Amity National Moot Court Comptition 2016 Semifinalists Applicants

1612 A
THE SUPREME COURT OF EBONY
15TH AMITY NATIONAL MOOT COURT COMPETITION, 2016
CIVIL APPEAL NO. ____ /2015
(Under Article 136 of the Constitution of India, 1950; read with Order XXI, Rule 1, Supreme
Court Rules, 2013)
KING DUMAS………………………………………………………………………….………APPELLANT 1
KING DRAGO…………………………………………………………………………………APPELLANT 2
KING DRAKSHIN…………………… ……………………………………………………...APPELLANT 3
v.
PRINCE WILD BILZERIAN………………………………...………………………….RESPONDENT

1
PRINCESS NORTH BILZERIAN………………………………………………………..RESPONDENT

2
1
MEMORIAL FOR THE APPELLANTS
2
TABLE OF CONTENTS
Table of Authorities......................................................................................................................iv
Statement of Jurisdiction...........................................................................................................viii
Statement of Facts........................................................................................................................ix
Issues Involved............................................................................................................................xiii
Summary of Arguments.............................................................................................................xiv
Body of Arguments........................................................................................................................1
[I.] The High Court has exceeded its jurisdiction under Section 10F while hearing an
appeal against Section 111.........................................................................................................1
[A.] The High Court has jurisdiction to decide a question of law............................................1
[B.] However, such jurisdiction is limited only to the questions of law arising out of the
order..........................................................................................................................................2
[C.]The refusal of the Company to transfer the share is arbitrary............................................3
[D.] The High Court has exceeded its jurisdiction in the present case.....................................4
[II.] High Court could not have decided the dispute because § 10 of CPC applies..............6
[A.] The previously instituted suits are still pending...............................................................6
[B.] The matter in issue in the present suit and the pending suits is directly and substantially
the same....................................................................................................................................8
[C.] Parties to the suits are the same........................................................................................9
[D.] All these suits have been filed before courts of competence............................................9
[III.] The High Court could not have interpreted the will of King Ray under Section 10F.
....................................................................................................................................................10
[A.] Interpretation of will is not a question of law.................................................................10
[B.] Even if it is a question of law, it does not arise out of the order of Company Law Board.
................................................................................................................................................11
[C.] The power of the Court under Section 111 is summary and limited...............................11
3
[IV.] The Succession Certificate, By Virtue Of Queen Kim’s Death, Became Inoperative
And Could Not Be Relied Upon..............................................................................................16
[A.] The authority vested in joint-holders can only be exercised jointly...............................16
[B.] Section 383 allows for revocation of certificate upon death of a joint-holder................18
[V.] Probate proceedings instituted by Queen Kim cannot be said to lapse on the basis of
the Settlement deed..................................................................................................................19
[A.] Probate proceedings result in a judgment in rem and cannot lapse because of a private
agreement...............................................................................................................................19
[B.] The order granting succession certificate based upon the Settlement Deed does not
operate as res judicata upon the probate proceedings............................................................21
[VI.] The High Court has erred in directing the Company to transfer the shares in favour
of the respondents....................................................................................................................22
Prayer............................................................................................................................................24
4
TABLE OF AUTHORITIES
CASES
1. Ammonia Supplies Corporation (P.) Ltd. v. Modern Plastic Containers Pvt. Ltd., (1998) 7
SCC 105.
2. Aspi Jal and Anr. v. Khushroo Rustom Dadyburjor, AIR 2013 SC 1712.
3. Bajaj Auto Ltd. v. N.K. Firodia, (1971) 41 Comp Cas 1.
4. Bal Gangadhar Tilak v. Sahwarbau, 1926 Bom. 792.
5. Balbhadra v. Board of Revenue, 1981 AWC 525.
6. Bhura v. Kashi Ram, (1994) 2 SCC 111.
7. Bipin K. Jain v. Savik Vijay Engg P Ltd. (1998) 91 Comp Cas 835.
8. Bishunath Rai v. Sarju Rai, AIR 1931 All 745.
9. Boiron v. SBL Pvt. Ltd., 1999 (48) DRJ 31.
10. Commisioner of Income Tax v. Scindia Steam Navigation Co. Ltd., AIR 1961 SC 1633.
11. Dale and Carrington Invt. (P) Ltd. v. P.K. Prathapan and Ors., (2004) 122 CompCas 161
(SC).
12. Dayagen Pvt. Ltd. v. Rajendra Dorian Punj, (2009) 151 CompCas 92 (Del).
13. E.V Swaminathan v. KMMA Industries & Roadways (P) Ltd., (1993) 1 Com. L.J 291
(Mad.).
14. G. Jayashankaraiah v. T.N. Gangadhariah, AIR 2006 Kant 150.
15. Ghissai Ram v. Barey Lal, AIR 1942 Oudh 490.
16. Gnanambal Ammal v. T. Raju Aiyar, AIR 1951 SC 103.
17. Gopala Menon v. Sivaraman Nair, (1981) 3 SCC 586.
18. Gour Chandra v. Sarat Sundari, 1940 Cal. 50.
19. Gurcharan Singh v. Surjit Singh & Anr. [I.A. No. 2 to 6, in Special Leave Petition (C) No.
7735 of 2010, application decided on 2nd Nov. 2012].
20. Gurusami Pillai v. Sivakami Ammal, 18 Mad 347: 22 IA 119.
21. In Re goods of Gagan Chandra, AIR 1950 Cal 578.
22. Indian Chemical Products Ltd. v. State of Orissa, (1966) 36 Com. Cases 592 (SC).
23. Janakbati v. Gajanand, AIR 1916 Pat 82.
24. JT Republike v. Rungta & Sons, AIR 1966 Cal 382.
25. Jugeshwar Nath Sahai v. Jagatdhari Prasad, 1917 SCC OnLine Pat 166.
26. K. Muthusamy v. S. Balasubramaniam, 2011 (2) TMI 1279.
27. K.S.Narayana Iyer v.Talayar Tea Co. Ltd., (1995) 83 CompCas 743 (CLB).
28. Kothari Industrial Corpn. Ltd. v. Lazor Detergents Pvt. Ltd., 1994 Com. Law 617.
29. Kurappaswamy & Ors. v. C. Ramamurthy, AIR 1993 SC 2324.
30. Lalta Baksh Singh v. Phool Chand, AIR 1945 PC 113.
31. Lohia Properties (P.) Ltd. v. Atmaram Kumar, (1993) 4 SCC 6.
32. Luxmi Tea Co. Ltd. v. P.K. Sarkar, (1990) 67 Comp Cas 518.
33. M/s Kalinga Mining Corporation v. Union of India, Civil Appeal No. 1013 of 2013.
34. M/s Micromeritics Engineers Pvt. Ltd. v. S. Munusamy, (2002) 3 CTC 661.
35. Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527.
5
36. Manoj Kumar Kanuga v. Marudhar Power Pvt. Ltd., (2013) 179 CompCas 504(AP).
37. Mattulal v. Radhey Lal, AIR 1974 SC 1596.
38. Meena Vasant Patel v. Prithviraj Ambalal Patel, 2010 (6) AIR (Bom) R 314.
39. Monmohini Guha v. Chandra Das, (1904) ILR 31 Cal 357.
40. Mst. Jio v. Mst. Rukhan, 8 Lah 219.
41. Muninanjappa v. R. Manual, (2001) 5 SCC 363.
42. Muniyamma v. Arathi Cine Enterprises (P) Ltd., (1993) Com. L.J 327.
43. N. Kasturi v. D. Ponnammal, AIR 1961 SC 1302.
44. N. S. Chopra v. State of Delhi 2014 Indlaw DEL 1916.
45. Narayanasami v. Kuppusami, (1896) ILR 19 Mad 497.
46. National Institute of M H & NS v. C Parameshwara, AIR 2005 SC 242.
47. National Society for the Prevention of Cruelty to children v. Scottish National Society for
the Prevention of cruelty to children, [1915] AC 207.
48. Navneet Lal v. Gokul, AIR 1976 SC 794.
49. Nirmal Singh v. Om Prakash, AIR 1965 J&K 99.
50. Nupur Mitra v. Basubani Pvt. Ltd., (1999) 35 CLA 97.
51. P. Meenambal v. R. Rajeswari, 1998 (1) LWP 736.
52. Perrin v. Morgan, [1943] AC 399.
53. Prankisto v. Nobodip, (1882) ALR 8 Cal 868.
54. Public Passenger Service Ltd. v. M.A Khadar, AIR 1966 SC 489.
55. Rajendra Prasad v. Gopal Prasad, 57 IA 296; Ram Gopal v. Nand Lal (AIR 1951 SC 139).
56. Ram Kala v. Deputy Director (Consolidation) & Ors., (1997) 7 SCC 498.
57. Ram Raj v. Brij Nath, 35 All 479.
58. Ramachandra v. Vijayaragavulu, 31 Mad 349.
59. S. Bhagat Singh v. Piar Bus Service Ltd., [1960] 30 Comp Cas 300.
60. S. Kanthimathy v. Woodlands Estates Ltd., (2008) 144 Comp Cas 830 (CLB).
61. Sequeria v. P. Francisco, AIR 1976 Goa 48.
62. Shanti v. Pankaj, AIR 1995 P&H 14.
63. Shrimant v. Mrunalinidevi, CR.MA/2062/2010.
64. Siddessory Dossee v. Durgacharan Dass, 2 IJ (NS) 22.
65. Smt. Kanta v. State, 1985 SCC OnLine Del 160.
66. Somasundaram v. Venkata Subbayya, AIR 1938 Mad 602.
67. Sosinath v. Krishna, ILR 6 Cal 381.
68. Sree Meenakshi Mills Co. Ltd. v. Commissioner of Income Tax, AIR 1957 SC 49.
69. Sukumar Deb Roy v. Parbati Bala, AIR 1941 Cal 663.
70. Surendra Kaur v. Singh Engg Works Pvt. Ltd., (1977) 47 Com Cases 638 (All).
71. Surendra v. Amrita, 1947 Cal. 115.
72. Suresh Kumar Bansal v. Krishna Bansal & Anr., Civil Appeal No. 8271 of 2009.
73. Surfogi v. Kamalshiamba, 7 Mad 543.
74. Sushila Bala Saha v. Saraswati Mondal, AIR 1991 Cal. 166.
75. Swagath Marine Products Pvt. Ltd. v. K. Muthuswamy, (2006) 134 Comp Cas 182
(CLB).
76. Syed Ahsan v. Mst Sayeeda Begum, 1958 Pat LT 111.
77. Thenappa Chettiar v. Indian Overseas Bank Ltd., (1943) 13 Com Cases 202 (Mad).
78. V.B. Rangaraj v. V.B. Gopalakrishnan, (1992) 73 Comp Cas 201.
6
79. V.K. Kamalam v. Canchali Amma, AIR 1998 Ker 265.
80. V.L. Pahade (Dr.) v. Vinay L. Deshpande, 1999 SCC OnLine AP 187.
81. V.S. Krishnan v. Wertfort Hi-Tech Hospital Ltd., (2008) 83 CLA 371.
82. Vallabh Das v. Madan Lal, AIR 1970 SC 987.
83. Veerattalingam v. Rameth, AIR 1990 SC 2201.
84. Venakata Narsimha v. Parthasarathy, (1913) 15 Bom LR 1010.
STATUTES
1. Code of Civil Procedure, 1908.

