to Paragraphs 48, 49 and 56 of the judgment in Arcelormittal and Paragraphs 45 to 47 of Technip SA (Supra). The next limb of arguments of the learned Senior Counsel is by referring to what has been titled as appellant's key . It is submitted that though the learned Single Bench has held that Probate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ittal's case without considering the paragraph in its entirety and the sentence which followed the line which had been corrected in the impugned order. The learned Single Bench has rejected the reliance placed on Vodafone s case despite the fact that the Hon ble Supreme Court has categorically held in Vodafone that control is inextricably linked to ownership of shares or a right which is legally enforceable. The impugned order does not show how deep PDB in de facto albeit which comes to a finding at page 151 which is neither on evidence or reasoning, the learned Single Bench relies on the Paragraph 304 of the inter partes judgment dated 11.10.2007 without noticing the findings at Paragraph 301. Further, after referring to the decision in Technip SA it is submitted that even acting in concert it should be shown there is a right. Furthermore, the decision in Hindustan Motors Ltd. Versus MRTP Commission 1973 SCC Online Cal 56 under the MRTP Act where the definition of control is different from that of the definition in the Companies Act. It is further submitted that the APL committee never attempted to pierce the corporate veil and the learned Single Bench has also not don ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is further reiterated that APL was appointed only for 1260 shares and this prayer was granted and now at this juncture, they cannot expand the scope. On the decision of the two joint APLs it is submitted that it is not known as to why the two joint APLs should take sides. After the decision taken by the two APLs was taken by a Court receiver, the court would have struck it down. The finding of the learned Single Bench that the voting right should be guided by the APL committee, is erroneous. The directions issued in the penultimate paragraph of the impugned judgment in Paragraphs (a) to (c) would mean to state that the provisions of the Companies Act have to be ignored and HVL restrained from holding any office when there was no prayer sought for in that regard. In this regard reliance was placed on the decision of the Court of Appeal of California in the case of Estate of AH Winder 99 Cal.App. 2d 83. It is further submitted that whatever was the direction issued earlier which was set aside by the Hon ble Division Bench headed by Hon ble Justice Pinaki Ghose has now been passed as a decision of the two APLs. The APL committee being officer of Court can act pursuant to the direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the provisions of the Indian Trust Act and the Societies Registration Act, reliance was placed on the decision in Satyavart Sidhantalankar Versus The Arya Samaj AIR 1946 Bom 516. To support the argument that probate Court has no jurisdiction to pass orders against individuals or entities acting in different capacity, reliance was placed on the decision of the Hon ble Supreme Court in Chandrabhai K Bhoir Versus Krishna Arjun Bhoir (2009) 2 SCC 315. With the above submissions, the learned Senior Counsel concluded by submitting that joint APLs should be directed to act by unanimity and in case of dis-agreement to report to the Court for directions. All decisions taken by the majority of Joint APLs dated 19.07.2019 and 30.07.2019 and those which were sought to be implemented by the impugned order, are to be set aside. All decisions taken by the majority of the two APLs on the basis of the impugned order and consequential thereto are to be set aside. Joint APLs may take such actions as are necessary to preserve and protect the estate of PDB including in action as a shareholder in respect of the shares held in the name of the estate. 38. Mr. Mitra, learned senior advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he report that the companies, societies and trust would have to follow the dictates of the representative of the estate of PDB presently the Joint APLs and thereafter either one of the groups. For all times to give that the directors could be appointed in companies as per the dictates of the representative of the estate of PDB in utter disregard to the provisions of Section 151, 152, 161, 162, and 169 of the Companies Act, 2013. Similarly the trustees and members of the managing committee of the trust and societies would be appointed as per dictates of the representatives of the estate of PDB disregarding the provisions of the Constitution of the trust and societies. It is further submitted that the directions contained in sub para (a) at page 155 of the impugned judgment is that the plaintiffs No. 1, 2 and 4 and their family members would have to vote against the reappointment of HVL in respect of their personal shareholding in UCL, BRCL and VTL. Furthermore during the tenure of the Joint APLs the plaintiffs No. 1, 2 and 4 would have to always exercise voting rights in respect of their personal shareholding as per the dictates of Joint APLs and thereafter exercise voting rights as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 10F of the Act. In any event, it is submitted that the admission cannot confer or divest the title. To support such contention, reliance was placed on the decision of the Hon ble Supreme Court in Canbank Financial Services Limited Versus Custodian and Others (2004) 8 SCC 355. The next topic addressed by the learned senior advocate is with regard to the violation of principles of natural justice. In this regard, elaborate reference was made to the minutes of the meeting of the Joint APL held on 16.06.2019 and various events which took place during the course of the meeting etc. It is submitted that the plaintiff counsel had pointed out that the issue as to whether the Joint APL can take the decision by majority need not be decided before the Joint APLs and the meeting concluded on the said date and no submissions on the issue were either invited or made by either side nor the said issue was on the agenda of the meeting. However to the surprise of the plaintiff in the majority decision of the Joint APL dated 19.07.2019 several paragraphs were devoted to the aspect of majority decision making power of the Joint APLs with regard to the Joint APLs Mr. M.K. Sharma (MKS) on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entioned in the affidavit of asset are not dissipated/transferred and to exercise powers legally flowing from ownership of shares only in case of established exigency. 44. It is submitted that the learned single bench had pre decided all the issues and the reasoning later given therefore was mere formality. In this regard, the learned Senior Advocate referred to the various paragraphs of the impugned order and submitted that all the paragraphs would indicate are only narration of events and there is no indication in the impugned order as to why the arguments of the plaintiffs appears to be self-contradictory and mutually destructive and therefore such findings rendered by the learned single bench in the impugned order are liable to be set aside. 45. Mr. Abhratosh Majumdar, learned senior advocate appearing for the appellant in APO No. 94 of 2020 elaborately took us through the findings of the learned single bench and submitted that the findings have blurred the settled position of law with regard to the jurisdiction of the probate court. By placing reliance on the decision of the Hon ble Supreme Court in Ghulam Qadir Versus Special Tribunal and Others (2002) 1 SCC 33, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le costs. It is submitted that the said decision clearly shows that the APL Committee was conscious of its limitations, but however had not approached this court for any directions but chose to unilaterally issue directions which is contrary to the provisions of the Companies Act. 46. Nextly, the learned senior advocate referred to the judgment of the Division Bench dated 23.08.2012 wherein the Hon ble Division Bench held that the rights and powers of the general administrators over the estate of the deceased depends on the nature of the property both movable and immovable and the respective statutes which governs acquisition and enjoyment of such property. Further in so far as the stock and shares of the companies are governed by the companies Act and in the light of the rules and regulations under the Companies Act there are two modes by which the shares of the companies can be obtained i.e. by transfer and/or transmission as provided under Section 108 of the Companies Act to be entered into the Registrar of Members. Further the Hon ble Division Bench noted that the appellant/petitioners have specifically sought in their application for being appointed as APL to enable him to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is submitted that the rule of fair hearing would equally apply in an administrative decision and to support such contention, reliance was placed on the decision of the Hon ble Supreme court in Kanachur Islamic Education Trust (R) Versus Union of India (UOI) and Others (2017) 15 SCC 702. 47. Mr. Shyam Divan, learned Senior Advocate appearing for the appellant in APO No. 95 of 2020, Birla Corporation Limited submitted that the company is a public limited company, it is listed in BSE and NSE and is described by the respondents as the flagship company of the MP Birla Group. It is submitted that BCL is one of the India s leading cement manufacturers with an annual turnover of over Rs. 6,915 crores as at 31.03.2020 and its turnover has increased from 1343 crores in the year 2004-2005 to approximately Rs. 6915 crores (consolidated) in the year 2019-2020. The net worth of the company increased from Rs. 312.79 crores in the year 2004-2005 to Rs. 4806.3 crores in the year 2019-2020. Further BCL has an uninterrupted record of declaring dividend for the last 18 years and in the financial year 2019-2020 it had declared a total dividend of 75%. During 2004, the company had 29,825 shareho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t once the court holds it lacks jurisdiction to pass the order against the entity, it could not have made any observations in regard to such entity after specifically holding that it would not go into those applications any more. Therefore, the observation in this regard is a nullity as it has been made by the court which lacks jurisdiction. To support such contention, reliance was placed on the decision in Shri Athmanathaswami Devasthanam Versus K. Gopalaswami Ayyangar (1964) 3 SCR 763 and Hindustan Zinc Limited Versus Gujarat NRE Coke Limited AIR 1999 Cal 179. 48. Nextly, the learned senior counsel referred to the prior background and submitted that in September 2004 six shareholders of BCL collectively holding about 0.0016% shares had filed proceedings against the company under Section 247/250 of the Companies Act, 1956 before the Company Law Board, Principal Bench, New Delhi in CP No. 58 of 2004 in which proceedings the promoter group shareholders constituting 63.7% (presently 62.9%) were arrayed as respondents. The petitioners therein sought for an investigation into the membership of the company in terms of Section 247 (1A) of the Companies Act, 1956, for determining t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17.01.2013 to the APL has not accepted the assertion of the alleged controlling interest and that they have taken a clear stand who were the shareholders of BCL are matters of record and nothing further or to the contrary was admitted. Therefore, replying or not replying to any further letter of APLs such as their letter dated 08.07.2013 is of no consequence. Further it is submitted that the unanimous inventory report of APL filed on 15.10.2013 was prepared on the basis of list of assets furnished by both sides and the said report till date is unchallenged and is conclusive. 