1611A

Team Code: 1611A
15TH AMITY NATIONAL MOOT COURT COMPETITION 2016

BEFORE THE HONBLE SUPREME COURT OF EBONY
APPELLATE JURISDICTION (CIVIL)
UNDER ARTICLE 136 OF THE CONSTITUTION OF EBONY
SLP (CIVIL) NO. ___/ 2015; CIVIL APPEAL NO. ___/ 2015
IN THE MATTERS OF
SECTION 10F & 111 OF INDIAN COMPANIES ACT, 1956
SECTION 373 & 213 OF INDIAN SUCCESSION ACT, 1925
PRINCE DUMAS AND DRAGOS & ORS.
... APPELLANTS
V.
PRINCE WILD AND PRINCESS NORTH
... RESPONDENTS
[AGAINST THE IMPUGNED ORDER OF THE HONBLE COURT OF THELESALONICA]
BEFORE SUBMISSION TO HONBLE CHIEF JUSTICE AND HIS COMPANION JUSTICE

OF THE HONBLE SUPREME COURT OF EBONY
MEMORANDUM ON BEHALF OF THE APPELLANTS
TABLE OF CONTENTS
LIST OF ABBREVIATIONS......................................................................................................... iii
LIST OF AUTHORITIES .............................................................................................................. iv
STATEMENT OF JURISDICTION .............................................................................................. viii
STATEMENT OF FACTS ............................................................................................................. ix
STATEMENT OF ISSUES ............................................................................................................. xi
SUMMARY OF ARGUMENTS .....................................................................................................xii
ARGUMENTS ADVANCED ........................................................................................................... 1
ISSUE I: THE HIGH COURT
HAD NOT RIGHTLY EXERCISED ITS JURISDICTION UNDER
S.10F WHILE HEARING AN APPEAL AGAINST S.111 OF COMPANIES ACT ............................ 1

A. THE REFUSAL FOR TRANSMISSION OF SHARES BY THE COMPANY WAS PROPER ............. 1
B. COMPANYS ACTION WAS IN CONFORMITY WITH ITS ARTICLES OF ASSOCIATION ........ 2
ISSUE II: THE HIGH COURT
COULD NOT HAVE HEARD AND DECIDED VARIOUS ASPECTS
AND DISPUTES PENDING ADJUDICATION IN THE COURT BELOW WHICH WERE IN THE
NATURE OF CIVIL DISPUTES ................................................................................................... 5
A. THE HIGH COURT
OVERSTEPPED ITS POWER BEYOND SCOPE OF
S. 10F
OF THE
COMPANIES ACT ................................................................................................................. 5

B. VIOLATION OF S. 10 OF THE CPC BY ADJUDICATING ON PENDING MATTERS ................ 6
ISSUE III: THE HIGH COURT
COULD NOT HAVE INTERPRETED A
WILL
WHILE
EXERCISING JURISDICTION UNDER S.10F OF THE COMPANIES ACT, 1956. ......................... 7
A. INTERPRETATION OF A WILL IS NOT A VALID QUESTION OF LAW .................................. 8

B. THE
DECISION OF THE
HIGH COURT
IS PREMATURE AS THE TITLE IS UNDER DISPUTE
PENDING ADJUDICATION IN OTHER COURTS ........................................................................ 9
ISSUE IV: JOINT SUCCESSION CERTIFICATE CANNOT BE RELIED UPON WHEREIN ONE OF
THE MEMBERS TO THE VERY SAME CERTIFICATE HAD EXPIRED.
...................................... 10
A. JOINT SUCCESSION CERTIFICATE WAS NOT VALIDLY GRANTED ................................... 10

B. JOINT SUCCESSION CERTIFICATE BECOMES INOPERATIVE ........................................... 11
ISSUE V: PROBATE PROCEEDINGS
CANNOT BE TERMED AS LAPSED ON THE BASIS OF
SETTLEMENT ENTERED INTO BETWEEN SOME OF THE PARTIES ......................................... 11
Page | i
A. PROBATE IS NECESSARY TO ESTABLISH THE TITLE ...................................................... 12

B. PROBATE
PROCEEDING FOR LATE
KING RAYS WILL,
CANNOT BE DEEMED TO HAVE
LAPSED BY COMPROMISE BETWEEN PARTIES. .................................................................... 14
C. THE PROBATE WITH RESPECT TO QUEEN KIMS WILL CANNOT BE DEEMED AS LAPSED
BY THE SETTLEMENT ENTERED INTO BY THE PARTIES. ...................................................... 15
PRAYER ................................................................................................................................ 16
MEMORIAL ON BEHALF OF APPELLANTS

Page | ii
LIST OF ABBREVIATIONS
AIR
All India Reporter
All
Allahabad High Court
Bom
Bombay High Court
Cal
Calcutta High Court
CLB
Company Law Board
CPC
Code of Civil Procedure
Del
Delhi High Court
Ed.
Edition
Guj
Gujarat High Court
HC
High Court
IC
Indian Cases
IPC
Indian Penal Code
Mad
Madras High Court
n.
Foot Note no.
Ori
Orissa High Court
Ors.
Others
P&H
Punjab and Haryana High Court
p.
Page No.
Pat
Patna High Court
r/w
Read with
Raj
Rajasthan High Court
S.
Section
SC
Supreme Court
SCC
Supreme Court Cases
SCJ
Supreme Court Journal
SCR
Supreme Court Reporter
v.
Versus

Page | iii
LIST OF AUTHORITIES
I.
LIST OF CASES
1. Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani, AIR 1983 Bom 268 .......... 26
2. Ammonia Supplies Corporation (P) Ltd. v. Modern Plastic Containers Pvt. Ltd, AIR
1994 Delhi 51 ............................................................................................................... 22
3. Anil Kak v. Kumari Sharada Raje and Ors., (2008) 7 SCC 695.................................. 28
4. Aspi Jal And Anr v. Khushroo Rustom Dadyburjor, 2013 (3) ABR 767 .................... 20
5. Bajaj Auto Limited v. N K Firodia, AIR 1971 SC 321 ............................................... 15
6. Bajaj Auto Ltd v. Western Maharashtra Development Corporation Limited, 2015 (4)
ARBLR 470 ................................................................................................................. 15
7. C.F Kantilal Shah v. CC, 1982 ELT 902 (Cal) ............................................................ 19
8. Chandrabhai K. Bhoir and Ors. v. Krishna Arjun Bhoir and Ors. AIR 2009 SC 164528
9. Chayan Dutta Roy v. Chayanika Chatterjee And Anr., 2005 (1) CHN 115 ................ 27
10. Chiranjilal Shrilal Goenka v. Jasjit Singh, (1993) 2 SCC 507..................................... 28
11. CIT v. Scindia Steam Navigation Co. Ltd, AIR 1961 SC 1633 .................................. 19
12. Desh Raj Gupta v. State And Others, 2010 (119) DRJ 138......................................... 16
13. Dwarka Nath Singh and others v. Mt. Raj Rani and others AIR 1932 Oudh 85 ......... 26
14. Ganesh Mal v. Anand, AIR 1968 Raj 273 ................................................................... 16
15. George Anthony Harris v. Millicent, AIR 1933 Bom 370 .......................................... 20
16. Gopal Lal Chandra v. Amulyakumar, AIR 1933 Cal 234 ........................................... 26
17. Gordon Woodroffe and company Ltd., UK v. Gordon Woodroffe Limited and Ors.,
(1999) 1 Comp.L.J. 243 ............................................................................................... 19
18. Harnam Singh And Ors. v. Bhagwan Singh And Ors, (1991) ILR 2 Delhi 625.......... 22
19. Hemendra Prasad Barooah And Anr. v. Bahadur Tea Co. P. Ltd, 1991 70 CompCas
792 Gauhati .................................................................................................................. 15
20. Hero Vinoth (Minor) v. Seshammal, AIR 2006 SC 2234............................................ 19
21. In Re: New Monkhushi Tea Co. & Ors. AIR 1967 Cal 196 ........................................ 16