2. Hindu Adoptions and Maintenance Act, 1956.
3. Hindu Succession Act, 1956.
4. Sale of Goods Act, 1930.
5. The Companies Act, 1956.
6. The Indian Succession Act, 1925.
BOOKS
1. A.RAMAIYA, GUIDE TO THE COMPANIES ACT (17th edn., 2011).

2. GOPALAKRISHNAN, LAW OF WILLS (7th edn., 2009).
3. LEXIS-NEXIS: THE COMPANY LAW MANUAL, 1927-2012 (2012).
4. MAYNE, HINDU LAW AND USAGE (16th edn., 2012).
5. MULLA, THE CODE OF CIVIL PROCEDURE (15th edn., 2012).
6. N.D. BASU, LAW OF SUCCESSION (10th edn., 2009).
7. P.L. PARUCK, THE INDIAN SUCCESSION ACT (10th edn., 2011).
8. S.C. SARKAR, THE LAW OF CIVIL PROCEDURE (11th edn., 2006).
9. PARAS DIWAN, INDIAN PERSONAL LAWS-2: LAW OF ADOPTION, MINORITY,
GUARDIANSHIP AND CUSTODY (5TH edn., 2012).
10. PARAS DIWAN, MODERN HINDU LAW (20TH edn., 2009).
MISCELLANEOUS
1. BRYAN A. GARNER, BLACK’S LAW DICTIONARY (10th edn., 2014).
7
STATEMENT OF JURISDICTION
CIVIL APPEAL NO. _____ / 2015
The Appellant has approached this Honourable Court under Article 136 of the Constitution of
India, 1950. Subsequently, the leave has been granted by the Court.
8
STATEMENT OF FACTS
The Betrothals
The Democratic Republic of Ebony is a fully democratic State with twenty different provinces.
One of the provinces of Republic was Scion headed by King Igusthus. He had three daughters,
the eldest being Princess Khloe, followed by Princess Kourtney and then Princess Kim. All three
sisters were married one after another to King Big Bilzerian, head of the royal family of the
province of Thelesalonica. Consequently, they had four children. From Queen Khloe were born
Prince Dumas and Princess Dumagoli. From Queen Kourtney were born Prince Drago and
Prince Drakshin. Marriage with Queen Kim resulted in the birth of Prince Ray. Prince Ray was
given up on adoption to King Dueta of the royal family of Thalai who was issueless himself.
Princess Dumagoli was married into the Royal Family of Dakshin and gave birth to Princess
Duma. Prince Ray married Princess Carlen of the Province of Malay, who gave birth to Prince
Wild Bilzerian and Princess North Bilzerian.
The Formation of the Company

After the demise of King Big Bilzerian, the management and administration of the estate of the
Royal Family of Thelesalonica came under the control of King Dumas, King Drago and King
Drakshin. In the year 1981, all the brothers decided to bring up a business by establishing a
Company to which their former residence would be leased and would be converted into a
Heritage Hotel wherein the general public would be allowed to visit the Royal Fort and stay as
their guest. Thus, the family property was leased to the Company which was named “Royal
Retreat Group of Hotels Resorts and Palaces Pvt. Ltd.”
In 1983, the brothers, on the request of Queen Kim, added another promoter by amending the
Articles of Association of the company. This new promoter was King Ray. The amended Articles
of Association stated that in the event of death or legal disability of a promoter, the shares of this
promoter director shall be transferred to the company in the interim and eventually transferred to
the legal representatives of such promoter director. In the year 1986, a Partition Suit was filed
amongst the family members of the Royal Family of Thelesalonica seeking a partition by metes
and bounds. During the course of the Suit, the validity of the adoption of Prince Ray and his right
of inheritance also came under dispute.
9
Will and Succession Disputes
Amidst all this, owing to serious differences arising between King Ray and Queen Carlen, the
marriage ended in an irretrievable breakdown. In the year 1997, King Ray succumbed to ill-
health. After his death, Prince Wild Bilzerian and Princess North Bilzerian filed a case for
succession before the District Court seeking one-third share in the estate of King Ray along with
Queen Kim. In the same year, King Dumas filed an Impleadment Application and objected to
the succession certificate.
In December 2005, Queen Kim found a Will dated June 23, 1996 wherein King Ray had stated
that upon his demise, since he did not want his former wife to grab the property, both his children
would be disinherited and all his property would go to his mother.
In the Month of May 2006, the company received a letter from Queen Kim requesting
transmission of all the shares standing in the name of late King Ray in her favour in view of the
Will dated June 23, 1996 and she further filed an Application for Probate before the District
Judge of Thelesalonica on the basis of the aforesaid Will. However, the Company decided that in
light of the dispute and the civil cases pending before the courts, any person requesting for the
transmission of shares would be required to produce the evidence by way of appropriate title
through a Probate, failing which the Company would not transfer the shares in dispute to any
individual. On May 8, 2009, the grandchildren of Queen Kim entered into a Settlement Deed
with her before the District Court with regards to the share in the property of King Ray, wherein
it was agreed that the assets would be divided equally in a one-third share amongst themselves.
They obtained a succession certificate for the same.
Queen Kim expired in late 2009. Upon her death, Prince Wild Bilzerian moved an Application
before all the Courts wherein a dispute was pending an Application for Substitution as her Legal
Heir along with his sister Princess North. Similar applications were filed by the rest of the
family.
Prince Wild and Princess North also claimed that Queen Kim vide her Will dated 10.05.2009 had
bequeathed all her properties in favour of her two grandchildren and to no one else. Thus, on the
10
basis of the said Will a Probate Petition was filed before the District Court wherein all the other
members of the family raised objections, challenging the authenticity of the said Will.
In the interim, all the above parties wrote to the Company seeking transfer of the shares of the
late King Ray in their own name. The Company, pointing to the various disputes pending
between the parties herein again declined to transfer any shares unless conclusive proof or
evidence by way of a Probate from a Court of competent jurisdiction was brought before it.
Orders of the Court and Appeals thereof

The High Court of Thelesalonica gave an Interim Order that both the groups before the Court i.e.
her grandchildren as well as her step sons were her legal heirs. Aggrieved by the same both the
grandchildren filed a Review Petition.
The Company yet again refused to transfer the shares in favour of any party. As a result, the
parties, dividing themselves into two groups, one comprising of the step sons and the other
comprising of the grandchildren, moved Applications before the Company Law Board under
Section 111 of the Companies Act, 1956 praying for the transfer of shares in favour of the
respective Applicants. Subsequently, in the year 2011 a Civil Suit was filed against Prince Wild
and Princess North, being a Suit for Declaration and Permanent Injunction, praying for a
declaration that the alleged Will of the Late Queen Kim dated 10.05.2009 was forged and
fabricated.
The Company Law Board held that it cannot, while exercising summary jurisdiction, decide
complicated questions of fact and law which arise before it. The parties then approached the
Hon’ble High Court wherein the Court held that succession certificate was prima facie proof of
title of the Prince and Princess and accordingly ordered for transfer of the assets and shares of
late King Ray in their favor.
The Hon’ble High Court also interpreted the will of late King Ray to mean that the concern of
the testator was that his estranged wife should not grab his property through his children. The
11
court further held that there appeared to be no fraud or forgery of the will and thus a Petition
under Section 111 was very much maintainable.
Aggrieved by the above findings and Judgement and Order of the Hon’ble High Court of
Thelesalonica, the aggrieved group filed Special Leave Petitions before the Hon’ble Supreme
Court of Ebony where leave was granted.
12
ISSUES INVOLVED
I.
WHETHER THE HIGH COURT HAD RIGHTLY EXERCISED ITS JURISDICTION UNDER SECTION 10F
WHILE HEARING AN APPEAL AGAINST SECTION 111 OF THE COMPANIES ACT?
II.
WHETHER THE HIGH COURT COULD HAVE HEARD AND DECIDED VARIOUS ASPECTS AND DISPUTES
PENDING ADJUDICATION IN THE COURTS BELOW WHICH WERE IN THE NATURE OF CIVIL DISPUTES?
III.
WHETHER THE HIGH COURT COULD HAVE INTERPRETED A WILL WHILE EXERCISING JURISDICTION
UNDER SECTION 10F?
IV.
CAN A JOINT SUCCESSION CERTIFICATE BE RELIED UPON WHEREIN ONE OF THE MEMBERS TO THE
VERY SAME CERTIFICATE HAD EXPIRED?
V.
CAN PROBATE PROCEEDINGS BE TERMED AS LAPSED ON THE BASIS OF SETTLEMENT ENTERED

