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TMI Blog2023 (12) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... ll decide, prima facie, the extent of the Estate of the deceased. For such purpose, the Probate Court can definitely decide, although tentatively, as to the extent of the property of the deceased. Such adjudication on the Estate of the deceased, however, does not tantamount to a final adjudication of the title over the property. In KANWARJIT SINGH DHILLON VERSUS HARDYAL SINGH DHILLON AND ORS. [ 2007 (10) TMI 675 - SUPREME COURT ] the Hon ble Supreme Court held that it is well settled law that the functions of a probate court are to see that the will executed by the testator was actually executed by him in a sound disposing state of mind without cohersion or undue influence and the same was duly attested. It was therefore not competent for the probate court to determine whether the person had or had not the authority to dispose of the suit properties which he purported to have bequeathed by his will. The probate court is also not competent to determine the question of title to the suit properties nor will it go into the question whether the suit properties bequeathed by the will were joint ancestor s properties or acquired properties of the testator. Powers of Probate Court under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonal influence of the testatrix. Whatever might have been the personal influence of the deceased testatrix, the same was intangible and restricted to herself. The charisma or personal influence of the deceased might have helped her in carrying out her will in the affairs of the companies, but do not comprise of tangible incidents of her property or Estate - it cannot be said that her personal influence is, in any manner, a part of the Estate. The Probate Court can direct the APL, personally or through its appointees, to register itself or its agents as members of the companies in the capacity of owners of the shares actually owned by PDB in such companies. Upon such registration, the APL and/or its nominees would function as shareholders in such companies and have all the incidental rights and controlling power which PDB would have had by virtue of such shareholdings, including voting rights, participation rights in decision-making processes and meetings, etc. However, the Probate Court cannot go an inch further than that in interfering with the business of the companies. If the promoter hold majority shares then they are several remedies prescribed under the Companies Act to enfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted perspective of res judicata or estoppel between the parties. Thus, the Probate/Letters of Administration Court has an additional responsibility to independently weigh evidence and adjudicate carefully on all issues before it, prima facie or final. Viewing from such perspective, the question of res judicata or estoppel between the parties cannot restrain the Probate Court from independently assessing the question of extent of Estate of the deceased testatrix. None of the previous adjudications pertained to a final decision on the application under Section 247 of the Succession Act. Since this Court is sitting in appeal over a final decision by the learned Single Judge on the application under Section 247 of the Succession Act, by operation of the principles of Order XLI of the Code of Civil Procedure, the Appellate Court has equivalent powers of finally deciding the said application, co-equal with the learned Single Judge which was deciding the same. Hence, while finally deciding the application for appointment of Administrator Pendente Lite, this Court is not fettered by previous observations by different interlocutory courts at different points of time. APL (Administrator Pend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... WITH OCO/14/2020, OCO/23/2020, OCO/6/2020, APO/94/2020 IA NO: GA/1/2020, OCO/15/2020, OCO/24/2020, OCO/7/2020, AND APO/95/2020 IA NO: GA/1/2020, OCO/16/2020, OCO/25/2020, OCO/8/2020, AND APO/96/2020, OCO/17/2020 WITH OCO/27/2020, OCO/9/2020, APO/98/2020, OCO/10/2020, OCO/18/2020, OCO/26/2020 Appearance : For the Appellant (in APO No. 92 of 2020, 94 of 2020 and 98 of 2020) : Mr. Darius Khambata, Sr. Adv. Mr. Abhrajit Mitra, Sr. Adv. Mr. Abhratosh Majumder, Sr. Adv. Mr. Kunal Vajani, Adv. Mr. Debanjan Mandal, Adv. Mr. Sanjiv Kumar Trivedi, Adv. Mr. Jishnu Chowdhury, Adv. Mr. Subhankar Nag, Adv. Mr. Soumya Ray Chowdhury, Adv. Mr. Sarvapriya Mukherjee, Adv. Mr. Deepan Kumar Sarkar, Adv. Mr. Tushar Hathiramani, Adv. Mr. Satadeep Bhattacharyya, Adv. Mr. Kunal Mimani, Adv. Ms. Mahima Cholera, Adv. Ms. Iram Hassan, Adv. Mr. Sanket Sarawgi, Adv. Mr. Karthikey Bhatt, Adv. Mr. Rachit Lakhmani, Adv. Mr. Subhang Tandon, Adv. For the Appellant (in APO No. 89 of 2020) : Mr. Jishnu Chowdhury, Adv. Mr. Aritra Basu, Adv. Mr. Paritosh Sinha, Adv. Mr. Saubhik Chowdhury, Adv. Ms. Ayushmita Sinha, Adv. Mr. Tirthankar Das, Adv. For the Appellant (in APO No. 90 of 2020) : Mr. Ranjan Bachawat, Sr. Adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been granted for them to prefer these appeals. SL.NO. CASE NUMBER PARTIES 1. APO NO. 89 OF 2020 Appeal filed by Universal Cables Limited 1.1 OCO/11/2020 Cross Objection in A.P.O No. 89 of 2020 filed by Pradip Kumar Khaitan, the respondent No. 5 1.2 OCO/20/2020 Cross Objection in A.P.O No. 89 of 2020 filed by Devendra Kumar Mantri and Radha Devi Mohatta, being the respondent Nos. 3 and 4 respectively. 1.3 OCO/3/2020 Cross Objection in A.P.O No. 89 of 2020 filed by Arvind Kumar Newar and Nand Gopal Khaitan, being the respondent Nos. 1 and 2 respectively. 2. APO NO. 90 OF 2020 Appeal filed by Birla Cable Limited 2.1 OCO/12/2020 Cross Objection in A.P.O No. 90 of 2020 filed by Pradip Kumar Khaitan, the respondent No. 5 2.2 OCO/21/2020 Cross Objection in A.P.O No. 90 of 2020 filed by Devendra Kumar Mantri and Radha Devi Mohatta, being the respondent Nos. 3 and 4 respectively. 2.3 OCO/4/2020 Cross Objection in A.P.O No. 90 of 2020 filed by Arvind Kumar Newar and Nand Gopal Khaitan, being the respondent Nos. 1 and 2 respectively. 3. APO NO. 91 OF 2020 Appeal filed by Vindya Telelinks Limited 3.1 OCO/13/2020 Cross Objection in A.P.O No. 91 of 2020 filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NO. 96 OF 2020 Appeal filed by Shreyas Medical Society 3.1 OCO/17/2020 Cross Objection in A.P.O No. 96 of 2020 filed by Pradip Kumar Khaitan, being the respondent No. 5 3.2 OCO/27/2020 Cross Objection in A.P.O No. 96 of 2020 filed by Devendra Kumar Mantri and Radha Devi Mohatta, being the respondent Nos. 3 and 4 respectively. 3.3 OCO/9/2020 Cross Objection in A.P.O No. 96 of 2020 filed by Arvind Kumar Newar and Nand Gopal Khaitan, being the respondent Nos. 1 and 2 respectively. 4. APO NO. 98 OF 2020 Appeal filed by Aditya Vikram Lodha 4.1 OCO/10/2020 Cross Objection in A.P.O No. 98 of 2020 filed by Arvind Kumar Newar and Nand Gopal Khaitan, being the respondent Nos. 1 and 2 respectively. 4.2 OCO/18/2020 Cross Objection in A.P.O No. 98 of 2020 filed by Pradip Kumar Khaitan, being the respondent No. 5 4.3 OCO/26/2020 Cross Objection in A.P.O No. 98 of 2020 filed by Devendra Kumar Mantri and Radha Devi Mohatta, being the respondent Nos. 3 and 4 respectively. 3. The matter concerns the estate of late Smt. Priyamvada Devi Birla (PDB), wife of late Shri Madhav Prasad Birla (MPB). Madhav Prasad Birla passed away on 30.07.1990 leaving behind Priyamvada Devi Birla as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng voting in relation to Resolution no. 5 and 6 of Annual General Meeting notice of BCrL dated 01.07.2019 to be stayed and voting relating to Resolution no. 5 and 6 of the Annual General Meeting notice dated 01.07.2019 of BCrL to be restrained. 7. GA No. 1764 of 2019 was filed by the plaintiffs with a prayer to declare that the estate of PDB comprises only of assets described in affidavit of assets filed by the original plaintiff in the testamentary suit and for further declaration that all three members of the APL should take unanimous decision and the majority decision dated 19.07.2019 cannot be implemented. 8. GA No. 1786 of 2019 was filed by plaintiffs to set aside that the majority decision of the APL dated 30.07.2019. The plaintiffs had filed affidavit in opposition in GA No. 1735 of 2019 affirmed by HVL contending that the probate court does not have jurisdiction to pass any orders on those applications; majority decision of APL cannot be accepted to be a valid decision as it is a single body and called as the joint administrators. 9. The petitioners/defendants not being aggrieved by the decision of the APL, cannot move the Probate Court as per the earlier order dated 23r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t indicates that exclusive jurisdiction is vested in the special form created under the Act for grant of probate and matters connected therewith. (vii) That, the Act is a self-contained code in so far as the question of making an application for probate, grant or refusal of probate or an appeal carried against a decision of the Probate Court. (viii) The probate proceedings shall be conducted by the Probate Court in the manner prescribed in the Act and in no other way. Therefore, it cannot be argued that there is any lacuna in the Act to cover any exigency concerning a probate proceedings or Administrator Proceedings. (ix) That, the Court is well-equipped under Section 247 of the Succession Act for administration during pendency of such proceedings. (x) Even if the provisions of Order 39 Rule 1 and 2 CPC many not be attracted for protecting interest of the parties in the pending administration suit but the Court can appropriately deal with the situation wherever it relates to protection and preservation of the estate of the deceased in the pending proceedings. Thus, the Court held that it has jurisdiction to pass appropriate orders in favour of protection and preservation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperties of the estate in order to determine the assets of the estate as on the date of the death of the owner thereof. The testamentary court's jurisdiction is however limited to determination of the will, it does not determine the title or any question as to the existence of any property and the requirement of appointment of an administrator. In the inter-parties decision in the case of Krishna Kumar Birla Versus Rajendra Singh Lodha (2008) 4 SCC 300, in paragraph 57 it has been held that the jurisdiction of the probate court is limited being confined only to consider the genuineness of the will. The question of title arising under the act cannot be gone into in the probate proceedings, construction of a will relating to the right, title and interest of any other person is beyond the domain of the probate court. It is further submitted that it is settled law that only a person who has caveatable interest can be added as a party to a testamentary proceeding. It is an admitted fact that none of the third party companies namely BCL, VTL, UCL or any other third party companies, trust or societies have any caveatable interest in the testamentary suit in TS No. 06 of 2004 and therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubject matter of ownership. The phrase "property belonging to a person" has two ingredients namely ownership and the absolute right of the user. The Hon'ble Division Bench in the case of Rajendra Singh Lodha Versus Ajoy Kumar Newar ILR 2007 (2) Calcutta 377 held that the estate mainly comprises of the controlling block of shares held by PDB at the time of her death which has also been disclosed in the affidavit of assets. The Hon'ble Division Bench by order dated 23.08.2012 directed the Joint APLs to register their names in the Register of Members of the companies in which PDB held shares and further directed the Joint APLs to prepare and file an inventory of asset forming part of the estate. It is further submitted that the Hon'ble Division Bench in Birla Corporation Limited Versus Arvind Kumar Newar dated 04.05.2020 held that even on convenience, the estate of PDB is the owner of the shares in the company\ies as mentioned in the schedule of asset filed in the testamentary proceedings and the unanimous report of the APL to which there is no dispute. It is further submitted that only one of the assets forming part of the estate of PDB had been inadvertently not included in the affi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same proposition, reference was made to the judgment of the Hon'ble Division Bench in Birla Corporation Limited Versus Arvind Kumar Newar dated 04.05.2020 wherein it was held that there is a clear distinction between a company and a shareholder, even though that share holders may be only one and is either the Central or State Governments. In the eye of law, a company registered under the Company's Act is a distinct legal entity other than the legal entity or entities that hold its shares in the said company. It is further submitted that controlling interest is inextricably linked to ownership/voting power of the shares held in a company. Only such ownership/voting power of share is an asset and any other form of controlling interests/power perse is not an asset forming part of the estate. It is submitted that control or controlling interest is only an incidence of ownership/voting powers of shares; personal influence is not a legal right and thus not enforceable in law. It is further submitted that only a person/entity whose name is registered on the Register of Members of a company or recorded as beneficial owners in the records of the depository is entitled to exercise the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower of influence or persuasion that were personal to PDB but which would not have been enforceable in law even by her, much less by her estate. More so, the force of personality or the powers of persuasion are not inheritable "property". 14. It is further submitted that PDB did not have the right to determine the manner of voting of the other group entities. Other group entities were legally in a position to either accept or reject her directions. These group entities had and continue to have eminent people on their board including very senior former public servants and other highly qualified individuals with independent minds of their own. The mere fact that the group entities may have accepted PDB's directions did not ipso facto confer any legal right upon her to cause the group entities and their goals to act to her directions nor did it take away the independent rights of ownership of shareholding of these other entities. PDB would not have approached any court to enforce any alleged legal right against these group entities to act according to her directions nor could a third party have gone to any court to cause such group entities to act to the directions of PDB and not ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that having invoked the doctrine of "persons acting in concert", which by its very definition requires two or more distinct persons to act with common intention or purpose, it is submitted that the order of the learned single bench as well as the contention of the respondents that the so called controlling interest over the MP Birla Group of companies form part of the PDB estate are erroneous. 15. It is submitted that the promoters do not have any special rights to control as such and hence, no such right devolve upon the administrator of the estate of the deceased promoter. It is submitted that PDB was shown either as promoter or part of the promoter's group in BCrL, BCL, UCL and VTL. However, such disclosure by a person or an entity as a co-promoter or as part of the promoter group, does not ipso facto lead to or vest any legal right to control the company or the rights exercisable by any other share holder, also shown as a promoter or part of the promoter group. A "promoter" is not vested with any specific/ special rights under the Companies Act, 2013 and/or the SEBI Regulations, but is in fact required to comply with additional obligations imposed thereunder, namely, (i) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and will" is looked into in order to fix liability for the wrong doing of a company, it is only when a statute permits this enquiry to be made. In the instant case, the concept does not and cannot arise or be pressed into operation nor before the same cases where there is no accusation of wrong doing, criminality or fraud against the company. 