49. Nextly, the learned senior counsel proceeded to explain about the position held by RSL and HVL in BCL. It is submitted that RSL was appointed as an Additional Director of BCL on 12.06.1991, the minutes thereof was signed by PDB and he continued to be the Director of the company until1996 when he resigned on account of his appointment as the Director of State Bank of India. RSL continued to be a special invitee to various Board meetings of BCL. RSL was advisor to the Chairman, Smt. PDB from 1996 until 15.09.2001. RSL was reappointed as the Director and Co-Chairman of BCL at the meeting of the Board of Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s would consider such applications in terms of the provisions of law and its memorandum and Articles of Associations. It is submitted that the BCL is greatly prejudiced by the operation of the impugned findings as the APL Committee by majority decisions are seeking to exercise the voting right of BCL shares in other companies and to otherwise interfere with the affairs of the BCL. In this regard, various instances were referred to. It is submitted that the learned Single Bench refused to decide the issue raised by the BCL and in particular whether the two Joint APLs decision taken by majority should be implemented or whether the said two Joint APLs have rightly taken such decision. Having not decided the said issue, the learned Single Bench could not have made the impugned observations or issue in the impugned direction. After referring to the decisions in 2008 4 SCC 300, ILR 2007 (2) Cal 377 and 2016 SCC Online Cal 1541, it is submitted that the observations in the impugned judgment are contrary to the findings which were rendered in the aforementioned decisions. Essentially in those decisions, it was held that the probate court cannot pass orders against the third parties; the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cept distribution. Reliance was placed on the decision in Pandurang Shamrao Luad and Ors. Versus Dwarkadas Kallindas and Ors. AIR 1933 Bom 342. It is submitted that the APL represents the estate of the deceased and in terms of Section 211 of the said Act the executor or administrator of a deceased person is his legal representative for all purposes and all the property of the deceased person vests in him as such and the meaning of legal representatives will have the same meaning as given in Section 2(11) of CPC. It is submitted that APL is appointed for a limited purpose of preservation and protection of estate. APLs being officers of Court are required to be impartial and should not enter into the arena and conflict between the parties. It is also well settled that the APLs are not appointed for the benefit of any of the parties and they should not interfere in the litigation between the parties and should not enter into the arena of conflict between the parties. In this regard, reliance was placed on the decision in Lilavati Kirtilal Mehta Medical Trust and Ors. Versus Charu K. Mehta and Ors. 2008 SCC Online Bom 1210, Shivram Antaiah Shetty Versus Chimanlal Ambalal Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany Law (24th Edition) were referred. Reliance was placed on the decision of the Hon ble Supreme Court in Naresh Chandra Sanyal Versus Calcutta Stock Exchange Association Limited with regard to the importance of articles for the regulation and governance of the company s internal affairs. The definition of Member as defined under Section 2(15) of the Companies Act, 2013 was referred to and it is submitted that apart from the Board of Directors and the Members of the company, the Company Act does not recognize any entity which has a say in the company s affairs. Reliance was placed on the decision of the Hon ble Supreme Court in LIC Versus Escorts Ltd. (1986) 1 SCC 264 and Vodafone International Holdings Versus Union of India (2012) 6 SCC 613. The definition of control as defined under Section 2(27) of the 2013 Act, it is submitted that none of the ingredients of control is made out in favour of the estate of PDB. It is submitted that control is usually a consequence of the member s share holding in the company; control is not an asset; it is their right emanating from certain factual conditions namely shareholding or management rights or share holders agreements or vot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an individual, company, trust, society in the promoter group does not mean that such entity is legally owned and controlled by anyone promoter as it only means that such individuals, companies, trusts, societies are associated with each other as stipulated in the SEBI Takeover Regulations and SEBI Disclosure Regulations. Further it is submitted that merely because there are cross holdings and chain holdings between the companies, trusts and societies forming part of the promoter group, cannot in law affect any member s statutory rights to exercise voting rights qua it share holding or permit/ enable the APL committee to exercise voting rights qua such member s share. The joint APLs are entitled to exercise rights as legal share holders only in respect of the shares recorded in their names in the company and not for anybody else. The shares held by BCL in other companies are the absolute property of the company, a decision in respect of which taken by BCL alone. It is submitted that even assuming if the estate of PDB held majority shares of the BCL, yet it cannot direct a company to act in a particular manner. This is so because a share holder does not have any interest in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his concept of single directing mind has no application to testamentary proceedings. With the above submissions the learned Senior Advocate contended that the adverse directions and observations contained in the impugned order qua BCL and its affairs despite the Court holding that the probate Court has no jurisdiction or liable to be set aside. 52. Mr. Ranjan Bachawat, learned Senior Advocate appearing for the Birla Corporation Ltd. after elaborately submitting about the genesis of the entire dispute contended that the probate Court itself could not have taken the decisions which were taken by the APL, the order appointing APL did not give them such powers and the prayer in the application to execute such orders is not maintainable. Further, the learned Single Bench accepts in 13 places in the impugned judgment that orders cannot be passed against companies yet the directions issued in the impugned order are clearly inconsistent with the findings recorded by the Court. It is further submitted that the APLs have joined hands with the Birlas and approached the NCLT. Referring to the orders passed by the Learned Single Bench more particularly in page 98 it is submitted that the cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights in other independent companies under the guidance of the APLs. The effect of such observations is that the defendants and two of three joint APLs have sought to nominate Directors in BCL to exercise voting rights in shares of other share holders of BCL including companies, charitable trusts and societies which are independent bodies governed by the respective documents and respective laws applicable to them. The two of the three joint APLs by majority decision are also seeking to exercise voting rights of BCL s shares in other companies and also otherwise interfere and intermeddle with the affairs of BCL. The manner in which such interference is caused was submitted before the Court. Further it is submitted that the defendants and two of the three joint APLs are seeking to enforce the stray observation mentioned in the impugned order by filing diverse proceedings and the details of those proceedings were also set out. The actions of the joint APLs acting by majority is not permissible either under the articles of association of company or the Companies Act, 2013 as the same would compel the company to prevent the recorded share holder from exercising their voting rights in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken in the AGM of the company and communicated to the public and statutory authorities. The observations made by the learned Single Bench would create a situation where the company would be compelled to act in violation of Sections 47, 88 read with Section 2(55) of the Companies Act, 2013 and the articles of association by preventing the recorded share holders from exercising their voting rights over the shares and permitting a person who is not recorded share holder to exercise their rights. In terms of the said provision only a person whose name has been recorded as a member in the register of members of a company can exercise voting rights at the general meeting of the company. Similarly, appointment of Board of Directors is required to be made by resolutions passed by majority of shares at a general meeting of the company under Section 152 read with Section 162 of the Companies Act, 2013 and neither the Act nor the articles of association permit nomination of directors by any other person. It is reiterated that the observations made by the learned Single Bench are contrary to the findings which were rendered in the earlier stage of the present proceedings which are to be in e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C and all proposals emanated from Mr. ACC and the two APLs continues to say that their actions are authorised by Court. It is submitted that when the probate Court cannot appoint directors and trustees, no such rights will enure in favour of the joint APLs. The learned Senior Counsel referred to the decision of the Hon ble Supreme Court in Official Trustee, WB Ors. Versus Sachindra Nath Chatterjee Anr. AIR 1969 SC 823. For the proposition that probate Court does not have jurisdiction to pass order as prayed for or granted before / by the learned Single Bench. For the proposition that the Court cannot delegate its judicial function to any other authority, reliance was placed on the decision in Jute Corporation of India Ltd. Versus Sudera Enterprises Pvt. Ltd. AIR 2000 Cal 152. For the same proposition reliance was placed on the decision of the Hon ble Supreme Court in P. Surendran Versus State by Inspector of Police (2019) 9 SCC 154. 55. Further it is submitted that stray observations are contrary to well settled principles of corporate jurisprudence/ provisions of the Companies Act. Numerous attempts made over the last 19 years to interfere with the AGMs of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch clear and unequivocal admission has been demonstrated. It is further submitted that in the applications filed by the respondents there is no pleading regarding the alleged significant beneficial ownership (SBO) of Smt. PDB in the share holding companies. Further, the claim of SBO raised by the two of the three joint APLs was rejected by the judicial member of the NCLT and due to different in opinion of the technical member the matter was referred to the third member and the judgment dated 07.02.2023 the learned third member approved the judgment of the judicial member and the claim of the two joint APLs of beneficial ownership was held to be misconceived. Further there was no declaration made during the lifetime of Smt. PDB or the erstwhile Joint APLs. In this regard, reference was made to Section 90 of the Act. Elaborate submissions were made on the conduct of the APLs (majority) and it is submitted that the two joint APLs have no power to adjudicate or take control of the companies and there is no order of any court permitting them to act by majority. Further it is submitted that even the testamentary Court cannot direct public listed companies to appoint directors of its choi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in 1996 3SCC 587 (Para 4) it is submitted that when a party is not impleaded to a proceedings it is a grave error. It is submitted that the established principle of probate jurisprudence are that the subject matter of the proceedings is the will; the defendants are who opposed the will and all other are third parties who have no scope for impleading themselves; the estate which belonged to the deceased must be mentioned in the affidavit of assets; and if the dispute regarding an estate or regarding title the probate court will not go into it as suit is the only remedy. To explain the duty of the probate Court reliance was placed on the decision reported in 1987 2 CHN 63 (Para 26). It is further submitted that control of the companies not forming part of the affidavit of assets, the learned Single Bench would not have issued directions as contained in the impugned order. The two joint APLs cannot abrogate or override the basic tenets of Company Law. It is submitted that the Birla share holders tried all methods for 15 years and were unsuccessful and they have now come to the probate Court. If the order and direction issued by the learned Single Bench is to be allowed to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PL s decision dated 30.07.2019 revolves around exercise of voting rights with regard to the two resolutions proposed at the ensuing AGM of VTL, BCRL, UCL and BCL. The APL decided to object to reappointment of HVL and the payment of profit based remuneration to HVL and accordingly gave directions regarding the manner of exercise of voting rights to the constituents of controlling block of shares held by the estate in VTL, BRCL, UCL and BCL. The learned Single Bench by judgment dated 18.09.2020 upheld the decisions of the APL dated 19.07.2019 and 30.07.2019. It directed the plaintiff to implement those decisions and restrain the plaintiffs from drawing any benefits personally from out of the assets of the estate; restrained the plaintiffs from interfering with the future decisions of APL (even if by majority) and restrained HVL from holding any office in any of the entities of MP Birla Group. By interim order dated 01.10.2010 passed in this appeal prayer for stay was refused but was clarified that the directions contained in the judgment dated 18.09.2020 by observing that the word implement in para (a) thereof means to abide by and directions contained in para (b) thereof would opera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. It is submitted that all the above facts have been referred to in the judgment reported in 2006 2 SCC 757. On 03.10.2008, RSL died and upon his death HVL and other heirs of RSL were substituted and the application for grant of probate was converted into Application for Grant of Letters of Administration with copy of the will annexed. It is submitted that in the amended application HVL expressed willingness to abide by the directions contained in the impugned will of 1999. In this regard, the learned Senior Counsel elaborately referred to the various dates and events relating to the trusts which have also been furnished as annexure A in the written notes submitted on behalf of the first respondent. 