w w w . L a w y e r S e r v i c e s . i n



Priyamvada Devi Birla (Dec.) & Others v/s Ajay Kumar Newar & Others


Company & Directors' Information:- BIRLA CORPORATION LIMITED [Active] CIN = L01132WB1919PLC003334

Company & Directors' Information:- DEVI CORPORATION PRIVATE LIMITED [Active] CIN = U16000AP2011PTC076133

Company & Directors' Information:- AJAY (INDIA) LTD [Active] CIN = U18102RJ1996PLC011678

Company & Directors' Information:- A. KUMAR AND COMPANY PRIVATE LIMITED [Active] CIN = U19201UP1995PTC018833

Company & Directors' Information:- S KUMAR & CO PVT LTD [Not available for efiling] CIN = U51909WB1946PTC014540

Company & Directors' Information:- S KUMAR AND COMPANY PRIVATE LIMITED [Converted to LLP] CIN = U45203DL1964PTC117149

Company & Directors' Information:- KUMAR (INDIA) PVT LTD [Strike Off] CIN = U51909WB1986PTC041038

Company & Directors' Information:- P KUMAR & CO PRIVATE LIMITED [Strike Off] CIN = U27105WB1998PTC087242

Company & Directors' Information:- KUMAR L P G PRIVATE LIMITED [Strike Off] CIN = U23201DL2001PTC113203

Company & Directors' Information:- AJAY AND CO. PRIVATE LIMITED [Strike Off] CIN = U01122DL1997PTC089125

Company & Directors' Information:- M KUMAR AND CO PVT LTD [Strike Off] CIN = U18101DL1982PTC014823

Company & Directors' Information:- B N KUMAR & CO PVT LTD [Strike Off] CIN = U52341WB1941PTC010643

    IA. No. G.A. Nos. 43 of 2016, 44 to 46 of 2019, 66 to 74 of 2020 (Old G.A. Nos. 1735, 1845, 1761, 1786 of 2019 & 831 to 834, 842 to 844, 1005 & 1009 of 2020), CC. No. 18 to 20 of 2020 & TS. No. 6 of 2004

    Decided On, 18 September 2020

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE SAHIDULLAH MUNSHI

    For the Plaintiffs: Anindya Kumar Mitra, Jayanta Kumar Mitra, P.S. Sengupta, Abhrajit Mitra, Sr. Advocates, Debanjan Mondal, Sanjiv Kumar Trivedi, Kunal Vajani, Jisnu Chowdhury, Soumya Roy Chowdhury, Sarborpiya Mukherjee, Saunak Mitra, Iram Hassan, Kunal Mimani, Deepan Kumar Sarkar, Sanket Sarawgi, Savya Bawaja, Shubhang Tandon, Atashi Ghosh, Advocates. For the Defendants: S.K. Kapoor, K.V. Viswanathan, Ratnanko Banerjee, Hirak Kumar Mitra, Kapil Sibal, Surajit Nath Mitra, Aspi Chinoy, Kalyan Kumar Bandopahdyay, Vineet Naik, Ranjan Bachawat, Amitesh Banerjee, Joy Saha, Sr. Advocates, Kishore Dutta, Ld. Advocate General, Mahendra K. Sharma, A.P.L., Vineeta Meharia, Anuj Shigh, Pratik Mukhopadhyay, Vaibhabi Pandey, Swarnendu Ghosh, R. Venkatraman, Suchismita Ghosh Chatterjee, Malay Seal, Debdutta Sen, Mahesh Agarwal, D.N. Sharma, Koushik Chowdhury, Vanita Bhargav, Ajay Bhargava, Deepak Joshi, Akashh Lamba, Kunal Mimani, S. Baweja, S. Pundora, Paritosh Sinha, Saubhik Chowdhury, Dripto Majumdar, Sakya Sen, Anubhav Sinha, Sayan Roychowdhury, Satyaki Mukherjee, Yash Vardhan Deora, Asmita Roychaughuri, Sumita Shaw, Advocates.



