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TMI Blog2008 (3) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... evocation of the probate is condoned, and the petitioner s apparent right to seek revocation is recognised, the entire process that culminated in the conclusion of the lis by the Supreme Court order would be undone and reopened for fresh adjudication. The matter is not, as the petitioner simplifies and puts it, of the court being liberal in the matter of condonation of delay to allow a right to be canvassed. Equally, the principal issue is not, as the legatees suggest, to affix the petitioner with the knowledge that Sharad had and to consequently find the petitioner s explanation of the delay to be unmeritorious. Sharad may not have had any legal duty to inform the company (if the company was any more different from himself) upon discovering, although in his capacity as executor, that Reba Mitra had acquired no right to the estate to transfer it to the petitioner. Yet it was so overwhelming a moral duty that a director of a company in Sharad s place had, even if he were not its controlling shareholder, to inform the company of its imminent loss of its valuable asset, that the fine distinction between a legal duty and a moral duty vanishes. That Sharad had produced and relied up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of town. The petitioner claims to be a lessee of the premises for 99 years, obtained under a deed of October 21, 1992 executed by Reba Mitra who as widow would have been the only intestate heir of testator Kamal Kumar Mitra. The petitioner claims that the testator, in fact, died intestate whereupon the entire estate devolved upon his widow who had authority to grant the lease in the petitioner s favour. The petitioner relies on Reba Mitra having executed and registered a Will in 1992 by which she appointed Sharad Subramanyan as one of the executors and wherein she recorded having leased out, as owner, the said premises to the petitioner. The petitioner portrays a picture of having been unaware of any Will of Kamal Kumar Mitra having been discovered subsequent to the execution of the lease and of such Will having been probated in common form. The petitioner asserts that it was only upon letters of August 28, 2007 and September 5, 2007 being received by it from the administrator pendente lite to the estate of Kamal Mitra that the petitioner came to know of Kamal Mitra s Will. According to the petitioner, subsequent discovery by the petitioner revealed that Kamal Mitra was sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who had crudely devised a second round of skirmish after having failed in Calcutta and Delhi to cling on to his real estate windfall in Ballygunge. It appears from the Will of Kamal Mitra that the widow had only a life interest in the immovable property that formed the major part of Kamal Mitra s estate and it was to pass on to the named heirs in the testator s father s branch of the family. There is an attractive case that the petitioner brings as to its right to question the grant on it not being cited but the resolution of the present matter probably lies elsewhere than in seeking the petitioner s locus to assail the grant. The legatees indignation at the Subramanyan s conduct is understandable. They claim that whether it is Sharad or Vasant or the petitioner, the court has to view all three as one entity which has been deviously presented in a dressed-up distinction. The legatees say that Sharad had fought tooth and nail to dislodge Kamal Mitra s Will and failed. In Sharad s knowledge, the legatees claim, the petitioner derived knowledge and it would be unfair to subject the legatees to a fresh round of litigation on the same substance. The Supreme Court papers have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... salary and ₹ 2,00,000/- on account of salaries and wages including bonus. These three heads make up nearly 40 per cent of the annual operating and administrative expenditure of ₹ 13,92,000/-. At the foot of the schedules to the annual accounts is the disclosure that is now required to be made by a company. Vasant and Sharad Subramanyan are shown as the key management personnel of the petitioner. Some murmurs have been made on behalf of the petitioner that there are differences between Vasant and Sharad and that Sharad was the majority shareholder (by one share or thereabouts) in the petitioner company till or about the year 2002. The legatees have also relied on the deed of October 21, 1992 and show therefrom that at the time of registration of the document, Sharad had presented it on behalf of the petitioner. The legatees also question as to how the petitioner could have obtained a copy of the certified copy of the grant of probate and the documents that appear between pages 28 and 33 of the petition. These documents, the legatees say, have been bodily lifted from the papers used in the earlier round of litigation and, the prejudice aspect aside, it would go to sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether an application for revocation of grant is barred by time has to be judged on the facts obtaining in the matter. The bar of limitation may not be applied in strict sense when it leads to an absurd result particularly in a case where probate has been obtained without citing a person entitled to citation and when the fact of the probate is kept concealed for a long time. The judgment reported at 1990 (Supp) SCC 89 (I) (L/Naik Mahabir Singh v. Chief of Army Staff) is placed for the proposition that the court may accept even an oral prayer for condonation of delay. That in appropriate cases an oral prayer for condonation may be received is not open to dispute, but in the context of a written application having subsequently been made, the point loses all significance in the present case. The petitioner seeks to compare Article 137 of the Schedule to the Limitation Act to Article 58 thereof. The petitioner submits that whereas in Article 137, the expression is, where the right to apply accrues , in Article 58 the expression is, where the right to sue first accrues . The petitioner submits that courts generally construe the grey area, if there is any in the matter, in favour