59. It is submitted that the execution and the attestation of the impugned will of 1999 is shrouded by suspicious circumstances and the Birla s had challenged the will on several grounds including its due execution and attestation. Referring to Section 63(c) of the Indian Succession Act read with Section 68 of the Evidence Act. It is submitted that a will has to be attested strictly in the manner provided under the said provisions. Reliance was placed on the decision in Jank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub clauses (i) to (iv) of Clause 4 of the 1999 will. In this regard, the averments in the application set out in paragraph 19(C) was referred to. It is further submitted that with regard to the contention of the 1999 will, the appellants have contended that it is permissible to sever the portion of the will which is illegal and as such the portion of PDB s will which bequeaths her controlling interest in MP Birla Group can be severed and probate can be granted to the balance portion of the will. For the doctrine on severability, the appellant relied upon the decisions in Bajrang Factory Limited Versus UOC Ors. (2007) 7 SCC 183 and Anil Kak Versus Kumari Sharada Raje (2008) 7 SCC 695. It is submitted that this argument is an argument in desperation. The said judgments are of no assistance to the appellants. If severed, nothing will be left in the will of 1999 as at a threshold and at any stage proceeds on the basis that estate has right to control manage and administer the MP Birla Group of companies, trusts and societies. Further such contention of the appellant is absolutely contrary to the undertakings of HVL as contained in paragraph 19C of the amended application for gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lden Chariot Airport Anr. (2010) 10 SCC 422 Hope Plantations Ltd. Versus Taluk Lank Board (1999) 5 SCC 590 Bhanu Kumar Jain Versus Archana Kumar (2005) 1 SCC 787 Ishwar Dutt Versus Collector Land Acquisition Collector Anr. (2005) 7 SCC 190. 62. The next submission of the learned Senior Counsel was on the scope of Section 247 of the Indian Succession Act, 1925. It is submitted that APL appointed under Section 247 is a limited grant in as much as it is limited in duration; no right to dispute the estate and it is subject to immediate control of the court and acts under its directions. APL appointed under Section 247 has all the rights and powers of a general administrator. APL is legal representative of the deceased and the estate vests with them as such. In this regard, reference was made to Section 211 of the Indian Succession Act. The following decisions were referred to support such contention: Nirod Barani Debi Versus Chamatkarini Debi AIR 1915 Cal 565 Pandurang Shamrao Laud Ors. Versus Dwarkadas kalliandas Ors. AIR 1933 Bom 342 William Harold Gibbs Versus Deva Prosad Roy (1950) 85 CLJ 280 at 282 Atula Bala Dasi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that HVL/RSL and the companies/trusts and societies forming part of MP Birla Group understood the scope and effect of the judgment dated 23.08.2012 and initially acted in terms thereof but subsequently created hurdles in the way of administration of estate by APL. The companies responded to the letters of the APL wherein they were directed to comply with the directions issued in the judgment. The appointments of the directors to the various companies during the tenure of the Former Hon ble Judges were referred to. It is submitted that all the appointments as the Directors were made in due compliance of judgment dated 23.08.2012 and the provisions of the Companies Act, 2013 having due regard to the fact that the estate holds the controlling block of shares in MP Birla Group and all such appointments were made without any objections and in fact with consent of HVL and the concerned companies. Further, APL also supported reappointment of the HVL as the director in various companies as the HVL and concerned companies were complying with the directions of the APL for the protection and observation of the estate. However, after being reappointed as the Director with the support of AP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to get a second bite on the cherry. In this regard, various dates and events were referred to by the learned Senior Counsel and also to the orders passed by the court and in particular the orders passed by the Division Bench dated 28.04.2017 wherein the court observed that the appeals which were filed were frivolous only with a view to delay and protract the testamentary proceedings. They have filed with the aim of delaying and proceeding with the rights of the contesting defendants of the testamentary suit. The appellants (therein) have raised the bogey regarding the right of the defendants to contest the testamentary suit only with a view to defeat and delay the proceedings. Thus, it is submitted that PDB was admittedly in the control of the entire estate. RSL after death of Smt. PDB was in control of the entire estate. HVL said that he will do that all that his father would do and now he has made a somersault by contending that the estate is in dispute. The estate which is 62.92% has to be protected absolutely. The controlling block is within the said 62.90%. There has been no violation of the provisions of the company law including the procedures for nominating of directors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 1956 Act which was dismissed by order dated 24.08.2005 and as against the said order no appeal has been filed. Thus, it is submitted that those orders have not attained finality, the companies/ trusts/ societies forming part of MPB Group cannot reopen the same by reason of principles of res judicata and estoppel and are bound by such findings. Further, the orders dated 25.04.2005 and 24.08.2005 is an adjudication as to who was in control and this adjudication was relied upon in the subsequent company proceedings. With regard to the contention raised by the appellant that RSL/ HVL were not parties to CP 58 of 2004 and therefore, the orders are not binding on them, it is submitted that the said contention that of the appellant is misconceived and baseless for the reasons that the companies, trusts and societies were parties in CP 58 of 2004 and admittedly RSL/ HVL were in control of such companies, trusts and societies; during final hearing of CP 57 of 2004 RSL had relied upon the orders dated 25.04.2005 and 24.08.2005 passed in CP No. 58 of 2004 and appeal therefrom. The relevant portions of the final order dated 19.10.2009 passed in CP No. 57 of 2004 were referred to. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the promoter s share holding of 66.35% and 62.90% respectively and there is a note in the disclosure recording the facts. After the appointment of APL on 23.08.2012 the share holding pattern disclosed by BCRL and BCL as on 30.09.2012 gave the breakup of the promoter s share holding of 66.35% and 62.90% respectively and there is a note in the disclosure recording the facts. After the dismissal of the special leave petitions on 26.11.2012 the share holding pattern disclosed by BCRL and BCL as on 31.12.2012 gave breakup of the promoter s share holding of 66.35% and 62.90% respectively. Suddenly there is no note in the disclosure. Thus, it is submitted if the shares held/ controlled by the estate of PDB was restricted to only those shares which were directly held in the name of PDB and not majority share holding (example 1260 shares as opposed to 62.90% in BCL), then there was no question of taking benefit of exemption or for giving the note in the statutory disclosures. In this regard, the learned Senior Advocate referred to Regulations 10, 11 and 12 of the SEBI Takeover Regulations, 1997. It is submitted that companies would not have claimed exemption from the application of Regulati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefits such as avoided investigation under Section 247/250; avoided application of Takeover Regulations; avoided appointment in the APL in the first round and insulated themselves from all allegations of wrongful usurpations of control of BCL made in CP No. 1 of 2010 on the basis of the stand that all matters relating to the estate had to be decided by the testamentary Court. Nextly the learned Senior Advocate referred to the contention of the appellant regarding the extent of the estate. By referring to the affidavit of assets and the unanimous inventory report prepared by the APL and the judgment of the Division Bench dated 04.05. 2020 and also the earlier Division Bench judgment passed in the first round dated 11.10.2007. The contention of the second respondent with regard to the extent of estate is that the controlling block of shares in MPB Group is reflected in the affidavit or assets filed by the Birlas which has been valued at Rs. 2400 crores approximately opposed to the affidavit of assets filed by Lodhas which has been valued at Rs. 4 crores approximately. The document dated 15.10.2013 is not an inventory of assets of the estate. It is only an interim report of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of 1999. This will be evident from the pleadings of HVL and the companies and written notes of RSL in the proceedings before the High Court in an appeal filed from the interim order dated 15.10.2008. The next aspect dealt with by the learned Senior Counsel is with regard to judicial estoppel. It is submitted that in several judgments it has been admitted and concluded that the estate held majority controlling block of shares in MPB Group. Having taken advantage of such admissions and findings and having accepted the decisions of this Court and those of CLB regarding their shares being part of the estate, the appellant is estopped from taking an alternative or contrary stand by alleging that the estate owns and controls only 1260 shares in BCL. To explain the concept of judicial estoppel qua the facts of the case the learned Senior Advocate referred to the decisions in Helfand Versus Gerson 105 F.3d 530 9th Cir. 1997 , New Hampshire Versus Maine 2001 SCC Online US SC 50, Surendra Nayak Versus AM Mohammad Shafi ILR 2016 Kar 4162 and The Director General of Police Tamil Nadu, Chennai Versus R. Manikandan 2017 SCC Online Mad 27091. 68. Nextly, the learned Senior Advocate p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a public character in favour of the deity. The Court in the said case in fact decided the question of title on the basis of admission. Therefore, it is submitted that this case is in favour of the respondents as it recognizes that admissions can be relied upon as evidence. 