Judgment Text

The Court:Plaintiffs and defendants altogether filed four applications. G.A. No. 1735 of 2019 and GA No. 1845 of 2019 have been filed by the defendants whereas the other two applications being G.A. No. 1761 of 2019, G.A. No. 1786 of 2019 have been filed by the plaintiffs.G.A 1735 of 2019 has been taken out by the defendants in the form of an affidavit in support of master summons affirmed on 30.07.2019 by one Arvind Kumar Newar defendant No. 1(b)/applicant with the following prayers:“(a) A direction do issue upon the plaintiffs to implement the decision dated 19th July, 2019 of the Committee.(b) A direction do issue upon the Committee to exercise its voting rights flowing from the shareholding in various companies, trust and societies of MP Birla Group forming part of the controlling interest and controlling power vested in the Estate of Priyamvada Devi Birla by casting its votes at the ensuing Annual General Meeting of Vindhya Telelinks Limited on 5th August, 2019; Universal Cables Limited on 5th August, 2019; Birla Cable Limited on 6th August, 2019 and Birla Corporation Limited on 13th August, 2019 through its Chairperson, Justice Mohit Shantilal Shah (Retd.) or any person(s) as this Hon'ble Court may deem fit, in terms of the decisions of APL Committee and/or at the instance of APL Committee and/or in consultation with the APL Committee;(c) If necessary, an order be made directing adjournments of the Annual General Meetings of Vindhya Telelinks Limited, Universal Cables Limited, Birla Cables Limited and Birla Corporation Limited until such time as this Hon'ble Court deems fit and proper.(d) If necessary, notice be issued to the concerned companies, trust and societies of the MP Birla Group as mentioned in the scheduled being Annexure “M”, to ensure compliance of the decision dated 19th July, 2019 of the Committee in such manner as may be directed by the Committee;(e) Ad interim orders in terms of prayers above;(f) Costs of and incidental to this application be paid by the plaintiffs;(g) Such further and/or other order or orders be passed, direction or directions be given as Your Lordship may deem fit and proper.”A supplementary affidavit has also been affirmed on 31st July, 2019 in connection with G.A. 1735 of 2019 by Arvind Kumar Newar defendant no, 1(b), whereby the he has prayed for further additional prayers as set out below:-“(a) A direction do issue upon the plaintiffs and particularly Harsh Vardhan Lodha to implement the decision dated 30th July, 2019 of the Committee;(b) A direction do issue upon the plaintiff Harsh Vardhan Lodha restraining him from offering himself or holding himself out or proposing himself as a candidate for re-appointment as a Director of Vindhya Telelinks Limited and Birla Cable Limited at their Annual General Meetings convened to be held on 5th August, 2019 and 6th August, 2019 respectively;(c) A direction do issue upon the plaintiff Harsh Vardhan Lodha restraining him from seeking any position on the Board of Directors of Vindhya Telelinks Limited and Birla Cables Limited at their Annual General Meetings convened to be held on 5th August, 2019 and 6th August, 2019 respectively;(d) A direction do issue upon plaintiff Harsh Vardhan Lodha to forthwith recall, rescind and/or withdraw his consent, if any, given to Vindhya Telelinks Limited and Birla Cables Limited for re-appointment as a Director of the said Companies or holding any position whatsoever therein;(e) A direction do issue upon the plaintiff Harsh Vardhan Lodha restraining him from seeking or withdrawing or claiming any profit based remuneration or commission from Vindhya Telelinks Limited (VTL), Birla Cables Limited (Bcab), Universal Cables Limited (UCL) and Birla Corporation Limited (BCL);(f) An injunction do issue restraining the plaintiff Harsh Vardhan Lodha from acting as Chairman or Director of Vindhya Telelinks Limited and Birla Cable Limited under any circumstances whatsoever;(g) Ad interim orders in terms of prayers above;”Initially after the prayers made in G.A. 1735 of 2019, supplementary affidavit was filed thereto containing some independent prayers and also another application being G.A. 1845 of 2019.G.A. 1845 of 2019 (New G.A. 46 of 2019) is an affidavit in support of master summons taken out by Arvind Kumar Newar defendant no.1(b). This application was affirmed on 7th August, 2019, that is, after this Court passed interim orders on 2nd August, 2019 and 5th August, 2019 in G.A. 1735 of 2019 together with supplementary affidavit filed therein. This application has been filed essentially seeking modification and/or clarification and also for further direction in support of the interim orders earlier passed. It has been pointed out that when this Court passed order on 2nd August, 2019 and 5th August, 2019 it directed that the result of the election in relation to impugned resolution including remuneration of Harsh Vardhan Lodha (HVL) and other non-executive directors forming part of notices dated 16th May, 2019, notice dated 17th May, 2019 and another notice dated 1st July, 2019, being subject matter of the pending applications should not be made public. It has been further pointed out that this Court refused to stay the election process on the sole ground that the e-voting in relation to the same had already started. It has been submitted that e-voting on all the resolutions including the impugned resolutions for Vindhya Telelinks Limited (VTL) and Universal Cable Limited (UCL) only have started