17. It is further submitted that trusts and societies are distinct legal entities independently managed and controlled. In this regard Sections 3, 6, 36, 37, 38, 39, 40 and 42 of the Indian Trust Act, 1882 were referred to. Section 5 of the Society Registration Act, 1860 and Section 16 of the State Act were also referred to. It is submitted that PDB during her lifetime did not have any right of nomination of any Member of the managing committees to the societies or any trust. This Court did not vest the joint APLs with power which PDB during her lifetime did not have in respect of any of the trusts or societies as themselves and this is also beyond the scope of testamentary proceedings. Further, none of the parties in the past considered the trusts or the societies as part of the estate of PDB in respect of the affidavits of assets. In this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompanies as part of the promoter group of some companies does not in any manner in share holding was owned and/or controlled by PDB and much less the estate of PDB. It is submitted that the Birlas would contend that the trusts and societies are funded by the MP Birla Group and thus, the estate controls them. This contention is incorrect as the main source of funding of these trusts and societies or dividends earned from shares held by them in various companies which include companies which are admittedly not part of the MP Birla Group. Furthermore, merely because donation is made by a corporate house, a trust or society does not vest the corporate house with a right to control and manage the affairs of such trust or society unless there is provision to the said effect to the constitution of the trust or society. Further, the prayer sought for in GA No. 3714 of 2008 and GA No. 3718 of 2008 on which order dated 23.08.2012 was passed, the prayers did not include any reference directly or indirectly against any of the trusts or societies. 18. It is submitted that share holders and directors are distinct and independent organs in a company. Share holders have no right to direct how dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce in any of the entities in MP Birla Group during the pendency of the suit as that would amount to interfering with the administration and ownership rights of share holders, distinct corporate entities and distinct trusts and societies which is beyond the jurisdiction of a Testamentary Court. In this regard, reference was made to the order passed by the Hon'ble Division Bench date 1st October, 2020 by which the Hon'ble Division Bench modified part of the order passed by the learned Single Bench. It is further submitted that the Joint APLs have to initiate the substantive proceedings before the competent forum to seek relief in order to enforce rights of the estate only with the permission/ direction of the Probate Court and the same cannot be done in a Testamentary proceedings. 20. With regard to the reliefs claimed in GA No. 1735 of 2019 and GA No. 1845 of 2019 it is submitted that the prayer that the Joint APLs should be empowered to exercise voting rights in respect of shares which do not stand recorded in their names, is totally prohibited by law and is illegal. This is not only contrary to Section 47 read with Section 2(55) of the Companies Act, if accepted, would amount to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd to appoint them as Directors or to direct appointment or continuation of any person of their choice as Director. It is submitted that Directors of the company can be appointed only and continue in office only in the manner prescribed by the Companies Act, 2013 and, therefore, it is not within the jurisdiction or power of any of the Joint APLs to override the Companies Act. The share holders are not authorised by the Act to straight away direct the company to appoint any person as director. Therefore, it is not within the authority or power of any officer of the Court to short circuit or override the statutory provisions of the Companies Act, 2013 regarding appointment of Directors. It is further submitted that it is not within the power of HVL to implement any of the decisions of the two Joint APLs dated 19th July, 2019. HVL has requisite qualified shares which constitute nominal and very insignificant percentage of share capital of the companies. Only share holders at the general meeting of a company by majority votes can appoint Directors of a company or allow continuation of the Directors already appointed. Therefore, the direction as prayed for in prayer (a) in GA No. 1735 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ections 29 and 31(2) of the Arbitration and Conciliation Act, 1996 Joint Arbitrators can pass awards by majority. Under Section 17(3) of the Waqf Act, 1995, Members of the Waqf Board can decide by majority. In terms of Section 12(c) of the Partnership Act, 1932, partners can act by majority in certain matters. Thus, when the law is silent, the Joint officers have to act jointly. Further, it is submitted that the fact that the Joint APLs has to act jointly was accepted by the respondents in 3 SLPs before the Hon'ble Supreme Court challenging the judgment and order dated 12th June, 2014 passed by the Hon'ble Division Bench, in the Special Leave Petitions, the respondents took a stand that the administrators had to act jointly and no Member of APL would act as an umpire which is also emphasized by the use of the phrase "Joint Administrators" in various parts of the judgment and order dated 23rd August, 2012. Further, the respondent in GA No. 1964 of 2018 made such prayer for direction of the Hon'ble Court authorizing the Joint APLs to act as per majority decision since, they are well aware that unless specific direction to act by majority was given by the Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned order namely, that re-investigation to the extent of the estate was unwarranted; the decision of the Joint APLs to decide by majority instead of unanimously is contrary to the order appointing the Joint APLs and thirdly, that the decision to direct appointment of all 3 Members of the Joint APLs as Directors of Tire 1 and 2 companies and certain other individuals as Directors of 4 listed companies, 3 subsidiaries of one listed company and an unlisted company is bad in law since the Joint APLs merely represents the estate of PDB and thus, had no rights to seek appointment of Directors in companies in which PDB was not a "Member". Further, without prejudice, it is submitted that such appointment of Directors cannot be made contrary to the provisions of Company Law. Similarly, the decision of the APLs dated 30th July, 2019 was challenged by the plaintiffs in GA No. 1786 of 2019 on several grounds which were not dealt with in the impugned order. 25. It is submitted that the two Joint ALPs have made observation that HVL has been acting against the interest of PDB's estate is incorrect and in this regard, the learned Senior Counsel referred to the affidavit-in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the HVL as one of the directors of the 4 listed manufacturing companies and not the case has been left out in those companies that the estate will be prejudiced if HVL has re- appointed the Directors and votes should be cast against HVL. 27. The next aspect which was dealt with by the learned Senior Counsel is with regard to the alleged admissions of RSL and judicial findings regarding "control". It is submitted that no undertaking was given by RSL who merely agreed that the share holding of the companies which were then vested with him as sole executor of the estate of PDB would not be transferred or disposed of till the disposal of the application. On the said basis directions were issued. The direction was fully complied with by RSL. After his demise on 3rd October, 2008 and pursuant to the order of the Hon'ble Division Bench dated 23rd August, 2012, the Joint APLs took over their share certificates from appellant and all the shares had since been recorded in the names of the Joint APLs pursuant to their application made to the respective companies. Hence, there is no scope for any apprehension that any share of the estate of PDB would be transferred or dispo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... topped from adjudicating the same issue as neither the HVL nor the respondent in the testamentary suit were parties to the CLB proceedings and since CLB proceedings were dismissed for lack of jurisdiction, the observations made in such a case cannot operate as res judicata. 29. With regard to the orders of the CLB dated 28.06.2006, it has been submitted that the alleged statement was relied on by the respondents to support their case that PDB's estate comprises the controlling interest of the MP Birla Group. Such reliance on the alleged admission is devoid of merit as the order was passed in an application challenging transmission of shares held by the PDB in only one investment company namely the East India Investment Company Private Limited to RSL as executor of her estate and was not a proceeding for determining title to the shares held by the different promoter group entities in the operating companies. Further the CLB is not the competent forum to adjudicate upon the extent of the PDBs estate and thus the observation cannot operate as res judicata. Further such alleged statements of counsel on question of law or at most, a mixed question of law and fact does not amount to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30. It is submitted that the respondents have argued that a learned single bench of this court while hearing the appeal from the order of CLB has held that the estate of PDB held 62.90% shareholding in BCrL which is not true. In fact, the court recorded the case of both groups and did not decide this and contrary made certain other observations that the jurisdiction to decide on this issue has largely shifted from the domain of CLB to the probate court and the courts for trial of suits. Further it is submitted that these observations regarding shifting of jurisdiction in a statutory appeal which order of CLB was approved by the Hon'ble Division Bench in its judgment dated 04.05.2020. Further the respondents have omitted to refer to paragraph 16 of the judgment wherein it was observed that an inconsistent case is being run by the appellants therein as it has been pleaded in the main petition that late MP Birla and as also PDB transferred their properties including shares to five charitable trusts. Thus, the respondents are running contrary cases and should not be allowed to approbate and reprobate. Thus, it is submitted that the impugned order is beyond the jurisdiction of the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by the Joint APLs before probate court. The second limb of the order in sub para (b) restrains HVL from holding any office in any of the entities of the MP Birla Group during pendency of the suit. This order has been passed despite the fact that HVL has been director of MP Birla Group of Companies even during the lift time of PDB and has continued to be elected or reappointed thereafter from time to time with a requisite majority, as per provisions of the Companies Act, 2013 and those resolutions appointing him as director have not been set aside till date. It was submitted that the HVL was reappointed in BCL on 23.09.2021, in UCL on 18.08.2020 in BCRL on 25.08.2020 and VTL on 05.08.2019. Further it is submitted when the respondent sought to restrain HVL from offering or proposing himself as a candidate for director of VTL and BCL at the meetings to be held on 5th and 6th of August 2019, by way of a supplementary affidavit filed in GA No. 1735 of 2019 no such order was passed and HVL contested and was reappointed as a director. Similarly in August 2020, the respondents file an application in GA No. 1005 of 2020 seeking an order restraining reappointment of HVL as director of BC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laintiffs were constrained to file an application in GA No. 1121 of 2020 praying for opportunity of giving hearing to the plaintiff to deal with the new arguments and the new judgments cited by the defendant for the first time in the reply after the conclusion of the submissions of the plaintiffs. However, no such opportunity was granted to the plaintiffs and orders were reserved by learned Single Bench on 04.09.2020.. However, in the cause title of the order recording the same not only GA No. 1735 of 2019 and GA No. 1845 of 2019 were included but several other GAs which were wholly unconnected with the two GAs including GA No. 1005 of 2020 of the defendants filed in August 2020 were included. This necessitated the plaintiff to file clarification application in GA No. 78 of 2020 wherein the learned single bench by order dated 16.09.2020 directed that all other applications which appeared in the list of 04.09.2020 except GA No. 2007 of 2019 will be considered for adjudication. This procedure is contrary to the establish practice and is also in violation of the principles of natural justice. 31. Mr. Khambatta, learned senior advocate appearing for the appellants elaborated his submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst instance no prayer was made for appointment of an administrator to the charitable institutions and societies and this was included in the said application which was a very wide prayer. Reference was made to the decision reported in Priyamvada D. Birla Versus Laxmi D. Newar 2005 4 CHN 544 wherein the applications filed by the Laxmi Devi Newar and others for appointment of an administrator was considered, referring to paragraph 30 and 31 of the said decision wherein the court accepted the argument that shareholders stand on a different footing from that of the company, which is a separate legal entity. 32. Nextly, reference was made to the decision reported in Priyamvada Debi Birla Versus Ajoy Kumar Newar AIR 2006 Calcutta 259 wherein the court held that going by the prayer portions of the application made by the caveatrix, the prayer for appointment of an administrator cannot be considered for if considered, that would amount to taking over of management and control of separate juristic bodies by the probate court as it has no jurisdiction to do, however, the prayer for APL can be considered. Further by referring to the paragraph 75 of the said decision, it is submitted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsider the genuineness of the will; question of title arising under the act cannot be gone into in the probate proceedings. Construction of a will relating to the right, title and interest of any person is beyond the domain of the probate court. Further in paragraph 187 of the said decision, the Hon'ble Supreme Court held that the submissions that RSL is an outsider and bequeath is unnatural did not appeal to the Hon'ble Supreme Court and such a question cannot be determined at the relevant stage. Further it was observed as to why an owner of the property executes a will in favour of the another is a matter of his/her choice; only by a will deprive his close family members including his sons and daughters. The court is concerned with the genuineness of the will. If it is found to be valid any further question as to why did she do so would be completely out of its domain. A will may be executed even for the benefit of others including animals. It is submitted that on 03.10.2008, RSL passed away. On 19.11.2008 the purported executors filed application for appointment of APL in GA No. 3714 of 2008 in PLA 242 of 2004. It is submitted that the in terms of the prayer (c) in paragraph 42 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of inventory within four weeks from the date of assumption of charge. Further with regard to the participation in the meetings of shareholders of the companies, they were directed to take lawful steps as shareholders in accordance with law which would mean that the provisions of the Companies Act have to be followed. Further in the said decision, it was held that the Joint Administrators will act ordinarily jointly, but in case of non-availability of any Joint Administrator remaining administrators or administrators will act, however ratification of the court is to be obtained latter at the earliest. Reference was made to the interim order passed by the Hon'ble First Court dated 22.12.2011, wherein the court recorded that the Learned counsels for the parties have principally agreed on the issue that an independent APL has to be appointed over the estate and the court should consider the constitution of APL as the three persons who have been nominated to constitute the APL by the first court are not acceptable to the appellants. Further the court has recorded the submissions of the learned counsels for the parties that only point which will be left for decision of the court is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance with the scheme and the Board of Management does not seek nor receive any guidance from any third party. However, should a proper suggestion be forthcoming the Board of Management may be open to consider that if it be in the interest of the public that the trust serves and consistent with the objects and proper administration of the trust. 34. Nextly, the learned senior advocate referred to the first interim report of the APL dated 15.10.2013 wherein in Annexure 14 list of assets of the PDB with the value as furnished by prepounder of will were annexed. It is submitted that from the annexure 14 to the said interim report it is clear that the property in public companies is the list of shares held by the estate. Thereafter the details of the five suits which were filed were placed before this Court and the prayer sought for in those suits. It is also submitted that BCrL has also filed a company petition in C.P No. 01 of 2010 before the CLB, Principal Bench in Delhi. Learned Senior Counsel nextly referred to the decision in the case of Priyamvada Devi Birla Versus Ajay Kumar Newar 2016 SCC Online Cal 1541 (Hon'ble Justice Jyotirmay Bhattacharya). After referring to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the assets of the company and the probate court does not decide the title of the properties being subject matter of the will and it only decides the genuineness of the will. 35. Nextly, the learned senior counsel referred to Section 2 (h) and Section 5 of the Indian Succession Act and Section 30 of the Hindu Succession Act to explain as to what is the property which can be bequeathed. On this aspect, reliance was placed on the decision of the Hon'ble Supreme Court in Rustom Cavasjee Cooper Versus Union of India AIR 1970 SC 564. For the same proposition, reliance was placed on the decision in Tata Memorial Hospital Workers Union Versus Tata Memorial Centre and Another (2010) 8 SCC 480. Reliance was placed on the decision of the Hon'ble Supreme Court in Howrah Trading Company Limited Versus Commissioner of Income Tax, Central, Calcutta AIR 1959 SC 775 to explain the position of a shareholder. This decision was referred to in J.P. Srivastava & Sons Private Limited and Others Versus Gwalior Sugar Company Limited and Others (2005) 1 SCC 172. 