69. It is submitted that the appellants have tried to indicate the distinction between admission and estoppel and to support their contention that admission do not ipso facto give rise to estoppel they relied upon the decision in Chhaganlal Keshavlal Mehra (supra). In this decision the case recognizes that admissions are good evidence unless withdrawn or are proved to be mistaken. In the case on hand, there is no withdrawal of any admission nor have such admissions been proved to be mistaken. Furthermore, the doctrine of estoppel will apply in the present case as admissions as to the extent of the estate and adjudications have been accepted and acted on by the appellants and the appellants have derived benefit on that basis. It is further submitted that the appellants have also contended that there cannot be an estoppel on a mixed question of fact and law and as such there cannot be an estoppel on the ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings under Section 247 but was dealing with proceedings under Section 269. The court therein did not deal with the powers of the court to protect and preserve the estate under Section 247 and admittedly no prayer was made for appointing APL. It is further submitted that even during the pendency of the instant appeal some of the appellants have admitted before the NCLT that issue regarding scope, title and extent of estate can be decided and in fact, the pending adjudication before the APL Committee and the High Court in proceedings under Section 247 of the 1925 Act. The contention of the appellant that the direction of APL is without jurisdiction, is barred by Section 430 of the Companies Act, 2013 is wholly mis-conceived, baseless and also contrary to the earlier stand of the appellant before the CLB as well as the High Court. As could be seen from the judgment dated 10.05.2013 in ACO No. 42 of 2011 (Birla Education Trusts Versus Birla Corporation Limited) Furthermore it is submitted that the Hon ble Supreme Court in Aruna Oswal Versus Pankaj Oswal (2020) 8 SCC 79 held that the disputes relating to inheritance can only be decided by the Civil Court. It is submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is with regard to whether the directions issued by the APL are in accordance with the provisions of the Companies Law. The contention that APL can exercise voting rights only in respect of shares which are registered in the name of PDB for example 1260 shares and not 62.90% in BCL is incorrect as it ignores the fact that the name entered in share register is not only the manner there can be ownership of the shares. There is a concept of true ownership of shares that is real and beneficial ownership. Law also provides for investigation to determine who is the true ownership of the shares. In support of such contention, reliance was place on the:- Taylor Versus The Midland Railway Company [1860] 8 WLR 401. Affirmed by House of Lords in The Directors Others of the Midland Railway Company Versus Robert John Taylor [1862] 11 ER 624. Binney Versus The Ince Hall Coal and Cannel Company [1866] 35 L.J. Ch. 363. Bank of NT Butterfiled Son Limited Versus Golinsky [1926] A.C. 733. 73. The Cohen Committee in the year 1945 gave its report observing that big businesses seldom disclose their true owners and to ensure transparency, the Committee recommen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the trusts. The contention of the appellant that controlling interests can arise only out of actual ownership of shares and there is no concept of controlling interests is the contention which is mis-placed as true/beneficial/real ownership of shares can lie beyond the share register, it is not necessary to have shares registered in the name of such owner in order to exercise control in respect thereof and this will be evident beyond the definition of control as defined under Section 2(27) of the 2013 Act and the SEBI Takeover Regulations, Regulation 2(e) which also defines control . It is submitted that the above definition of control is inclusive and not exhaustive. To explain the general rule of statutory interpretation, reliance was placed on the following decisions:- CIT, Andhra Pradesh Versus Taj Mahal Hotel, Secuderabad [1971] 3 SCC 550 Mamta Surgical Cotton Industries, Rajasthan Versus Assistant Commissioner, (Anti-Evasion), Bhilwara, Rajasthan (2014) 4 SCC 87 Board of Trustees of the Port of Mumbai Versus Byramjee Jeejeebhoy Private Limited Another (2011) 5 SCC 128 Rachapudi Subba Rao Versus Advocate General, Andhra Pradesh (1981) 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, has been raised for the first time while contempt proceedings were being heard in the instant appeal. This has not been case in any of the pleadings filed by RSL or HVL. 75. The contention of the appellant that the APL decision dated 19.07.2019 and 30.07.2019 are contrary to the provisions of the Companies Act, 2013 is untenable. It is submitted that in the past requests were made by APL to appoint nominees of APL as Directors in the MPB Group of companies and the same was duly complied with by the appellants without any objection. The details of such appointments were referred to. The APL decision dated 30.07.2019 is a direction on the shareholders being Tier 1, 2, 3 and 4 companies, trusts and societies of the four manufacturing companies as to the manner of voting in the general meeting of the four manufacturing companies. The shareholders have already been identified as part of the controlling block of shares which forms part of the estate. Out of these shareholders only the four manufacturing companies and one society (Shreyas Medical Society whose locus to file the appeal disputed) and none of the other shareholders have challenged the APL decision of 19.07.2019 and 30. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry court have passed order directing lifting of corporate veil and to support such contention the decision in In the Goods of: Kamal Kumar Mitra (2008) 3 CHN 384 and Niranjan Lal Todi and Anothers Versus Nandlal Todi and Others 2010 SCC Online Cal 2120 referred. Thus it is submitted that the order and directions issued by the learned Single Bench cannot be interfered. 78. Mr. Ratnanko Banerjee, learned Senior Advocate appearing for the respondent No. 3 submitted that in addition to what has been stated in the written notes submitted on behalf of the third respondent, in order of avoid overlap the third respondent is adopting the written notes filed on behalf of the respondent Nos. 1 and 2. It is submitted that the cross objections filed by the respondent against the judgment of the learned Single Bench should be allowed for the reason to protect and preserve the estate for the ultimate beneficiaries which is the paramount duty of the testamentary court and the testamentary court can pass orders against the third parties in exercise of power under Section 247 of the Act. It is further submitted that as contended by the second respondent, the decision in 2016 SCC Online Calc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e made an application in the GA No. 1964 of 2018 praying for permission for APL to act by majority which was not granted and hence deemed to have been rejected. This contention is wholly misplaced in the light of the prayer made in para (c) of the said application and the relief which was granted by the order dated 10.04.2019 which was much beyond the prayer. Therefore, it is submitted that unanimity in decision for working of APL is not possible is also proved from the fact that after the decision dated 19.07.2019, Mr. MKS, the nominee of HVL has not agreed to any of the decision of APL. The court ordered is for administration, preservation and protection by the Joint Administrators but not unanimous decision by Joint Administrators. The contentions of the appellant that the reliance on the C.S. No. 73 to 77 of 2010 by APL in his decision dated 19.07.2019 is an extraneous consideration is an incorrect submission and in this regard the relevant facts in the civil suits were referred to and it was submitted that in any event CS No. 73 to 77 of 2010 are not adverse to the interest of the estate or the title of the testator. Further the defendants in the testamentary suit are not part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the group from 1997 onwards, till 2021. These disclosures are made with a National Stock Exchange and Bombay Stock Exchange where the shares of BCL, UCL, VTL and BCRL are listed. It is submitted that the listed companies themselves have also been acknowledging in their annual accounts being published every year by the respective Boards of Directors under the de facto control of RSL/HVL that the respective companies are part of the MP Birla Group. Annual accounts of BCL is a flagship company, published year after year also expressly states that 62.90% shareholding is with the promoters. It is submitted that after considering the shareholdings, this court has held in two cases that PDB estate has control over the flagship company of the group of the BCL. In various methods from 2005 onwards, the CLB and this court have held that PDB was exercising control over the flagship company of the group, BCL, by exercising control over group entities, holding 62.90% of shares even though PDB s direct shareholding in the company was misniscue. It is submitted that all major companies and charitable societies were party respondents in the company petition filed by the Gouri Shankar Kayan. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpanies. In this regard, the report of the Company s Law Committee of February, 2016 was referred. It is further submitted that the first meeting of the present APL Committee was held on 28.04.2019 where Mr. ACC brought the attention of the Committee on the issue of significant beneficial ownership of the PDB estate in the MP Birla Group and new rules framed in the year 2018. The APL Committee after hearing the learned advocates for the parties and after considering the details of shareholdings in all companies took a decision on 09.12.2019 holding that during the pendency of the probate suit, administrators pendente lite representing the PDB estate are significant beneficial owners of the majority shares in all the companies in MP Birla Group, in their capacity as administrators and not in their personal capacity. In the said process, the APL Committee considered the scope and ambit of the estate of PDB. It was held that the majority part of the estate of PDB consisted of all controlling interest as in the MP Birla Group through shareholding both directly and indirectly. The APL Committee categorically, quantified and determined the percentage of shareholdings in all 33 companies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised by HVL before the APL Committee and by majority decision dated 09.12.2019 the same was rejected. By explaining the distinction between Section 187 C of the 1956 Act read with 1975 Rules on the one had and Sections 89 and 90 of the 2013 Act read with SBO Rules, 2018 on the other hand. It is submitted that the provisions under the old Act required disclosure of beneficial interest where a registered holder of shares was a benamidar of the real owner. The holder s shares in the entities in MP Birla Group were benamidar and therefore, PDB was not required to file any declaration under the provisions of the old Act. On the other hand, the object underlying the scheme of the new Act could be culled out from the report of the Companies Law Committee of February, 2016. The learned Senior Advocate then proceeded to elaborately discuss about the various decisions taken by the APL Committee and challenged such decisions by the Lodhas before the probate Court and the applications which were filed by the defendants seeking implementation of the majority decision of the APL. With regard to the impugned judgment the Court rightly held that the APL Committee can decide by majority. In this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er body and there is every possibility of a dissent occurring and if such dissent occurs or any difference of opinion arises then the APL Committee had to approach the court for appropriate directions. The learned senior advocate referred to the minutes of the meeting of the APL held on 07.12.2012 wherein it has been recorded that two administrators viewed the matter from different perspective and therefore it was agreed that they should give further thought to the matter and give their respective views and suggestions in writing so that the committee of administrators can together examine such views/suggestions and arrive at a consensus. Referring to the meeting of the APL held on 20th and 21st April, 2013, it is pointed out that in regard to second tier holding companies and operating companies in MP Birla Group, also the trusts/institutions in MP Birla Group, different and divergent views and suggestions were made by the two members of the APL and unanimity could not be achieved. The minutes of the meeting of the APL held on 09.08.2013 was referred wherein it has been recorded that the two members of the APL made various suggestions and in view of the different views, the third ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 2 companies or the other companies in the other tiers cannot be left to the decision of the APLs. The learned senior advocate referred to the submissions made by him before the learned single bench wherein it was submitted that members constituted body called administrators cannot be segregated so as to form a majority or minority view and law demands that this body must give one decision jointly and if they cannot act together and fail to rule in unanimity, they should come before the court for necessary directions and/or clarifications. In support of such contentions, reliance was placed on the decision in Lilavati Kirtilal Mehta Trust and Others Versus Charu K. Mehta and Others (2009) 2 Maharashtra Law Journal 340, K. Leelavathy Bai and Others Versus P.V. Gangadharan and Others (1999) 3 SCC 548 and Mohinder Singh Gill and Others Versus The Chief Election Commissioner, New Delhi and Others (1978) 1 SCC 405. Further the learned senior advocate referred to that portion of the impugned