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TMI Blog2013 (6) TMI 933X X X X Extracts X X X X X X X X Extracts X X X X ..... er movables and immovable properties to P-1, P-2 and R-2 to have 1/3rd each in the assets bequeathed under the said Will (Annexure P-3). 3. R-1 company was incorporated in the year 1962 with an authorised share capital of Rs. 20,000/- comprising of 200 shares of Rs. 100/- each with a paid up share capital of Rs. 1000 comprising of 10 shares of Rs. 100/- each with registered office at New Delhi for carrying business of furniture and carpets. Out of 10 share the mother of the petitioners and second respondent subscribed 5 shares, R-2 subscribed 5 shares, subsequent to thereof no change took place in the lifetime of their mother. 4. The first directors of the company as per articles of association were late Smt. Ram Piari Chawla and R-2 with a shareholding of five shares each in the company. In pursuance thereof, P-1 as one of the executors under the Will dated 04.07.1986 obtained a probate/letter of administration on 17.01.2005 in a Testamentary Case No. 22/91 (Annexure P-4). Then R-2 did not raise any objection to the grant of probate in favour of P-1 herein. But later on, R-2 filed an appeal over the impugned order dated 17.01.2005 before the Division Bench, Delhi High Court wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pital to rupees one lakh by addition of 800 shares by filing Form-10 on 10.12.2002 that is after demise of their mother. He also filed Form-2 dated 12.12.2002 allotting 990 equity shares to himself and showed their mother shares in R-3 name, the same is apparent in the documents available on the web site of RoC. R-3 is shown appointed as director on 25.09.1998 that is after the demise of their mother. R-2 would remain sole director and sole shareholder, after the demise of their mother, for no board meeting could have taken place for either increasing authorized or paid up capital of the company or for making R-3 as director of the company on 25.09.1999. Even if she was made as an additional director on 25.09.1998, she had to vacate office as per section 260 of the Companies Act in the following AGM scheduled to be held on 30.09.1998. 10. The shareholders meeting therefore could not have been held for lack of quorum, as law requires minimum two shareholders must present at the shareholders meeting. Therefore, the meetings shown to have been held by R-2 are void in the eye of law. For having the Board meeting or general meeting held after 27.10.1990 as void ab initio, appointing R- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of RoC that the share capital of the private limited company be increased to Rs. one lakh in the year 2002, in order to comply the same, the company increased the shareholding of the company. He further submits the Respondents have not indulged in any forgery or fabrication of the documents as raised by the Petitioners, therefore sought for dismissal of this petition. 16. The Petitioner side filed re-joinder reiterating the averments denying whatever defence made by R-2 in the reply filed by them. 17. The Petitioners counsel Mr. Nagesh submitted that Will dated 04.07.1986, says whatever moveable properties lying in the name of testator would go to the Petitioners and R-2 in the ratio of 1/3 each, thereby, though it has not been specifically mentioned in the Will about the shares held by her in R-1 company, the shares being movables, the shares shall be considered as included in movables mentioned in the will. He further submits they could not file this petition immediately after the demise of their mother for they came to know that their mother has 50% shareholding in R-1 company only when they came across wealth tax statement, thereby they filed this company petition after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awla bequeathing of her moveable property include the shares held by her in R-1 company or not, whether the petitioners are entitled to 1/3 shares each in the five shares lying in the name of their mother. 2. Whether R-2 could hold any board meeting making allotment to himself without any quorum." 21. As to first point, it is said in Sale of Goods Act the shares are considered as moveable property. When it is mentioned in the will all movables of her bequeathed to the claimants, then it shall be, though the recitals in the will not mentioned about shares of this company, considered these shares as included in the movables mentioned in the recital of will. Therefore, I hold that the shares held by their mother, which is being admitted by R-2 in the correspondence as well as in the reply filed by him, shall go to all the legatees 1/3 each as bequeathed by their mother. No matter whether they knew it or not when they moved probate proceedings before the Probate Court. 22. R-2 being the full blood brother of the Petitioners and being entitled to 1/3rd shares in the shareholding of their mother, he could transmit the shares without seeking the copy of the Will, copy of probate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 20 years before various courts; therefore, the delay in filing this petition has taken place because of the litigation raised by R-2, not at the instance of the petitioners. Indeed this delay happened because R-2 assailed probate order before Division Bench thereafter before the Supreme Court; therefore, he is estopped from saying that the Petitioners claim has become stale by efflux of time. Interestingly R-2 has not refused the request made by the Petitioners but he asked for the succession certificate and other things as required u/s. 108 and 110 of the Companies Act. R-2 himself admittedly stated that he has not refused transmission of shares except asking succession certificate and other proofs identifying them as legal heirs of his mother. 26. In view of it, I am of the opinion that the Petitioners are entitled to 1/3rd each in the shareholding of their mother, accordingly it is hereby directed that R-1 Company to transmit 1/3rd shares i.e. 33% to the P-1, 34% to P-2 and 33% to R-2 in the shareholding of their mother and delete the name of R-3 holding 5 shares of Late Smt. Ram Piari Chawla as his daughter name was entered without sufficient cause. 27. It is explicit in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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