36. To explain what is the right of a shareholder in a company, reliance was placed on the decision of the Hon'ble Supreme Court in Lif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the concept of "control" further, elaborate reference was made to the decision in Arcelormittal (Supra) more particularly the findings of the Hon'ble Supreme Court in Paragraphs 48 to 56 of the said judgment. 37. It is further submitted that the concept of single directing mind and will are inapplicable to and irrelevant in determining the aspect of "control" within the meaning of Companies Act. The said concept only arises if the company is accused of wrong doing in which case the single directing mind or directing mind and will is sought to be identified in order to fix liability. The doctrine of identification does not apply to large listed companies. To explain the above preposition reliance was placed on the decision of the Hon'ble Supreme Court in Sunil Bharti Mittal Versus CBI (2015) 4 SCC 609 and Reliance Natural Resources Ltd. Versus Reliance Industries Ltd. (2010) 7 SCC 1. Further, it is submitted merely being a promoter one cannot automatically control since the promoters do not have any such rights and being a promoter does not ipso facto means controlling himself by the person. In this regard, reliance was placed on the decision of the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Members of a company can vote. However, having accepted the aforesaid principle the learned Single Bench has held that if the contentions raised by the noticee companies are to be accepted by the entire concept "control", "promoter" or "promoter group" and "beneficial interest" appears to be superfluous. Further, it is submitted that the learned Single Bench accepts the principle in Bacha Gazdar's case (supra) that shareholders have no right over the assets of the company. Having held so, the learned Single Bench proceeds to give contrary directions. Further, it is submitted on the findings rendered by the learned Single Bench on the contentions raised on behalf of the two Joint APLs, the Court has construed Arcelormittal's case to hold "control" or "de facto control" exists de hors shareholding or a "right" which is legally enforceable. It is submitted that the learned Single Bench has misconstrued the concept of "de facto control" as defined in Section 2 (27) of the Companies Act, 2013 which has been interpreted by the Hon'ble Supreme Court. The learned Single Bench had relied on one sentence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hanam Versus K. Gopalaswami Ayyangar AIR 1965 SC 338 was referred to wherein it was held that when the Court has no jurisdiction over the subject matter, the suit cannot be decided on merits. Further, when CLB decided it has no jurisdiction, the finding that PDB controlled more than 60% of the shares is not a finding of the CLB which itself held that it had no jurisdiction. Therefore, it is submitted that the observation of the CLB cannot be elevated as if it is a finding of fact. That apart, control is a mixed questions of law and fact. In this regard, reliance was placed on the decision of the Hon'ble Supreme Court in (2012) 6 SSC 687 (my notes page 31). Further, it is submitted that a client is not bound by any admission of the Counsel when it is not authorized. In this regard Reliance was placed on the decision of the Hon'ble Supreme Court in Himalayan Corporation Group Housing Society Versus Balwan Singh & Ors. (2015) 7 SCC 373. Further, the learned Senior Advocate once again referred to the judgment of Justice Kalyan Jyoti Sengupta and the affidavit filed by RS Lodha. Further, it is submitted that to the written submissions of the Counsel of RSL he has filed an affidavit deny ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... K.M. Medical Trust Versus Charu 33 and Shivram Antaiah Shetty Versus Chimanlal Ambalal Trivedi AIR 1987 Guj 30. Further, it is submitted that significant beneficial ownership does not confirm a right to vote in this regard reliance was placed on the decision of the Hon'ble Supreme Court in JP Srivastava (Supra) and Bal Krishnan Gupta & Ors. Versus Swadeshi Polytex Ltd. & Ors. (1985) 2 SCC 167. It is nextly submitted that Section 89 of Companies Act 2013 and Section 187C of the Companies Act, 1956 are para mataria. Further, a person need not make a declaration of beneficial interest under Section 187C or Section 89 he or she or his or her estate is precluded from ordinary beneficial interest. After referring to the various provisions of the Companies Act and the statutory provisions reliance was placed on the decision of the Hon'ble Supreme Court in Ahmed Abdulla Ahmed AI Ghurair Versus Star Health and Allied Insurance (2019) 13 SCC 259 and P.R. Ramakrishna & Ors. Versus A. Mounaguruswami 1985 (57) Comp. Cases 477. Further, it is submitted that the controlling and management of trust property or property of a society vests with the trustees or governing bodies of the property. After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lows from the above is that the estate of PDB pending grant of letters of administration with will annexed includes the aforesaid powers of PDB. It is submitted that the estate which the APL administers has to be the estate in respect of where all letters of administration is granted under Section 290 of the Succession Act. Prima facie findings on the scope and extent of the estate has to be after taking into consideration the fact that the expression "the estate of the administration" should be interpreted the same way in both the Sections 247 and 290 of the Succession Act which will also be relevant for the purpose of Section 273 of the said Act. Therefore, it is submitted that the court has to see whether letters of administration can be granted over the powers of PDB which usually perceived to have had as part of the estate and if it is so granted then in the Inventory and Accounts these assets would be included as Assent to Legacy would include these assets. Thus, it is submitted that the result of the above would be that whatever power the APL exercises will be the same power which ultimately be successors to the estate of PDB to exercise the consequences which would follow t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... included in the affidavit of assets. For such proposition reliance was placed on the decision in Shyamal Kumar Banerjee and Others Versus Sunil Kumar Banerjee and Others MANU/WB/0841/2004. 40. It is submitted that if the Joint APLs are to exercise the powers which PDB as perceived to have i.e. not to flow from legal ownership of any asset, then by following the testator's arm chair theory they should exercise such power where PDB would have so exercised. It is submitted that in the notes filed on behalf of the plaintiff before the Joint APLs this aspect was fully explained and was elaborated with documentary evidence to the Joint APLs which was not considered by the Joint APLs and submissions in this regard made before the learned single bench was also not considered. 41. It is submitted by the respondents that there has been admission on the part of the plaintiffs on certain aspects which according to them would amount to estoppel/issue estoppel. In this regard, it is submitted that the plaintiff no. 2 was not a party to any of the proceedings where the alleged admissions were made that is either before the CLB or in the appeal arising out of the said order under Section 10F of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was unanimously noted by the Joint APL at the meeting held on 21.07.2017. Similarly the names of the persons who are appointed by the Joint APLs to the various trusts and societies were also referred to. It is submitted that all such appointments could not have been made contrary to the provisions of the companies Act or the constitution of the trusts and societies. 43. It is submitted that in the present testamentary proceedings in the light of the earlier judgments dated 11.03.2005 and 21.12.2006 which was affirmed by the Hon'ble Supreme Court as reported in 2008 4 SCC 300 trusteeship and directorship are not heritable, that the Birla family members have separated long back and the co-share holder of a company is not right in the estate of other co-shareholders. Therefore, it is submitted that the learned judge ought not to have issued directions to the companies and societies to abide by the joint majority decision of the Joint APLs or to direct the plaintiffs to implement the majority decisions of the two Joint APLs and the learned single bench ought to have restricted the functions of APLs vis-a-vis as said to ensure whatever assets are mentioned in the affidavit of asset ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what forms part of the estate of late Mrs. PDB but so long as the controversy between the parties is pending before the Calcutta High Court in Civil Suit Nos. 73 to 77 of 2010 and C.P No. 01 of 2010 against the trusts, the APL Committee will have to proceed on the basis of the possibility that the estate of late Mrs. PDB has a majority share in the MP Birla Group of Companies including Tier 3 and Tier 4 companies also. It is pointed out that in the said decision the APL Committee has used the word "possibility" and the two decisions of the APL Committee are contradictory rather it is a blend of the possibility and impossibility. It is submitted that the question would be whether the APL Committee can take decisions on possibilities. It is further submitted that in paragraph 40 of the minutes, the APL Committee has decided that whenever necessary, the Committee may approach the High Court for appropriate directions by filing a report, but parties are also at liberty to approach the High Court for seeking appropriate directions and/or clarifications, so that as far as possible, the estate of late Mrs. PDB is not burdened with avoidable costs. It is submitted that the said decision c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e APL Committee cannot travel beyond the joint inventory report dated 15.10.2013. Reverting back to the judgment of the Hon'ble Division Bench dated 23.08.2012, it is submitted that the powers exercisable by the Joint Administrators are with regard to the shares and stocks owned by the testator and it is only such rights which flow from the ownership of the shares and enjoyed by the testator during her life time is the subject matter of the estate of the deceased. The learned senior advocate would submit that the findings recorded by the learned single bench in page 151 of the judgment is contrary to the decision of the Hon'ble Division Bench dated 23.08.2012. That apart, the learned single bench has travelled far beyond the prayers sought for in the applications as well as in this supplementary affidavit, and in this regard, the learned senior advocate has referred to the page 155 of the impugned judgment wherein the learned single bench has issued various directions/orders. It is submitted that several of the reliefs granted were without notice to the appellant and the appellant have been denied the right of fair hearing. It is submitted that the rule of fair hearing would equall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase on hand according to the learned senior counsel would fall in the first category. In such circumstances, the APL ought not to be heard and if it is heard in the matter, it will not be impartial and as a matter of judicial policy, the APL should not be heard in the matter. Further the Companies Act will apply with full force. It is submitted that the learned Single Bench in the impugned judgment had laid down certain correct tests namely that the probate court cannot pass orders against the third parties, neither can they join in the probate proceedings and orders cannot be passed against the companies and charitable societies. In this regard, the learned Senior Advocate referred to certain paragraphs of the impugned judgment. Though, the learned Single Bench in about 13 places in the impugned judgment holds that the court lacks jurisdiction to issue directions against the third parties, the ultimate directions issued in the impugned judgment are contrary to the findings recorded. In this regard, the learned Senior Advocate referred to the pages 151, 152 and 155 of the impugned judgment. Therefore, it is submitted that once the court holds it lacks jurisdiction to pass the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not require the company to change its register of members; each of the entities are independently managed by their respective Boards of Directors or Managing Committee. It is further submitted that on and after the judgment of the Division Bench dated 04.05.2020 in the present probate proceedings, after noticing the order of the Company Law Board and the judgment dated 10.05.2013 of the High Court in Section 10F jurisdiction it was held that the assets of the estate are as per the schedule of assets. It is submitted that in any event, any alleged admission by a counsel/an incidental recording by the court cannot deprive the entities of the promoter group of their statutory right to vote in respect of shares owned by them and whose names are reflected in the register of members in various companies or transfer of control to direct voting on the administrators of the estate of a deceased promoter shareholder. Reliance placed by the defendant on the correspondence between the APL and BCL during 2012, 2013 and 2014 to support their contention regarding alleged controlling interest is mis-placed. BCL in its reply dated 17.01.2013 to the APL has not accepted the assertion of the alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndents of the Board of Directors and sanctity of the Register of members, (iii) the impugned order is contrary to the established principles of testamentary law. (iv) the probate court exercises limited jurisdiction which is confined to ascertain the genuineness of the will. In exercise of its powers under Section 247 of the Indian Succession Act to preserve and protect the estate, an administrator's power or the probate court cannot be extended to injunct individual who are otherwise qualified under respective regulatory statutes which are complete codes in themselves from holding office in third parties entities (v) the impugned findings and the conclusions are contrary to the earlier findings rendered in various decisions of this court dated 11.10.2007, 19.05.2016 and 04.05.2020 between the parties. (vi) the impugned findings are contrary to the judgment dated 23.08.2012 rendered by the Hon'ble Division Bench presided over by Hon'ble Chief Justice J.N. Patel wherein it was categorically held that APL would have to apply to the company to get their names registered and the companies would consider such applications in terms of the provisions of law and its memorandum a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1956. In support of such contention reliance was placed on the decision of the Hon'ble Supreme Court Rustom Cavasjee Cooper Versus Union of India 1970 3 SCR 530. Thus, it is submitted that anything that is not a "property" or a "property owned by the testator" cannot be bequeathed by a will. With regard to the powers of the probate Court it is submitted that the probate Court has no substantive civil or company jurisdiction and its jurisdiction is limited to determination of genuineness of will that is it does not determine title or any question as to the existence of the property. In this regard, reliance was placed on the decision in the case of Kanwarjit Singh Dhillon Versus Hardyal Singh Dhillon & Ors. (2007) 11 SCC 357, Krishna Kumar Birla Versus Rajendra Singh Lodha (2008) 4 SCC 300 and Ramchandra Ganpatrao Hande alias Handege Versus Vithalrao Hande AIR 2011 Bom 136= 2011(4) Mh.L.J. 50. With regard to the position of an APL it is submitted that it is similar to that of a receiver with the distinction that the APL represents the estate of the deceased for all purposes except distribution. Reliance was placed on the decision in Pandurang Shamrao Luad and Ors. Versus Dwark ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nutes of the meeting. It is submitted that with regard to the trademark issue and logo, the said trademark and logo does not form part of the estate of PDB. Nextly, the learned Senior Advocate referred to the pleadings made on behalf of BCL. The letter of APL to BCL dated 20.07.2012, and the reply of BCL to APL dated 17.07.2013 and the reply of BCL to APL dated 18.03.2014. After referring to the letter of the APL Committee dated 04.11.2020 addressed to the Board of Directors of BCL, it was submitted that