judgment wherein the learned single bench has taken note of the notes of arguments submitted by him wherein he had pointed out that Mr. MKS was appointed by a Division Bench of this court upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jointly unless law gives them the power to decide by majority. The Joint administrators are not allowed by the Succession Act to decide by majority. The learned senior counsel referred to the various provisions of the Act which provides the manner of decision to be taken under those statutes and it is submitted that in those statutes where it provides the decision should be of a simple majority or of 2/3rd majority, it is always to be presumed that the decision should be unanimous. It is submitted that the learned single bench has accepted the legal position that the administrator pendente lite is under the immediate control of the court. It is submitted that the learned single bench had observed that the parties have accepted and having subjected themselves to the jurisdiction of the APL Committee acting by majority, they cannot agitate the same at this juncture is an incorrect proposition as the learned single bench had failed to note that in terms of Section 247 of the Act, the obligations is on the court and the court cannot lose control of the matter. It is further submitted that in GA No. 1964 of 2018 filed by the defendant clarifications of the judgment and order dated 23.08 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly delineated in the rules and regulations, the same cannot be ignored by the APL. Further, a combined reading of the Rules 21, 27 and 28 of the Rules and Regulations of the Shreyas Medical Society, it is clear that there is no heritable right for PDB and therefore the trusts and societies cannot be the subject matter of control by the APL Committee. The minutes of the meeting of the APL Committee held on 22.02.2022 was also referred to show as to how Mr. MKS had dissented from the opinion of the two members of the APL. Further with regard to the very same medical society, it is submitted that the like other charitable societies which are shown as part of the promoters group and are shareholders in Birla Corporation Limited (BCRL) and these societies altogether hold 14% shares in BCrL and has shareholding in other manufacturing companies namely VTL, UCL, BCL and HGCL. Shreyas Medical Society as also other chartable society has two organs of internal management namely the Board of Trustees and the Managing Committee and the members of the societies are appointed by the managing committee. The properties of the society vests in the trustees; the affairs of the societies have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal expenses incurred by the APLs, it is submitted that the crores of money are being spent for litigation and other legal expenses which erode the estate and this aspect was highlighted by Mr. MKS in the meeting of the APLs held on 30.07.2020 wherein it was pointed out that the estate should not be required to be pay legal fee of the counsel engaged by the two members of the committee and if the decision is being challenged, they have to remain neutral and let the higher judicial authorities decide the matter without seeking to justify their decision before the court by engaging counsels and putting the appearance. Similar such objection was raised and was recorded in the minutes of the meeting of the APLs held on 23.07.2020 and 30.07.2020 and also recorded in the minutes of the meeting held on 04.08.2021. Therefore, it is submitted that the administrators should not come to court and canvass the case of one of the parties and they should not be shown to championing the case of the one of the parties. This aspect was reiterated by Mr. MKS in his letter dated 07.12.2022 addressed to the two members of the APL. 86. The learned Senior Advocate referred to the summary of the report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiff that HVL shall cause appointment of a nominee of the APL Committee in the subsidiary of VTL. The learned counsel had also submitted that it is for the Nomination and Remuneration Committee and Boards of the respective listed companies to propose whom the companies will appoint as directors and it is ultimately for the shareholders to vote on such resolution. In terms of the liberty granted by the court in the order of appointment dated 23.08.2012, the plaintiffs challenged certain recordings and decisions of the APL Committee in the meeting held on 12.03.2018 and 05.04.2018 and in such application no relief was sought for removal of any APL member. The third limb of the report deals with the events from the year 2019 and it is submitted that Mr. MKS had not signed the decision taken in the meeting of the APLs held on 19.07.2015 and had submitted his dissent note. Apart from the statement regarding extent of estate, it was pointed out by Mr. MKS that no hearing was given to the parties with regard to the conduct of proceeding by the APL committee by majority. In this regard, various pages of the compilation of annexures with a report of Shri MKS were referred to. It is further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondly, as to whether the affidavit of assets could be brushed aside; thirdly, that the estate of Smt. PDB was never a beneficiary of the societies and trusts; fourthly, with regard to the piercing of the corporate will; fifthly, with regard to the control as envisaged under the Companies Act with particular reference to Section 2(27) of the said Act; sixthly, as to whether the APL Committee can pass directions; seventhly with regard to the will and lastly with regard to the allegations made against HVL. 89. It is submitted that title and property including shares cannot be passed on by admission. If admissions are to be seen, then all admissions are to be looked into more particularly, the admissions in pleadings in court which has to be placed in a higher pedestal. The plaint filed in Civil Suit No. 73 of 2010 by Birla Group was referred to. With particular reference to paragraphs 74, 75, 167 and 168 and also the prayer sought for in suit as mentioned in paragraph 201. Reference was also made to the prayer sought for in G.A No. 3714 of 2008 in PLA No. 242 of 2004 wherein prayer C was for a direction to the administrator pendente lite and/or receiver to be directed to take all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation on the part of the appellants therein in permitting the Joint Administrators to approach the various companies of which the deceased owns and possess shares and stocks to get themselves recorded as representatives of the estate of the deceased appointed by the court and to take all necessary steps to enjoy rights and privileges, incidental to the ownership of the shares and stocks which consists of controlling interest in MP Birla Group of Companies and safeguard the interest of the ultimately beneficiaries. Thus, it is submitted that it is the shares and the stocks which gives the controlling power and nothing else. It is submitted that there is a vast difference between estoppel and admissions and even assuming there is an admission, it cannot override the orders of the court. In this regard, reliance was placed on the decision of the Hon ble Supreme Court in Chhaganlal Keshavlal Mehta Versus Patel Narandas Haribhai (1982) 1 SCC 223 wherein the Hon ble Supreme Court held that difference between an admission and estoppel is marked one. Admissions being declarations against the interests are good evidence but they are not conclusive and parties always had liberty to withd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... With regard to the decision in the case of Dwijendra Narain Rai, it is submitted that in the said decision, the plea of estoppel was on facts and for which purpose paragraphs 3 to 5 of the judgment were referred to. With regard to the decision in Mumbai International after referring to the paragraphs 41, 45, 50 and 51 of the judgment, it is submitted that in the said case the second proceedings grew out of the earlier judgment which is not the case in the present appeal. With regard to the decision in Hope Plantations Limited, after referring to paragraphs 26 and 31 of the decision, it is submitted that the issue should have been finally determined. In the facts and circumstances of the case on hand, the CLB did not have jurisdiction to decide the extent of the estate of PDB. With regard to the decision in Bhanu Kumar Jain after referring to paragraphs 30 and 31 of the judgment, it is submitted that the issue should have been decided against the party and if so, he would be estopped from raising the same in the later proceedings. With regard to the issue estoppel, it is submitted that the previous court of competent jurisdiction should have taken a decision; the previous court sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the judgment of the Hon ble Division Bench. 95. The Learned Senior Advocate referred to the decision of the Hon ble Division Bench in APO No. 95 of 2019 dated 04.05.2020 wherein it was pointed out that the controlling block of shares of the deceased and/or her estate is as disclosed in the affidavit of asset. Referring to the decision cited by the learned Advocate General of the CLB dated 19.10.2009 in C.P No. 57 of 2004,it is submitted that the CLB has noted that since the company as well as HVL have now taken the stand that shares held by respondent share holding companies are not part of the estate of PDB, the CLB noted that whatever might be the stand of the respondents, CLB had held in 247/250 proceedings that shares held by the respondent share holding companies forms part of the PDB estate and on appeal the High Court upheld the decision of the CLB. That the respondent did not file any appeal against the said order and as such in so far as they are concerned, the said order had become final. Further the CLB recorded the arguments of Mr. Chatterjee, who submitted that whatever may be my averments in para 12, the CLB has to take note of its decision in 247/250 order . I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally denied that the testatrix acquires or exercise control over any of the companies subsequent to the death of MP Biral. Further it was denied that the estate of the testatrix comprises of control over other alleged Birla companies as sought to be alleged. Therefore, it is submitted that the stand taken by RSL has been taken by HVL and there is no inconsistency. The Hon ble Division Bench in the judgment rendered during 2007 considered all these aspects and held that the controlling block of shares is as disclosed in the affidavit of assets. However, in the first interim report of the APL Committee reference has been made to the judgment of the Division Bench dated 23.08.2012 wherein direction was issued to the Joint Administrator to prepare and file an inventory of assets of the estate and appraisal of the value of such asset and to take over possession of the assets of the estate in the manner provided under law considering the nature of the property. Further it has been stated that the list of assets of the deceased PDB that the value thereof as furnished by the pro-pounders of the will and by their opponent was produced along with the report as Annexure 14. Further in the rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he parties to the proceedings can be investigated by the court, reliance was placed on the decision of the Division Bench of this Court in Nirod Barani Debi Versus Chamatkarini Debi 1914 SCC Online Cal 30 (DB). With regard to the decision relied on by Mr. Kapur reported in 2018 SCC Online Bombay 6830 , after referring to paragraphs 79, 95 and 96, it is submitted that in the said case the deceased was a Parsi and Section 269(1) is fully applied and the decision is in opposite. Thus, it is submitted when the APL is appointed and they want to preserve and protect the estate they have to approach the court. The decisions reported in 2021 SCC Online 1065, 1939 SCC Online Cal 326 (relied on by the learned Advocate General) 1957 SCC Online Cal 179 , (relied on by the learned Advocate General) decision reported in 2001 Calcutta Law Journal 640 (DB) and the decision reported in 2019 SCC Online (Bom) 702 were also dealt with. For the proposition that the shareholders acquire no rights in the assets of the company reliance was placed in the decision of the Hon ble Supreme Court in 63 Moons Technologies Limited and Others Versus Union of India (2019) 18 SCC 401 (paragraph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the same is incorrect as all the averments were in the petition and CLB decided based on petition and cannot be stated to be an admission. Further the other side did not attempt to show any arithmetic control which stops with tire 2 companies. There is no order passed by any Court prior to the impugned order giving any right over the trusts and societies. The term used in the impugned order is entities . It is submitted that the beneficial ownership declaration was filed on 30.12.2020 when the appeal was pending. The companies must agree and then only filing can be done and the Directors did not have any knowledge of the same. Furthermore, there was no pleading on beneficial ownership and there is no petition filed in that regard. The orders passed by the NCLT and NCLT, Ahmadabad Bench were also referred to. It is submitted that interim orders in probate proceedings operate in personem and not in rem. The various decisions relied on were sought to be distinguished on facts. With regard to the powers and authority of APL, it is submitted that when Hon ble Chief Justice R.V. Raveendran was in the committee an application was filed seeking clarification with regard to the powers o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17, 2004 PLA 242 of 2004 filed by executors for probate of 1982 Will of PDB. October 3, 2008 RSL died. Harsh Vardhan Lodha (HVL) took over and converted probate proceeding to Letters of Administration Proceeding. December, 2004 Birla heirs filed APL application. Two fresh applications for APL by Birla heirs (executor of 1982 Will of PDB). August 27, 2010 Three-member APL Committee formed. December 22, 2011 Division Bench (in HVL appeal on APL rights + composition) two persons from each side + one former Judge as third members of APL ( Umpire modified by consent). Out of the labyrinth of arguments advanced, the following broad issues and sub-issues emanate for adjudication in the present case. 1. Powers of Probate Court under Section 247, Succession Act i) Question of title; ii) Third party injunction. 