Page | iv
22. J.P Srivastava and Sons Pvt. Ltd. v. Gwalior Sugar Co. Ltd (2004) 122 ComCases 696
...................................................................................................................................... 20
23. Jagatram Kuer v. Gaitri Debi, AIR 1936 Pat 430 .................................................. 17, 24
24. Jai Mahal Hotels Pvt. Ltd. v. Rajkumar Devraj and Ors., 2015 (10) SCALE 14 ........ 28
25. Jamshedji Dubash v. Meharbai Rustumji Dubash and Others, 2003 (3) MPLJ 322 ... 27
26. Jer Rutton Kavasmaneck v. Gharda Chemicals Limited, [2013] 114 CLA 123 (Bom)
...................................................................................................................................... 21
27. Joginath v. Sudhakar, AIR 1999 Ori 182 ..................................................................... 17
28. Kailash Chandra v. Nanda Kumar, AIR 1944 Cal 385 ................................................ 29
29. Kashmir Singh v. Harnam Singh & Anr, AIR 2008 SC 1749 ..................................... 22
30. Katreddi Ramiah and Anr. v. Kadiyala Venkata Subbamma and Ors., AIR 1926 Mad
434................................................................................................................................ 27
31. Kerala SEB v. T.P. Kunhaliumma, AIR 1977 SC 282 ................................................ 26
32. Kothari industrial Corpn v. Lazor Detergents Ltd (1994) 81 Comp Cas 617 (CLB) .. 22
33. Kunvarjeet Singh Khandpur v. Kirandeep Kaur, (2008) 8 SCC 463........................... 26
34. M. Palanisamy and Ors v. V.T. Spinning Mills (P.) Ltd. and Ors, [2011] 101 CLA
346 (Mad.).................................................................................................................... 21
35. M.S.D.Chandrasekar Raja v. M/S.Jayabharath Textiles Pvt. [2014] 120 CLA 298
(Mad.)........................................................................................................................... 20
36. Mahabir Das v. Udit Narain, AIR 1938 Pat 613 .......................................................... 27
37. Mahabir Das v. Udit Narain, AIR 1938 Pat 613 (Q) ................................................... 27
38. Manicherry Saseendran v. P.V.Leela 2011 (3) KLJ 94 ............................................... 24
39. Manicherry Saseendran v. P.V.Leela, AIR 2011Ker 158 ............................................ 17
40. Masusmi Sa Investment Llc v. Keystone Realtors Pvt. Ltd, 2013 (7) BomCR 264 .... 21
41. Mattulal v. Radhe Lal, AIR 1974 SC 1596 .................................................................. 21
42. Mehrunisa v. Visham Kumar, AIR 1998 SC 427 ........................................................ 19
43. Mr. B.B. Paymaster and Ors. v. Mrs. Baurawa Sangappa Kadapatti, 2005 (1) BomCR
190................................................................................................................................ 25
44. National Institute of M.H. & N.S v. C. Parameshwara, AIR 2005 SC 242 ................. 20

Page | v
45. Nupur Mitra v. Basubani P.Ltd, (1999) 35 CLA 97 (Cal) ........................................... 21

46. Probir Kumar Misra v. Ramani Ramaswamy and Ors, [2010] 154 CompCas 658
(Mad)............................................................................................................................ 19
47. Promode Kumar Roy v. Sephalika Dutta, AIR 1957 Cal 631 ............................... 26, 29
48. Purnima Manthena & Anr v. Dr. Renuka Datla & Ors, [2015] 128 CLA 353 (SC) ... 19
49. Raja Rama v. Fakuruddin Sahib 38 M LJ 210. ............................................................ 27
50. Rajeshwari Rani Pathak v. Nirja Guleri, AIR 1977 P&H 123..................................... 29
51. Rakesh Kumar Gaur & Ors v. Vipin Gaur, 157 (2009) DLT 769 ............................... 28
52. Ram Kumar Aggarwal v. Thawar Das, (1999) 4 LRI 687........................................... 19
53. Ramdutta v. Krishna, AIR 1987 MP 192..................................................................... 25
54. Re Debirani AIR 1945 Pat 318 .................................................................................... 23
55. Re, Saneja Bechin, 20 CWN 1122 ............................................................................... 23
56. Sagar Samshet Jung Bahadur Rana v. Union of India, AIR 1979 Del 118 ................. 20
57. Sh. Ghanshyam Dass Kawatra v. Shri Harish Chander Kawatra 2013 Del 462 .......... 29
58. Shailesh Prabhudas Mehta and Ors v. Calico Dyeing and Printing Mills Ltd, [1990]
67 CompCas 533 (Bom) .............................................................................................. 15
59. Shri V.S. Krishnan & Ors v. M/S Westfort Hi-Tech Hospital, 2 (2008) CLT 823 ..... 21
60. Smt. Roopa Bai and Ors. v. Hukum Singh, 1987 (2) WLN ........................................ 26
61. State Bank Of India v. Smt.Vijay Lakshmi Thakral, (2011) 178 DLT 428 ................ 17
62. Sukumar Deb Roy And Anr v. Parbati Bala W/O Bidhuranjan, AIR 1941 Cal 663 .. 17,
24
63. T.G. Veera Prasad v. Sree Rayalaseema Alkalies & Allied Chemicals Ltd, (1999) 98
Com Cases 806 ............................................................................................................ 19
64. Thenappa Chettiar v Indian Overseas Bank Ltd. (1943) 13 CompCases 202 (Mad.... 26
65. Thenappa Chettiar v Indian Overseas Bank Ltd., (1943) 13 CompCases 202 (Mad); 26
66. Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani, AIR 1983 Bom 268 .......... 26
67. Whitehead v. Taylor 1839 10 AEl 210 ........................................................................ 27
68. William Robbins v. National Trust Co, AIR 1927 PC 66 ........................................... 22

Page | vi
II.
STATUTES
1. Constitution of India
2. Hindu Succession Act, 1956
3. Indian Succession Act, 1925
4. The Companies Act, 1956
5. Civil Procedure Code, 1908
6. The Limitation Act, 1963
III.
DICTIONARIES
1. Blacks Law Lexicon, 8th Ed. (2004)
IV.
BOOKS
1. PARAS DIWAN, LAW OF INTESTATE & TESTAMENTARY SUCCESSION (4th ed. 2013)
2. 1 TAXMANNS, COMPANY LAW AND PRACTICE ( 17TH ed. 2012)
3. 1 A RAMAIYA, A RAMAIYAS
GUIDE TO COMPANIES ACT
1582 (17th ed. 2012)
4. SEN AND SENGUPTA, INDIAN SUCCESSION ACT, 1925 (5th ed. 2007)
5. K M GHOSH & DR. K. R. CHANDRATES, COMPANY LAW
WITH
SECRETARIAL
PRACTICE 1933 (14th ed. 2014)

6. N.D BASU, LAW OF WILLS, (7th, 2006)
7. S.A. KADER, THE HINDU SUCCESSION ACT, 1956 (2d ed. 2014)
8. P YADGIR RAO, LAW OF INHERITANCE UNDER HINDU LAW (2011)
9. DR POONAM PRADHAN SAXENA, FAMILY LAW LECTURES: FAMILY LAW II (3d ed.
2011)
10. A.K BAGRIAL, COMPANY LAW (2010)
V.
LEGAL DATABASES
1. MANUPATRA
2. WEST LAW
3. SCC ONLINE

Page | vii
STATEMENT OF JURISDICTION
The Honble Supreme Court has jurisdiction to hear the present matter under Art.136 of the
Indian Constitution which has been reproduced below:
136. Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed
or made by any court or tribunal constituted by or under any law relating to the Armed
Forces.