APL is arrogating to themselves the power which is not available and it is contrary to the provisions of the Companies Act. The learned Senior Advocate then proceeded to submit with regard to the fundamental tenets of Company Law which include the independence of the Board of Directors, primacy of the articles of association and sanctity of register of members which requires adherence and cannot be deviated from on account of a testamentary dispute. In this regard, the observations made in Gower and Davies, Principles of Mordern Company Law (8th Edition), Palmer's Company Law (24th Edition) were referred. Reliance was placed on the decision of the Hon'ble Supreme Court in Naresh Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s it was not the party in the suit and therefore, the directions issued in the impugned judgment are liable to be set aside. No membership rights can be exercised by non-members and APL committee can only exercise voting and other membership rights with reference to the 1260 shares held by it and nothing beyond. In support of such contention reliance was placed on the decision in Howrah Trading Co. Ltd. Versus CIT 1959 Supp (2) SCR 448; Balkrishan Gupta Versus Polytex Ltd. (1985) 2 SCC 167 and Killick Nixon Ltd. Versus Bank of India (1985) 57 Comp Cas 831. It is submitted that during her lifetime PDB could not have exercised voting rights in respect of the shares held by any or all of the promoters as a matter of legal right. The APL acting as guardian of PDB's estate, cannot exercise the voting rights at company meetings in respect of shares held by various companies, trusts and societies of the MP Birla Group. To do so share holder should exercise powers beyond the scope of the estate and in flagrant violation of law. It is submitted that inclusion of an individual, company, trust, society in the promoter group does not mean that such entity is legally owned and controlled by any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot go beyond the estate. In this regard, reference was made to the decision in the case of Ahmed Abdulla Ahmed Al Ghurair Versus Star Health and Allied Insurance (2019) 13 SCC 259 and Sanjeev Mahajan Versus Aries Travels Pvt. Ltd. judgment dated 04.02.2020 in CS(OS) No. 46 of 2020 in paragraphs 29 and 30. With regard to the contention that regarding "single directing mind" it is submitted that the concept of "single directing mind" and will are irrelevant in determining the aspect of control within the meaning of Companies Act. The said concept arises if a company is accused of wrong doing in which case the single directing mind is identified in order to fix liability. It is the means ria which is attributed to the corporations on the principles of "alter ego" or "single directing mind" of the company. The said concept cannot arise in civil cases where there is no acquisition of wrong doing/ criminality/ fraud. To support such contention reliance was placed on the decision in Sunil Mittal Versus CBI (2015) 4 SCC 609. Therefore, this concept of single directing mind has no application to testamentary proceedings. With the above submissions the learned Senior Advocate contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f interfering with the validly convened Annual General Meeting of BCL and declarations of the results of the AGM. On an appeal filed by BCL and other affected companies the said order was set aside by the Division Bench by order dated 04.05.2020. The Hon'ble Supreme Court refused to interfere with the said judgment. 53. It is further submitted that in disposing of GA No. 1735 of 2019 and GA No. 1845 of 2019 the learned Single Bench fully accepted the contention of BCL and other companies that the probate Court has no power and jurisdiction to pass orders against the company. In this regard, several paragraphs/ pages of the impugned judgment were referred to. It is submitted that despite such findings the learned Single Bench made observations affecting BCL and share holders by giving the Joint APLs the right to interfere with the affairs of the company who are seeking to exercise voting rights in relation to share holders not recorded in the name of PDB or her estate or the joint APLs on directing BCL to exercise its voting rights in other independent companies under the guidance of the APLs. The effect of such observations is that the defendants and two of three joint APLs have s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the submissions on merit whether or not APL's decision should be implemented or whether the APL has rightly taken decision as APL or not was not gone into. Thus, the learned Single Bench having refused to decide such issues and in particular whether two joint APLs decision taken by majority should be implemented or whether the two joint APLs have rightly taken such decisions, the learned Single Bench could not have made observations on the strength of which it is now claimed by the respondents and the two joint APLs, the validly appointed Board of Directors of BCL is compelled to exercise its voting rights in the manner to be guided by the APL committee. It is further submitted that the learned Single Bench having held that BCL/ company is not amenable to the jurisdiction of the probate Court, it upheld the joint decision of the two APLs to ensure that one person is continued as a Director of BCL. Similarly, the interpretation of the majority decision of the said two joint APLs would interfere with the resolutions already taken in the AGM of the company and communicated to the public and statutory authorities. The observations made by the learned Single Bench would create a situat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company Law Board reported in 2005 128 Company Cases 145 (CLT), it is submitted that there is no admission of any control and the company has denied the allegation. Further there is no finding on the allegations made by the two APLs on HVL and virtually the two APL is now going on "overdrive mode". It is submitted that two of the directors namely, Mr. Daga and Mr. Damani which according to the learned Senior Advocate are to be called as rogue directors and they are addressing the APL alleging that the company is acting against the two APL decision and virtually the two APL is shaking hands with the rogue directors. The said rogue directors are wasting the money of the estate. The learned Senior Counsel then proceeded to refer to a various communications sent by APL and minutes of the meeting the views expressed by one of the members of the APL etc. It is further submitted that APL not only appointed but also removed the directors. It proceeded to act in a strange manner and all letters have been signed by Mr. ACC and all proposals emanated from Mr. ACC and the two APLs continues to say that their actions are authorised by Court. It is submitted that when the probate Court cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment Board (2016) 1 SCC 743 was cited is fully applicable in the present case as interim orders passed by the probate Court do not operate in rem. After distinguishing the decisions which were referred to by the respondents it is submitted that it is evident from the judgments relied on by the respondents that the testamentary Court will rarely, if at all, pass orders passed against third parties, will direct APL to file appropriate proceedings before the appropriate Civil Court to protect the properties of the estate. The same is restricted to cases where an APL has not been appointed or where there is no dispute in regard to the property belonging to the estate. Further, learned Senior Counsel also elaborated upon the contention that there is no admission made or recorded in the CLB judgment which were elaborated by Sri Khambata, learned Senior Advocate. It is thus submitted that the admission must be clear and unequivocal and they cannot override the statute. However, in the case on hand no such clear and unequivocal admission has been demonstrated. It is further submitted that in the applications filed by the respondents there is no pleading regarding the alleged significant be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction or otherwise cannot pass orders prayed for by the respondents, even assuming that the testamentary court has power to pass such orders, the joint APLs do not enjoy the power of the Court and has no power or jurisdiction to give the directions, whether by majority or otherwise; even if the testamentary court has wide powers as claimed by the defendants, the same have not been conferred on the joint APLs. With the above submission, Mr. Bachawat concludes. 56. Mr. Jishnu Chowdhury, learned Senior Advocate appearing for the appellant in APO NO. 89 of 2020, Universal Cables Limited submitted that no notice was directed by the Court to be served on the companies and this is in violation of principles of natural justice. Since, this may affect the way the companies functions the Court felt notice was not necessary. In the judgment of the Division Bench dated 04.05.2020 there is no order or direction against companies/ third parties. Referring to the decision of the Hon'ble Supreme court in 1996 3SCC 587 (Para 4) it is submitted that when a party is not impleaded to a proceedings it is a grave error. It is submitted that the established principle of probate jurisprudence are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judgment dated 23.08.2012 and that the role of APL could not be limited to being mere proxies of the estate of PDB attending AGMs of the shareholders and voting at such meeting and that the role to be played by APL did not run-counter to the provisions of the Companies Act, 2013. The APL also concluded that while taking decision, APL could act by majority. It is submitted that in the light of the conclusions arrived at by APL in its decision dated 19.07.2019, it decided that three members of APL who had already been appointed as Directors in five investment companies of MP Birla Group would continue to be the Directors therein, that Justice Karnik who had already been appointed as Director would continue to be the Director in UCL, VTL and BCL and would be appointed as the Director in three subsidiaries of VTL that Justice Devedhar would be appointed as Director in BCRL and he would be appointed as the Director in Hindustan upon vacancies arises. 58. It is submitted that the APL's decision dated 30.07.2019 revolves around exercise of voting rights with regard to the two resolutions proposed at the ensuing AGM of VTL, BCRL, UCL and BCL. The APL decided to object to reappointment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 to 4. The charitable disposition of the couple has been recorded in the biography on the life of the MPB title "To man, To country and To God" authored by Dr. V Gaurishankar. In 1988, MPB and PDB executed five trusts bequeathing their estate to charity. In 1990, the MPB died. Thereafter the five trusts were perfected by PDB by nominating the beneficiaries. On 15.04.1999, just three days prior to the impugned will, PDB purportedly dissolved the five trusts. However, no document regarding revocation has been disclosed till date. On 18.04.1999, PDB purportedly executed the impugned will appointing RSL as executor and bequeathing the entire estate to him. On 27.06.2000, purported letter written by PDB to the Income Tax department stating that the five trusts have been dissolved. On 15.04.2003, the purported Codicil was executed by PDB. On 03.07.2004, PDB died. On 19.07.2004, RSL filed an application for grant of probate of the will dated 18.04.1999 and the Codicil dated 15.04.2003. It is submitted that all the above facts have been referred to in the judgment reported in 2006 2 SCC 757. On 03.10.2008, RSL died and upon his death HVL and other heirs of RSL were substituted and the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of PDB. It is submitted that the impugned will of 1999 proceeds on the basis that the estate has the right to control, manage and administer the MP Birla Group of companies, trusts and societies. The relevant portion of the will more particularly, paragraphs 3 and 4 therein were referred to. It is submitted that as per doctrine of election a pro pounder has to stand by the whole of the will and he cannot chose to accept the part of it and rejects other part. To support such contention, reliance was placed on the decisions in C. Beepathuma Versus Velasari Shankaranrayana Kadambolithaya AIR 1965 SC 241, Lyla Darius Versus Bakhtawar Lentin (2007) 1 Maj LJ 545, Mirzban Versus Cedric Vaz (2015) 2 Mah LJ 184 and Bhagwat Sharan Versus Purushottam & Ors. (2020) 6 SCC 387. 61. It is further submitted that in the amended application for grant of letters of administration the copy of the 1999 will annexed, HVL has agreed to abide by the direction contained in the sub clauses (i) to (iv) of Clause 4 of the 1999 will. In this regard, the averments in the application set out in paragraph 19(C) was referred to. It is further submitted that with regard to the contention of the 1999 will, the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indirectly through cross and chain shareholding in various companies within the MP Birla Group. Therefore, it is submitted that the learned Single Bench has rightly held that it is an admitted position that the majority controlling block of shares in the MP Birla Group is an asset of the estate of the PDB and the same should not be interfered with. It is submitted that admission is best evidence and does not require any further corroboration and in this regard referred to the Section 59 of the Evidence Act, 1872. It is submitted that the appellants have tried to come out of such admission and concluded issues by raising desperate and frivolous contentions. The contentions thereon were referred to and relied on. The learned Senior Counsel referred to the following decisions on the question of estoppel and res judicata: * Dwijendra Narain Roy Versus Joges Chandra De & Ors. AIR 1924 Cal 600 * Mumbai International Airport Pvt. Ltd. Versus Golden Chariot Airport & Anr. (2010) 10 SCC 422 * Hope Plantations Ltd. Versus Taluk Lank Board (1999) 5 SCC 590 * Bhanu Kumar Jain Versus Archana Kumar (2005) 1 SCC 787 * Ishwar Dutt Versus Collector Land Acquisition Collector & Anr. (2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mere spectator but exercise all the rights and powers and privileges incidental to vesting of estate including the controlling block of shares. The relevant paragraphs of the judgment dated 23.08.2012 were elaborately referred to. It is therefore submitted that APL by its decision dated 19.07.2010 has rightly concluded that the role of APL has already been determined by the judgment dated 23.08.2012 and it cannot be limited to being mere proxies of the estate of PDB attending AGMs of the shareholders and voting at such meetings and that the role to be played by APL did not counter to the provisions of the Companies Act. In this regard several paragraphs of the decision of the APL dated 19.07.2019 were referred to. 66. The next aspect which was dealt with by the learned Senior Counsel is with regard to the initial stand of the appellants before the APL. It is submitted that HVL/RSL and the companies/trusts and societies forming part of MP Birla Group understood the scope and effect of the judgment dated 23.08.2012 and initially acted in terms thereof but subsequently created hurdles in the way of administration of estate by APL. The companies responded to the letters of the APL whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also very strange why a possible beneficiary wants a estate to be the smaller extent than of an admitted and concluded larger extent. The APL by the impugned decision dated 19.07.2019 has rightly concluded that major part of the estate of PDB consists of the controlling block of shares in MP Birla Group through cross and chain shareholding in various companies in the MP Group. The learned Single Bench has rightly upheld the APL decision both on the ground of role of APL as well as the extent of the estate and the decision dated 30.07.2019 and the same should not be interfered in the instant appeals. Finally the learned Senior Advocate referred to the conduct of HVL which was termed to be mala fide. HVL tried to delay the testamentary proceedings by raising frivolous allegations and in this context, the Hon'ble Supreme Court was compelled to observe that HVL was trying to get a second bite on the cherry. In this regard, various dates and events were referred to by the learned Senior Counsel and also to the orders passed by the court and in particular the orders passed by the Division Bench dated 28.04.2017 wherein the court observed that the appeals which were filed were frivolous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayan, a company proceedings, records clear and absolute admission and findings that the estate of PDB holds majority controlling share holding in MPB Group. All companies, trusts and societies forming part of MPB Group were parties to CO 58 of 2004 however, RSL and HVL were not parties. On 14.09.2004 an interim order was passed in CP 58 of 2004 which was a composite order in two company petitions. On 25.04.2005 CP 58 of 2004 was dismissed declining to investigate on the ground that the estate of PDB was in control of BCL. In the said proceedings, the companies, trusts and societies forming part of MPB Group admitted that the estate of PDB was in