INTO BETWEEN SOME OF THE PARTIES?
VI.
WHETHER THE HIGH COURT WAS RIGHT IN DIRECTING THE COMPANY TO TRANSFER THE SHARES
OF KING RAY IN FAVOUR OF THE RESPONDENTS?
13
SUMMARY OF ARGUMENTS
I. The High Court has exceeded its jurisdiction under Section 10F while hearing an appeal
against Section 111
It is submitted the High Court had not exercised the jurisdiction conferred on it under Section
10F rightly. Section 10F envisages an appeal to the High Court only on a question of law that
arises out of the order of the Company Law Board. In the present case, the Company Law Board
has exercised its discretionary powers given to it under Section 111 of the Act to reject a petition
as it is convinced that it involves complicated questions of fact and law. However, such exercise
of discretion is appealable to the High Court as the non-maintainability itself is a question of law.
The appeal to the High Court has been made on this very issue. Moreover, since the Company
Law Board has not recorded any findings with regards to the facts or merits of the case, no other
questions arise out of its order. Therefore, the High Court has exceeded its jurisdiction while
deciding the appeal. Furthermore, the correct course of action in such a situation is to remand the
matter back to the Company Law Board after deciding the issue of maintainability positively.
II. The High Court could not have heard and decided various aspects and disputes pending
adjudication in the courts below which were in the nature of civil disputes
Section 10 of the Civil Procedure Code, 1908 says that a court shall not proceed with the trial of
a suit to which the Code applies when all of the following conditions are fulfilled: one, there is a
previously instituted suit which is still pending adjudication; two, the matter in issue in the
subsequent suit is directly and substantially the same as in the previously instituted suit; three,
both suits are either between the same parties or their privies; and four, the courts before which
suits have been filed are of competent jurisdiction.
First, there are three previously instituted suits, which are still pending and relevant for this case,
namely, probate for King Ray’s Will along with the Application for Substitution as Legal Heir,
probate for Queen Kim’s Will and Review Petition in High Court (2010). Secondly, there is
similarity of subject matter between the pending suits and the subsequent suits because the test of
res judicata is applicable. Thirdly, both in the previously pending suits and the present suit,
Princess North Bilzerian and Prince Wild Bilzerian are parties on one side and the stepsons of
14
Queen Kim are parties on the other side. Lastly, the courts before which suits have been filed are
courts of competence by virtue of Section 264 of the Indian Succession Act, 1925.
III. The High Court could not have interpreted the will of King Ray under Section 10F.
It is submitted that the High Court could not have interpreted a will while exercising its
jurisdiction under Section 10F. The jurisdiction under Section 10F is limited to questions of law
only. Moreover, it is limited to only those questions of law that arise out of the order of the
Company Law Board. A will is not a question of law. Since the interpretation of a will is done
through inferences drawn from the facts present, it is a question of fact and not law. Neither has
the question of interpretation of this will arisen out of the order of the Company Law Board as it
was never raised or dealt with by it. Therefore, the High Court could not have interpreted the will
of King Ray. Furthermore, the jurisdiction under Section 111 being summary in nature,
interpretation of will which requires investigation into facts, cannot be undertaken by the High
Court.
Even if the interpretation of will could have been done, the High Court has erred in the
interpretation of will of King Ray. The intent of the testator was to disinherit is children since
their actions, whatever may be the cause, had ultimately led the King to dislike them. Moreover,
the words in the will being clear and unambiguous, do not need the supply of intent that has been
given to it by the High Court.
IV. The Succession Certificate, by virtue of Queen Kim’s death, became inoperative and
could not be relied upon.
A succession certificate does not confer any title upon the grantee as an heir to the deceased. Its
purpose is limited to facilitation of collection of debts. In a grant of a joint succession certificate,
the authority vested in the multiple holders of the certificate can only be exercised jointly. The
certificate loses validity upon the death of one of the joint-holders, as illustrated in the case of
Sukumar Deb Roy v. Parbati Bala. Further, Section 383(d) of the Indian Succession Act provides
for revocation of certificate when it becomes “useless and inoperative through circumstances”
which would include the event of death of a joint-holder. Thus, the death of a holder necessitates
revocation and a new certificate must be applied for. Therefore, by virtue of Queen Kim’s death
15
the succession certificate inoperative and ceased to be in force. It could not have been relied
upon by the High Court.
V. Probate proceedings instituted by Queen Kim cannot be said to lapse on the basis of the
Settlement deed.
Probate proceedings cannot be said to lapse because of a private agreement between the parties.
First, the judgment produced through the course of a probate petition is a judgment in rem. The
issue for enquiry before a Probate Court is limited to the valid execution and genuineness of the
will. The fact of a settlement entered into by the consent of the parties is immaterial and falls
outside the scope of enquiry. Neither the provisions nor the prescribed form of probate under the
Indian Succession Act makes any allowance for a private compromise to affect the probate
proceedings. Withdrawal of the petition without the decision upon the grant of probate amounts
to improper withdrawal. Secondly, the order granting succession certificate based upon the
Settlement Deed does not operate as res judicata upon the probate proceedings. The grant of the
succession certificate does not bar the institution or continuance of a suit to determine the
heirship to debts and property of King Ray, like the probate petition. Therefore, the pendency of
the probate petition is not affected. The proceedings did not lapse and continue to be pending till
date.
VI. By virtue of being the legal heirs, the transfer of shares should be ordered in favour of
the appellants.
Queen Kim is the sole heir of King Ray by virtue of his Will. Moreover, the succession
certificate is inoperative, thus, divesting any interest that King Ray’s children could have had in
in his property. Also, the children of King Ray are not the heirs of Queen Kim due to the
presumption of validity of the adoption. Therefore, it is the appellants who are entitled to get the
shares transferred in their favour by virtue of being the legal heirs of Queen Kim.
16
BODY OF ARGUMENTS
[I.] THE HIGH COURT HAS EXCEEDED ITS JURISDICTION UNDER SECTION 10F WHILE
HEARING AN APPEAL AGAINST SECTION 111
1. An appeal was made against the order of the Company Law Board to exercise jurisdiction
in the matter before it stating that there were complicated questions of fact and law involved. The
decision of the High Court in favour of the children of King Ray was rendered in an appeal made
to the Court under Section 10F of the Companies Act, 1956.
2. It is submitted that the High Court has jurisdiction to decide a question of law [A.].
However, such jurisdiction is limited only to the questions of law arising out of the order of the
Company Law Board [B.]; The High Court has exceeded its jurisdiction in the present case [C.].
[A.] The High Court has jurisdiction to decide a question of law

3. An appeal to the High Court under Section 10F lies on a question of law that arises out of
the order of the Company Law Board. 1 In the present case, there is a question of law that has
been appealed to the High Court.
4. Section 111 of the Companies Act, 1956 provides discretionary powers to the Company
Law Board.2 The Board, on examination of the facts may refuse to adjudicate upon certain
matters. However, such discretion to refuse relief by denying exercise of powers under the
aforesaid section cannot be exercised by the Board arbitrarily.3 In the present case, the Board has
passed the order stating that it does not have jurisdiction since there are disputed questions of
title.4 The Company Law Board cannot refuse to exercise jurisdiction merely by stating that the
1 The Companies Act, No. 1 of 1956, §10F (1956) (“Appeals against the orders of the Company Law Board- Any
person aggrieved by any decision or order of the Company Law Board 2 [made before the commencement of the
Companies (Second Amendment) Act, 2002] may file an appeal to the High Court within sixty days from the date of
communication of the decision or order of the Company Law Board to him on any question of law arising out of
such order:
Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing
the appeal within the said period, allow it to be filed within a further period not exceeding sixty days.”).
2 V.L. Pahade (Dr.) v. Vinay L. Deshpande, 1999 SCC OnLine AP 187; S. Bhagat Singh v. Piar Bus Service Ltd.,
[1960] 30 Comp Cas 300; Ammonia Supplies Corporation (P.) Ltd. v. Modern Plastic Containers Pvt. Ltd., (1998) 7
SCC 105.
3 Public Passenger Service Ltd. v. M.A Khadar, AIR 1966 SC 489; Indian Chemical Products Ltd. v. State of Orissa,
(1966) 36 Com. Cases 592 (SC).
4 Factsheet ¶ 24.
1
matter involves complicated questions of law and fact. 5 The Board has to examine whether the
complicated questions are in fact present, or prima facie appear to be.6 The mere presence of a
dispute regarding title of the shares does not always mean that the Company Law Board will not
have jurisdiction to deal with it. If that is the case then any dispute that is present would be
presented as a complicated question to oust the jurisdiction of the Company Law Board.7
5. The order of the Company Law Board holding that it does not have jurisdiction to decide
the present matter is an exercise of the discretion conferred upon it by Section 111. The question
whether the discretionary power of the Board is rightly exercised is, therefore, a question of law.
[B.] However, such jurisdiction is limited only to the questions of law arising out of the
order.
6. An appeal lies to the High Court only on a question of law arising out of the order of
CLB.8 The jurisdiction of the High Court under Section 10F is limited to the questions of law
that arise out of the order of the Company Law Board. A question of law arises out of the order
of the Board in three instances: first, the question has been raised before the board, and dealt
with by it; secondly, the question is raised before the board, but not dealt with by it in its order,
and; thirdly, the question is not raised before the tribunal, but is dealt with by it.9
7. In the present case, the only question of law that arises out of the order given by the
Company Law Board is the scope and exercise of the jurisdiction of the Company Law Board. 10
Therefore, the High Court has jurisdiction under Section 10F to decide whether the Company
Law Board was correct in holding that it does not have jurisdiction due to the presence of
complicated questions. The jurisdiction of the High Court, however, is limited to this question
only.11
5 Muniyamma v. Arathi Cine Enterprises (P) Ltd., (1993) Com. L.J 327; E.V Swaminathan v. KMMA Industries &
Roadways (P) Ltd., (1993) 1 Com. L.J 291 (Mad.); Kothari Industrial Corporation Ltd. v. Lazor
Detergents Pvt. Ltd., (1994) Com. Law 617.
6 Ammonia Supplies Corporation (P.) Ltd. v. Modern Plastic Containers Pvt. Ltd., (1998) 7 SCC 105; Boiron v. SBL
Pvt. Ltd., 1999 (48) DRJ 31.
7 Kothari Industrial Corpn. Ltd. v. Lazor Detergents Pvt. Ltd., 1994 Com. Law 617
8 The Companies Act, No. 1 of 1956, § 10F.
9 Commissioner of Income Tax v. Scindia Steam Navigation Co. Ltd., AIR 1961 SC 1633; Ammonia Supplies
Corporation (P.) Ltd. v. Modern Plastic Containers Pvt. Ltd., (1998) 7 SCC 105; Manoj Kumar Kanuga v. Marudhar
Power Pvt. Ltd., [(2013) 179 CompCas 504(AP); M/s Micromeritics Engineers Pvt. Ltd. v. S. Munusamy, (2002) 3
CTC 661.
10 Argued Above.
11 LEXIS-NEXIS: THE COMPANY LAW MANUAL 1927-2012, 145 (2012).
2
[C.]The refusal of the Company to transfer the share is arbitrary.
8. It is submitted that the Company has refused the transfer of shares in the favour of the
step-sons of Queen Kim without reasonable justification for the same as: (i.) The power to refuse
is not present in the Articles of Association; (ii.) Even if it is present in the Articles of
Association, it has been exercised arbitrarily.
[i.] The power to refuse is not present in the Articles of Association.
9. A private company has power to restrict the transfer of shares in accordance with its
Articles of Association.12 In cases where the Articles of Association of the company confer
powers on the directors to refuse registration of the shares, the court has held that such a power
should be exercised reasonably.13 However, the directors have no inherent power to refuse the
transfer of shares or the registration thereof. 14 Such a power has to flow from a source and is
exercisable only when it is either specified or traceable in the Articles of Association of the
Company.15
10. In the present case, Clause 11, which deals with the transfer of shares of a promoter
director in case of death or resignation, does not provide for any powers to the directors to refuse
the transfer of shares.16 Hence, the Company has exceeded the scope of the powers given to it
under the Articles of Association while refusing the transfer of the shares to the applicants.
Therefore, a petition under Section 111 was rightly maintainable before the Company Law
Board, where clearly, on the face of it, the Company has declined registration without any power
in this regard.17
[ii.] Even if it is present, it has been arbitrary.
11. Even if it is assumed that the Company did have the power to refuse the transfer, the
power has been exercised by it arbitrarily. The Company was not justified in insisting on a
Probate when the High Court has, through an Interim Order, declared the heirs of Queen Kim. 18
12 V.B. Rangaraj v. V.B. Gopalakrishnan, (1992) 73 Comp Cas 201.