on 1st August, 2019 and for (Birla Cable Limited (BCab) it started only on 2nd August, 2019. E-voting of resolutions for Birla Corporation Limited (BCL) had not started and the same was only to start on 10th August, 2019.By this application a prayer was made to modify orders dated 2nd and 5th August, 2019 by directing that the voting in relation to resolution no.5 and 6 of the notice dated 1st July, 2019 for convening the Annual General Meeting of Birla Corporation Ltd. be stayed.It was also prayed that this Court should direct that the voting in relation to resolution no.5 and 6 of notice dated 1st July, 2019 for convening the Annual General Meeting of Birla Corporation Ltd. be stayed.This Court passed some interim protection on 2nd August, 2019 and 5th August, 2019.By the above orders affidavits were called for and parties filed affidavitin-opposition and reply as well to G.A. 1735 of 2019 and G.A. 1845 of 2019.Said orders dated 2nd August, 2019 and 5th August, 2019 were not challenged by the plaintiffs. In fact, the plaintiffs mentioned in their affidavits to the above two applications that this Court refused to allow the defendant’s prayer to stop the election. These two applications being G.A. 1735 of 2019 and G.A. 1845 of 2019 were taken up for hearing after affidavits were exchanged.Learned senior counsel appearing for the defendants/applicant made threadbare submissions on merits of those two applications and opposing the same learned senior counsel for the plaintiffs also made his submission at length which continued for days together. Learned senior counsel appearing for the plaintiffs although concluded his submission but wanted to sum up his argument which could not happen due to lockdown throughout the country declared by the Government due to Covid-19 pandemic. During lockdown, however, an order was passed by the Hon’ble Chief Justice whereby all the applications have been assigned before this Court and with the assignment this Court found that an order was passed by the Division Bench on 4th May, 2020 whereby this Court’s interim order dated 2nd August, and 5th August, 2019 were set aside and remanded the matter back to this court for fresh hearing. The order passed by the Division Bench on 4th May, 2020 was challenged by way of Special Leave Petition before the Hon’ble Apex Court. The Hon’ble Apex Court directed “Since the learned Single Judge is seized of the applications for interim relief, we only clarify that the resolutions which have been passed by the respective companies shall abide by such final orders as may be passed by the learned Single Judge. The learned Single Judge shall decide upon the issue of jurisdiction together with the applications for interim relief and render a final determination thereof. The learned Single Judge shall endeavour to do so preferably within a period of one month of the receipt of a copy of this order.” Only after these orders were placed before this Court together with the order of assignment of Hon’ble the Chief Justice this Court came to learn that against my order dated 2nd and 5th August, 2019 three companies namely, Birla Corporation Ltd., Birla Cable Ltd. and Vindhya Telelinks Ltd. respectively filed three appeals being APO No. 95 of 2019, APO No. 94 of 2019 and APO No. 17 of 2019 before the Division Bench.Further hearing started on video platform in pursuance of the order of the Hon’ble Chief Justice assigning all the five applications in view of the orders passed by the Apex Court. The matter was placed for consideration before me. Notices were issued to the three appellant companies. They appeared subsequently and the parties were directed to file their short notes with a request to make their oral submissions precisely limiting themselves within their short notes. Matter again appeared on 23rd June, 2020 but since Regular Division Bench had already been fixed on 23rd June, 2020 this matter was taken up at 3.30 pm after the Division Bench was over. On 23rd June, 2020 parties filed their written notes and those were taken on record. Matter was directed to be listed on 29th June, 2020 at 11.00 am. Hearing commenced in presence of all the learned counsels representing the parties and it was decided that counsel for the plaintiff who argued the matter at length before lockdown would make oral submission on his written notes only for 45 minutes. Counsel started making submission at 11.40 am but continued till 3.30 pm the same day. The matter was fixed for further hearing on 3rd July in presence of the counsels for the parties when counsels for the defendants were to make their submission on written notes only for 45 minutes but actually submitted from 11.00 am for rest of the day.The plaintiffs have filed affidavit-in-opposition to GA 1735 of 2019 affirmed by HVL on 28.08.2019. Following objections have been raised by the plaintiffs in their affidavit-in-opposition:i. Probate Court does not have jurisdiction to pass any order in those applications and by the prayers made therein an attempt has been made to interfere with the matters relating to the internal management of companies.ii. APL's decision by two members not being unanimous cannot be accepted to be a valid decision.iii. APL is one single body and there cannot be any question of decision by a majority as Court has used the word 'Joint Administrators'.iv. Decision of APL with Justice H.P. Shah by 2:1 majority is in violation of natural justice.v. Petitioner/defendants being not aggrieved by the