control. In this regard, the relevant paragraphs of the order dated 25.04.2005 in CP 58 of 2004 were referred to. It is submitted that the said order dated 25.04.2005 was challenged in an appeal filed under Section 10F of the 1956 Act which was dismissed by order dated 24.08.2005 and as against the said order no appeal has been filed. Thus, it is submitted that those orders have not attained finality, the companies/ trusts/ societies forming part of MPB Group cannot reopen the same by reason of principles of res judicata and estoppel and ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p the public informed. It is submitted that RSL/ HVL in the matter of acquisition of shares held by the estate of PDB have admitted the application of the SEBI Takeover Regulations but have sought exemption under Regulation 3(G) by alleging that the mandate of the 2004 Regulation was not application since acquisition was by way of testamentary succession. Before the death of PDB the share holding pattern disclosed by BCRL and BCL as on 30.06.2004 gave the break up of the promoter's share holding of 66.44% and 64.28% respectively. There is no note in the disclosure. After the death of PDB the share holding disclosed by BCRL as on 30.06.2006 gave the breakup of promoter's share holding of 66.35% and there is a note in the disclosure regarding such fact. After the death of RSL the share holding pattern disclosed by BCRL and BCL as on 31.12.2008 gave the breakup of the promoter's share holding of 66.35% and 62.90% respectively and there is a note in the disclosure recording the facts. After the appointment of APL on 23.08.2012 the share holding pattern disclosed by BCRL and BCL as on 30.09.2012 gave the breakup of the promoter's share holding of 66.35% and 62.90% respectively and there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re holding group/ promotional group or a mere director. In this regard, Clause 6.5 or Kumar Mangalam Birla Committee on corporate governance was referred to which defines independence in relation to independent directors. Clause 49 of the listing agreement was also referred to which defines "independent director" as a non-executive director. It is submitted that during the lifetime of PDB she was described as Chairman, promoter non-executive director while RSL was described as independent non-executive Director. After the demise of PDB from April, 2005 RSL/HVL were described as non-executive Director and the word "independent" was missing nor as "non-independent non-executive director". On the basis of the admitted fact and concluded issue that estate of PDB holds majority controlling block of shares in MPB Group, RSL/ HVL and the companies have derived several benefits such as avoided investigation under Section 247/250; avoided application of Takeover Regulations; avoided appointment in the APL in the first round and insulated themselves from all allegations of wrongful usurpations of control of BCL made in CP No. 1 of 2010 on the basis of the stand that all matters relating to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said appeals and the Hon'ble Single Judge shall not be influenced by any findings made in the said order. In any event, the Hon'ble Supreme Court by order dated 11.05.2020, filed against the judgment of the Division Bench dated 04.05.2020, had directed the learned Single Bench to decide the issue of jurisdiction together with merits. It is submitted that paragraph 301 of the Division Bench judgment dated 11.10.2007 was relied upon the appellant however, this paragraph must be read along with paragraphs 259, 304, 310. It is submitted that it is an admitted fact that Lodhas have come in control of MPB Group because of PDB and the impugned will of 1999. It has been admitted by RSL, HSL and the companies forming part of the estate of PDB that the entry of RSL and HVL and into a subsequent control over MPB Group was the reason of PDB and the impugned will of 1999. This will be evident from the pleadings of HVL and the companies and written notes of RSL in the proceedings before the High Court in an appeal filed from the interim order dated 15.10.2008. The next aspect dealt with by the learned Senior Counsel is with regard to judicial estoppel. It is submitted that in several judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he admission made was a weak admission and under suspicious circumstances. It is submitted that the decision in Canbank Financial Services is distinguishable as in the said case there was no title claimed on the basis of any admission. The order passed by the Hon'ble Supreme Court in Prem Nath Chopra was sought to be distinguished on the ground that in the said case it was held that non-questioning of inheritance would not confer as the same is governed by the relevant laws of succession. The decision in the case of Narayan Bhagwantrao Gosavi Balajiwale Versus Gopal Vinayak Gosavi & Ors. AIR 1960 SC 100 relied on by the appellant will have no application to the facts of the present case as the question involved in the said case was whether a deity was mere family/ private deity or whether there was a religious and charitable endowment of a public character in favour of the deity. The Court in the said case in fact decided the question of title on the basis of admission. Therefore, it is submitted that this case is in favour of the respondents as it recognizes that admissions can be relied upon as evidence. 69. It is submitted that the appellants have tried to indicate the distinct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he court under the provisions of the Indian Succession Act particularly, Section 247. It is submitted that APL or the testamentary court while exercising its jurisdiction to preserve and protect the estate under Section 247 can prima facie, even go into the issue of title. In support of such contention the decisions were relied upon:- * Atula Bala Dassi Versus Nirupama Devi AIR 1951 Cal 561 * Shoilesh Chandra Mustafi Versus Amal Chandra Mustafi AIR 1958 Cal 701 * In the Goods of: Om Prakash Maniyar 2021 SC Online Cal 3066. 71. The appellant placed reliance on the decision in Ramchandra Ganpatrao Hande for the proposition that probate court does not go into the issue of title and this judgment has no application to the facts of the case on hand as in the said case the court was not dealing with the proceedings under Section 247 but was dealing with proceedings under Section 269. The court therein did not deal with the powers of the court to protect and preserve the estate under Section 247 and admittedly no prayer was made for appointing APL. It is further submitted that even during the pendency of the instant appeal some of the appellants have admitted before the NCLT that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is submitted that several paragraphs of the judgment supports the case of the respondents that inter alia the majority shareholding of MP Birla Group is part of the estate, that controlling interests can direct the shareholders to vote in a particular manner, that APL can take steps of protection of the estate and exercise control in accordance with the Companies Act by removing directors. No appeal has been preferred by the appellants from the aforesaid findings of the order dated 19.05.2016. On the other hand, the respondents have preferred appeal on other grounds and the same is pending. Thus, the appellants having accepted jurisdiction are therefore bound by the findings rendered therein. The next aspect dealt with by the learned Senior Advocate is with regard to whether the directions issued by the APL are in accordance with the provisions of the Companies Law. The contention that APL can exercise voting rights only in respect of shares which are registered in the name of PDB for example 1260 shares and not 62.90% in BCL is incorrect as it ignores the fact that the name entered in share register is not only the manner there can be ownership of the shares. There is a concep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting definition of beneficial interest and Section 90 was substituted. The Companies (Significant Beneficial Owners) Amendment Rules, 2019 was thereafter introduced. Thus, it is submitted that the courts have always recognized interests in respect of shares/beneficial interests in shares. Both the Companies Act, 1956 and the 2013 Act recognized the concept of beneficial interest in shares. The contention of the appellant that beneficial interest cannot be recognized as provisions of constructive trusts contained in Section 94 of the Trusts Act 1882 as it has been repealed by the provision of Benami Property Transaction Act, 1988 is wholly mis-placed as repealed of Section 94 does not put in pressure on the court in recognizing the trusts. The contention of the appellant that controlling interests can arise only out of actual ownership of shares and there is no concept of controlling interests is the contention which is mis-placed as true/beneficial/real ownership of shares can lie beyond the share register, it is not necessary to have shares registered in the name of such owner in order to exercise control in respect thereof and this will be evident beyond the definition of "contro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter of personal influence which is not heritable property, it is submitted that this submission has lost its force in view of the fact that it is now an admitted fact and a concluded issue that the estate of PDB holds the controlling block of shares in MP Birla Group. In the decision reported in 2016 SCC Online Calcutta 1541 in paragraph 131 the court recognizes that control is a heritable right and no appeal has been filed against the said findings. The judgment relied on by the appellant in Canbank Financial Services Limited also holds that the beneficial interest can be transferred. The contention of the appellants PDB exercises control over MP Birla Group as a matter of personal influence, has been raised for the first time while contempt proceedings were being heard in the instant appeal. This has not been case in any of the pleadings filed by RSL or HVL. 75. The contention of the appellant that the APL decision dated 19.07.2019 and 30.07.2019 are contrary to the provisions of the Companies Act, 2013 is untenable. It is submitted that in the past requests were made by APL to appoint nominees of APL as Directors in the MPB Group of companies and the same was duly complied w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate veil. It is submitted that according to the respondents there is no need to loft the corporate veil in the instant appeal since it is admitted fact and concluded issue that the estate holds controlling block of shares in MPB Group and hence the decisions relied on by the appellant in this regard, have no application to the present case. Furthermore there is no straight jacket formula to apply the doctrine of lifting of corporate veil. In Balwant Rai Saluja case the decision in estoppel was noted. Therefore, it is submitted that it depends on the facts of the case whether the corporate veil will be lifted or not. Further it is submitted that even the testamentary court have passed order directing lifting of corporate veil and to support such contention the decision in In the Goods of: Kamal Kumar Mitra (2008) 3 CHN 384 and Niranjan Lal Todi and Anothers Versus Nandlal Todi and Others 2010 SCC Online Cal 2120 referred. Thus it is submitted that the order and directions issued by the learned Single Bench cannot be interfered. 78. Mr. Ratnanko Banerjee, learned Senior Advocate appearing for the respondent No. 3 submitted that in addition to what has been stated in the written ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 3 SCC 635 79. It is submitted that if decision is not permitted by majority there will be absolute stalemate in administration of the estate by APL. In the past, decision of the APL by way of majority have been accepted and implemented by the appellant. It is submitted that Joint APL means anybody which is not a single member body. In a Joint APL all members of the APL have to act jointly that is each of them has to apply his minds on all issues but the decision ultimately reached by Joint APL may be unanimous or by majority and Joint APL cannot mean operating necessarily by unanimity. It was contended by the appellant that the respondents have made an application in the GA No. 1964 of 2018 praying for permission for APL to act by majority which was not granted and hence deemed to have been rejected. This contention is wholly misplaced in the light of the prayer made in para (c) of the said application and the relief which was granted by the order dated 10.04.2019 which was much beyond the prayer. Therefore, it is submitted that unanimity in decision for working of APL is not possible is also proved from the fact that after the decision dated 19.07.2019, Mr. MKS, the nominee of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res. It is submitted that by the judgment dated 28.08.2012, APL was appointed for the PDB estate having controlling block of shares in the companies in the MP Birla Group and not for merely the two companies East India and Gwalior Webbing. Punjab Produce Trading Company Private Limited (PPT) has been acting as lead promoter on behalf of the promoter/promoter's group of all the four listed companies of MP Birla Group in terms of the provisions of the SEBI Takeover Regulations. Accordingly, PPT has been making annual disclosures about the names shareholdings details of the entities in MP Birla Group holding shares in all the four listed companies of the group from 1997 onwards, till 2021. These disclosures are made with a National Stock Exchange and Bombay Stock Exchange where the shares of BCL, UCL, VTL and BCRL are listed. It is submitted that the listed companies themselves have also been acknowledging in their annual accounts being published every year by the respective Boards of Directors under the de facto control of RSL/HVL that the respective companies are part of the MP Birla Group. Annual accounts of BCL is a flagship company, published year after year also expressly states ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the ownership of the shares and so enjoyed by the deceased during her lifetime. Further it was held that it is not disputed that the deceased had controlling block of shares in MP Birla Group of Companies. 82. It is submitted that Section 89 and 90 of the Companies Act, 2013 read with Companies (Significant Beneficial Owners) Rules, 2018 contained a scheme to deduct the ultimate holder of the shares whose name does not appear in the shares of the PDB for the shares in the reporting company but who is the ultimate beneficiary owner of such shares through a web of companies by chain holding or by cross holding in a series of companies. In this regard, the report of the Company's Law Committee of February, 2016 was referred. It is further submitted that the first meeting of the present APL Committee was held on 28.04.2019 where Mr. ACC brought the attention of the Committee on the issue of significant beneficial ownership of the PDB estate in the MP Birla Group and new rules framed in the year 2018. The APL Committee after hearing the learned advocates for the parties and after considering the details of shareholdings in all companies took a decision on 09.12.2019 holding that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the manner considered by the APL Committee as beneficial to the interest of the PDB estate. The probate Court further held that now such entities would exercise their voting rights flowing from their share holding in the companies controlled by PDB in the manner be guided by the APL Committee. It is submitted that HVL and the listed companies contended that during the lifetime of PDB, who was the Chairman of the listed companies, had not filed any declaration under Section 187C of the 1956 Act read with the 1975 Rules and therefore, the APL Committee cannot have a better right or interest than what PDB had. This contention was raised by HVL before the APL Committee and by majority decision dated 09.12.2019 the same was rejected. By explaining the distinction between Section 187 C of the 1956 Act read with 1975 Rules on the one had and Sections 89 and 90 of the 2013 Act read with SBO Rules, 2018 on the other hand. It is submitted that the provisions under the old Act required disclosure of beneficial interest where a registered holder of shares was a benamidar of the real owner. The holder's shares in the entities in MP Birla Group were benamidar and therefore, PDB was not requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of PDB's estate the controlled structure over 62.9% in BCL which was recognized by the judgment dated 10.05.2013. With the above submissions, the learned Senior Counsel concluded. 