2. Extent of PDB Estate i) Only shares or controlling interest ; ii) Controlling interest meaning; iii) Whether the issue of extent of Estate ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the will annexed establishes conclusively as to the appointment of the executors and valid execution of the will. Thus, it does no more than establish the factum of the will and the legal character of the executors. The probate court does not decide any question of title or of existence of the property itself. Further in Kanwarjit Singh Dhillon, it was held that probate of the will granted by the competent probate court would be admitted into evidence that may be taken into consideration by the civil court while deciding the suit for title but grant of probate cannot be decisive for declaration of title and injunction whether at all the testator had any title to the suit properties or not. In Krishna Kumar Birla Versus Rajendra Singh Lodha and Others (2008) 4 SCC 300, the Hon ble Supreme Court held that the jurisdiction of the probate court is limited being confined only to consider the genuineness of the will. The question of title arising under the Succession Act cannot be gone into in the probate proceedings. Conception of a will relating to the right title or interest of any other person is beyond the domain of the probate court. The Division Bench of this court in S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion must satisfy the court that the proceedings is a suit in which there is property in dispute and the property is in danger of being wasted, damaged or alienated. It was further held that the question, consequently, arises whether the proceedings for the probate of a will or for letters of administration may rightly be held to be a suit in which property is in dispute. In the opinion of the court, the answer was in the negative. After referring to several other decisions, it was held that the only question in controversy in a proceeding in a probate court is that of representation of the estate of the deceased and no question of title thereto, i.e. the title of deceased or the conflict in title alleged by the parties to the probate proceedings can be investigated by the court. Further the court held that they do not lay down the proposition that the court is not competent, because it is a probate court to grant injunction in any circumstances. It was held that the proper procedure to follow in cases of this description is for the aggrieved party to apply to the court for the appointment of an administrator pendente lite (APL) under Section 34 (presently Section 247).It was furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson who is not a party to the present proceedings. Further the probate court cannot extend the jurisdiction over a person or entity who is not a party to the proceedings. Further it was held that since the noticee company being not the party to the proceedings no order can be passed against it. The respondents have filed the cross objection against these findings recorded by the learned Single Bench which needs to be rejected. In the decision reported in 2016 SCC Online Cal 1541 , Hon ble Court observed that the court has no hesitation to hold that probate court cannot pass any injunction order against the third parties as third parties who has no caveatable interest in the probate proceedings cannot be allowed to be added as a party in the probate proceedings and also for the reason that no order can be passed affecting the right of the stranger without adjudication of his rights in the probate proceedings is impossible as probate court cannot decide any foreign issue unconnected with the probate proceedings. To be noted that though appeals are pending against the said decision, there is no order of stay. The decision relied on by the respondent reported in AIR 1938 Calcu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therwise, as a part of the incidental rights of a shareholder. However, without actual participation in voting and other decision-making processes, such advantage would merely be inchoate. 115. As a natural corollary, the APL to be appointed by the Probate Court for looking after and managing the Estate of the deceased, steps into the shoes of the deceased and does not have an iota of right or power more than the deceased herself would have. 116. Hence, at best, the Probate Court can direct the APL, personally or through its appointees, to register itself or its agents as members of the companies in the capacity of owners of the shares actually owned by PDB in such companies. Upon such registration, the APL and/or its nominees would function as shareholders in such companies and have all the incidental rights and controlling power which PDB would have had by virtue of such shareholdings, including voting rights, participation rights in decision-making processes and meetings, etc. However, the Probate Court cannot go an inch further than that in interfering with the business of the companies. 117. It is contended by the learned Senior Advocate appearing for the respondent t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that a Hindu testatrix or testator cannot dispose of anything or otherwise that is mentioned in the provisions of Section 30 of the Hindu Succession Act. It was further held that disposition of properties means an act by which property can be transferred by executing a deed intervivos in case of immovable property or interests therein, by a party in possession in case of movables. It was held that there is no dispute as regards, the transferability character of the movable and immovable properties including shareholders. The argument that shareholders stand at a different footing from that of a company which is a separate legal entity was accepted. However, the contention that the properties which are described in the affidavits of assets can be said to be the properties as mentioned in Section 211 of the Act was held to be not acceptable. Further the court held that the description in the affidavits of assets affirmed by the RSL cannot at that stage be an exhaustive one as there may be properties of any description remaining undiscovered or untraced. Therefore, the estate of the said deceased should be the properties both movable and immovable which have been stated in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anaged either by RSL himself or his nominee. Further it was held that from the affidavits of assets furnished by the pro-pounder RSL, it appears properties are of different character and nature namely majority shareholding of four companies of MPB group co- ownership in the immovable properties. Thus, a cumulative reading of the view taken by the learned Single bench in the aforementioned interim order is that the shareholders stand on a different footing from that of the companies which is a separate legal entity. The description in the affidavits of assets affirmed by RSL cannot be an exhaustive one as there may be properties of any description remaining undiscovered or untraced and therefore, the estate of the deceased should be the properties both movable and immovable which have been stated in the affidavits of assets of RSL or which might be discovered by inventory or otherwise. That a single or group of shareholders not forming majority there is no impact in the affairs of the company as they do not have separate or significant character or position in the company except the right to get the dividend. Formation of the Board of Directors who are really responsible for control ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e extent of the estate has been conclusively determined. A careful reading of the decision more particularly from paragraphs 26 onwards, we find that the observations in paragraphs 32 and 33 of the judgment appear to be the stand taken by the parties, as the decision in the case commences from paragraph 34 of the judgment. Even assuming the observations made in the aforementioned paragraphs are to be taken as a finding, the court has not rendered a definite ruling on what is controlling interest as the court at the very threshold had rejected one of the prayers on the ground that if it is granted, it would amount to taking over and control of separate juristic bodies by the probate court as it has no jurisdiction to do so. Therefore, the observations contained in the order are to be read in such a manner to aid and support the ultimate relief that was granted namely the appointing of four administrators. This is further clear from the observations made in the paragraph 75 of the order wherein the court after appointing the four administrators directed that they shall take charge and control of all the shareholding of PDB in all the companies and they should function under law by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es are before the probate court are party to the application for appointment of APL. Further it was held that it is also a fact that no notice of the application was given to the public shareholders by issuing a general notice and therefore the submissions was made before the Bench that number of members of public will be affected by such appointment. It was therefore held that the court does not have any doubt in its mind that without giving notice to the shareholders in the probate proceedings, the court has no power to appoint APL over the said controlling block of shares. After perusing the material placed on record, the Division Bench observed that they are not able to find out any document which will suggest or can act in favour of such appointment on the controlling block of shares. Further it was held that the order of the learned Single Bench had the effect of dislodging the present board as the management without considering the provisions of the Companies Act and therefore the order is contrary to the provisions of the Companies Act. Further it was held that the probate court has no jurisdiction to pass such an order and accordingly the order of the learned Single Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ip relating to these shares cannot be ascertained without investigation, then certainly investigation can be ordered. It is further observed that it is an admitted fact that before the demise of PDB even though her direct shareholding in the company was negligible, by virtue of her controlling respondents 1 to 28 therein which held/hold over 60% shares in the company, PDB was not only materially interested in the company and was also able to control the company. Thus, it could be seen that CLB took note of the fact that the direct shareholding of PDB in the company was negligible. However, proceeded to make an observation, that by virtue of her controlling respondents 1 to 28 therein which held over 60% shares in the company, PDB was able to control the company. 125. Firstly, the decision was rendered in an application filed before the CLB where the petitioner therein sought for an investigation into membership of the company in terms of Section 247(1A) of the Companies Act 1956 for determining the true persons who are financially interested in the success or failure of the company or who have been able to control or materially influence the policy of the company. This petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmine the persons entitled to control the estate. Therefore, we find that the decision cannot be of assistance to the respondents to support their contention that the extent of the estate has been finally determined. 