Page | viii
STATEMENT OF FACTS
FAMILY TREE:
Lord King Big
Bilzerian
m.
Queen
Khloe
Queen
Kourtney
Queen
Kim
Khloe
Khloe
Khloe
Drago
Dumagoli
Dumas
m.
Drakshin
Ray
Wild
Bilzerian
m.
Carlen
North
Bilzerian
Married
Children
Son
Daughter
YEAR
EVENTS
1981
Royal Retreat Group Of Hotels Resorts and Palaces Pvt. Ltd. Came into
existence.
1983
King Ray was added into the Company as Joint Managing Director on Kims
insistence.
1986
Partition suit filed before the Original side of High Court of Thelesalonica.
1990
King Ray divorced Queen Carlen, who took their children along with her.
1997
Demise of Ray owing to the ill-health.

Page | ix
YEAR
EVENTS
1998
Succession Suit was filed by Prince Wild Belzerian and Princess North
Bilzerian. Succession Case No. 413 of 1998 was filed seeking one-third share
along with Queen Kim.
2005
Rays Will dated 23.06.1996 was found that bequeathed everything to Queen
Kim.
2006
A letter was sent by Queen Kim to the Company on the basis of Rays Will
claiming his share.
Probate Petition No. 72 of 2006 was filed by Kim in the District Court on the
basis of Rays Will.
North Belzerian, Wild Belzerian and Queen Kim entered into a Settlement
Deed before the District Court with regards to the share in property of King
Ray, wherein the property was divided equally among the three.
2009
Demise of Queen Kim

Probate Petition No. 3983 of 2010 was filed before the District Court on the
basis of Kims Will dated 10.05.2009 that bequeathed everything to her
grandchildren.
2010
Interim order was given by the High Court wherein both grandchildren and
step sons of Kim made her legal heirs.
Review Petition was filed by North and Wild Bilzerian for the same.
A Suit for Declaration and Permanent Injunction, praying for a declaration that
the alleged Will was filed by her step sons.
Company Law Board gave an order that it cannot hold summary jurisdiction
under Companys Act on the complicated questions of fact and law which
undisputedly arise before it where the title to the shares standing in the name of
late King Ray is under serious dispute.
2011
High Court gave a decision in favour of grandchildren. High Court ordered for
transfer of the assets and shares of late king Ray in their favor and further
directed that necessary rectifications be made in the Record of the Registrar of
Companies. High Court held that all the alleged disputes which were pending
adjudication appeared to be illusionary and that there appeared to be no fraud
or forgery thus a Petition under Section 111 was very much maintainable.
Aggrieved parties moved to Supreme Court under Special Leave Petition.

Page | x
STATEMENT OF ISSUES
ISSUE I
WHETHER THE HIGH COURT HAD RIGHTLY EXERCISED ITS JURISDICTION UNDER S.10F
WHILE HEARING AN APPEAL AGAINST S.111 OF COMPANIES ACT.
ISSUE 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
ISSUE III
WHETHER THE THE HIGH COURT COULD HAVE INTERPRETED A WILL WHILE EXERCISING
JURISDICTION UNDER S. 10F OF THE ACT.
ISSUE IV
WHETHER
JOINT SUCCESSION CERTIFICATE
CAN BE RELIED UPON WHEREIN ONE OF
THE MEMBERS TO THE VERY SAME CERTIFICATE HAD EXPIRED
ISSUE V
WHETHER
THE
PROBATE
PROCEEDINGS CAN BE TERMED AS LAPSED ON THE BASIS OF
THE SETTLEMENT DEED ENTERED INTO BETWEEN SOME OF THE PARTIES.

Page | xi
SUMMARY OF ARGUMENTS
ISSUE I
WHETHER THE HIGH COURT HAD RIGHTLY EXERCISED ITS JURISDICTION UNDER S.10F
WHILE HEARING AN APPEAL AGAINST S.111 OF COMPANIES ACT
It is submitted before this Honble Court, that The High Court had not rightly exercised its
jurisdiction under S. 10F of the Companies Act (hereinafter called the Act) while hearing
an appeal against the order of the Company Law Board (hereinafter called the CLB). This
was because the appeal before the CLB was not maintainable under S. 111 of the Act, as
firstly the refusal to allow a transmission of shares by the Company was proper and
secondly was in conformity with the Articles of Association under which the Respondents
were not the legal representatives of King Ray.
ISSUE 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
It is submitted before this Honble Court that the High Court of Thelesalonica could not
have heard and decided various aspects and disputes pending adjudication in the courts
below which were in the nature of civil disputes because by doing so it went beyond the
scope of S.10F of the Act and violated the principles of S.10 of the Code of Civil
Procedure (hereinafter called CPC.)
ISSUE III
WHETHER
THE
THE HIGH COURT
COULD HAVE INTERPRETED A
WILL
WHILE
EXERCISING JURISDICTION UNDER S. 10F OF THE ACT.
It is submitted before this Honble Court that under S. 10F of the Act, the High Court could
not have interpreted a Will while exercising its jurisdiction because firstly it is not a valid
question of law as required u/s 10F and secondly the Company Law Board is the apt forum
for the adjudication of these matters as it can deal with complex questions of fact and law
contrary to its order dated 18.03.2011.
Page | xii
ISSUE IV
WHETHER
JOINT SUCCESSION CERTIFICATE
CAN BE RELIED UPON WHEREIN ONE OF
THE MEMBERS TO THE VERY SAME CERTIFICATE HAD EXPIRED
It is submitted before this Honble Court that the Succession Certificate dated 08.05.2009
which was jointly granted to Queen Kim and the Respondents, could not be relied upon
because firstly it became inoperative upon the death of Queen Kim, and the Respondents
having not made a fresh application for the grant of the same, it could not have survived to
them. Secondly, Succession Certificate is also submitted to be unreliable as it was not
validly granted to the Respondents.
ISSUE V
WHETHER
THE
PROBATE
PROCEEDINGS CAN BE TERMED AS LAPSED ON THE BASIS OF
THE SETTLEMENT DEED ENTERED INTO BETWEEN SOME OF THE PARTIES.
It is submitted before this Honble Court that the Probate proceedings are not lapsed on the
basis of Settlement Deed because firstly, Probate is necessary under the circumstances of
the case wherein the property mentioned in the Will is under dispute. Secondly, Kims right
to the property was not established at the time of entering into Settlement Deed which
makes it invalid. Thus, the Probate Proceedings concerning both the Will ought to continue
as there is no prima facie proof for the transmission of shares.