84. Mr. Kishore Dutta, learned senior advocate appearing for the minority APL Committee member submitted that the ingredients of Section 247 are broadly three in number namely (i) there should be pending proceedings (ii) it should be for administration of the estate of the deceased and (iii) subject to the immediate control and the word "immediate control" means direct control of the court. It is submitted that the APL Committee is a multi-member body and there is every possibility of a dissent occurring and if such dissent occurs or any difference of opinion arises then the APL Committee had to approach the court for appropriate directions. The learned senior advocate referred to the minutes of the meeting of the APL held on 07.12.2012 wherein it has been recorded that two administrators viewed the matter from different perspective and therefore it was agreed that they should give further thought to the matter and give their respective views and suggestions in writing so that the committee of administr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two of the companies namely East India Investments Company Private Limited and Gwalior Webbing Company Private Limited and in all other respects, the assets declared in the list of assets are identical. Once again, reverting back to Section 247 of the Succession Act, it is submitted that the words "immediate control" assumes significance and that would mean that it is the direct control over the estate and the administrators are under the direct control of the court. Further it is submitted that majority view cannot always be the correct view and the decisions as to whether the estate can exercise rights over the Tier 1 and 2 companies or the other companies in the other tiers cannot be left to the decision of the APLs. The learned senior advocate referred to the submissions made by him before the learned single bench wherein it was submitted that members constituted body called administrators cannot be segregated so as to form a majority or minority view and law demands that this body must give one decision jointly and if they cannot act together and fail to rule in unanimity, they should come before the court for necessary directions and/or clarifications. In support of such con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he unanimous report is not sustainable. Further it is submitted that earlier the APL Committee held 23 meetings and acted without any exception only to decide to act when all three members had unanimously agreed on the manner of acting. Further it is submitted that the APL Committee had never passed any direction to any of the listed companies to appoint any person as the director. The APL Committee does not have the right to nominate any director on the board of the companies by a reason of any law or agreement and any contrary assertion is not correct. Further the shareholders of companies or administrators must act jointly unless law gives them the power to decide by majority. The Joint administrators are not allowed by the Succession Act to decide by majority. The learned senior counsel referred to the various provisions of the Act which provides the manner of decision to be taken under those statutes and it is submitted that in those statutes where it provides the decision should be of a simple majority or of 2/3rd majority, it is always to be presumed that the decision should be unanimous. It is submitted that the learned single bench has accepted the legal position that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot issue any directions to the trusts and societies much less make nominations of the persons to be appointed on these trusts and societies. In this regard, the rules and regulations of one of the societies namely Shreyas Medical Society was referred to and the various clauses in the rules and regulations of the said society to demonstrate that the society is governed by their own rules and regulations and the trustees who were appointed were entitled to continue for life unless they resign or become legally incompetent to hold the office of the trustees. Further the powers of the managing committee having been clearly delineated in the rules and regulations, the same cannot be ignored by the APL. Further, a combined reading of the Rules 21, 27 and 28 of the Rules and Regulations of the Shreyas Medical Society, it is clear that there is no heritable right for PDB and therefore the trusts and societies cannot be the subject matter of control by the APL Committee. The minutes of the meeting of the APL Committee held on 22.02.2022 was also referred to show as to how Mr. MKS had dissented from the opinion of the two members of the APL. Further with regard to the very same medical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. These societies are charitable entities and cannot form part of the estate of a private individual. The societies or the assets of the societies have not been shown to be part of the estate of the PDB in the affidavit of assets. The APLs are appointed to administer the estate of PDB only and are not appointed on the assets and properties of the third parties or the promoter group or MP Birla Group. Therefore, the directions issues by the two Joint APLs to the charitable societies to appoint persons as trustees and members of the managing committee are beyond their competence and authority. With regard to the legal expenses incurred by the APLs, it is submitted that the crores of money are being spent for litigation and other legal expenses which erode the estate and this aspect was highlighted by Mr. MKS in the meeting of the APLs held on 30.07.2020 wherein it was pointed out that the estate should not be required to be pay legal fee of the counsel engaged by the two members of the committee and if the decision is being challenged, they have to remain neutral and let the higher judicial authorities decide the matter without seeking to justify their decision before the court by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attern to show that the estate does not have directly or indirectly majority shareholding of the Tier 3 and 4 companies and the estate only has direct majority shareholding in tier 1 companies and indirect majority shareholding in Tier 2 companies. Since there was a wrong recording in the minutes dated 21.07.2017 on being brought to the notice by the plaintiff, in the next meeting of the APLs on 25.08.2017, the same was also once again informed and this fact was recorded in the minutes of the meeting dated 12.03.2018. Wrong recording was with regard to the submissions allegedly made by the counsels for the plaintiff that HVL shall cause appointment of a nominee of the APL Committee in the subsidiary of VTL. The learned counsel had also submitted that it is for the Nomination and Remuneration Committee and Boards of the respective listed companies to propose whom the companies will appoint as directors and it is ultimately for the shareholders to vote on such resolution. In terms of the liberty granted by the court in the order of appointment dated 23.08.2012, the plaintiffs challenged certain recordings and decisions of the APL Committee in the meeting held on 12.03.2018 and 05.04. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.08.2010 and it is pointed out that the directions issued will clearly show that the APLs have to act by consensus and though the matter was carried on appeal before the Hon'ble Division Bench, the directions issued in the said order dated 27.08.2010 continues to remain valid and binding. With this Mr. Dutta concluded his submissions. 88. Mr. Khambatta, learned Senior Advocate appearing for the appellant classified his reply submissions broadly under eight heads. Firstly, with regard to the alleged admissions which was sought to be heavily relied upon by the learned Senior Advocates for the respondents, secondly, as to whether the affidavit of assets could be brushed aside; thirdly, that the estate of Smt. PDB was never a beneficiary of the societies and trusts; fourthly, with regard to the piercing of the corporate will; fifthly, with regard to the control as envisaged under the Companies Act with particular reference to Section 2(27) of the said Act; sixthly, as to whether the APL Committee can pass directions; seventhly with regard to the will and lastly with regard to the allegations made against HVL. 89. It is submitted that title and property including shares cannot be pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executor RSL took possession of the said shares and there is no allegations that he has failed to collect these assets. Further in paragraph 304 of the judgment, the court had pointed out that after perusing the material placed on record and the facts of the case, the court had come to the conclusion that the vastness of the estate is nothing but controlling block of shares in the MP Birla Group of Companies. 91. Once again turning back to the judgment of the Division Bench in APO No. 244 of 2011 dated 22.12.2011 wherein the Division Bench observed that the court failed to understand the hesitation on the part of the appellants therein in permitting the Joint Administrators to approach the various companies of which the deceased owns and possess shares and stocks to get themselves recorded as representatives of the estate of the deceased appointed by the court and to take all necessary steps to enjoy rights and privileges, incidental to the ownership of the shares and stocks which consists of controlling interest in MP Birla Group of Companies and safeguard the interest of the ultimately beneficiaries. Thus, it is submitted that it is the shares and the stocks which gives the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endra Nayak, referring to paragraphs 12 and 15 of the judgment, it is submitted that the judgment purely dealt with the facts of the said case which are distinguishable. Similarly, the decision in the case of Directorate General of Police Versus R. Maninkandan, the findings rendered by the court more particularly in paragraph 45 of the judgment would show that the judgment is purely on factual assertions and nothing on law. 93. The learned Senior Counsel now proceeded to deal with the decisions relied on by Mr. S.K. Kapur learned Senior Advocate appearing for the respondent. With regard to the decision in the case of Dwijendra Narain Rai, it is submitted that in the said decision, the plea of estoppel was on facts and for which purpose paragraphs 3 to 5 of the judgment were referred to. With regard to the decision in Mumbai International after referring to the paragraphs 41, 45, 50 and 51 of the judgment, it is submitted that in the said case the second proceedings grew out of the earlier judgment which is not the case in the present appeal. With regard to the decision in Hope Plantations Limited, after referring to paragraphs 26 and 31 of the decision, it is submitted that the is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey themselves filed a suit saying that the trusts/societies are different will go to show that no such party believed the representation to be true. Further it is submitted that "control" being a mixed question of fact of law the question of estoppel or issue estoppel would not arise. Further it is submitted that the decision of this court reported in 133 Company cases 515 (Cal) was independent decision given by the High Court and in this regard, the learned Senior Advocate referred to the paragraphs 37, 38 and 43 of the judgment. Further the decision was much before the judgment of the Hon'ble Division Bench. 95. The Learned Senior Advocate referred to the decision of the Hon'ble Division Bench in APO No. 95 of 2019 dated 04.05.2020 wherein it was pointed out that the controlling block of shares of the deceased and/or her estate is as disclosed in the affidavit of asset. Referring to the decision cited by the learned Advocate General of the CLB dated 19.10.2009 in C.P No. 57 of 2004,it is submitted that the CLB has noted that since the company as well as HVL have now taken the stand that shares held by respondent share holding companies are not part of the estate of PDB, the CLB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed wills of 1982 have filed the affidavit of assets and have not mentioned therein any of the societies or trusts. Further it has been stated that the companies are separate legal entities controlled by their Board of Directors and there were specific denial to the allegations that the shares owned by the testatrix includes the affairs of the companies. Further there was a specific denial that the affairs of the estate of the testatrix includes right to control the affairs of Birla Corporation Limited and/or its assets or properties. Further it has been specifically denied that the testatrix acquires or exercise control over any of the companies subsequent to the death of MP Biral. Further it was denied that the estate of the testatrix comprises of control over other alleged Birla companies as sought to be alleged. Therefore, it is submitted that the stand taken by RSL has been taken by HVL and there is no inconsistency. The Hon'ble Division Bench in the judgment rendered during 2007 considered all these aspects and held that the controlling block of shares is as disclosed in the affidavit of assets. However, in the first interim report of the APL Committee reference has been made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard to the jurisdiction of the Probate Court, reference was made to the decision of the Hon'ble Supreme Court in Babulal Khandelwal and Others Versus Balkrishna D. Sanghvi and Others (2018) 10 SCC 485. For the proposition that a probate proceeding is not a suit in which there is property in dispute as contemplated by Rule 1 of Order 31 CPC and the only question in controversy in such proceedings is that of representations of the estate of the deceased and no question of title thereto i.e. the title of the deceased or of the conflicting titles alleged by the parties to the proceedings can be investigated by the court, reliance was placed on the decision of the Division Bench of this Court in Nirod Barani Debi Versus Chamatkarini Debi 1914 SCC Online Cal 30 (DB). With regard to the decision relied on by Mr. Kapur reported in 2018 SCC Online Bombay 6830, after referring to paragraphs 79, 95 and 96, it is submitted that in the said case the deceased was a Parsi and Section 269(1) is fully applied and the decision is in opposite. Thus, it is submitted when the APL is appointed and they want to preserve and protect the estate they have to approach the court. The decisions reported in 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference was made to the decision of the Hon'ble Supreme Court in Keshav Kumar Birla Versus RSL (2008) 4 SCC 300. Thus, in conclusion it was submitted that all decisions by the majority APL Members must be set aside. With the above submissions, Mr. Khambatta learned Senior Advocate concluded his reply. 100. Mr. Bachawat, learned Senior Counsel in his reply submission reiterated that companies are separate legal entities. So far as the allegation that there has been admission before the CLB, it is submitted that the same is incorrect as all the averments were in the petition and CLB decided based on petition and cannot be stated to be an admission. Further the other side did not attempt to show any arithmetic control which stops with tire 2 companies. There is no order passed by any Court prior to the impugned order giving any right over the trusts and societies. The term used in the impugned order is "entities". It is submitted that the beneficial ownership declaration was filed on 30.12.2020 when the appeal was pending. The companies must agree and then only filing can be done and the Directors did not have any knowledge of the same. Furthermore, there was no pleading on benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (PDB) executed mutual Wills. July 30, 1990 MP Birla died. April 18, 1999 Present Will executed by PDB. July 3, 2004 PDB died. July 19, 2004 PLA 204 of 2004 filed by Rajendra Singh Lodha (RSL) for probate of 2019 Will (on contest, converted to Title Suit No. 6 of 2004). August 17, 2004 PLA 242 of 2004 filed by executors for probate of 1982 Will of PDB. October 3, 2008 RSL died. Harsh Vardhan Lodha (HVL) took over and converted probate proceeding to Letters of Administration Proceeding. December, 2004 Birla heirs filed APL application. Two fresh applications for APL by Birla heirs (executor of 1982 Will of PDB). August 27, 2010 Three-member APL Committee formed. December 22, 2011 Division Bench (in HVL appeal on APL rights + composition) - two persons from each side + one former Judge as third members of APL ('Umpire' modified by consent). Out of the labyrinth of arguments advanced, the following broad issues and sub-issues emanate for adjudication in the present case. 1. Powers of Probate Court under Section 247, Succession Act - i) Question of title; ii) Third party injunction. 