127. The next decision which was relied on was in PLA No. 242 of 2004 dated 23.08.2012 of the Hon ble Division Bench. This judgment was rendered in appeals arising out of a common judgment and order of the learned Single Bench dated 27.08.2010 in GA No. 3714 of 2008 and 3718 of 2008 in PLA No. 242 of 2004. The learned Senior Advocates appearing on either side placed heavy reliance on the findings/observations of the Hon ble Division Bench in the four pages of the judgment which was in fact, dissected several times. We will examine the observations/findings recorded by the court to ascertain as to what was the impact of the findings on the aspect relating to the extent of the estate/ controlling interest . The Hon ble Division Bench pointed out that the rights and power of the general administrator over estate depends on the nature of properties both movable and immovable and the respective statute which governs acquisition and enjoyment of such property. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be understood to mean that de hors ownership rights in shares and stocks, the APL will be entitled to exercise the rights, power and privileges. Much emphasis was made by the learned Senior Counsel on the word all used in the judgment but the said word has to be read in conjunction with the words following it and if read together, it shows that all the rights powers and privileges ought to be incidental to the ownership of shares and stocks and not otherwise. This is amply clear from the next paragraph of the judgment wherein it was held that even though they are appointed by the court as APL nothing prevents them in their capacity as the representatives of the beneficiaries to exercise all such rights which flow from the ownership of shares and so enjoyed by the deceased during her lifetime. Further it has been held that in order to enjoy certain rights flowing from the shares and stocks of the companies held by the deceased, the APL will have to apply to the respective companies to obtain such benefits namely in case the company comes out with rights issue and/or bonus shares which otherwise can only be subscribed by the shareholder and therefore as the representative of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been appointed to represent the estate of the deceased are entitled to take all steps to enjoy the rights and privileges incidental to the ownership of the shares and stocks which consists of the controlling power in MP Birla Group of companies and safeguard the interests of the ultimate beneficiaries, the words controlling power cannot be read in isolation but has to be read in conjunction with the other findings recorded by the court which categorically holds that controlling power flows from the ownership of the shares and stocks. Therefore, the observations/findings rendered by the court would go support the case of the appellant rather than the respondents. 128. The next decision which was referred to is the decision reported in 2016 SCC Online Calcutta 1541 , the court after taking note of the definition of control as defined under Section 2(27) of the Act held that control is a mixed question of law and facts. Ownership of shares made in certain situation, result in the assumption of an interest which has the character of a controlling interest in the management of the company. A controlling interest is an incident of ownership of shares in a company, something whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e its power of control over the management of BCL by following provisions prescribed under the Companies Act and in case APL fails to discharge its duties, probate court can pass necessary directions upon APL for taking steps in accordance with law. Further the probate court at best can pass necessary directions upon APL to initiate appropriate proceedings before the appropriate forum for seeking appropriate reliefs and in accordance with law and it is only that appropriate forum which can pass appropriate order after adjudicating the rights of the parties including that of a stranger. Thus, it is clear that it is extent of the shareholding which enables the shareholders to control the company and any other interpretation will fall foul of the definition of control as defined under Section 2(27) of the Act. 129. In the judgment of the Hon ble Division bench dated 04.05.2020, arising out of an intra court appeal, the Division Bench while considering the jurisdiction of probate court took note of the order dated 10.05.2013 which was heavily relied upon by the respondents contending that the probate court should decide all issues as to the control of interest comprises in the estat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sts in the voting powers of its share holders. Further, it has held that a company is a separate legal persona and the fact that all its shares are owned by one person or by the parent company has nothing to do with its separate legal existence. In none of the authorities have the assets of the subsidiary have been held to be those of the parent unless it is acting as an agent. Thus, even though a subsidiary may normally comply with the request of a parent company it is not a puppet of the parent company. The difference is between having power or having a persuasive position. Further, it was held that the legal position is well settled, namely, that even though a subsidiary may normally comply with the request of a parent company, it is not just a puppet of the parent company. The difference is between having the power and having the persuasive position. A great deal depends on the facts of each case. At this juncture, it would be relevant to take note of the definition of control as defined under Section 2(27) of the 2013 Act. It states that control shall include the right upon majority of the directors or to control the management or policy decisions exercisable by a person or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition or an exhaustive definition but what is most important to note in the definition of the word control is that there must be a right to appoint majority of Directors or a right to control the management or policy decisions exercisable by a person or person acting individually or in concert directly or indirectly, including by virtue of their share holding or management rights or share holders agreements or voting arrangements or in any other manner. Therefore, the word right as contained in Section 2(27) of the Act is of utmost importance and the definition of the word control cannot be read to mean something de hors the existence of a right. 132. On going through the order impugned in this appeal we find that the Learned Single bench had held that no order can be passed against the companies. It has also been held that the Court is not deciding any of the points urged by the companies. Further, the companies would exercise voting rights flowing from their investment in the companies controlled by PDB in the manner to be guided by the APL committee. Further, the learned Single Bench was of the clear view that it is not deciding any of the points urged by the companies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court reported in AIR 1955 SC 74 to the effect that the company and its share holders are separate and distinct and the assets of the company do not belong to the share holder and even a 100% share holder is not the owner of the company. The appellant companies had contended that the directions issued against the company in the impugned judgment may take away statutory rights of the company with regard to its assets and it in effect permits a outsider to deal with the assets of the company which in our opinion cannot be permitted. In the inter parties decision in Priyamvada Devi Birla Versus Harsh Vardhan Lodha and Ors. 2016 SCC Online Cal 1541, the first question which was taken up for consideration by the Court was the extent of the jurisdiction of the probate Court and/or its duties pending consideration for such grant. It was pointed out that while deciding a contentious cause relating to a probate proceedings the only and/or primary duty of the probate Court is to examine the genuineness of the will and while examining the genuineness of the will, the Court is required to consider whether the will was duly executed by the testator and/ or testatrix consciously or not; whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grant of letter of the administration as legatty under the will and he is in capacity as the Chairman of the Board of Directors of BCL. The court held that HVL in capacity as the Chairman of the Board of Directors in BCL cannot be mixed up with the capacity as legatty under the will. The court posed the question to itself as to whether the directions which was sought for by way of injunction against the HVL is legatty under the will and the answer to the said question was no . The court reasoned out by observing that HVL is not a party in his capacity as the Chairman of the Board of Directors of BCL, no directions can be passed against HVL in the capacity of being Chairman of the Board of Directors of the said company. Accordingly, it was held that no directions can be passed either for production of relevant documents relating to the proposed deal (subject matter therein) of HVL as a legatty nor any injunction order can be passed against HVL in his capacity as the Chairman of the Board of Directors. It was further held that though HVL became the Chairman of the Board of Directors of the said company by virtue of his interest flowing from the will but still the position that of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uncture, it will be worth reiterating the finding recorded by the Hon ble Division Bench in the decision reported in ILR 2007 2 Cal 377. The Hon ble Division Bench after considering the materials which were placed before it and also the pleadings and after perusing the order passed by the learned Single bench held that implication of taking over of the voting rights and the right of control of 38 companies has nothing to take over the control of the companies in other words, to take over the management of the said companies. Therefore the Division Bench held that the effect of the order to dislodge the Board/management without considering the provisions of the Companies Act, is not sustainable. Further the Hon ble Division Bench noted the specific provisions in the Companies Act setting out the methods for rectification of the share register and to dissolve the Board of Directors, which has to be done as laid down under Section 397, 398 and 402 of the Companies Act. Therefore the Court held that the learned Single Bench appointing the administrator directing to rectify the share register and appointing them as Directors superseding the Board of Directors are not in accordance w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appointment of the executor and the valid execution of the will. Thus it does no more than establish the factum of the will and the legal character of the executor. Probate court does not decide any question of title or the existence of the property itself. 16. The grant of a Probate by Court of competent jurisdiction is in the nature of proceeding in rem. So long as the order remains in force it is conclusive as to the due execution and validity of the will unless it is duly revoked as per law. It binds not only upon all the parties made before the court but also upon all other persons in all proceedings arising out of the will or claims under or connected therewith. The decision of the Probate Court, therefore, is the judgment in rem. The probate granted by the competent court is conclusive of the validity of the will until it is revoked hand no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. In Sheoparsan Singh v. Ramnandan Prasad ILR (l916) Cal. 694 PC Singh, the judicial committee was to consider whether the will which had been affirmed by a court of competent jurisdiction, would not be impugned in a court exercising origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a probate or letters of administration court. 137. The first order where the issue cropped up is the order dated March 23, 2005 passed by the Hon ble Justice K.J. Sengupta of this court. The order arose out of prayers for appointment of APL, injunction and other interlocutory reliefs. The said order was at an ad interim stage and no APL was appointed. The findings were not binding at any stage. In any event, the court observed that the estate comprised of the movable and immovable properties mentioned in the affidavits of assets of Lodha or which might be discovered by inventory or otherwise . 