Page | xiii
ARGUMENTS ADVANCED
ISSUE I: THE HIGH COURT HAD NOT RIGHTLY EXERCISED ITS JURISDICTION UNDER S.10F
WHILE HEARING AN APPEAL AGAINST S.111 OF COMPANIES ACT
The Appellants contend that the High Court had not rightly exercised its jurisdiction u/s.10F
of the Act while hearing an appeal against the order of the CLB. Powers of the High Court
with respect to S.10F are limited to adjudicating only on questions of law which in the
present case pertains to maintainability of the petition filed by Prince North and Princess
Wild (hereinafter referred to as the Respondents) for transmission of shares of King Ray in
their favor u/s.111 of the Companies Act 1956.
The said petition is not maintainable because (A) The refusal from the company for
transmission of shares was proper and (B) It was in conformity with its Articles of
Association.
A. THE REFUSAL FOR TRANSMISSION OF SHARES BY THE COMPANY WAS PROPER
In the present case, after the death of King Ray and Queen Kim, Prince North and Princess
Wild requested a transmission of shares from the Company in view of Queen Kims Will
dated on 10.05.2009. The company had refused to transmit the shares stating reasons as lack
of prima facie proof of title which was a Probate. U/s.111(1) of the Act, a company may
refuse the transmission of shares in pursuance of its Articles of Association or operation of
law by citing the reasons1. However a petition for appeal in the CLB against this refusal
u/s.111(2) is justified only when the refusal is not proper owing to unnecessary delay or
default on part of the company.2
When the directors do not take any action within a reasonable time and refuse to register the
transmission of shares only after an unreasonably long time, then in those cases refusal is
unjustified giving rise to a ground of unnecessary delay to file a petition u/s.111 of the
Act.3 On the other hand, a company incurs default only when the refusal to transmit the
shares is arbitrary in nature and is against its own interests and the shareholders.4 Default in
K.V. Sasidhar v. Dhanalahshnii Bank Ltd, [1989] 2 Comp LJ 344 (CLB)

S. 111(4(b) of The Companies Act, 1956
3
Clause 21 of Table A of Schedule I
4
Shailesh Prabhudas Mehta and Ors v. Calico Dyeing and Printing Mills Ltd, [1990] 67 CompCas 533 (Bom)
2

Page | 1
this case is an omission or failure to perform a legal or contractual duty", and refusal" is
"declination of a request or demand".5 However in the present case refusal to transmit shares
was not done arbitrarily or against the interests of the company and shareholders. Further,
there was also no kind of delay caused by the company.
The Company in pursuance of its Articles of Association merely required a valid evidence of
representative title by way of a probate failing which shares would not be transmitted to any
individual.6 This makes the refusal proper in the eyes of law which makes the petition u/s.111
non maintainable.
B. COMPANYS ACTION WAS IN CONFORMITY WITH ITS ARTICLES OF ASSOCIATION
A company has no inherent power to restrict transfers as the discretion to refuse cannot go
beyond the scope of the Articles of Association of the company. 7 Private Companies can
refuse transmission of shares when it is violative of any restriction in the companys AoA.8
In the present case, Clause 11 of the Articles of Association of the Company mandated
transmission of shares of outgoing Promoter Director or the deceased Promoter Director to
the estate or the legal representative of the deceased or outgoing Promoter Director.9 By
operation of law, (1.) Respondents are not the legal representatives of King Ray by
interpretation of his Will and (2.) The Joint Succession Certificate so granted cannot be
considered to be prima facie evidence of title.
1. Respondents are not the legal representatives of late King Ray according to his Will
The shares are transmitted to the legal representatives either by way of intestate or
testamentary succession.10 In the present case, existence of King Rays Will makes it
testamentary succession upon which transmission of shares is to take place. Transmission of
shares must be in favor of a person holding interest by operation of law which occurs on the
death or insolvency of a member of the company. Contrary to Respondents arguments,
Appellants contend that Prince North and Princess Wild are not the legal representatives of
King Rays shares.
Hemendra Prasad Barooah And Anr. v. Bahadur Tea Co. P. Ltd, 1991 70 CompCas 792 Gauhati
Moot Proposition Pg 7 17
7
Bajaj Auto Limited v. N K Firodia, AIR 1971 SC 321
8
Bajaj Auto Ltd v. Western Maharashtra Development Corporation Limited, 2015 (4) ARBLR 470
9
Moot Proposition Pg.4 12
10
A RAMAIYA, A RAMAIYAS GUIDE TO COMPANIES ACT 1582 (17th ed. 2012)
6

Page | 2
High Courts jurisdiction u/s.10F is limited to checking whether the instrument propounded
as the last Will of the deceased is or is not legally attributable to the testator and whether the
intention is the product of a free and sound disposing mind.11 As will be discussed in detail,
High Court does not have the power to substitute its own opinion for what was the testators
Will.
In the Will dated 23.06.1996, King Ray before his death had expressed his intention to
disinherit the Respondents by bequeathing his entire estate to his mother Queen Kim. The
intention of the Will clearly spelled out the need to refrain the children from claiming any
part of his estate. Therefore it is submitted that the High Court overstepped its jurisdiction
u/s.10F by interpreting the intention of the testator and going beyond the scope of a
Company Appeal.
2. The Joint Succession Certificate granted is not prima facie proof of title
The High Court had wrongly relied on the Joint Succession Certificates dated 08.05.2009 and
adjudged that they were documents which were prima facie proof of title of Respondents, as
Succession Certificates are only used to discharge debts and (a.) do not determine right in the
property. Additionally, (b.) the succession certificates would be inoperative on the death of
Queen Kim since no fresh application has been made.
a. Succession Certificates do not determine right in the property
The primary role of a Succession Certificate is to execute a decree for debt obtained by a
deceased decree holder.12 It is contended that, a share of a company is security within the
definition of debt in the Act; for which a Succession Certificate enables to have the
shares transferred in their names.13
However it should be noted that, the grant of Succession Certificate merely clothes the
Respondents who in the present case hold the certificates with an authority to realize the
debts of King Ray.14 Further, granting of succession certificates is not a final decision
between rights of the parties.15
Hence, right to Succession Certificate is not the same as right to the estate of King Ray.
The Respondents do not get prima facie title by having the Succession Certificate. The
11
Desh Raj Gupta v. State And Others, 2010 (119) DRJ 138
Ganesh Mal v. Anand, AIR 1968 Raj 273
13
In Re: New Monkhushi Tea Co. & Ors. AIR 1967 Cal 196
14
State Bank Of India v. Smt.Vijay Lakshmi Thakral, (2011) 178 DLT 428
15
Joginath v. Sudhakar, AIR 1999 Ori 182
12

Page | 3
High Court therefore, erred in holding that, the Succession Certificate was prima facie
proof of title to the Respondents.16
b. Joint Succession Certificate becomes inoperative on the death of Queen Kim
It is contended that the Joint Succession Certificate became inoperative on the death of Queen
Kim. In the present case, the learned District Judge granted a Joint Certificate u/s S.373(4) of
the Indian Succession Act., where the judge is of the opinion that more than one applicant is
interested in the estate of King Ray. This allows for two certificates to be granted with each
relating to a specific part of the same estate.17
However, the provision will not apply as the Will provides an exclusive right to Queen
Kim.18 This entitles Queen Kim to have prima facie title over the property of King Ray.
Further if Queen Kim is granted the exclusive right of being the legal representative to King
Rays estate then she gets best prima facie title for the granting of a succession certificate.19
Due to the demise of one of the holders of the Joint Succession Certificate, the previous grant
of the certificate ceases to be in force, and an application needs to be made for a fresh grant
of certificates.20
The rationale behind this is that, if one of them dies, the remaining
certificate holders cannot exercise the powers which could only be exercised by them along
with the deceased, and as there is no estate vested in any of the grantees, no question of
survivorship arises.21
In the present case, the High Court was not correct in ruling that the Succession Certificate
would mandate prima facie title to Respondents because the Will provided an exclusive right
to Queen Kim. Hence, it is submitted that since Succession Certificate so granted is deemed
to be inoperative on the account of the death of Queen Kim, it cannot be considered to have
prima facie title over the property to King Rays estate.
CONCLUSION: The High Court had not rightly exercised its jurisdiction u/s. 10F while
hearing an appeal against the order of the CLB. The appeal made by the Respondents was
not maintainable as the refusal made by the Company was proper. It was in conformity
with the AoA under which Respondents were not legal representatives of King Ray. The
16
Manicherry Saseendran v. P.V.Leela, AIR 2011Ker 158
18
Jagatram Kuer v. Gaitri Debi, AIR 1936 Pat 430
19
Manicherry Saseendran v. P.V.Leela, AIR 2011 Ker 158
20
Sukumar Deb Roy And Anr v. Parbati Bala W/O Bidhuranjan, AIR 1941 Cal 663
21
ibid
17