o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the company in which such person holds shares or of which he is a director. The petitioner asserts that the knowledge of a shareholder or a director will not bind the company concerned unless a duty was imposed on the shareholder or the director to inform the company. The judgment reported at (1904) 2 Ch 608 (Young v. David Payne Co., Limited) is relied upon first for the purpose. A director of a company was also interested in another company. The second company proposed to borrow money for a purpose outside the scope of its business objects and induced the first company to advance the money against security. The money was applied in the manner proposed and no other director of the first company, except the person who was the director of the second company, knew how the money was to be applied and that such application was ultra vires the second company s objects. It was held by the Court of Appeal that such director s knowledge ought not to be imputed to the first company as the director owed no duty to the first company either to receive or to disclose information as to how the borrowed money was to be applied. In the next case to the same effect, an earlier decision reporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der in 1973 claiming not only the land on which he had obtained actual physical possession but also on the land on which he had been granted symbolic possession. On the objection petition under Sections 47, 151 and 152 of the Code of Civil Procedure, the executing court rectified the mistake and directed restitution of the land. The supreme Court held, in such context, that the judgment-debtor s right to apply commenced when there was actual threat of dispossession, that is on the decree-holder taking proceedings for partition in 1973 and not from the date of execution of the pre-emption decree in 1963. The judgment next placed by the petitioner is one reported at (1999) 4 SCC 458 (Electronics Corporation of India Limited v. Secretary Revenue Department, Government of Andhra Pradesh) where the Supreme Court construed a distinction between the company and its hundred per cent share holder. From the days of Salomen v. Salomen, such distinction has remained and except in exceptional circumstances and for greater cause, a one-man company is not equated with the company. But it does not necessarily follow that the knowledge of the only shareholder of a one-man company will never be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also distribute all the income of the estate in terms of the will of the late Kamal Kumar Mitra. On 30-4-1999, Subir Kumar Deb addressed a letter stating that he was not in possession of any legal document and, therefore, he was unable to execute the estate according to the will of Kamal Kumar Mitra. On 4-5-1999, the appellant wrote back alleging that Reba Mitra had demised the first floor of the suit property in the year 1992 in his favour. The appellant also stated that he was going through the various legal implications to examine the demand for disbursement of the income. The legatees seek to rob the petitioner s case of most of its merit by referring to the reliefs sought. It is not that the petitioner seeks an injunction on the dispossession that the administrator pendente lite threatens it with; the petitioner seeks revocation of the grant. The legatees attempt to distinguish the two possible causes of action and assert that if it is the latter, the time under Article 137 would only begin to run when the threat is received, but if it is the former the time begins to run from the moment of the grant and an attempt at explanation has to be made for the period beginning th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner. At pages F and G of the synopsis, Sharad asserted that he received a letter of April 16, 1999 from the legatees that he was in illegal possession of the first floor of premises no. 13/1, Promotesh Barua Sarani to which he replied that he was not in possession of the first floor of the said premises as alleged. In such assertion Sharad did not deny that he was not in possession but merely denied that he was in possession as alleged. It would not be outlandish to infer that what Sharad left unsaid was that he may have physically been in possession, but such possession was by virtue of his association with the petitioner which was in de jure possession of the first floor of the premises. The special leave petition papers contain an affidavit affirmed by Sharad on February 8, 2000. In such affidavit, in response to a petition for removal of the joint executors on the allegations of misappropriation of funds and usurpation of the estate, Sharad insisted that there was no estate of Kamal Mitra in existence as all his assets had devolved upon his widow as legatee on the assent given by her as the first executrix. In such affidavit Sharad referred to the deed of October 21, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner now seeks to establish is, willy-nilly, for the present benefit of Sharad or Vasant in course of their association with the petitioner. It is not a point of technicality on which a petitioner is denied justice by not being permitted to assert a right on grounds of delay, it is the warding off of a technical argument of distinction between a corporate entity and one of the principal persons in control thereof to avoid abuse of process. Sharad may not have had any legal duty to inform the company (if the company was any more different from himself) upon discovering, although in his capacity as executor, that Reba Mitra had acquired no right to the estate to transfer it to the petitioner. Yet it was so overwhelming a moral duty that a director of a company in Sharad s place had, even if he were not its controlling shareholder, to inform the company of its imminent loss of its valuable asset, that the fine distinction between a legal duty and a moral duty vanishes. That Sharad had produced and relied upon the petitioner s lease to assert that notwithstanding Kamal Mitra s Will his estate passed to his widow, would also show that Sharad was aware that he was also fighting ..... X X X X Extracts X X X X X X X X Extracts X X X X
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