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TMI Blog1953 (11) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... y signed by both the parties in accordance with article 46 of the articles of association of the company. On the same day R.S. Chandak made an application to the company for registering his name as the holder of the shares. As, however, the application was not accompanied by a share certificate, it was returned to R.S. Chandak on the 26th April, 1941. In the meantime Jairam died and the company asked his heirs, who are respondents Nos. 2 to 4 before us, for production of letters of administration for grant of the duplicate share certificate. As there was delay in the disposal of the matter R.S. Chandak applied to the District Judge under section 38 of the Indian Companies Act for rectification of the register of members. The District Judge held that letters of administration demanded by the company from Jairam's heirs were not necessary and directed rectification of the register subject to R.S. Chandak furnishing an indemnity bond for Rs. 1,500 with two sureties to the satisfaction of the court. The company preferred an appeal to this court. It was heard by Niyogi J. who passed the following order: "The proper order in this case would, in my opinion, be (1)to direct the tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice, including the decisions of their Lordships of the Privy Council, which deal with an award under the Land Acquisition Act are not relevant in this connection. The question in the instant case turns upon the interpretation of the order and if it has conclusively determined, so far as concerns this court, some question between the parties, which forms an integral part of the process leading to the final decision of the lis, the order will be a "judgment" within the meaning of clause 10 of the Letters Patent and an appeal therefrom would be competent. As we read the order of Niyogi J., it has finally determined one question involved in the lis, viz. , the right of the heirs of Jairam to obtain a duplicate share certificate without production of the letters of administration. Since the application for registering a transfer of the shares is required under law to be accompanied by a scrip, the order in question has, in effect, decided the question of its maintainability, which is not merely a procedural or an ancillary matter. In our opinion, therefore, the order constitutes a judgment within the meaning of clause 10 of the Letters Patent and the present appeal is competent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall not be bound to recognise such executors or administrators unless such executors or administrators shall have first obtained probate or letters of administration, as the case may be, from a duly constituted court in British India; provided that, in any case where the directors in their absolute discretion think fit, the directors may dispense with production of probate or letters of administration, and, under the next article, register the name of any person who claims to be absolutely entitled to the shares standing in the name of a deceased member, as a member. 50. Any person becoming entitled to shares in consequence of death, lunacy, bankruptcy or insolvency of any member, or the marriage of any female member, or by any lawful means other than by a transfer in accordance with these presents, may, with the consent of the Board (which they shall not be under any obligation to give) upon producing such evidence that he sustains the character in respect of which he proposes to act under this article, or of his title, as the directors think sufficient, either be registered himself as the holder of the shares or elect to have some person nominated by him and approved by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company, to certain statutory provisions) inherent. But where by the contract of membership restrictions and conditions have been imposed in the articles themselves and those restrictions and conditions are insisted upon by the company, I do not think that the company can in insisting upon them be held to act 'without sufficient cause' within the meaning of section 38, Indian Companies Act." The instant case is governed by these principles, and consequently the demand of the company for production of letters of administration could not be a ground of attack in the proceedings under section 38 of the Indian Companies Act. This conclusion is not affected by the fact that the heirs of Jairam do not claim any interest in the shares in question, for the company is entitled to claim immunity not only from them but also from the rest of the world. Section 34(3) of the Indian Companies Act is relevant in this connection and is reproduced below: "It shall not be lawful for the company to register a transfer of shares in or debentures of the company unless the proper instrument of transfer duly stamped and executed by the transferor and the transferee has been delivered to the company ..... X X X X Extracts X X X X X X X X Extracts X X X X
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