Page | 4
Succession Certificate relied by the Respondents do not provide prima facie right over the
property and must moreover be deemed to be inoperative upon the demise of Queen Kim.
ISSUE II: THE HIGH COURT COULD NOT HAVE HEARD AND DECIDED VARIOUS
ASPECTS AND DISPUTES PENDING ADJUDICATION IN THE COURT BELOW WHICH
WERE IN THE NATURE OF CIVIL DISPUTES
The Appellants contend that the High Court could not have decided various aspects and
disputes pending adjudication in the courts below which were in the nature of civil disputes.
The High Court under limited jurisdiction of S. 10F adjudicated on matters with respect to the
Will of King Ray. It had accepted the locus standi of the Petitioners to challenge Queen
Kims Will and held the share certificates to be documents of prima facie proof of title.22 All
these issues were part of the litigations involved in the Partition Suit in High Court 23, Probate
Petition NO. 72 of 200624 and Review Petition No. 76347 of 201025, which were pending
adjudications before various Courts. The High Court superseded its authority by giving a
ruling of its own and indirectly adjudicating on the pending matter because (A) It went
beyond the scope of powers warranted by S.10F of the Companies Act and thereby (B)
violated the principle of the res-sub judice enshrined in S.10 of the CPC.
A. THE HIGH COURT OVERSTEPPED ITS POWER BEYOND SCOPE OF S. 10F OF THE
COMPANIES ACT
The High Court while exercising jurisdiction u/s 10F is expected to stay within its boundaries
because it is entertained on the Original Side as a Company Matter. Under S. 10F of the
Act, the High Court can only entertain questions of law arising out of the order of the CLB
including interim orders,26 which does not finally decide the rights of the parties. 27 For a
question to be considered as arising out of order it needs to be dealt by the CLB either by
22
Moot Proposition Pg9 25

24
25
26
C.F Kantilal Shah v. CC, 1982 ELT 902 (Cal)
27
Probir Kumar Misra v. Ramani Ramaswamy and Ors, [2010] 154 CompCas 658 (Mad)
23

Page | 5
party raising it or on its own.28 In the present case, the High Court could not have embarked
upon the consideration of evidence with reference to the transmission of shares.29 When the
High Court was of the opinion that CLB has erred in its decision then it ought to have
directed for re examination of the matter instead of deciding upon a matter not arising out of
the impugned order by overstepping its jurisdiction u/s 10F.30 Further, the scope of powers
u/s 10F is analogous to the principles u/s 100 of CPC31 with respect to substantial questions
of law where re-appreciation of evidence is not permitted which was done here by way of
interpretation of documents.32
In the present case, the CLB u/s 111 of the Act refused jurisdiction by stating the
complication of facts and law. Under the limited jurisdiction of S.10F, the High Court
exceeded its authority as it suo moto assumed the questions of law with respect to King Rays
Will and the locus standi of the brothers of King Ray to challenge Queen Kims Will which
not only led to undue appreciation of evidence but were also matters which did not arise out
of the order of the CLB. The High Courts order thereby suffers from judicial overreach as it
is not expected to replace the findings of the lower court33 unless the lower court has not
taken into account, essential terms of any document.34
The High Court should have remanded the matter back to the CLB for re-examination.
Hence, it is submitted that the High Court erred in forming new grounds of appeal which did
not arise out of the CLB order.35
B. VIOLATION OF S. 10 OF THE CPC BY ADJUDICATING ON PENDING MATTERS

The High Court, by entertaining the appeal in the present case, gave rise to parallel litigations
involving the same issue which it adjudicated upon. This is in violation of S.10 of the CPC
which provides that the Court shall not proceed with the trial of the suit, which involves
substantially the same issue which is in a previously instituted suit between the same
parties.36 Proceedings in CLB can be equated to a suit as CLB comes under the definition of a
28
CIT v. Scindia Steam Navigation Co. Ltd, AIR 1961 SC 1633

Gordon Woodroffe and company Ltd., UK v. Gordon Woodroffe Limited and Ors., (1999) 1 Comp.L.J. 243
30
T.G. Veera Prasad v. Sree Rayalaseema Alkalies & Allied Chemicals Ltd, (1999) 98 Com Cases 806
31
Hero Vinoth (Minor) v. Seshammal, AIR 2006 SC 2234
32
Ram Kumar Aggarwal v. Thawar Das, (1999) 4 LRI 687
33
Purnima Manthena & Anr v. Dr. Renuka Datla & Ors, [2015] 128 CLA 353 (SC)
34
Mehrunisa v. Visham Kumar, AIR 1998 SC 427
35
J.P Srivastava and Sons Pvt. Ltd. v. Gwalior Sugar Co. Ltd (2004) 122 ComCases 696
36
Aspi Jal And Anr v. Khushroo Rustom Dadyburjor, 2013 (3) ABR 767
29

Page | 6
court.37 Hence, the bar of res sub judice applies on the appeals that go from the CLB to the
High Court u/s 10F of the Act.38
In the present case, the issues with respect to King Rays Will and the locus standi of the
Appellants to challenge Queen Kims Will were substantially similar with respect to subject
matter which was dealt by the High Court and the lower courts simultaneously.39 When
proceedings are pending before the District Judge, the High Court ideally must restrain itself
by not adjudicating upon such issues.40 The rationale behind S.10 is to prevent Courts having
concurrent jurisdiction from trying the maters simultaneously reaching different
conclusions.41 Not only did the High Court lack jurisdiction to entertain such issues u/s 10F
of the Act, but it had also reached an erroneous decision by misinterpreting the facts.
CONCLUSION It is submitted that the High Court could not have decided on various aspects
and the disputes pending adjudication in the courts below which are in the nature of civil
disputes because by doing so it went beyond the scope of S.10F of the Companies Act and
violated the principles of S.10 of the CPC.
ISSUE III: THE HIGH COURT COULD NOT HAVE INTERPRETED A WILL WHILE
EXERCISING JURISDICTION UNDER S.10F OF THE COMPANIES ACT, 1956.
It is contended that the High Court could not have interpreted the Will while exercising its
jurisdiction u/s 10F of the Act.
Appeals u/s. 10F are limited to questions of law arising out of the order of the CLB. 42 With
respect to questions of fact, the decision of the CLB shall be final and non appealable with
respect to the questions of fact.43
37
Sagar Samshet Jung Bahadur Rana v. Union of India, AIR 1979 Del 118
M.S.D.Chandrasekar Raja v. M/S.Jayabharath Textiles Pvt. [2014] 120 CLA 298 (Mad.)
39
40
George Anthony Harris v. Millicent, AIR 1933 Bom 370
41
National Institute of M.H. & N.S v. C. Parameshwara, AIR 2005 SC 242
42
Masusmi Sa Investment Llc v. Keystone Realtors Pvt. Ltd, 2013 (7) BomCR 264
43
Jer Rutton Kavasmaneck v. Gharda Chemicals Limited, [2013] 114 CLA 123 (Bom)
38