138. The next relevant order was of May 19, 2006, passed by the same learned Single Judge of this court while taking up applications inter alia for appointment of an independent APL. A four-member Committee was appointed. Vide order dated October 11, 2007, however, a Division Bench of this court modified the order and removed the committee but granted injunction. In its discussions, the Division Bench observed inter alia that the Estate was vast and of substantial value, but directed the Executor to keep accounts only of the dividends of the shares owned by PDB, neither more nor less. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y some of the companies where PDB held shares were decided by Justice Jyotirmoy Bhattacharya. The learned Judge observed that the testamentary court could not encroach upon the jurisdiction of the Board of Directors of the concerned company to purchase shares. The learned Single Judge opined that a promoter of a company cannot exercise power derogatory to the provisions of Company Law. It was held that the APL at best could take out appropriate proceedings before appropriate forums to protect the interest of the estate. 146. Hence, no conclusive finding was reached by any of the courts which passed orders in connection with the probate/letters of administration proceeding which can be elevated to the status of a conclusive adjudication of the issue. Thus, adjudication on the issue of the extent of the estate of late PDB is not barred by res judicata. 147. Upon a thorough scrutiny of the several judgments and orders passed by different courts/forums, it is evident that the question of the extent of the Estate has never been finally determined, sufficient to be terms as res judicata. Most of the proceedings in which such orders were passed were interlocutory proceedings or proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndently the extent of the estate of the testator/testatrix. 154. A plethora of judgments have been cited by parties on the subtle distinction between estoppel and admission. Judicial and issue estoppel have also been addressed threadbare. 155. The Calcutta High Court in Dwijendra (supra) and the Supreme Court in Mumbai International Airport (supra), Hope Plantations (supra), Bhanu Kumar Jain (supra), Ishwar Dutt (supra) have expounded the law elaborately. Judgments of the US Supreme Court (New Hampshire s Case), the Karnataka High Court in Surendra Nayak (supra) and the Madras High Court in 2017 SCC OnLine Mad 27091 have been cited on the operation of Judicial Estoppel. 156. However, the said line of judgments do not alter the factual situation in the present case in view of the dual aspects of the testamentary court s in rem jurisdiction being unbound by parties fetters of admission and estoppel and HVL s specific stand as a legatee being contrary to counsel s written notes of arguments of RSL, not as his father but in a different legal capacity of Executor. 157. Hence, even without relying on Chhaganlal Keshavlal (supra), where the Supreme Court observed that adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat a probate operates as a judgment in rem. 163. Hence, an adjudication in a probate proceeding or a letters of administration proceeding cannot be viewed through the myopic lens of res judicata between the parties. Even if an issue is decided finally between HVL and Birla faction, the same does not operate against a Probate Court while adjudicating issues, since the final judgment of a Probate Court would not be restricted to the parties but would operate against the world at large. 164. Hence, the Probate Court s decisions cannot be decided from the limited perspective of res judicata or estoppel between the parties. Thus, the Probate/Letters of Administration Court has an additional responsibility to independently weigh evidence and adjudicate carefully on all issues before it, prima facie or final. Viewing from such perspective, the question of res judicata or estoppel between the parties cannot restrain the Probate Court from independently assessing the question of extent of Estate of the deceased testatrix. 165. None of the previous adjudications pertained to a final decision on the application under Section 247 of the Succession Act. Since this Court is sitting in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s such. 170. That the shareholder has no interest in the assets of the company has also been reiterated in 2016 SCC OnLine Cal 1541, AIR 1961 251, AIR 1941 All 360 and AIR Ker 206. 171. There is also nothing to show that the estate of PDB is a beneficial owner of the companies or that its significant beneficial ownership with a depository was ever recorded. Hence Balakrishna Case and J.P. Srivastava (supra) are squarely applicable. 172. Hence, the testamentary court cannot pass orders directly in respect of the management and affairs of corporate/contractual rights of other entities, including companies, trusts, etc. 173. In Rustom Cawasjee Cooper (supra) and Tata Memorial Hospital s Case, the Supreme Court has laid down what property can be bequeathed. The position and rights of a shareholder has also been elaborately argued on the strength of Howrah Trading Co. (supra), J.P. Srivastava s Case, Shanti P. Jain (supra) and LIC v. Escorts, all cited by the parties. 174. Murarka Paint (supra) has been relied on for the principlethat directors of a company can only be denuded of powers of control and management by alteration of Articles or by their removal. 175. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew finds support in a line of judgments of several Constitutional courts. 183. The Calcutta High Court held in Maurice Saleh s Case that even legal powers of the testatrix are not a part of the estate, which principle was also echoed in Commissioner v. Nirmala by the Bombay High Court. 184. The Supreme Court in Chandrabhan s Case held that the testamentary court does not have jurisdiction to pass orders against individuals/entities acting in different capacity. 185. Hence, the testamentary court can only have control over the shareholding and ancillary rights, including voting rights in companies. Of course, the court cannot participate in the day-to-day affairs of the companies and precisely for such reason has appointed the APL to represent the estate of the deceased. The testamentary court is not a company court and is not sitting in judgment over allegations of mismanagement or fraudulent transactions of the companies and, thus, need not lift the corporate veil in the current context. 186. The charter of the APL under Section 247 of the Indian Succession Act is to protect and preserve the interest of the estate and can deal with the same, short of distributing the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the judicial member in the APL shall only be a third member and not an umpire, the very structure of the APL behoves that the judicial member acts as an arbiter in case of dispute between the other two members. Obviously, the respective members chosen by the Birla Group and the Lodha Group represent their groups interests in the APL. Hence, there would be a stand-still if unanimity was a pre-condition, since the respective members of the two factions would always be at loggerheads with each other. A resolution could only come by way of an authoritative decision taken by the judicial member, who is supposed to be neutral. 195. Thus, on such score as well, the APL ought to be permitted to function on majority decisions instead of waiting for unanimity. Hence, the APL decisions have to be taken on the basis of majority and not unanimity. 196. The Bombay and Gujarat High Courts respectively, in 2008 SCC OnLine Bom 1210 and AIR Guj 30 , have held that the APL are officers of the court and are to be impartial; they cannot enter into the arena of conflict between the parties or the merits of the case. 197. Unfortunately, the composition of the APL and its antecedents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he testamentary court cannot interfere in the internal affairs of third-party companies. 203. Issue 2 i) The estate of PDB is comprised of the actual shares owned by her during her lifetime in the various companies, trusts and other entities as well as the consequential powers which such ownership carries as its incidence. Insofar as the companies are concerned, the estate left by PDB consists of the shares which she owned in the various companies and the powers and legal authority she had by virtue of such shareholding, which are heritable. Such powers include, for example, voting rights and ancillary other rights of shareholders sanctioned by law. It is relevant to remind ourselves, in this context, of the rights of the shareholder as laid down in LIC v. Escorts (supra) which are: (i) to elect directors and thus to participate in the management through them; (ii) to vote on resolutions at meetings of the company; (iii) to enjoy the profits of the company in the shape of dividends; (iv) to apply to the court for relief in the case of oppression; (v) to apply to the court for relief in the case of mismanagement; (vi) to apply to the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amentary court s findings and its offshoots by way of challenges before higher forums never conclusively dealt with or finally decided the extent of estate. It has been held time and again, that too in interlocutory orders (the findings of which are tentative and not conclusive), that the estate pertains to the share-holdings and the controlling interest which PDB had by virtue of such shareholding, without specifying exactly what was meant by controlling interest . 207. Also, HVL was not estopped by the stand taken by RSL inasmuch as HVL was substituted in a different capacity than RSL in the testamentary proceeding. Whereas RSL was the Executor, HVL was at best a beneficiary. HVL was not substituted under Order XXII Rule 4 as the son/heir/legal representative of RSL (in which case he might have been bound by RSL s admissions, if any); but entered into the fray as a legatee/beneficiary, which is in a different capacity than RSL. Thus, in any event, RSL s statements could not have bound HVL. Again, HVL s pleadings in court would be his legal stand, and not the written arguments authored by his counsel, in the event there was difference between the two, particularly in the abs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apply. The rights of the testatrix over the companies of the different tiers were co-extensive with her rights as owners of the shares of the tier-one companies and incidentally with the rights of those companies as shareholders of the other companies. 212. The APL, thus, cannot interfere with all internal affairs of the companies of all the tiers with the blessings of the testamentary court. There cannot be any universal or dynamic injunction or direction affecting the future course of action of the companies from the testamentary court, simply because the testatrix could not herself had taken any such action in law. 213. The steps taken by the APL in registering its nominees as members of the companies where the deceased testatrix held shares, in consonance with and in the ratio of the shareholding rights of PDB in each of such companies, is perfectly justified in law. The APL, through its nominees, may very well decide which way the votes of the testatrix s shares should go and how they would exercise their voting rights and election of directors. The nominees, as such shareholders, may participate in shareholders meetings and decision-making processes of the tier-one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... state of the deceased testatrix. 218. Thus, the order of the learned Single Judge is modified to the above extent. Liberty is given to the APL and the parties to approach the testamentary court taking up the letters of administration suit if need be and where there are serious doubts. 219. In view of the inordinately long pendency of the proceeding, we part with the matter with the hope and trust that the testamentary court shall ensure that the letters of administration suit is disposed of expeditiously, without granting any unnecessary adjournment to either side. 220. APO/89/2020 with OCO/11/2020 with OCO/20/2020 with OCO/3/2020, APO/90/2020 with OCO/12/2020 with OCO/21/2020 with OCO/4/2020, APO/91/2020 with OCO/13/2020 with OCO/22/2020 with OCO/5/2020, APO/92/2020 with OCO/14/2020 with OCO/23/2020 with OCO/6/2020, APO/94/2020 with OCO/15/2020 with OCO/24/2020 with OCO/7/2020, APO/95/2020 with OCO/16/2020 with OCO/25/2020 with OCO/8/2020, APO/98/2020 with OCO/10/2020 with OCO/18/2020 with OCO/26/2020 are thus disposed of in the light of the above observations, modifying the impugned order to extent as indicated above. 221. GA 2 of 2021 in APO/91/2020, GA 2 of 2023, G ..... X X X X Extracts X X X X X X X X Extracts X X X X
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