13 Bajaj Auto Ltd. v. N.K. Firodia, (1971) 41 Comp Cas 1.
14 A. RAMAIYA, GUIDE TO THE COMPANIES ACT, 1580 (17th edn., 2011).
15 Luxmi Tea Co. Ltd. v. P.K. Sarkar, (1990) 67 Comp Cas 518; V.B. Rangaraj v. V. B. Gopalakrishnan, (1992) 73
Comp Cas 201.
16 Factsheet ¶ 12.
17 RAMAIYA, supra note 14, at 1581.
18 Factsheet ¶ 22.
3
When an order regarding the heirs has been given, and there is no stay granted by any Court, the
Company is not justified in refusing the transfer of shares despite of the Interim Order.19
12. Admittedly, the transfer on the basis of the Interim Order will divide the shares of King
Ray, willed in favour of Queen Kim, between both the parties. However, the fact that Company
has refused to give effect to the transfer even then, and has insisted on a probate which is not
required as the will of King Ray was never under challenge and the High Court has, in the
interim, ordered both the parties to be legal heirs, is an arbitrary restriction on the transfer of
shares.
13. Therefore, where the refusal to transfer the shares by the Company, and to register the
transfer, is arbitrary, a petition to the Company Law Board was maintainable. 20 There were no
complicated questions involved. However, the Board failed to see the arbitrary exercise of the
power of refusal by the Company. The Company Law Board did not take into account the
Interim Order of the High Court. The Company Law Board had the jurisdiction to decide the
issues and ought to have exercised the same.
[D.] The High Court has exceeded its jurisdiction in the present case
14. The matters that are presented before the High Court in an appeal under Section 10F
against an order of the Company Law Board is to be limited to the questions of law that have
been either raised before the Company Law Board or have been dealt with by it in its order.
15. In the present case, the Company Law Board concluded that it did not have jurisdiction to
decide the matter.21 Since, the order of the Company Law Board was limited to the non-
maintainability of petition due to the want of jurisdiction to decide complicated matters; the
question of law that arises out of the order is limited to this issue of non-maintainability. 22 The
arbitrary exercise of the power to refuse the transfer is not a question of law, but an analysis
based on the facts. The High Court did not have jurisdiction to venture beyond the issue of the
scope of jurisdiction of the Company Law Board and the correctness of the exercise of such
jurisdiction in the present case.

20 Luxmi Tea Co. Ltd. v. P.K. Sarkar, (1990) 67 Comp Cas 518.
21 Factsheet ¶ 24.
22 K. Muthusamy v. S. Balasubramaniam, 2011 (2) TMI 1279.
4
16. In case the High Court came to the conclusion that there were no complicated questions
of fact and law involved, the High Court is empowered to set aside the order of Company Law
Board.23 However, the jurisdiction of the High Court is limited to this order. The High Court
could not have examined the facts and rendered a decision on the matter itself. The High Court
does not have the power to decide the disputes regarding the facts. 24 In the present case, the High
Court has gone into the depth of the matter and has dealt with the facts of the case, recording its
own findings in the process.25 The High Court, instead of going into an analysis of the facts,
ought to have remanded the matter back to the Company Law Board and directed it to re-
examine the matter.26
17. Furthermore, the Company Law Board had not gone into the merits of the case and had
not recorded any finding of facts.27 The High Court can deal with the facts only when the finding
by the Company Law Board is perverse.28 In the instant case, the Company Law Board has
rejected the petition at the threshold of admission. Hence, it has not recorded any finding of fact
for it to be hit by perversity. Therefore, the High Court cannot decide based upon the facts of the
case.29 The High Court cannot embark upon consideration of evidence with reference to shares
and their title. It is outside the purview of its jurisdiction.30
18. In addition, the power of the High Court to hear an appeal under Section 10F is
analogous to the power of High Court under Section 100 of Civil Procedure Code. 31 Therefore, it
would also be subject to the same limitations. The High Court is not competent to deal with the
facts and record its findings. The correct course of action was for the court to relegate the matter
so that the Company Law Board could have exercised its power under Section 111 to determine
the disputed facts.32
23 Dale and Carrington Invt. (P) Ltd. v. P.K. Prathapan & Ors., (2004) 122 CompCas 161 (SC).
24 Nupur Mitra v. Basubani Pvt. Ltd., (1999) 35 CLA 97.
25 Factsheet ¶ 25.
26 Dayagen Pvt. Ltd. v. Rajendra Dorian Punj, (2009) 151 CompCas 92 (Del); K.S.Narayana Iyer v.Talayar Tea Co.
Ltd., (1995) 83 CompCas 743 (CLB).; RAMAIYA, supra note 14, at 1623.
27 Factsheet ¶ 24.
28 Sree Meenakshi Mills Co. Ltd. v. Commissioner of Income Tax, AIR 1957 SC 49; M/s Micromeritics Engineers
Pvt. Ltd. v. S. Munusamy, (2002) 3 CTC 661.
29 V.S. Krishnan v. Wertfort Hi-Tech Hospital Ltd., (2008) 83 CLA 371.
30 Mattulal v. Radhey Lal, AIR 1974 SC 1596.
31 Lohia Properties (P.) Ltd. v. Atmaram Kumar, (1993) 4 SCC 6.
32 Lohia Properties (P.) Ltd. v. Atmaram Kumar, (1993) 4 SCC 6; Nupur Mitra v. Basubani Pvt. Ltd., (1999) 35
CLA 97.
5
19. It is therefore, submitted that the High Court had not exercised its power rightly while
deciding the appeal presented before it and has exceeded the jurisdiction conferred upon it by the
law. It did not have the jurisdiction to go beyond the questions of law that arose out of the order
of the Company Law Board.
[II.] HIGH COURT COULD NOT HAVE DECIDED THE DISPUTE BECAUSE § 10 OF CPC APPLIES.
20. It is submitted that the High Court could not have heard and decided various aspects and
disputes pending adjudication in the courts below because bar on trial of suit as given in Section
1033 of Civil Procedure Code, 1908 applies. All the four elements of Section 10 34 are fulfilled-
first, the previously instituted suits are still pending [A.]; secondly, the matter in issue in the
present suit and the pending suits is directly and substantially the same [B.]; thirdly, parties to the
suits are the same[C.]; and fourthly, the suits have been filed before courts of competence [D.].
[A.] The previously instituted suits are still pending.