Page | 7
The High Court could not have interpreted a Will u/s 10F of the Act because (A)
Interpretation of a Will is not a valid question of law (B) The decision of the High Court is
premature as the title is under dispute pending adjudication in other Courts.
A. INTERPRETATION OF A WILL IS NOT A VALID QUESTION OF LAW
It is contended that interpretation of King Rays Will was not a valid question of law to be
taken under appeal by the High Court. Construing the true intention of a Will is a question of
fact which the CLB is supposed to be the final authority of, unless such findings turn out to
be perverse, based on no evidence or are otherwise arbitrary. 44 The exceptions to this are
when such conclusions drawn by the CLB are against the law or if they arose from
consideration of irrelevant material or when it is omitted to construe relevant materials.45
Further the question of law must arise out of the order of the CLB.46
Legal inferences and not factual inferences should be given a priority. For instance, when
reliance is placed on documents such as income tax returns and their admissibility is put in
question, these become factual questions where no questions of law arise.47 This is because
no legal inferences are drawn in order to answer these questions. 48 Similarly, with respect to
Wills, the question of intention of the testator at the time of making his Will, his testamentary
capacity and free will are all considered to be pure questions of fact.49
In the present case, the High Court, interpreted the Will of the late King Ray stating the intent
of the testator by the surrounding circumstances of the case. This is considered as questions
of fact which the CLB is supposed to be the final authority of. No conclusion was drawn by
the CLB because it refused to exercise its rightful jurisdiction u/s.111 to decide upon matters
involving complex questions of fact and law. Moreover, the disputes were pending
adjudication before other Courts.50 Hence the High Court has exceeded its powers u/s 10F of
the Act by drawing inferences from the contents of the document51 which are pure questions
of fact52
44
Shri V.S. Krishnan & Ors v. M/S Westfort Hi-Tech Hospital, 2 (2008) CLT 823
Mattulal v. Radhe Lal, AIR 1974 SC 1596
46
Nupur Mitra v. Basubani P.Ltd, (1999) 35 CLA 97 (Cal)
47
M. Palanisamy and Ors v. V.T. Spinning Mills (P.) Ltd. and Ors, [2011] 101 CLA 346 (Mad.)
48
ibid
49
William Robbins v. National Trust Co, AIR 1927 PC 66
50
51
52
Kashmir Singh v. Harnam Singh & Anr, AIR 2008 SC 1749
45

Page | 8
B. THE DECISION OF THE HIGH COURT IS PREMATURE AS THE TITLE IS UNDER DISPUTE
PENDING ADJUDICATION IN OTHER COURTS
It is contended that under the summary jurisdiction of the CLB u/s 111, even though it has
the authority to adjudicate on complex questions of law and fact which includes interpretation
of documents, it could not exercise the same due to the pending adjudication of title in other
courts thereby suggesting that the High Courts stand in the present case was premature. 53 In
exercising jurisdiction u/s 111(4) even though proceedings are summary in nature, it is not
mandatory that whenever complicated issues are involved, the same should be relegated to a
suit.54 If any rigidity of this kind is followed, then the very purpose of conferring jurisdiction
to CLB is purposeless and nugatory.55 The CLB is empowered to take note of the prima facie
evidence which is to be appreciated by the lower courts. It was held that complicated
questions of fact or law can be adjudicated in a summary proceeding. 56 There is nothing in
the language of S. 111 which excludes decision of questions of title to shares that may arise
in an application for rectification of register.57
In the present case at hand, the CLB refused to comment on the case citing the reason of
complicated issues of facts and law. Furthermore, upon the filing of Company Appeals under
S. 10F, the High Court, not only reviewed the maintainability of appeal u/s.111 filed in the
CLB but also interpreted King Rays Will. By doing this, the High Court exceeded its
mandate u/s.10F because interpretation of a Will is not only, not a valid question of law but
the CLB was the apt forum for deciding the complex questions of fact and law under its
summary jurisdiction. u/s.111 which has a very wide ambit in that respect. High Court
entertaining the matter was a premature act u/s. 10F which was not validated.
CONCLUSION: It is submitted that u/s. 10F of the Companies Act, 1956 the High Court could
not have interpreted a Will while exercising its jurisdiction because it is not a valid question
of law and the CLB is the apt forum for the adjudication of these matters as it can deal with
complex questions of fact and law which was wrongfully neglected by it.
53
S. 111 of Companies Act, 1956

1 K M GHOSH & DR. K. R. CHANDRATES, COMPANY LAW WITH SECRETARIAL PRACTICE 1933 (14th ed. 2014)
55
Kothari industrial Corpn v. Lazor Detergents Ltd (1994) 81 Comp Cas 617 (CLB)
56
Ammonia Supplies Corporation (P) Ltd. v. Modern Plastic Containers Pvt. Ltd, AIR 1994 Delhi 51
57
Harnam Singh And Ors. v. Bhagwan Singh And Ors, (1991) ILR 2 Delhi 625
54

Page | 9
ISSUE IV: JOINT SUCCESSION CERTIFICATE CANNOT BE RELIED UPON WHEREIN

ONE OF THE MEMBERS TO THE VERY SAME CERTIFICATE HAD EXPIRED.
It is contended by the Appellants that the Joint Succession Certificate dated 08.05.2009,
cannot be relied upon because (A.) it was not validly granted and (B.) it became inoperative
upon the death of one of the members.
A. JOINT SUCCESSION CERTIFICATE WAS NOT VALIDLY GRANTED
It is contended that the Joint Succession Certificate dated 08.05.2009 was not validly granted
to late Queen Kim and the Respondents. It is an accepted principle under S. 373(4) of the
Indian Succession Act that a Joint Succession Certificate can be granted to more than one
person.58 This can, however be done only if they have similar or identical interest in the
property.59 A joint succession certificate cannot be granted to rival applicants claiming
disproportionate share in the property.60
Further, another limitation which is implicit in the provision to grant a Joint Certificate to
more than one applicant is, if one applicant has a higher or fitter title than the rest of the
applicants.61 It flows from the same principle that, two certificates can be granted with each
relating to a part of the same estate62 but two certificates cannot be granted if one among the
many applicants has a higher or fitter interest. In the present case, Queen Kim, had been
named in Late King Rays Will to have the exclusive right to the estate. 63 The Respondents
on the other hand, had been clearly disinherited by late King Ray. 64 If the will provides an
exclusive right to one of the claimants then Section 373 doesnt apply.65 The person with the
exclusive right is said to have a prima facie title and if the person in possession of a will is
granted the exclusive right of being the legal representative to the deceaseds estate then the
person gets the best prima facie title for the granting of a Succession Certificate.66
58
Section 373(4), Indian Succession Act, 1925.

