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TMI Blog1973 (2) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... well as Darshan Singh Pheruman and Jaswant Singh were shown as persons consenting to the petition. Of these, Darshan Singh Pheruman and Shrimati Sharda /Talwar had been joined as pro forma respondents. The petition was transferred to this High Court from the Companies Tribunal on 29th October, 1966. During the pendency of the proceedings, Sri Kishan Talwar, petitioner, died on 22nd February, 1972. It may be mentioned that the original petitioner, Sri Kishan Talwar, together with the consenting parties already mentioned, were stated to hold more than one-tenth of the issued share capital of the company. There was an order passed by S. K. Kapur J., on 26th November, 1968, accepting that these persons held the requisite shareholdings and thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve herself brought a petition under sections 397 and 398 of the Companies Act, 1956, on the date on which she was transposed. Consequently, it is submitted that the transposition order in effect allows Shrimati Sharda Talwar to avoid the effect of section 399 of the Companies Act, 1956, inasmuch as she does not fulfil its requirements, the petition has become incompetent and the transposition is ineffective. Thus, on these contentions we have to decide whether the petition under sections 397 and 398 of the Companies Act, 1956, abated at the death of the original petitioner and, secondly, whether the order of transposition could be passed in relation to those proceedings. In respect of these contentions, it is contended by the learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right to apply "in virtue of section 399". Now turning to section 399, it is provided by sub-section (1) that the following members have a right to make an application : "(a) in the case of a company having a share capital, not less than one hundred members of the company or not less than one-tenth of the total number of its members, whichever is less, or any member or members holding not less than one-tenth of the issued share capital of the company, provided that the applicant or applicants have paid all calls and other sums due on their shares; (b) in the case of a company not having a share capital, not less than one-fifth of the total number of its members". Thus, the holders of one-tenth of the issued share capital of a company ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld in a number of cases that representative suits do not abate if the plaintiffs happen to die. For example, in Ponniathakathoot Parameswarem Munpu v. Moothedath Mallseri Illath Narayanan Namboodri A.I.R. 1917 Mad. 839, when a plaintiff died it was held that the court had ample power to add other worshippers (the suit being under section 92 of the Code of Civil Procedure) as parties under Order 1, rule 10, of the Code of Civil Procedure as the suit did not abate. In Krishnaswami Iyer v. Seethalakshmi Ammal A.I.R. 1919 Mad. 479, a reversioner had instituted a suit to challenge an alienation made by a widow. On his death the next reversioner was permitted to continue the suit. The order of abate ment passed in the suit was treated as a nullit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C. 123, where it was held under section 539 of the Code of Civil Procedure, 1882, that if a person who had obtained permission to file a representative suit died during the pendency of the suit, other members of the public were entitled to continue the suit. This principle was extended by the Rajasthan High Court to a suit under the Fatal Accidents Act, 1855, in State of Rajasthan v. Mst. Parwati Devi A.I.R. 1966 Raj. 210,213. In that case, a suit for damages was brought by a widow for compensation. Section 1-A of the Act provided that such suits "shall be for benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused"..... It was held that such a suit did not abate as it was for the benefit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he estate of the deceased. However, for the purpose of petitions under sections 397 and 398 of the Companies Act, 1956, it is only necessary that members who are already constructively before the court should continue the proceedings. This will not of course debar the legal representatives from themselves wanting to continue the proceedings as heirs of the deceased petitioner provided they also fulfil the requirements of being members of the company. It is now necessary to deal with the alternative case of the company, which is that the transposed petitioner should also fulfil the requirements of section 399 of the Companies Act, 1956, and must also get the consent of the requisite members of the company as provided by section 399. This co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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