21. The previously instituted suits include Partition Suit of 1986,35 Succession Case No. 413
of 1998,36 Probate Petition No. 72 of 200637 (for King Ray’s Will), Applications for Substitution
as Legal Heirs of Queen Kim (2009),38 Probate Petition No. 3983 of 2010 39 (for Queen Kim’s
Will), Review Petition No. 76347 of 201040 and Civil Suit for Declaration and Permanent
Injunction (2011)41. Except the Succession Case of 1998, all other above mentioned suits are
pending in nature.
33 Code of Civil Procedure, Act No. 5 of 1908, § 10 (1908) (“Where a question arises as to whether any person is or
is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by
the Court: Provided that where such question arises before an Appellate Court, that Court may, before determining
the question, direct any subordinate Court to try the question and to return the records together with evidence, if any,
recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into
consideration in determining the question.”).
34 See also Swagath Marine Products Pvt. Ltd. v. K. Muthuswamy, (2006) 134 Comp Cas 182 (CLB) (elements of §
10 have been enlisted).
35 Factsheet ¶ 13.
36 Factsheet ¶ 15.
37 Factsheet ¶ 17.
38 Factsheet ¶ 19 (filed before all the courts wherein a dispute was pending).
39 Factsheet ¶ 20.
40 Factsheet ¶ 22.
41 Factsheet ¶ 23.
6
22. The Succession Case No. 413 of 199842 can be said to have been concluded on the
issuance of the Succession Certificate by the District Court of Thelesalonica to Princess North
Bilzerian, Prince Wild Bilzerian and Queen Kim.43
23. Now five other suits are pending which include Probate Petition for Queen Kim’s Will in
the District Court, Partition Suit of 1986, Review Petition against the Interim Order of the High
Court and Civil Suit for Declaration and Permanent Injunction (2011) are also clearly pending
adjudication.44 The probate proceedings for King Ray’s Will continue to exist and do not lapse as
a result of the issuance of the succession certificate to Princess North and Prince Wild along with
Queen Kim because the judgment produced as a result of a probate petition is a judgment in rem
and the fact of a settlement entered into by the consent of the parties is immaterial and falls
outside the scope of enquiry. From amongst these, there are only three suits relevant for Section
10, viz., both the probate proceedings and the Review petition in the High Court.
24. Applications for Substitution as Legal Heirs of Queen Kim were filed in all those courts
wherein a dispute was pending adjudication.45 At the time these applications were filed, the
pending suits included the Succession Case No. 413 of 1998, 46 Probate Petition for King Ray’s
Will47 and the Partition suit of 198648. Thus, the courts before which these Applications were
filed include the District Court of Thelesalonica and the High Court. Order 22, Rule 5 of the
Code of Civil Procedure, 190849 empowers the Court to decide questions as to who the legal
representatives of a deceased plaintiff or a deceased defendant are. 50 The objective of this
provision is the sustenance of suits to which the deceased was a party. Therefore, these
applications also lapse when the corresponding proceedings come to an end. As has been argued
42 Factsheet ¶ 15.
43 Factsheet ¶ 18.
44 Factsheet ¶¶ 13, 20, 22, 23.
45 Factsheet ¶ 19.
46 Factsheet ¶ 15.
47 Factsheet ¶ 17.
48 Factsheet ¶ 13. See also factsheet ¶¶ 19,20 (Probate petition for Queen Kim’s Will was filed after the
Applications for Substitution as Legal Heirs were filed).
49 Code of Civil Procedure, Act No. 5 of 1908, Order 22, Rule 5 (1908) (“Where a question arises as to whether any
person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be
determined by the Court: Provided that where such question arises before an Appellate Court, that Court may, before
determining the question, direct any subordinate Court to try the question and to return the records together with
evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same
into consideration in determining the question.”)
50 Code of Civil Procedure, Act No. 5 of 1908, Order 22, Rule 5 (1908). Gurcharan Singh v. Surjit Singh & Anr.
[I.A. No. 2 to 6, in Special Leave Petition (C) No. 7735 of 2010, application decided on 2nd Nov. 2012];
Kurappaswamy & Ors. v. C. Ramamurthy, AIR 1993 SC 2324; Ram Kala v. Deputy Director (Consolidation) &
Ors., (1997) 7 SCC 498.
7
above, only the Succession case has come to an end while the probate for King Ray’s Will and
Partition suit are still pending. Thus, Applications for Substitution as Legal Heirs now exist
corresponding to these two suits but of these only the one related to probate for King Ray’s Will
is relevant.
25. Therefore, the previously instituted suits, which are still pending and relevant for this
case are probate for King Ray’s Will along with the Application for Substitution as Legal Heir,
probate for Queen Kim’s Will and Review Petition in High Court (2010).
[B.] The matter in issue in the present suit and the pending suits is directly and
substantially the same.
26. Subject matter refers to a “bundle of facts”51 that are required to be proved to “entitle the
plaintiff to the relief claimed by him” 52. The issue in the current suit revolves around the dispute
between the parties regarding transfer of shares of King Ray. For these shares to be transferred,
the parties are required to show the existence of a proof entitling them to such transfer. 53 A
probate54 or a succession certificate55 can be considered to be sufficient proof for such transfer.
Therefore, proof of entitlement to shares and consequently, succession certificate obtained by
Princess North Bilzerian and Prince Wild Bilzerian along with Queen Kim, can be said to be the
subject-matter in this case. In other words, it is imperative as per the Articles of Association of
the Company to prove who the legal representatives of King Ray are.56
27. An important test to determine the applicability of Section 10 is the test of res judicata
according to which if the decision in the previous suit would act as res judicata57 on the
subsequent suit, then the latter is bound to be stayed. 58 The “matter in controversy”59 should be
the same in both suits and not the relief claimed.60 Complete identity of prayers is not essential.
The subject matter should be directly and substantially the same to the extent of affecting the
51 Vallabh Das v. Madan Lal, AIR 1970 SC 987.

52 Vallabh Das v. Madan Lal, AIR 1970 SC 987.
53 Factsheet ¶¶ 17, 21.
54 See factsheet ¶ 17 (Company itself asks for a Probate in its Annual General Meeting).
55 See generally Thenappa Chettiar v. Indian Overseas Bank Ltd., (1943) 13 Com Cases 202 (Mad).
56 Factsheet ¶ 12.
57 See generally BRYAN A. GARNER, BLACK’S LAW DICTIONARY, 1470 (10th edn., 2014) (“Rule that final judgment
or decree on merits by court of competent jurisdiction is conclusive of rights of parties or their privies in all later
suits on points and matters determined in former suit”).
58 National Institute of M.H. & N.S. v. C Parameshwara, AIR 2005 SC 242.
59 Aspi Jal and Anr. v. Khushroo Rustom Dadyburjor, AIR 2013 SC 1712.
60 Aspi Jal and Anr. v. Khushroo Rustom Dadyburjor, AIR 2013 SC 1712.
8
decision in the subsequent case.61 Decisions in all the pending cases were bound to have an
impact on the decision of the High Court in the present case. Completion of trial in any of the
three pending cases would conclusively determine who the heirs of King Ray are and
consequently who is entitled to get the shares transferred. There could also have been a conflict
of decisions which goes against the object of Section 10 which is to avoid parallel adjudication
and prevent conflicting decisions.62
28. Therefore, there is similarity of subject matter between the pending suits and the
subsequent suits.
[C.] Parties to the suits are the same.

29. Parties to the suits are same. Both in the previously pending suits and the present suit,
Princess North Bilzerian and Prince Wild Bilzerian are parties on one side and the stepsons of
Queen Kim are parties on the other side, contesting under the same title in all these suits.63
[D.] All these suits have been filed before courts of competence.
30. The previous suits are before courts of competence. A court is said to be one of
competence when it has the power to grant a relief claimed in a particular suit. 64 A District Court
has the power to grant probate because of two main reasons. Firstly, it is the ‘District Court’
which is competent to grant probate according to Section 264 of Indian Succession Act, 1925. 65
Secondly, in order for such District Court to have territorial jurisdiction, the deceased should
either have place of abode or property (whether movable or immovable) within its jurisdiction. 66
Shares are movable property according to Section 82 of the Companies Act, 1956 and Section
2(7) of the Sale of Gods Act, 1930.67 In this case, the property under consideration in the probate
proceedings includes the shares of King Ray in the Company registered in Thelesalonica. 68
61 Swagath Marine Products Pvt. Ltd. v. K. Muthuswamy, (2006) 134 Comp Cas 182 (CLB).
62 National Institute of M H & NS v. C Parameshwara, AIR 2005 SC 242.
63 Factsheet ¶¶ 15, 20, 22.
64 Nirmal Singh v. Om Prakash, AIR 1965 J&K 99; JT Republike v. Rungta & Sons, AIR 1966 Cal 382;
Somasundaram v. Venkata Subbayya, AIR 1938 Mad 602.
65 The Indian Succession Act, No. 39 of 1925, §264 (1925).
67 Companies Act, No. 1 of 1956, § 82 (1956); Sale of Goods Act, No. 3 of 1930, § 2(7). Smt. Kanta v. State 1985
SCC OnLine Del 160; N. S. Chopra v. State of Delhi, 2014 Indlaw DEL 1916.
68 Factsheet ¶ 9.
9
Therefore, the District Court of Thelesalonica is a court of competence for the purposes of
Section 10.
31. In case of the Review Petition of 2010, the High Court has the power to declare who the
legal heirs of a deceased person are.69 Therefore, it is a court of competence.
32. Moreover, it has also been held by the Supreme Court that even though Section 10 is a
rule of procedure, it is still a mandatory provision. 70 As all the conditions of Section 10 stand
fulfilled, bar on trial of the present suit in High Court applies.
33. Therefore, the High Court erred in continuing with the trial of this case and should have,
instead, stayed the proceedings keeping in view the pendency of the previous civil suits.
[III.] THE HIGH COURT COULD NOT HAVE INTERPRETED THE WILL OF KING RAY UNDER
SECTION 10F.
34. The decision of the High Court in the appeal has been given in the favour of the children
of King Ray, directing the Company to transfer the shares in their favour and register the same.
The judgement also ventures on to decide the title to the property of King Ray through the
interpretation of his will in favour of Queen Kim.
35. It is submitted that the High court did not have jurisdiction under Section 10F to interpret
the will of King Ray as: first, interpretation of will is not a question of law [A.]; secondly, it is
not arising out of the order of Company Law Board [B.], and; thirdly, the power of the court
under Section 111 is summary and limited [C.]. Even if the will could have been interpreted, the
High Court erred in the interpretation [D.].
[A.] Interpretation of will is not a question of law.