Re Debirani AIR 1945 Pat 318.
60
Re, Saneja Bechin, 20 CWN 1122.
61
Section 373, Indian Succession Act, 1925.
62
N.D. BASU, LAW OF WILLS (7th ed. 2006).
63
Moot Proposition, p.6, 16.
64
Ibid.
65
Jagatram Kuer v. Gaitri Debi, AIR 1936 Pat 430.
66
Manicherry Saseendran v. P.V.Leela 2011 (3) KLJ 94.
59

Page | 10
It is therefore submitted that a Joint Succession Certificate which is possible to be only

validly granted to holders of identical interests, could not have been granted here where Late
Queen Kim clearly has a higher and fitter title as compared to the Respondents.
B. JOINT SUCCESSION CERTIFICATE BECOMES INOPERATIVE
It is contended that a Joint Succession Certificate became inoperative on the death of one of
the holders as no new application has been made.67 The Joint Succession Certificated dated
08.05.2009 which was jointly granted to late Queen Kim and the Respondents, would become
inoperative upon the death of Queen Kim. The same joint certificate would not survive to the
Respondents and could not be construed as prima facie proof of representative title as
required to allow a transfer of shares in favour of the Respondents according to the
Companys Articles.68 The rationale behind this that, if one of the holders dies, the remaining
certificate holders cannot exercise the powers which could only be exercised by them along
with the deceased.69
Therefore, it is submitted that the joint succession certificate dated 08.05.2009 which was
jointly granted to late Queen Kim and the Respondents, cannot be relied upon as a prima
facie proof of representative title as it had become inoperative upon the death of Queen Kim.
CONCLUSION: The Joint Succession Certificate dated 08.05.2009 which was jointly granted
to Queen Kim and the Respondents could not be relied upon because it became inoperative
upon the death of Queen Kim. The said Succession Certificate is also unreliable as it was not
validly granted as the Respondents being disinherited by the late King Ray, did not have
identical interests in the estate as Queen Kim who had been named by the will to have
exclusive rights over the property.
ISSUE V: PROBATE PROCEEDINGS CANNOT BE TERMED AS LAPSED ON THE BASIS OF
SETTLEMENT ENTERED INTO BETWEEN SOME OF THE PARTIES
The Probate proceedings in respect of King Rays Will cannot be deemed lapsed due to the
Settlement deed as (A) Probate is necessary to establish the prima facie title and (B)
67
Sukumar Deb Roy And Anr v. Parbati Bala W/O Bidhuranjan, AIR 1941 Cal 663
Moot Proposition, p.4, 12.
69
Ibid.
68

Page | 11
Compromise between parties does not lapse such proceedings. (C) The probate proceedings
in respect of Queen Kims Will are still pending adjudication even in the light of the
Settlement Deed.
A. PROBATE IS NECESSARY TO ESTABLISH THE TITLE
It is contended that the Appellants in the present case, required a probate in order to prove
prima facie title. Probate is required when the owner of property dies and asset must be
transferred from the deceased to another person. Probate validates a Will and establishes the
title of the beneficiary in the property.70 In the present case, the Probate was not obtained on
the basis of the Will dated 23.06.1996 by the beneficiary, Queen Kim.
It is contended that obtaining a Probate for a Will is a condition precedent to the
establishment of a right of property on the basis of the territory where the property is
situated.71 In the present case, the facts are silent regarding the place where the property
situated. A probate, even though not mandatory to obtain is, in practice, required for
validating the Will.72 Thus, Probate is important to determine the legal authority to deal with
the estate as [1] Probate is required for adjudication of pending disputes and transmission of
shares. [2] Succession Certificate and Probate do not serve the same purpose.
1. Probate is required for adjudication of pending disputes and transmission of

shares.
It is contended that a Probate against the Will in the present case is a preliminary requirement
to be able to adjudicate over the other matters.73 Probate, if granted, will establish Queen
Kims title in the property which is then to be transferred to her legal heirs.
Probate is necessary in the present case as there is a dispute pertaining to the Property in the
Will. The Will was discovered 9 years after death of the testator, which necessitates a probate
to validate the genuineness of the will.74 Delay beyond a reasonable period of time i.e. 3
years75 after the deceaseds death is considered to create distrust on the validity of the will.76
70
Mr. B.B. Paymaster and Ors. v. Mrs. Baurawa Sangappa Kadapatti, 2005 (1) BomCR 190
S. 213, S. 57, Indian Succession Act, 1925; Ramdutta v. Krishna, AIR 1987 MP 192
72
Thenappa Chettiar v Indian Overseas Bank Ltd., (1943) 13 CompCases 202 (Mad); Mrs. Hem Nalini v. Mrs.
Isolyne, 1962 AIR 1471; Smt. Roopa Bai and Ors. v. Hukum Singh, 1987 (2) WLN 500
73
Gopal Lal Chandra v. Amulyakumar, AIR 1933 Cal 234
74
Kunvarjeet Singh Khandpur v. Kirandeep Kaur, (2008) 8 SCC 463
75
Indian Limitation Act, 1983
71

Page | 12
Thus, there was need in the present case for the existence of a probate for valid adjudication
of pending disputes.77
Probate becomes necessary in the cases where the property is held by someone else.78 This is
because; property can be transferred only when title is proven.79 On the death of the testator
legatee is not directly bequeathed with his property but is only entitled with a right to claim
it.80 Thus, only a Probate will ascertain the right Queen Kim draws from the Will.
In the absence of provisions in Articles of Association, Regulations 23 to 27 of Table F of
Schedule I to the Act81 will govern the procedure for transmission of shares. This procedure
for transmission lays down a list of documents required, where both Succession Certificate
and Probate are mentioned.
Queen Kim during the pending probate petition entered into the Settlement Deed with her
grandchildren when there was no established right vested in her because of the absence of the
Probate. A Probate is a matter of evidence/declaration and not a document that grants title
only in cases where there is no suit to be filed or there is no transfer of the property.82 No
rights whatsoever can be founded upon a will without probate being established in Court.83
Thus, until probate is granted the intermediate acts cannot be validated as the right of the
legatee is imperfect.84 Furthermore, it is the effect of the probate that when granted
establishes the Will after the death of the testator.85
2. Succession Certificate and Probate do not serve the same purpose.

Assuming but not admitting that if the Succession Certificate is valid, it is still different from
a Probate. Succession certificate is not the same as probate as neither of them serve the same
purpose.86 Probate is a legal acceptance in the eyes of the law that a will is valid.87 On the
76
Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani, AIR 1983 Bom 268; Kerala SEB v. T.P.
Kunhaliumma, AIR 1977 SC 282
77
Promode Kumar Roy v. Sephalika Dutta, AIR 1957 Cal 631
78
Gopal Lal Chandra v. Amulyakumar, AIR 1933 Cal 234
79
Ramcharan Singh v. Mst. Dharohar Kuer, AIR 1954 Pat 175
80
Gandabhai Ranchhodji Gandhi v. Noshir Ka Vasji Sabowa, AIR 1994 Guj 18; Dwarka Nath Singh and others
v. Mt. Raj Rani and others AIR 1932 Oudh 85
81
Indian Companies Act, 1856
82
Whitehead v. Taylor 1839 10 AEl 210; Raja Rama v. Fakuruddin Sahib 38 M LJ 210.
83
Mahabir Das v. Udit Narain, AIR 1938 Pat 613
84
Katreddi Ramiah and Anr. v. Kadiyala Venkata Subbamma and Ors., AIR 1926 Mad 434
85
S. 227, Indian Succession Act, 1925
86
Chayan Dutta Roy v. Chayanika Chatterjee And Anr., 2005 (1) CHN 115
87
Jamshedji Dubash v. Meharbai Rustumji Dubash and Others, 2003 (3) MPLJ 322

