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TMI Blog1939 (2) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... to the position of deciding the original application on affidavit evidence. I have mentioned the facts set out above in connection with the argument addressed to me by Mr. Mahabir Prasad appearing on behalf of the company to the effect that my powers under section 38 are discretionary, and that in the circumstances of the case, which will appear from the observations I am about to make, I should refuse to exercise my discretion in favour of the applicant, and refuse to decide the points at issue and leave the applicant to her remedy in a suit. Whether I should or should not exercise my discretion in the sense of the argument advanced is the one point of difficulty which I find in the case. When once I have decided that question, the matter becomes very plain. When I made the order in December 1938, it was stated by the parties that they intended to call witnesses, as I have already stated, and that the petitioner Srimati Mohadevi was to be examined on commission. The respondents intimated, as I understood, that they proposed to Call witnesses in the ordinary course and stated (as my memory goes) they had not yet decided and could not put the Court into possession of the list ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As far as the facts of this case go, it appears that nothing was done, apart from perhaps certain oral requests, until the year 1931, calling upon the company to register the shares. It is on this long delay, and the fact that the application to this Court was not made until the year 1938, that reliance is also placed for the suggestion that I should not decide the matter under section 38, but leave the parties to a suit. That is a delay which needs some explanation. There are various explanations given such as the company was paying at the time no dividend and that certain persons had asked the managing director to register the shares but they were told to wait. But there is the remarkable fact, that although this transfer had taken place in 1927 (I am assuming for the moment that it did take place in the circumstances), nothing was done by the transferor to get the transfer (which had been executed) back from Srimati Mohadevi the lady, because on the respondent's own showing it was a transfer made for a contingency which did not arise. Therefore, quite clearly, if the facts are true, the respondent company were entitled to get back the certificate within a very short time of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he numbers are referred in para. 5 of the affidavit. There is no dispute about the numbers. It is to be noticed in the first place that there was no statement as to the circumstances under which the transfer was executed but merely, as I have stated, for the consideration of the sum to which I have referred. The owner of the shares (transferred) was Sagar Mull Subhkaran, a firm of merchants amongst the original share holders and subscribers to the Memorandum of Association. It was Subhkaran Chaudhury who filed an affidavit in reply to the application, stating that he had received a telegram from Srimati Mohadevi, who was a close relation of theirs, "to proceed to Jaipur." That is important and highly important; I refer to para 4 of his affidavit in reply. According to the story the father was ill and his case was that the lady had asked him to go provided with adequate funds to meet the possible or probable expenses of his father's medical treatment and Subhkaran's case is that he declined to accept the proposal. The statement in itself is remarkable. I can understand a relation in the circumstances asking this boy (as he claimed to be) whether he was in need of funds, but I do n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wdhury executed the transfer deed, and there is no suggestion by him that he executed it contrary to the authority of the firm of which he was a member. There is no suggestion either of coercion or anything of the kind. It was a voluntary act on his part, on the suggestion of the lady it is true, for the purposes of providing security for any money which he might require from the lady in the circumstances. In a supplementary affidavit of October of the same year he tells a story contradicting his first story. That story is that he was made to put down the name on the printed form in which there was nothing written in hand. He asserts that he was "sure that the printed form had been later on filled up without his knowledge to set up as a transfer deed." In para. 5, he says: "that on April 22, 1927, the date of the alleged sale of shares at Calcutta, I was at Sardar Shahar in Bikaner state in connection with the marriage of Kishori Lall." That is a clear suggestion that it was a forgery. Then in para 8 the following statement appears: "With reference to para. 19 of the affidavit of Jamnadas Khemka I say that the fact that the ornaments belonging to my family and share scripts w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. His statement in his affidavit may be perfectly true, but it does not necessarily follow that the son was a minor in 1927 ; he may have been born on the day following the Dewali or later or even earlier, but still be major. I do not accept the father's statement for one moment. I have not been placed in possession of facts which would entitle me to come to a conclusion in the matter. But the important point in this case is this that when the application was made to the company to rectify the register their answer was that the transfer was not authorised by article 16 of the articles of Association which provides: "Any share may be transferred at any time by a member to his or her father or mother or grandfather or grandmother or to any lineal descendant (male or female)," and the respondent's case is that the lady was not a lineal descendant. Although the company represented by Mr. Mahabir Prasad resists this application, it is not contended that the applicant is not within the relationship set out in article 16. Sagar Mall is the brother of the applicant and Subhkaran the son is the nephew. The point put forward is that, as the father and the son and other members of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich perhaps I have not given to very great detail. I fail to understand why there has been so much delay on the part of the applicant. On the other hand, as I have already observed, there is no reason why the Court should not exercise its jurisdiction under the section. Equally difficult questions of fact were decided under similar circumstances in the case of the In re Tahiti Cotton Company, Ltd., to which I have already referred and in the case of Ex parte A. R. Shaw where the decision of Lord Cairns in In re Ward and Henry's case was discussed. I have no doubt that I should, in this case, although the facts appear at first sight to be somewhat complicated, exercise my jurisdiction in favour of the applicant and order the company to rectify their register by placing Srimati Mohadevi on the register as owner of shares Nos. 40001 to 40500, 56401 to 56700 and 59911 to 59999 inclusive. Before I leave the case I would like to repeat what the son stated in his affidavit, namely, that the applicant was closely related to the members of their firm. I have already pointed out that under the present Act, differing from the Act of 1862 upon the construction of which the decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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