36. The jurisdiction of the High Court under Section 10F is limited to a question of law. As
submitted earlier, the High Court cannot rule on the facts of a case. In the present case, the High
Court has, in its decision while hearing the appeal, has interpreted the Will of King Ray. The
interpretation of a will is not a question of law, but of fact. The intent of the testator is to be
inferred through the facts and circumstances of the case. An inference from the facts is a question
69 M/s Kalinga Mining Corporation v. Union of India, Civil Appeal No. 1013 of 2013; Shrimant v. Mrunalinidevi,
CR.MA/2062/2010; Suresh Kumar Bansal v. Krishna Bansal & Anr., Civil Appeal No. 8271 of 2009; Sequeria v. P.
Francisco, AIR 1976 Goa 48.
70 Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527.
10
of fact.71 It does not change its nature unless it is found to be perverse. 72 Therefore, the High
Court could not have interpreted a will under Section 10F.
[B.] Even if it is a question of law, it does not arise out of the order of Company Law Board.
37. An appeal to the High Court lies only on question of law arising out of the order of the
Company Law Board.73 It is a settled principle in law that a question of law does not arise out of
the order of the Company Law Board if it was neither raised nor dealt with by the Board during
the proceedings before it.74
38. In the present case, the Company Law Board has not heard the parties on merits of their
appeal. It has refused to adjudicate upon the petition due to the reason that it lacks jurisdiction as
well as not given any finding in relation to the facts of the case. 75 Therefore, where the Company
Law Board has not considered the matter before it, nor has passed any order on it, the question of
interpretation of the will does not arise.
[C.] The power of the Court under Section 111 is summary and limited.
39. The Appeal, in the instant case, is against Section 111 of the Companies Act, 1956 on the
refusal of the Company to register the transfer of the shares of late King Ray. 76 The jurisdiction
of the court under this Section is summary in nature. 77 The genuineness of a will and its
interpretation cannot be decided in a summary proceeding.78 Furthermore, the jurisdiction of the
court is limited to the transfer of shares and the refusal thereof. The court cannot decide matters
that are not within the domain of such powers of the court under Section 111. 79 The interpretation
of the will is a matter to be decided by the civil court.80 The High Court, under an appeal, only
71 Sree Meenakshi Mills Co. Ltd. v. Commissioner of Income Tax, AIR 1957 SC 49.
72 Dale and Carrington Invt. (P) Ltd. v. P.K. Prathapan and Ors., (2004) 122 CompCas 161 (SC).
73 Manoj Kumar Kanuga v. Marudhar Power Pvt. Ltd., (2013) 179 CompCas 504(AP); Commisioner of Income Tax
v. Scindia Steam Navigation Co. Ltd., AIR 1961 SC 1633.
74 Commisioner of Income Tax v. Scindia Steam Navigation Co. Ltd., AIR 1961 SC 1633; Ammonia Supplies
Corporation (P.) Ltd. v. Modern Plastic Containers Pvt. Ltd., (1998) 7 SCC 105; Manoj Kumar Kanuga v. Marudhar
Power Pvt. Ltd., (2013) 179 CompCas 504(AP); M/s Micromeritics Engineers Pvt. Ltd. v. S. Munusamy, (2002) 3
CTC 661.
75 Factsheet, ¶ 24.
76 Factsheet ¶ 23.
77 Ammonia Supplies Corporation (P.) Ltd. v. Modern Plastic Containers Pvt. Ltd., (1998) 7 SCC 105; Public
Passenger Service Ltd. v. M.A Khadar, AIR 1966 SC 489.
78 Surendra Kaur v. Singh Engg Works Pvt. Ltd. (1977) 47 Com Cases 638 (All).
80 Bipin K. Jain v. Savik Vijay Engg P Ltd. (1998) 91 Comp Cas 835.
11
has jurisdiction to decide questions of law arising out of company matters. The interpretation of
the will is not such and therefore, the High Court could not have interpreted the will of King Ray.
40. Furthermore, it has been held that intervention of civil court is required when
interpretation of will is sought.81 The interpretation of such words that can cause ambiguity in the
will and the meaning to be inferred from them cannot be adjudicated upon in a company
petition.82 Therefore, the court had no power to interpret a will while hearing a Company Appeal.
41. Therefore, the Court has stepped out of its jurisdiction when interpreting the will of King
Ray. As per the limitations placed on its powers by the Act, it could not have done the same
while hearing an appeal under Section 10F.
[D.] Even if the will could have been interpreted, the High Court erred in the
interpretation.
42. It has already been submitted above that the High Court did not have jurisdiction to
interpret King Ray’s Will under Section 10F. However, even if it had the jurisdiction to interpret
the Will, the actual interpretation put forth by the High Court is erroneous.
43. It is an established position of law in terms of construction of wills that when the
language of the will is clear and consistent, the interpretation it receives must be based on a
literal construction. This is subject to the condition that there is nothing in the will to suggest a
departure from such construction.83 Where the language and the words of the will are clear, it is
not proper for the court to either supplement the words or read it down to give benefit to either of
the contesting parties.84 It is only when the contents are not clear that the question of taking
recourse to the application of principles of construction of a document may have to be applied.
Taking this perspective, it must be noted that King Ray’s will is worded very clearly and in an
unambiguous manner. None of the expressions employed have multiple possible constructions.
With respect to the fact of disinheriting North and Wild Bilzerian which is in question, King Ray
through his will, in plain words, disinherited his children from getting or claiming any part of his
estate.
81 S. Kanthimathy v. Woodlands Estates Ltd., (2008) 144 Comp Cas 830 (CLB).
82 S. Kanthimathy v. Woodlands Estates Ltd., (2008) 144 Comp Cas 830 (CLB).
83 Gurusami Pillai v. Sivakami Ammal, 18 Mad 347: 22 IA 119.
84 Muninanjappa v. R. Manual, (2001) 5 SCC 363.
12
44. A rational construction of a will is one which involves a detailed examination of the
natural and grammatical meaning of the language used by the testator in the will. In the case of
presence of such clear and unambiguous dispositive words in the language of the will, it is not to
be controlled or qualified by any general expression of intention.85 Such lucid and unambiguous
language necessitates the will to be construed in accordance the language.86
45. The reasoning provided by the High Court to support its construction was stated to be
that the intent of the testator had to be gathered from wholesome reading of the document and
the circumstances of the case. However, the “intent of the testator” only indicates the intention as
expressed in the will and none other.87 It is mode of expression of the intention of the testator and
the form and language of the will which hold utmost importance. 88 Taking into account the
intention of the testator does not mean to explore into what the testator meant to do when he
made the will. The court cannot speculate what the testator might have intended to write but only
what can be expressly or implicitly inferred from the words of the testator. The background and
the circumstances surrounding the disposition should be used only to construe the meaning of the
words that have actually been employed in the Will. 89 The meaning of intention is restricted to
the expressed intentions of the testator to account for what the written words in the particular will
can be interpreted to mean.90
46. The interpretation of the High Court highlights the grabbing of the property by the wife
as the only major concern. It mentions the ‘urgent need to address the reckonings on his mind’ as
the reason for the disposition. Such interpretation amounts to going beyond the restricted
meaning of ‘intention of the testator’. The primary duty of the court is, in fact, to not indulge in
any conjecture or speculation to ascertain intention of the testator from the will itself.91
47. Upon the question of the ‘wholesome reading of the document’, it is acknowledged that
the intention of the testator and the effect of the dispositions contained in the will must be
decided by construing the will as a whole. This is meant to consider all the relevant clauses in the
85 National Society for the Prevention of Cruelty to children v. Scottish National Society for the Prevention of
Cruelty to Children, [1915] AC 207.
86 Mst. Jio v. Mst. Rukhan, 8 Lah 219.
87 Gnanambal Ammal v. T. Raju Aiyar, AIR 1951 SC 103; Balbhadra v. Board of Revenue, 1981 AWC 525;
Veerattalingam v. Rameth, AIR 1990 SC 2201.
88P.L. PARUCK, THE INDIAN SUCCESSION ACT, 262 (10th edn., 2011).
89 Rajendra Prasad v. Gopal Prasad, 57 IA 296; Ram Gopal v. Nand Lal (AIR 1951 SC 139).
90 Perrin v. Morgan, [1943] AC 399.
91 Lalta Baksh Singh v. Phool Chand, AIR 1945 PC 113.
13
will, in their plan grammatical meaning considered together. 92 However, such harmonious
construction shall not be over-stretched to mean what could not have been intended by the
testator.
48. The High Court itself has missed the very essence underlying the idea of ‘wholesome
reading’. In fact, the High Court order gave a rather limited interpretation of King Ray’s will. It
held that the intention of the testator was only to prevent his estranged wife, Queen Carlen, from
getting his property through his children who, being minors at that point of time, were said to be
under the influence of their mother. 93
49. Although the court did look at the surrounding circumstances and the family relations of
the testator, this cannot be said to be an actual wholesome interpretation of the will. The
surrounding circumstances are to be considered only for the purpose of finding out the intended
meaning of the words which have actually been employed. They are only an aid to arrive at the
right construction.94
50. Further, in the first paragraph of the Will, late King Ray makes three main statements-
first, that he tried to contact his children, Princess North Bilzerian and Prince Wild Bilzerian, but
they refused to speak to him95; second, that the these state of affairs (of having estranged
relations with his children) disturbed him96; and third, that his children were influenced by their
mother who according to him wanted to grab his property through the device of his children. 97 It
is on the basis of all these reasons that King Ray, in the concluding paragraph of the Will
disinherits his children and bequeaths all his property to Queen Kim. Therefore, King Ray
disinherited his children not only because he wanted to prevent Queen Carlen from grabbing his
property but also because he had, by then, garnered a strong dislike towards his children.98
51. Another cardinal principle for the legal construction of wills is to the extent that is legally
possible, effect should be given to every disposition contained in the will. 99 No word that has a
clear and definite operation in the disposal of the testator’s property should be struck out. The
testator could not have intended to make any bequest in the will as an exercise in futility. A
92 N. Kasturi v. D. Ponnammal, AIR 1961 SC 1302.

93 Factsheet ¶ 25.
94 Navneet Lal v. Gokul, AIR 1976 SC 794.
95 Factsheet ¶ 16.
96 Id.
97 Id.
98 Factsheet ¶¶ 14, 16.
99 Gopala Menon v. Sivaraman Nair, (1981) 3 SCC 586.
14
construction which would advance the intention of the testator has to be preferred. The only
condition is that the disposition should not be such that the law prevents the required effect being
given to it. 100 Thus, the court should not reject any part of the will as being a surplusage.
52. In the instant case, the disinheriting of the children, North and Wild, from claiming or
getting any part of the estate of King Ray amounts to one such disposition in the will. The order
of the High Court order disregarding this disposition is flawed.
53. As stated earlier, full effect should be given to every portion of the will unless it makes
the provisions of the will inconsistent with each other or is repugnant to the testator’s ideas of
property.101 In this situation, the act of disinheriting is consistent with the underlying idea in the
whole of the will being the strained relationship with the children, which actually is indicative of
the reason behind this act of disinheriting them. Thus, it is not repugnant to, and is in fact in
consonance with King Ray’s idea about inheritance to his property.
54. Further, a principle which governs the construction of wills is the ‘Armchair rule’. 102 The
court should “put itself in the testator’s armchair”103. This indicates that the court should
determine the facts and circumstances respecting the testator’s property and his family and other
persons and things as at the date of the will in order to give effect to the words used in the will. It
should look at the surrounding circumstances of the testator, his or her position, family
relationship, probability of using certain words in a particular sense. In simple terms, it means
taking the perspective of the testator to understand the will. 104 In the instant case, such a view
would take note of the fact that after the irretrievable breakdown of marriage of King Ray, his
children along with Queen Carlen had gone back to the Province of Malay back in the year 1990.
His attempts to contact the children had been steadfastly resisted. He developed a strong dislike
against North and Wild which is also acknowledged by the words “disturbed by the children’s
attitude” in his will. Such a scheme of facts is indicative of the intention of King Ray to
disinherit them from claiming or getting any part of his estate.
55. Therefore, the interpretation of King Ray’s will by the High Court fails on all counts of
rules of construction. Hence, the order of the High Court ordering for rectification while relying
upon such flawed interpretation must be set aside.
100 Bhura v. Kashi Ram, (1994) 2 SCC 111.