Page | 13
other hand, Succession Certificate is required to acquire property or title from someone who
has died. It gives authority to the person who obtains it, to represent the deceased for the
purpose of collecting debts and securities due to him or payable in his name.88 Even if the
Succession Certificate is granted, it does not supersede the grant of probate.89 Therefore, it is
submitted that the probate petition cannot be termed to be lapsed, and absence of probate
establishes no representative title upon Queen Kim.
B. PROBATE PROCEEDING FOR LATE KING RAYS WILL, CANNOT BE DEEMED TO HAVE
LAPSED BY COMPROMISE BETWEEN PARTIES.
By entering into compromise, Queen Kim could not have transferred the rights granted to her
by way of Will to her grandchildren.90 Without obtaining probate, it is not legal for Queen
Kim to grant any share of property on the basis of the compromise disregarding the intention
of the testator in the Will dated 23.06.199. The present matter is a private dispute between the
parties but it should be borne in mind that a probate petition is in rem and not in personam. 91
A Probate is to recognize the right of Queen Kim.92 She needs to be entitled with right of the
property so that the shares can be transmitted in her favour.
A Will cannot be completely ignored on the basis of a settlement between some of the parties
notwithstanding the fact that it may provide exclusive right to a certain party.93 The probate is
granted for last will and testament.94 The Will dated 23.06.1996 was in the present case the
last testament of the intention of the testator and cannot be ignored. If in any case if the Will
is ignored by agreement between the parties, the probate proceedings do not lapse.95
Furthermore, the intention of the Testator is also important as discussed previously. The
compromise cannot be contrary to the intention of the testator. The interpretation regarding
indirect intention of the testator in the Will is reading more than required, when the ulterior
motive is important.96
88
N.D Basu, Law of Wills, 1 (7th, 2006)

Indian Succession Act, 1925, 215
90
Order XXIII, Rule 3 CPC
91
Anil Kak v. Kumari Sharada Raje and Ors., (2008) 7 SCC 695
92
Chiranjilal Shrilal Goenka v. Jasjit Singh, (1993) 2 SCC 507
93
Chandrabhai K. Bhoir and Ors. v. Krishna Arjun Bhoir and Ors. AIR 2009 SC 1645
94
S. 276, Indian Succession Act, 1925
95
Rakesh Kumar Gaur & Ors v. Vipin Gaur, 157 (2009) DLT 769
96
Jai Mahal Hotels Pvt. Ltd. v. Rajkumar Devraj and Ors., 2015 (10) SCALE 14
89

Page | 14
C. THE PROBATE WITH RESPECT TO QUEEN KIMS WILL CANNOT BE DEEMED AS

LAPSED BY THE SETTLEMENT ENTERED INTO BY THE PARTIES.
It is contended that the second probate proceeding in respect of Queen Kims Will is
pendente lite and cannot be deemed to be lapsed in the light of the Settlement Deed. The
probate for the Will dated 10.05.2009 is important as it would decide upon the validity of the
Will, which is alleged to be forged on valid grounds.97 Validity of Will is the most important
criteria for a Probate Court to grant Probate.98 It is necessary that Will is not forged or
fabricated to establish an undisputed title in the grandchildren for the transfer of property.99
Adjudication of Probate proceedings is essential because forged/fabricated Will is one of the
common grounds of refusal of grant of probate.100 The pendency of Probate leaves the Queen
Kims Will under dispute regarding the estate. Thus, until the first probate is not decided with
respect to the invalid settlement deed and succession certificate, the second Probate
proceedings cannot be termed as lapsed.
CONCLUSION: The Probate proceedings cannot be termed lapsed on the basis of

settlement deed because the Probate is necessary under the circumstances of the case wherein
the property mentioned in the Will is under dispute. Queen Kims right to the property was
not established at the time of entering into settlement deed which makes the deed invalid. The
Probate Proceedings concerning both the Wills ought to continue as the Joint succession
certificate is invalid and is insufficient as a prima facie proof for the transmission of shares.
97
Moot Preposition, p. 10, 20; .

Kailash Chandra v. Nanda Kumar, AIR 1944 Cal 385
99
Promode Kumar Roy v. Sephalika Dutta, AIR 1957 Cal 631
100
Rajeshwari Rani Pathak v. Nirja Guleri, AIR 1977 P&H 123; Sh. Ghanshyam Dass Kawatra v. Shri Harish
Chander Kawatra 2013 Del 462
98

Page | 15
PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Honourable Court may be pleased to:
1. Reverse the order of the High Court of Thelesalonica and declare that the High Court
exceeded its jurisdiction u/s. 10F of the Companies Act by ordering the Company to
transmit the shares.
2. Declare and adjudge that the Probate proceedings should continue in order to determine
the valid title of the shares in question.
AND/OR
Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.
All of which is most humbly and respectfully submitted
(Signed)
COUNSEL FOR THE APPELLANTS

Page | 16

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Team Code: 1611A

15TH AMITY NATIONAL MOOT COURT COMPETITION 2016

PRINCE WILD AND PRINCESS NORTH

[AGAINST THE IMPUGNED ORDER OF THE HONBLE COURT OF THELESALONICA]

BEFORE SUBMISSION TO HONBLE CHIEF JUSTICE AND HIS COMPANION JUSTICE

MEMORANDUM ON BEHALF OF THE APPELLANTS

HAD NOT RIGHTLY EXERCISED ITS JURISDICTION UNDER

S.10F WHILE HEARING AN APPEAL AGAINST S.111 OF COMPANIES ACT ............................ 1

COULD NOT HAVE HEARD AND DECIDED VARIOUS ASPECTS

A. THE HIGH COURT

OVERSTEPPED ITS POWER BEYOND SCOPE OF

COMPANIES ACT ................................................................................................................. 5

COULD NOT HAVE INTERPRETED A

EXERCISING JURISDICTION UNDER S.10F OF THE COMPANIES ACT, 1956. ......................... 7

A. INTERPRETATION OF A WILL IS NOT A VALID QUESTION OF LAW .................................. 8

IS PREMATURE AS THE TITLE IS UNDER DISPUTE

PENDING ADJUDICATION IN OTHER COURTS ........................................................................ 9

A. JOINT SUCCESSION CERTIFICATE WAS NOT VALIDLY GRANTED ................................... 10

CANNOT BE TERMED AS LAPSED ON THE BASIS OF

SETTLEMENT ENTERED INTO BETWEEN SOME OF THE PARTIES ......................................... 11

15TH AMITY NATIONAL MOOT COURT COMPETITION 2016

A. PROBATE IS NECESSARY TO ESTABLISH THE TITLE ...................................................... 12

PROCEEDING FOR LATE

KING RAYS WILL,

CANNOT BE DEEMED TO HAVE

LAPSED BY COMPROMISE BETWEEN PARTIES. .................................................................... 14

MEMORIAL ON BEHALF OF APPELLANTS

15TH AMITY NATIONAL MOOT COURT COMPETITION 2016

All India Reporter

Allahabad High Court

Bombay High Court

Calcutta High Court

Company Law Board

Code of Civil Procedure

Delhi High Court

Gujarat High Court

Indian Penal Code

Madras High Court

Foot Note no.

Orissa High Court

Punjab and Haryana High Court

Patna High Court

Rajasthan High Court

Supreme Court Cases

Supreme Court Journal

Supreme Court Reporter

MEMORIAL ON BEHALF OF APPELLANTS

15TH AMITY NATIONAL MOOT COURT COMPETITION 2016

MEMORIAL ON BEHALF OF APPELLANTS

15TH AMITY NATIONAL MOOT COURT COMPETITION 2016

MEMORIAL ON BEHALF OF APPELLANTS

15TH AMITY NATIONAL MOOT COURT COMPETITION 2016

45. Nupur Mitra v. Basubani P.Ltd, (1999) 35 CLA 97 (Cal) ........................................... 21

MEMORIAL ON BEHALF OF APPELLANTS

15TH AMITY NATIONAL MOOT COURT COMPETITION 2016

GUIDE TO COMPANIES ACT

1582 (17th ed. 2012)

PRACTICE 1933 (14th ed. 2014)

MEMORIAL ON BEHALF OF APPELLANTS

15TH AMITY NATIONAL MOOT COURT COMPETITION 2016

MEMORIAL ON BEHALF OF APPELLANTS

15TH AMITY NATIONAL MOOT COURT COMPETITION 2016

Demise of Ray owing to the ill-health.

MEMORIAL ON BEHALF OF APPELLANTS