2. Extent of PDB Estate - i) Only shares or 'controlling interest'; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Act and in no other ways. The grant of probate with a copy of the will annexed establishes conclusively as to the appointment of the executors and valid execution of the will. Thus, it does no more than establish the factum of the will and the legal character of the executors. The probate court does not decide any question of title or of existence of the property itself. Further in Kanwarjit Singh Dhillon, it was held that probate of the will granted by the competent probate court would be admitted into evidence that may be taken into consideration by the civil court while deciding the suit for title but grant of probate cannot be decisive for declaration of title and injunction whether at all the testator had any title to the suit properties or not. In Krishna Kumar Birla Versus Rajendra Singh Lodha and Others (2008) 4 SCC 300, the Hon'ble Supreme Court held that the jurisdiction of the probate court is limited being confined only to consider the genuineness of the will. The question of title arising under the Succession Act cannot be gone into in the probate proceedings. Conception of a will relating to the right title or interest of any other person is beyond the domain of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cree. Consequently, the application for injunction must satisfy the court that the proceedings is a suit in which there is property in dispute and the property is in danger of being wasted, damaged or alienated. It was further held that the question, consequently, arises whether the proceedings for the probate of a will or for letters of administration may rightly be held to be a suit in which property is in dispute. In the opinion of the court, the answer was in the negative. After referring to several other decisions, it was held that the only question in controversy in a proceeding in a probate court is that of representation of the estate of the deceased and no question of title thereto, i.e. the title of deceased or the conflict in title alleged by the parties to the probate proceedings can be investigated by the court. Further the court held that they do not lay down the proposition that the court is not competent, because it is a probate court to grant injunction in any circumstances. It was held that the proper procedure to follow in cases of this description is for the aggrieved party to apply to the court for the appointment of an administrator pendente lite (APL) under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it cannot extend its jurisdiction to a person who is not a party to the present proceedings. Further the probate court cannot extend the jurisdiction over a person or entity who is not a party to the proceedings. Further it was held that since the noticee company being not the party to the proceedings no order can be passed against it. The respondents have filed the cross objection against these findings recorded by the learned Single Bench which needs to be rejected. In the decision reported in 2016 SCC Online Cal 1541, Hon'ble Court observed that the court has no hesitation to hold that probate court cannot pass any injunction order against the third parties as third parties who has no caveatable interest in the probate proceedings cannot be allowed to be added as a party in the probate proceedings and also for the reason that no order can be passed affecting the right of the stranger without adjudication of his rights in the probate proceedings is impossible as probate court cannot decide any foreign issue unconnected with the probate proceedings. To be noted that though appeals are pending against the said decision, there is no order of stay. The decision relied on by the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voting rights or otherwise, as a part of the incidental rights of a shareholder. However, without actual participation in voting and other decision-making processes, such advantage would merely be inchoate. 115. As a natural corollary, the APL to be appointed by the Probate Court for looking after and managing the Estate of the deceased, steps into the shoes of the deceased and does not have an iota of right or power more than the deceased herself would have. 116. Hence, at best, the Probate Court can direct the APL, personally or through its appointees, to register itself or its agents as members of the companies in the capacity of owners of the shares actually owned by PDB in such companies. Upon such registration, the APL and/or its nominees would function as shareholders in such companies and have all the incidental rights and controlling power which PDB would have had by virtue of such shareholdings, including voting rights, participation rights in decision-making processes and meetings, etc. However, the Probate Court cannot go an inch further than that in interfering with the business of the companies. 117. It is contended by the learned Senior Advocate appearing for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e court held that a Hindu testatrix or testator cannot dispose of anything or otherwise that is mentioned in the provisions of Section 30 of the Hindu Succession Act. It was further held that disposition of properties means an act by which property can be transferred by executing a deed intervivos in case of immovable property or interests therein, by a party in possession in case of movables. It was held that there is no dispute as regards, the transferability character of the movable and immovable properties including shareholders. The argument that shareholders stand at a different footing from that of a company which is a separate legal entity was accepted. However, the contention that the properties which are described in the affidavits of assets can be said to be the properties as mentioned in Section 211 of the Act was held to be not acceptable. Further the court held that the description in the affidavits of assets affirmed by the RSL cannot at that stage be an exhaustive one as there may be properties of any description remaining undiscovered or untraced. Therefore, the "estate" of the said deceased should be the properties both movable and immovable which have been stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and managed either by RSL himself or his nominee. Further it was held that from the affidavits of assets furnished by the pro-pounder RSL, it appears properties are of different character and nature namely majority shareholding of four companies of MPB group co- ownership in the immovable properties. Thus, a cumulative reading of the view taken by the learned Single bench in the aforementioned interim order is that the shareholders stand on a different footing from that of the companies which is a separate legal entity. The description in the affidavits of assets affirmed by RSL cannot be an exhaustive one as there may be properties of any description remaining undiscovered or untraced and therefore, the estate of the deceased should be the properties both movable and immovable which have been stated in the affidavits of assets of RSL or which might be discovered by inventory or otherwise. That a single or group of shareholders not forming majority there is no impact in the affairs of the company as they do not have separate or significant character or position in the company except the right to get the dividend. Formation of the Board of Directors who are really responsible for co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the extent of the estate has been conclusively determined. A careful reading of the decision more particularly from paragraphs 26 onwards, we find that the observations in paragraphs 32 and 33 of the judgment appear to be the stand taken by the parties, as the decision in the case commences from paragraph 34 of the judgment. Even assuming the observations made in the aforementioned paragraphs are to be taken as a finding, the court has not rendered a definite ruling on what is "controlling interest" as the court at the very threshold had rejected one of the prayers on the ground that if it is granted, it would amount to taking over and control of separate juristic bodies by the probate court as it has no jurisdiction to do so. Therefore, the observations contained in the order are to be read in such a manner to aid and support the ultimate relief that was granted namely the appointing of four administrators. This is further clear from the observations made in the paragraph 75 of the order wherein the court after appointing the four administrators directed that they shall take charge and control of all the shareholding of PDB in all the companies and they should function under law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e before the probate court are party to the application for appointment of APL. Further it was held that it is also a fact that no notice of the application was given to the public shareholders by issuing a general notice and therefore the submissions was made before the Bench that number of members of public will be affected by such appointment. It was therefore held that the court does not have any doubt in its mind that without giving notice to the shareholders in the probate proceedings, the court has no power to appoint APL over the said controlling block of shares. After perusing the material placed on record, the Division Bench observed that they are not able to find out any document which will suggest or can act in favour of such appointment on the controlling block of shares. Further it was held that the order of the learned Single Bench had the effect of dislodging the present board as the management without considering the provisions of the Companies Act and therefore the order is contrary to the provisions of the Companies Act. Further it was held that the probate court has no jurisdiction to pass such an order and accordingly the order of the learned Single Bench appoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to these shares cannot be ascertained without investigation, then certainly investigation can be ordered. It is further observed that it is an admitted fact that before the demise of PDB even though her direct shareholding in the company was negligible, by virtue of her controlling respondents 1 to 28 therein which held/hold over 60% shares in the company, PDB was not only materially interested in the company and was also able to control the company. Thus, it could be seen that CLB took note of the fact that the direct shareholding of PDB in the company was negligible. However, proceeded to make an observation, that by virtue of her controlling respondents 1 to 28 therein which held over 60% shares in the company, PDB was able to control the company. 125. Firstly, the decision was rendered in an application filed before the CLB where the petitioner therein sought for an investigation into membership of the company in terms of Section 247(1A) of the Companies Act 1956 for determining the true persons who are financially interested in the success or failure of the company or who have been able to control or materially influence the policy of the company. This petition was dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to control the estate. Therefore, we find that the decision cannot be of assistance to the respondents to support their contention that the extent of the estate has been finally determined. 127. The next decision which was relied on was in PLA No. 242 of 2004 dated 23.08.2012 of the Hon'ble Division Bench. This judgment was rendered in appeals arising out of a common judgment and order of the learned Single Bench dated 27.08.2010 in GA No. 3714 of 2008 and 3718 of 2008 in PLA No. 242 of 2004. The learned Senior Advocates appearing on either side placed heavy reliance on the findings/observations of the Hon'ble Division Bench in the four pages of the judgment which was in fact, dissected several times. We will examine the observations/findings recorded by the court to ascertain as to what was the impact of the findings on the aspect relating to the extent of the estate/"controlling interest". The Hon'ble Division Bench pointed out that the rights and power of the general administrator over estate depends on the nature of properties both movable and immovable and the respective statute which governs acquisition and enjoyment of such property. Therefore, the Hon'ble Divisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o mean that de hors ownership rights in shares and stocks, the APL will be entitled to exercise the rights, power and privileges. Much emphasis was made by the learned Senior Counsel on the word "all" used in the judgment but the said word has to be read in conjunction with the words following it and if read together, it shows that all the rights powers and privileges ought to be incidental to the ownership of shares and stocks and not otherwise. This is amply clear from the next paragraph of the judgment wherein it was held that even though they are appointed by the court as APL nothing prevents them in their capacity as the representatives of the beneficiaries to exercise all such rights which flow from the ownership of shares and so enjoyed by the deceased during her lifetime. Further it has been held that in order to enjoy certain rights flowing from the shares and stocks of the companies held by the deceased, the APL will have to apply to the respective companies to obtain such benefits namely in case the company comes out with rights issue and/or bonus shares which otherwise can only be subscribed by the shareholder and therefore as the representative of the shareholders, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent the estate of the deceased are entitled to take all steps to enjoy the rights and privileges incidental to the ownership of the shares and stocks which consists of the controlling power in MP Birla Group of companies and safeguard the interests of the ultimate beneficiaries, the words "controlling power" cannot be read in isolation but has to be read in conjunction with the other findings recorded by the court which categorically holds that controlling power flows from the ownership of the shares and stocks. Therefore, the observations/findings rendered by the court would go support the case of the appellant rather than the respondents. 128. The next decision which was referred to is the decision reported in 2016 SCC Online Calcutta 1541, the court after taking note of the definition of control as defined under Section 2(27) of the Act held that "control" is a mixed question of law and facts. Ownership of shares made in certain situation, result in the assumption of an interest which has the character of a controlling interest in the management of the company. A controlling interest is an incident of ownership of shares in a company, something which flows out of holding of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the management of BCL by following provisions prescribed under the Companies Act and in case APL fails to discharge its duties, probate court can pass necessary directions upon APL for taking steps in accordance with law. Further the probate court at best can pass necessary directions upon APL to initiate appropriate proceedings before the appropriate forum for seeking appropriate reliefs and in accordance with law and it is only that appropriate forum which can pass appropriate order after adjudicating the rights of the parties including that of a stranger. Thus, it is clear that it is extent of the shareholding which enables the shareholders to control the company and any other interpretation will fall foul of the definition of control as defined under Section 2(27) of the Act. 129. In the judgment of the Hon'ble Division bench dated 04.05.2020, arising out of an intra court appeal, the Division Bench while considering the jurisdiction of probate court took note of the order dated 10.05.2013 which was heavily relied upon by the respondents contending that the probate court should decide all issues as to the control of interest comprises in the estate and its effect with regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hare holders. Further, it has held that a company is a separate legal persona and the fact that all its shares are owned by one person or by the parent company has nothing to do with its separate legal existence. In none of the authorities have the assets of the subsidiary have been held to be those of the parent unless it is acting as an agent. Thus, even though a subsidiary may normally comply with the request of a parent company it is not a puppet of the parent company. The difference is between having power or having a persuasive position. Further, it was held that the legal position is well settled, namely, that even though a subsidiary may normally comply with the request of a parent company, it is not just a puppet of the parent company. The difference is between having the power and having the persuasive position. A great deal depends on the facts of each case. At this juncture, it would be relevant to take note of the definition of "control" as defined under Section 2(27) of the 2013 Act. It states that control shall include the right upon majority of the directors or to control the management or policy decisions exercisable by a person or persons acting individually or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what is most important to note in the definition of the word "control" is that there must be a right to appoint majority of Directors or a right to control the management or policy decisions exercisable by a person or person acting individually or in concert directly or indirectly, including by virtue of their share holding or management rights or share holders' agreements or voting arrangements or in any other manner. Therefore, the word "right" as contained in Section 2(27) of the Act is of utmost importance and the definition of the word "control" cannot be read to mean something de hors the existence of a right. 