101 Ramachandra v. Vijayaragavulu, 31 Mad 349.
102 GOPALAKRISHNAN, LAW OF WILLS, 457 (7th edn., 2009).
103 Venakata Narsimha v. Parthasarathy, (1913) 15 Bom LR 1010.
104 Meena Vasant Patel v. Prithviraj Ambalal Patel, 2010 (6) AIR (Bom) R 314.
15
[IV.] THE SUCCESSION CERTIFICATE, BY VIRTUE OF QUEEN KIM’S DEATH, BECAME
INOPERATIVE AND COULD NOT BE RELIED UPON
56. It is submitted that by reason of Queen Kim’s death, the succession certificate dated May
8, 2009 obtained jointly by her along with North and Wild Bilzerian 105 became wholly
inoperative. Consequently, High Court of Thelesalonica could not have relied upon the certificate
to decide the question of rectification with respect to the shares of King Ray. The decision
ordering rectification based upon the succession certificate was flawed. This is because the
authority vested in joint-holders can only be exercised jointly [A.] and Section 383 of the Indian
Succession Act allows for revocation of certificate upon death of a joint-holder [B.].
[A.] The authority vested in joint-holders can only be exercised jointly

57. The grant of a succession certificate does not confer title upon the grantee as an heir to
the deceased.106 Section 374 of the Indian Succession Act lays down that the certificate
empowers the grantee to receive interests or dividends and negotiate or transfer the securities
specified in the certificate.107 Such ‘security’ includes shares in a company, like those in the
present case, by virtue of Section 370(2) of the Indian Succession Act.108
58. The grant of a succession certificate is ordinarily made to a single individual. Section
373(4) of the Indian Succession Act provides that in case of multiple applicants for a certificate,
it lies within the discretion of the judge to decide the grant to a person, having regard to the
extent of interest and fitness of the applicants in other respects. 109 But it is acknowledged, here,
that the grant of a succession certificate jointly is not unlawful, 110 particularly when several
applicants have the same degree of interest in the estate of the deceased. 111 However, it cannot be
denied that the grant of a certificate to multiple persons, jointly, is inevitably fraught with
considerable inconvenience in the event of death of one of them. 112 In fact, the practice of
granting such joint certificates has been condemned because of such obvious hassles that can be
foreseen upon the grant.113 The inconvenience caused because of the certificate losing validity
105 Factsheet ¶ 18.

106 Prankisto v. Nobodip, (1882) ALR 8 Cal 868; N.D. BASU, LAW OF SUCCESSION, 1941 (10th edn., 2009).
107 Section 374, The Indian Succession Act, 1925.
108 Section 370(2), The Indian Succession Act, 1925.
109 Section 373(4), The Indian Succession Act, 1925.
110 Ram Raj v. Brij Nath, 35 All 479; Syed Ahsan v. Mst Sayeeda Begum, 1958 Pat LT 111.
111 Narayanasami v. Kuppusami, (1896) ILR 19 Mad 497.
112 Shanti v. Pankaj, AIR 1995 P&H 14.
113 Sukumar Deb Roy v. Parbati Bala, AIR 1941 Cal 663.
16
upon one such death cannot be done away with. The existing holders can longer rely upon the
joint succession certificate for their claims because it becomes inoperative.
59. The same can be illustrated through the decision of the Calcutta High Court in the
landmark judgment of Sukumar Deb Roy v. Parbati Bala.114 This case involved three daughters
who jointly held a succession certificate with respect to their mother’s property. On the death of
one of the daughters, the other two joint-holders filed for a succession certificate with respect to
the one-third share held by the deceased daughter. The question before the court was whether the
validity of the original joint succession certificate had been affected by the death of one of the
joint holders to the certificate. The court decided that the death invalidated the succession
certificate for further purposes. The joint certificate could no longer be said to be in force.115
60. This is so because, if two or more people jointly hold a succession certificate, and when
one of them dies, the existing certificate holders cannot exercise the powers under the
certificate.116 The authority vested in the joint-holders can only be exercised by all of them
together. The death of one of them renders the certificate wholly inoperative. 117 The principle
stated above was endorsed by the Calcutta High Court in a subsequent case, 118 wherein the Court
observed that when there are multiple grantees to a succession certificate, no two of them can
give proper discharge by themselves.
61. In the instant case, the succession certificate jointly vests a one-third share each of King
Ray’s assets in Queen Kim and the two grandchildren. 119 This fact of three grantees holding one-
third share each is, in fact, analogous to that of the Sukumar Deb case120 detailed above.
Subsequently, Queen Kim, a joint holder, has died. 121 Applying the principle laid down in the
aforementioned case, the joint succession certificate granted to them with respect to King Ray’s
assets, on Queen Kim’s death, becomes wholly inoperative, and cannot be relied upon.
[B.] Section 383 allows for revocation of certificate upon death of a joint-holder
62. It is submitted that a succession certificate is not an irrevocable grant. It can be revoked
under the circumstances stipulated under Section 383 of the Indian Succession Act, 1925. 122
117 PARUCK, supra note 81, at 1214.
118 In Re goods of Gagan Chandra, AIR 1950 Cal 578.
122 The Indian Succession Act, No. 39 of 1925, § 383.
17
Clause (d) of Section 383 allows revocation when the certificate becomes “useless and
inoperative through circumstances”.123 The same has been construed to mean the discovery of a
fact which, if known at the date of the grant, would have been good grounds for refusing it. 124
For the purpose of revocation under this section, the circumstances which render the grant
useless and inoperative “may have come into existence after the original grant was made”. 125 The
death of a joint-holder is one such circumstance arising subsequent to the grant which would
render the certificate useless. Clearly, such a circumstance of death of a grantee falls within the
ambit of Section 383(d). The situation would justify revocation upon such a death.
63. Hence, the death of one of the holders in the case of a joint succession certificate
necessitates revocation of the certificate to be sought under Section 383(d) of the Indian
Succession Act. It is after the conclusion of such revocation that a new certificate may be applied
for.126 Similarly, by reason of Queen Kim’s death, Wild and North have to obtain a fresh
succession certificate which could empower them to give discharge with respect to King Ray’s
assets.
64. Therefore, the existing joint-holders cannot exercise the powers under the succession
certificate after the death a joint-holder and the certificate is required to be revoked under
Section 383(d). It is, thus, clear that Queen Kim’s death meant that the succession certificate
ceased to be in force. Wild and North Bilzerian’s applications to claim transmission of shares
based upon the certificate are infructuous. The order of the Company Law Board not entertaining
such applications under Section 111 of the Companies Act, 1956 127 did not suffer from any
infirmity. The High Court ought to have ignored the certificate for the purpose of deciding the
proceedings ordering transmission. The reliance by the Court upon the same joint certificate to
order for rectification in relation to King Ray’s shares in the company is without any basis and
genesis.
[V.] PROBATE PROCEEDINGS INSTITUTED BY QUEEN KIM CANNOT BE SAID TO LAPSE ON THE
BASIS OF THE SETTLEMENT DEED
65. It is submitted that the probate proceedings under Petition No. 72 of 2006 128 cannot be
termed as lapsed on the basis of the Settlement Deed dated May 8, 2009 entered into by Queen
123 The Indian Succession Act, No. 39 of 1925, § 383(d).
124 Bal Gangadhar Tilak v. Sahwarbau, 1926 Bom. 792; Gour Chandra v. Sarat Sundari, 1940 Cal. 50.
125 Surendra v. Amrita, 1947 Cal. 115.
18
Kim and the grandchildren.129 The argument put forth in this regard is two-fold. [A.] First,
probate proceedings result in a judgment in rem and cannot lapse because of a private agreement.
[B.] Secondly, the order granting succession certificate based upon the Settlement Deed does not
operate as res judicata upon the probate proceedings.
[A.] Probate proceedings result in a judgment in rem and cannot lapse because of a private
agreement
66. It is a settled proposition of law that proceedings under a Probate petition produce a
judgment in rem.130 The question of authenticity of will decided under such proceedings is
conclusive against the world, and not just the private parties involved. 131 It can be subject to
challenge by a third person. Because they are not proceedings in personam, the Court cannot, by
the mere consent of the parties involved or a settlement entered into between them, decide the
fate of the probate proceedings.132
67. The only issue before the Probate Court is the proof of valid execution and genuineness
of the will.133 The function of the probate court is limited to enquiry into the legal execution of
the will, the sound and disposing state of mind of the testator, his understanding of the nature and
effect of such disposition, and his signature as mark of his freewill and volition. 134 It is wholly
immaterial if the parties involved desire to compromise their dispute by way of a settlement or
not. All such matters fall outside of the scope of such inquiry.135
68. Moreover, none of the provisions of the Indian Succession Act, 1925 relating to probate
admit the incorporation of any kind of private terms into such proceedings. The form of probate
has been prescribed in Schedule 6 of the abovementioned Act. It, too, makes no allowance for a
private compromise, like one providing for division of estate of the testator, to influence, or be
embodied in probate order of the Court. A court of probate always shies at terms of a
settlement.136
69. In fact, the Probate Court has been noted to be a court of conscience, which is not to be
influenced by any sort of private arrangements entered into between the parties. The decision of
the probate petition is limited to either the grant of the will or rejection of such grant. There is no