132. On going through the order impugned in this appeal we find that the Learned Single bench had held that no order can be passed against the companies. It has also been held that the Court is not deciding any of the points urged by the companies. Further, the companies would exercise voting rights flowing from their investment in the companies controlled by PDB in the manner to be guided by the APL committee. Further, the learned Single Bench was of the clear view that it is not deciding any of the points urged by the companies and also recording a finding that no o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect that the company and its share holders are separate and distinct and the assets of the company do not belong to the share holder and even a 100% share holder is not the owner of the company. The appellant companies had contended that the directions issued against the company in the impugned judgment may take away statutory rights of the company with regard to its assets and it in effect permits a outsider to deal with the assets of the company which in our opinion cannot be permitted. In the inter parties decision in Priyamvada Devi Birla Versus Harsh Vardhan Lodha and Ors. 2016 SCC Online Cal 1541, the first question which was taken up for consideration by the Court was the extent of the jurisdiction of the probate Court and/or its duties pending consideration for such grant. It was pointed out that while deciding a contentious cause relating to a probate proceedings the only and/or primary duty of the probate Court is to examine the genuineness of the will and while examining the genuineness of the will, the Court is required to consider whether the will was duly executed by the testator and/ or testatrix consciously or not; whether the execution of the will by the testator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the will and he is in capacity as the Chairman of the Board of Directors of BCL. The court held that HVL in capacity as the Chairman of the Board of Directors in BCL cannot be mixed up with the capacity as legatty under the will. The court posed the question to itself as to whether the directions which was sought for by way of injunction against the HVL is legatty under the will and the answer to the said question was "no". The court reasoned out by observing that HVL is not a party in his capacity as the Chairman of the Board of Directors of BCL, no directions can be passed against HVL in the capacity of being Chairman of the Board of Directors of the said company. Accordingly, it was held that no directions can be passed either for production of relevant documents relating to the proposed deal (subject matter therein) of HVL as a legatty nor any injunction order can be passed against HVL in his capacity as the Chairman of the Board of Directors. It was further held that though HVL became the Chairman of the Board of Directors of the said company by virtue of his interest flowing from the will but still the position that of a Chairman of Board of Directors of the company can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Division Bench in the decision reported in ILR 2007 2 Cal 377. The Hon'ble Division Bench after considering the materials which were placed before it and also the pleadings and after perusing the order passed by the learned Single bench held that implication of taking over of the voting rights and the right of control of 38 companies has nothing to take over the control of the companies in other words, to take over the management of the said companies. Therefore the Division Bench held that the effect of the order to dislodge the Board/management without considering the provisions of the Companies Act, is not sustainable. Further the Hon'ble Division Bench noted the specific provisions in the Companies Act setting out the methods for rectification of the share register and to dissolve the Board of Directors, which has to be done as laid down under Section 397, 398 and 402 of the Companies Act. Therefore the Court held that the learned Single Bench appointing the administrator directing to rectify the share register and appointing them as Directors superseding the Board of Directors are not in accordance with law. However, the probate court has no jurisdiction to pass such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t does no more than establish the factum of the will and the legal character of the executor. Probate court does not decide any question of title or the existence of the property itself. 16. The grant of a Probate by Court of competent jurisdiction is in the nature of proceeding in rem. So long as the order remains in force it is conclusive as to the due execution and validity of the will unless it is duly revoked as per law. It binds not only upon all the parties made before the court but also upon all other persons in all proceedings arising out of the will or claims under or connected therewith. The decision of the Probate Court, therefore, is the judgment in rem. The probate granted by the competent court is conclusive of the validity of the will until it is revoked hand no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. In Sheoparsan Singh v. Ramnandan Prasad ILR (l916) Cal. 694 PC Singh, the judicial committee was to consider whether the will which had been affirmed by a court of competent jurisdiction, would not be impugned in a court exercising original jurisdiction (Civil Court) in suit to declare the grant of probate illegal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cropped up is the order dated March 23, 2005 passed by the Hon'ble Justice K.J. Sengupta of this court. The order arose out of prayers for appointment of APL, injunction and other interlocutory reliefs. The said order was at an ad interim stage and no APL was appointed. The findings were not binding at any stage. In any event, the court observed that the estate comprised of the movable and immovable properties "mentioned in the affidavits of assets of Lodha or which might be discovered by inventory or otherwise". 138. The next relevant order was of May 19, 2006, passed by the same learned Single Judge of this court while taking up applications inter alia for appointment of an independent APL. A four-member Committee was appointed. Vide order dated October 11, 2007, however, a Division Bench of this court modified the order and removed the committee but granted injunction. In its discussions, the Division Bench observed inter alia that the Estate was vast and of substantial value, but directed the Executor to keep accounts only of the dividends of the shares owned by PDB, neither more nor less. 139. The matter reached the Supreme Court on the question of caveatable interest regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned Judge observed that the testamentary court could not encroach upon the jurisdiction of the Board of Directors of the concerned company to purchase shares. The learned Single Judge opined that a promoter of a company cannot exercise power derogatory to the provisions of Company Law. It was held that the APL at best could take out appropriate proceedings before appropriate forums to protect the interest of the estate. 146. Hence, no conclusive finding was reached by any of the courts which passed orders in connection with the probate/letters of administration proceeding which can be elevated to the status of a conclusive adjudication of the issue. Thus, adjudication on the issue of the extent of the estate of late PDB is not barred by res judicata. 147. Upon a thorough scrutiny of the several judgments and orders passed by different courts/forums, it is evident that the question of the extent of the Estate has never been finally determined, sufficient to be terms as res judicata. Most of the proceedings in which such orders were passed were interlocutory proceedings or proceedings arising out of interlocutory proceedings. Some of the orders, passed by the Company Law Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es on the subtle distinction between estoppel and admission. Judicial and issue estoppel have also been addressed threadbare. 155. The Calcutta High Court in Dwijendra (supra) and the Supreme Court in Mumbai International Airport (supra), Hope Plantations (supra), Bhanu Kumar Jain (supra), Ishwar Dutt (supra) have expounded the law elaborately. Judgments of the US Supreme Court (New Hampshire's Case), the Karnataka High Court in Surendra Nayak (supra) and the Madras High Court in 2017 SCC OnLine Mad 27091 have been cited on the operation of Judicial Estoppel. 156. However, the said line of judgments do not alter the factual situation in the present case in view of the dual aspects of the testamentary court's in rem jurisdiction being unbound by parties' fetters of admission and estoppel and HVL's specific stand as a legatee being contrary to counsel's written notes of arguments of RSL, not as his father but in a different legal capacity of Executor. 157. Hence, even without relying on Chhaganlal Keshavlal (supra), where the Supreme Court observed that admission cannot override orders of court and ESI (supra), where the Supreme Court held that concession to court in law and contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing cannot be viewed through the myopic lens of res judicata between the parties. Even if an issue is decided finally between HVL and Birla faction, the same does not operate against a Probate Court while adjudicating issues, since the final judgment of a Probate Court would not be restricted to the parties but would operate against the world at large. 164. Hence, the Probate Court's decisions cannot be decided from the limited perspective of res judicata or estoppel between the parties. Thus, the Probate/Letters of Administration Court has an additional responsibility to independently weigh evidence and adjudicate carefully on all issues before it, prima facie or final. Viewing from such perspective, the question of res judicata or estoppel between the parties cannot restrain the Probate Court from independently assessing the question of extent of Estate of the deceased testatrix. 165. None of the previous adjudications pertained to a final decision on the application under Section 247 of the Succession Act. Since this Court is sitting in appeal over a final decision by the learned Single Judge on the application under Section 247 of the Succession Act, by operation of the princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 1941 All 360 and AIR Ker 206. 171. There is also nothing to show that the estate of PDB is a beneficial owner of the companies or that its significant beneficial ownership with a depository was ever recorded. Hence Balakrishna' Case and J.P. Srivastava (supra) are squarely applicable. 172. Hence, the testamentary court cannot pass orders directly in respect of the management and affairs of corporate/contractual rights of other entities, including companies, trusts, etc. 173. In Rustom Cawasjee Cooper (supra) and Tata Memorial Hospital's Case, the Supreme Court has laid down what property can be bequeathed. The position and rights of a shareholder has also been elaborately argued on the strength of Howrah Trading Co. (supra), J.P. Srivastava's Case, Shanti P. Jain (supra) and LIC v. Escorts, all cited by the parties. 174. Murarka Paint (supra) has been relied on for the principlethat directors of a company can only be denuded of powers of control and management by alteration of Articles or by their removal. 175. The concept of 'control' vis-à-vis companies has been argued threadbare and has already been discussed while dealing with the first few issues. 176. Vodafone' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rix are not a part of the estate, which principle was also echoed in Commissioner v. Nirmala by the Bombay High Court. 184. The Supreme Court in Chandrabhan's Case held that the testamentary court does not have jurisdiction to pass orders against individuals/entities acting in different capacity. 185. Hence, the testamentary court can only have control over the shareholding and ancillary rights, including voting rights in companies. Of course, the court cannot participate in the day-to-day affairs of the companies and precisely for such reason has appointed the APL to represent the estate of the deceased. The testamentary court is not a company court and is not sitting in judgment over allegations of mismanagement or fraudulent transactions of the companies and, thus, need not lift the corporate veil in the current context. 186. The charter of the APL under Section 247 of the Indian Succession Act is to protect and preserve the interest of the estate and can deal with the same, short of distributing the same. 187. By placing reliance on AIR 2000 Cal 152 and (2019) 9 SCC 154, it has been argued that the court cannot delegate functions to any other authority. Although true, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two members. Obviously, the respective members chosen by the Birla Group and the Lodha Group represent their groups' interests in the APL. Hence, there would be a stand-still if unanimity was a pre-condition, since the respective members of the two factions would always be at loggerheads with each other. A resolution could only come by way of an authoritative decision taken by the judicial member, who is supposed to be neutral. 195. Thus, on such score as well, the APL ought to be permitted to function on majority decisions instead of waiting for unanimity. Hence, the APL decisions have to be taken on the basis of majority and not unanimity. 196. The Bombay and Gujarat High Courts respectively, in 2008 SCC OnLine Bom 1210 and AIR Guj 30, have held that the APL are officers of the court and are to be impartial; they cannot enter into the arena of conflict between the parties or the merits of the case. 197. Unfortunately, the composition of the APL and its antecedents in the present case rule out the desired impartiality individually insofar as the representatives of each of the factions are concerned. The only way in which the APL can function effectively is for the third member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd other entities as well as the consequential powers which such ownership carries as its incidence. Insofar as the companies are concerned, the estate left by PDB consists of the shares which she owned in the various companies and the powers and legal authority she had by virtue of such shareholding, which are heritable. Such powers include, for example, voting rights and ancillary other rights of shareholders sanctioned by law. It is relevant to remind ourselves, in this context, of the rights of the shareholder as laid down in LIC v. Escorts (supra) which are: (i) to elect directors and thus to participate in the management through them; (ii) to vote on resolutions at meetings of the company; (iii) to enjoy the profits of the company in the shape of dividends; (iv) to apply to the court for relief in the case of oppression; (v) to apply to the court for relief in the case of mismanagement; (vi) to apply to the court for winding up of the company; (vii) to share in the surplus on winding up. 204. Issue 2 ii) 'Controlling interest' in the present context can only mean the heritable incidental rights, including voting rights, rights to participate in shareholder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot conclusive), that the estate pertains to the share-holdings and the 'controlling interest' which PDB had by virtue of such shareholding, without specifying exactly what was meant by 'controlling interest'. 207. Also, HVL was not estopped by the stand taken by RSL inasmuch as HVL was substituted in a different capacity than RSL in the testamentary proceeding. Whereas RSL was the Executor, HVL was at best a beneficiary. HVL was not substituted under Order XXII Rule 4 as the son/heir/legal representative of RSL (in which case he might have been bound by RSL's admissions, if any); but entered into the fray as a legatee/beneficiary, which is in a different capacity than RSL. Thus, in any event, RSL's statements could not have bound HVL. Again, HVL's pleadings in court would be his legal stand, and not the written arguments authored by his counsel, in the event there was difference between the two, particularly in the absence of any specific proof that HVL had given the power to his counsel to admit the extent of PDB's estate on his behalf. 208. Seen from another perspective, the principle of Estoppel and the doctrine of res judicata are not applicable in full vigour in judgments in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , cannot interfere with all internal affairs of the companies of all the tiers with the blessings of the testamentary court. There cannot be any universal or dynamic injunction or direction affecting the future course of action of the companies from the testamentary court, simply because the testatrix could not herself had taken any such action in law. 213. The steps taken by the APL in registering its nominees as members of the companies where the deceased testatrix held shares, in consonance with and in the ratio of the shareholding rights of PDB in each of such companies, is perfectly justified in law. The APL, through its nominees, may very well decide which way the votes of the testatrix's shares should go and how they would exercise their voting rights and election of directors. The nominees, as such shareholders, may participate in shareholders' meetings and decision-making processes of the tier-one companies and thus mould the course of action and business decisions of such companies. Since the said tier-one companies are also shareholders of other companies in the secondary and tertiary tiers, the APL, through its nominees, may also decide how to go about asserting the in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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