130 Bishunath Rai v. Sarju Rai, AIR 1931 All 745.
131 MULLA, THE CODE OF CIVIL PROCEDURE, 1484 (15th edn., 2012).
132 Monmohini Guha v. Chandra Das, (1904) ILR 31 Cal 357.
133 S.C. SARKAR, THE LAW OF CIVIL PROCEDURE, 1998 (11th edn., 2006).
135 Bishunath Rai v. Sarju Rai, AIR 1931 All 745.
136 Sushila Bala Saha v. Saraswati Mondal, AIR 1991 Cal. 166; PARUCK, supra note 81, at 552.
19
middle path open to settle the dispute by way of an agreement resolving the dispute. 137 The only
effect that a compromise can have is to reduce a contentious proceeding to a non-contentious
one. It does not absolve the Court from the task of either granting the probate or refusing it. It
does not lead to a dismissal of the probate case.138
70. Further, on the filing of a probate petition, the Court assumes upon itself the duty of
determining whether the will is genuine or not. As the court had observed in the case of
Jugeshwar Nath Sahai v. Jagatdhari Prasad,139 in so far as the disposal of assets by an
agreement is concerned, it has nothing to do with the question of whether the will is genuine or
not. The Judicial Commissioner was, therefore, required to express his opinion on the issue of
genuineness of the will irrespective of the agreement providing for the disposal of assets.
71. Likewise, the applicant to the probate acquires the duty to obtain the opinion of the Court
upon the authenticity or otherwise of the will. If he fails to obtain the finding of the court in the
respect of this matter, and moves for withdrawal, it amounts to improper withdrawal of the
probate application.140
72. In the instant case, King Ray’s will under Petition No. 72 of 2006 has neither been proved
nor disproved. The Probate proceedings have not been dropped or dismissed by the District
Court before which they were instituted. They cannot be implied to have been legally disposed of
by the agreement entered into. The Settlement deed entered into between Queen Kim and the
grandchildren141 is no ground for the lapse of the proceedings. It, thereby, means that the
proceedings have not lapsed.
73. Thus, it would be a dereliction of duty on part of the Court to declare the proceedings to
have lapsed merely based upon the settlement, without deciding upon the grant or the rejection of
the probate. The proceedings continue to exist as even on the date when the respondents file
petitions for rectification before the Company Law Board.
[B.] The order granting succession certificate based upon the Settlement Deed does not
operate as res judicata upon the probate proceedings.
74. It is on the basis of the Settlement Deed dated May 8, 2009 that Queen Kim, North and
Wild Bilzerian had obtained the joint succession certificate in respect of King Ray’s shares. 142
137 Sushila Bala Saha v. Saraswati Mondal, AIR 1991 Cal. 166.
138 Janakbati v. Gajanand, AIR 1916 Pat 82.
139 Jugeshwar Nath Sahai v. Jagatdhari Prasad, 1917 SCC OnLine Pat 166.
140 Jugeshwar Nath Sahai v. Jagatdhari Prasad, 1917 SCC OnLine Pat 166.
20
But the nature of probate proceedings that were pending was very different from those relating to
grant of the succession certificate. As the procedure prescribed under Section 373 of the Indian
Succession Act indicates, the proceedings granting succession certificates are summary in
nature.143 It is only an enquiry into whether the applicant, prima facie, has the best title thereto.144
Thus, as laid down in Section 387 of the Act, no such decision upon any question of right bars
the trial of the same question in any suit or in any proceeding between the same parties. 145 The
adjudication made, in effect, does not operate as res judicata upon other proceedings.146
75. On the other hand, the judgment in probate proceedings deciding the validity of a will is
final and conclusive in nature.147 It establishes the authenticity of the will based upon evidence of
execution. But a succession certificate does not confer ownership right of the party in question.
Any disposition made through a will by a person with regard to the property is immaterial for the
proceedings initiated to obtain a succession certificate.148
76. Thus, the grant of a succession certificate in the instant case does not bar the institution or
continuance of a suit to determine the heirship to debts and property of King Ray, like the
probate proceedings. In conclusion, the entering into of settlement deed and the issuance of the
succession certificate does not affect the pendency of the probate petition filed earlier before the
District Court. The proceedings cannot be said to have lapsed by virtue of the settlement entered
into by Queen Kim and the grandchildren. Until the time the Court determines the validity and
authenticity of the will, the probate proceedings have to be held to be pending in the District
Court of Thelesalonica. They continue to exist till date even as the matter is currently heard
before the Supreme Court.
[VI.] THE HIGH COURT HAS ERRED IN DIRECTING THE COMPANY TO TRANSFER THE SHARES
IN FAVOUR OF THE RESPONDENTS.
77. As has been already submitted, the succession certificate became inoperative and could
not be relied upon. It is further submitted that the appellants are entitled to get the shares
transferred in their name. King Ray in his Will bequeathed all his property to Queen Kim alone.
As this Will has not been challenged, probate is not necessary 149 and thus, presumption of
143 The Indian Succession Act, No. 39 of 1925, §373(d).
144 V.K. Kamalam v. Canchali Amma, AIR 1998 Ker 265; Surfogi v. Kamalshiamba, 7 Mad 543.
145 P. Meenambal v. R. Rajeswari, 1998 (1) LWP 736; G. Jayashankaraiah v. T.N. Gangadhariah, AIR 2006 Kant
150.
146 V.K. Kamalam v. Canchali Amma, AIR 1998 Ker 265; PARUCK, supra note 81, at 1236.
148 BASU, supra note 106, at 1941.
21
validity of the Will stands. Now that the succession certificate has become inoperative, any right
vested with the children of King Ray by virtue of the said succession certificate ceases to exist
and Queen Kim alone becomes the heir to King Ray’s property by virtue of his Will. It is also
argued that the Will of Queen Kim, in which she bequeathed all her property to the children of
King Ray, is fabricated and forged.150 In such a scenario, the property of Queen Kim shall come
down through intestate succession.
78. Had there been no adoption of King Ray, Prince Wild and Princess North would have
been heirs of Queen Kim according to Section 15151 of the Hindu Succession Act by virtue of
being the children of predeceased son. However, the adoption of King Ray is, in fact, valid due
to a multiplicity of reasons.
79. First, under Hindu law, mere act of giving and taking, though mandatory, is enough for a
valid adoption to take place.152 Thus, King Ray is said to have been adopted the moment he was
given by King Big Bilzerian and Queen Kim to King Dueta, who readily accepted Ray as his
son.153
80. Secondly, under classical law wherein a father could alone give a child for adoption
without the mother’s consent.154 Assuming that King Ray was given up for adoption before
1956,155 Queen Kim’s consent does not matter. Alternatively, if the adoption is considered to have
happened after 1956, the consent of the mother of a child becomes equally important for
adoption.156 But once the child is given to another family and the mother willingly participates in
the ceremony of giving the child and does not contest such an adoption, her consent is
considered to be implicit.157 Even in this case, there being no objection from Queen Kim to the
adoption, her consent can be implied.
150 See also factcheet ¶ 23 (Civil Suit for Declaration and Permanent Injunction, declaring that the Will of Queen
Kim has been forged and fabricated, is pending adjudication).
151 Hindu Succession Act, No. 30 of 1956, § 15(1)(a) (1956).
152 See Ghissai Ram v. Barey Lal, AIR 1942 Oudh 490; Siddessory Dossee v. Durgacharan Dass, 2 IJ (NS) 22;
Sosinath v. Krishna, ILR 6 Cal 381.
153 Factsheet ¶ 6.
154 MAYNE, HINDU LAW AND USAGE, 226 (16th edn., 2012).
155 Clarification no. 31: adoption of King Ray was done ‘at an early age’ making it a safe assumption that it
happened before 1956.
156 The Hindu Adoption and Maintenance Act, No. 78 of 1956, § 9(2) (1956).
157 PARAS DIWAN, INDIAN PERSONAL LAWS-2: LAW OF ADOPTION, MINORITY, GUARDIANSHIP AND CUSTODY, 53
(5th edn., 2012).
22
81. Thirdly, having close relations with one’s birth family, as in this case, 158 even after
adoption does not, in any way, invalidate such an adoption; nor does retention of surname/title of
the birth family.159
82. Lastly, there is always a presumption of validity of adoption which is not negated by
mere challenge to such adoption.160 Thus, the challenge to King Ray’s adoption in the Partition
suit does not make the adoption itself invalid.
83. Thus, the adoption of King Ray leads to severance of all ties from the birth family.161
Therefore, the stepsons of Queen Kim become her legal heirs as per the Hindu Succession Act by
virtue of being heirs of her husband.162 Hence, the High Court has erred in holding the children
of King Ray as legal heirs of Queen Kim, whose intestate death would render her step-sons as
her legal heirs. Therefore, the High Court has erred in directing the Company to transfer the
shares in favour of the respondents.
158 There are incidents which indicate the closeness of King Ray with his birth mother even after adoption. For
example, giving her a say in the naming of his two children, addressing her as “My Dear Mommy” in his Will and
subsequently bequeathing all his property in her name etc.
159 Factsheet ¶ 7 (surname of King Ray’s is ‘Bilzerian’)
160 PARAS DIWAN, MODERN HINDU LAW, 247 (20th edn., 2009).
161 Hindu Adoptions and Maintenance Act, No. 78 of 1956, § 12 (1956).
162 Hindu Succession Act, No. 30 of 1956, § 15(1)(b) (1956).
23
PRAYER
Wherefore in light of the issues raised, arguments advanced and authorities cited, it is humbly
prayed that this Honourable Court may be pleased to adjudge and declare that:
1. The High Court had incorrectly exercised its jurisdiction under Section 10F while hearing
an Appeal against Section 111 of The Companies Act.
2. The High Court could not have heard and decided various aspects and disputes pending
adjudication in the courts below which were in the nature of civil disputes.
3. The High Court could not have interpreted a will while exercising jurisdiction under
Section 10F.
4. The High Court could not have relied upon the joint succession certificate after one of the
members to the very same certificate had expired.
5. Probate proceedings cannot be said to have lapsed on the basis of settlement entered into
between some of the parties.
6. The High Court has erred in directing the transfer of shares of King Ray in favour of the
respondents.
And pass any other order that this Honourable Court may deem fit in the interests of justice,
equity, and good conscience.
All of which is humbly prayed,
1612 A,
Counsel for the Appellants.
24

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1612 A

THE SUPREME COURT OF EBONY

15TH AMITY NATIONAL MOOT COURT COMPETITION, 2016

CIVIL APPEAL NO. ____ /2015

KING DRAKSHIN…………………… ……………………………………………………...APPELLANT 3

PRINCE WILD BILZERIAN………………………………...………………………….RESPONDENT

PRINCESS NORTH BILZERIAN………………………………………………………..RESPONDENT

1. Code of Civil Procedure, 1908.

1. A.RAMAIYA, GUIDE TO THE COMPANIES ACT (17th edn., 2011).

1. BRYAN A. GARNER, BLACK’S LAW DICTIONARY (10th edn., 2014).

CIVIL APPEAL NO. _____ / 2015

The Formation of the Company

Orders of the Court and Appeals thereof

CAN PROBATE PROCEEDINGS BE TERMED AS LAPSED ON THE BASIS OF SETTLEMENT ENTERED

[A.] The High Court has jurisdiction to decide a question of law

[i.] The power to refuse is not present in the Articles of Association.

[ii.] Even if it is present, it has been arbitrary.

12 V.B. Rangaraj v. V.B. Gopalakrishnan, (1992) 73 Comp Cas 201.

19 RAMAIYA, supra note 14, at 1581.

[A.] The previously instituted suits are still pending.

51 Vallabh Das v. Madan Lal, AIR 1970 SC 987.

[C.] Parties to the suits are the same.

[A.] Interpretation of will is not a question of law.

92 N. Kasturi v. D. Ponnammal, AIR 1961 SC 1302.

100 Bhura v. Kashi Ram, (1994) 2 SCC 111.

[A.] The authority vested in joint-holders can only be exercised jointly

105 Factsheet ¶ 18.

129 Factsheet ¶ 18.

All of which is humbly prayed,

Counsel for the Appellants.

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