decision of APL cannot move the probate Court as per order dated 23rd August, 2012.vi. There has been deliberate omission from order of the Division Bench dated 23.08.2012 the words 'share holding' and added 'trust and societies' in Prayer-B of the summons.vii. Estate of PDB must be read according to the affidavits of assets by the defendants in PLA 242 of 2004.viii. PDB holding share in any company was never included in the estate of PDB.ix. Decision of APL (2:1) dated 19.07.2019 is not valid.x. Prayer-b should apply only to share held by PDB and not the companies.xi. Whether APL has got any voting right or not? And who has got voting right?xii. Order of appointment of APL authorized to exercise voting rights (a) where PDB held shares; (b) Shares held by trust and societies in companies and (c) the promoter's shares does not form part of the estate.G.A. No. 1761 of 2019: This application has been filed on 31st July, 2019 by the plaintiffs. The main contention in this application by the plaintiffs is that the estate of PDB comprises of assets only described in detail in the affidavit of assets filed by the original plaintiff in the testamentary suit. According to the plaintiff the jurisdiction of the present APL Committee is derived from the order dated 23rd August, 2012 passed in several appeals arising out by T.S. 6 of 2004 and P.L.A. 242 of 2004 by which Administrators Pendente Lite over the estate of PDB comprised of movable and immovable properties were appointed. The plaintiffs contended that it has already been clarified in the order passed by the Division Bench that whatever rights flow from the shares and succession of the Company which were previously standing in the name of PDB can be exercised by APL Committee. It is contended by the plaintiffs that within the four corners of the order passed by the Division Bench the resolution which has been taken by the APL Committee is without any legal sanction. The APL has, in fact, adjudicated over the controlling interest of PDB over the Birla Group of Companies and that too by a majority of three and not by unanimous decision. According to Mr. Mitra learned senior counsel appearing for the plaintiffs all three members of the Administrator Pendente Lite should have taken a decision unanimously and unless unanimity is reached decision of the APL so taken by majority, cannot be implemented. Therefore, by this application it has been prayed that direction contained in the purported majority decisions dated 19th July, 2019 and 30th July, 2019 of the APL Committee should be set aside. In view of the discussion hereinbefore made on the issue of APL Committee and its decision I do not justify allowing the prayers made in the application. The application seems to be without any merit as the Hon’ble Division Bench never intended that the decision which ever was to be taken should be not by majority but by unanimity. The application therefore, cannot survive. Here the respondents have not prayed for filing affidavit and the application is disposed of, holding that it does not warrant interference.Moreover, when the plaintiffs contended that APL has exercised its jurisdiction having adjudicated over issues to be governed under the Companies Act and when the same plaintiffs contended that Probate Court has no jurisdiction over matters relating to Companies Act, the argument advanced on behalf of the plaintiffs appears to be self-contradictory and mutually destructive.G.A. No. 1786 of 2019: This is also an application filed by the plaintiffs making the same prayer which has been made in application being G.A. 1761 of 2019 with the only difference that prayer was made in G.A. 1761 of 2019 was seeking an order to set aside resolution by majority of the APL Committee passed on 19th July, 2019 and this application has been filed with the same prayer for setting aside the majority decision of the APL passed on 30th July, 2019. The observation made by this Court hereinbefore, in G.A. 1761 of 2019 is applicable to decide the fate of this application too and deserves the same result, consequently the application stands dismissed.Previously Mr. Mitra submitted elaborately referring to his affidavit filed by his client earlier, he made submission both on question of jurisdiction and on merits of the application while summing up he again repeatedly harped upon the jurisdiction of the Probate Court to consider application being G.A. 1735 of 2019, G.A. 1845 of 2019. The other two applications being G.A. 1761 of 2019 and G.A. 1786 of 2019 are also on the list and necessary orders have been passed.Opposing the prayer contained in G.A. no. 1735 of 2019 and G.A. no. 1845 of 2019 Mr. Mitra made the following submission today :* He submits that the prayer made by the defendants for a direction upon the plaintiff to implement the decision of APL is not maintainable. He refers to paragraph 43 of GA 1735 of 2019 where decision of APL has been mentioned.* He raised objection to the prayer where it has been mentioned that APL has also been appointed in the connected Suit No. 73 to 77. He submits that it is misleading to describe Mohit S. Shah a Retired Judge as Chairman of APL.* He submits that although an order and/or direction has been sought for from this Court directing the plaintiff to implement APL’s decision. He submits that plaintiff has no authority under the law to implement such decision and that being so the order sought for is without jurisdiction.* He submits that by the order of 4th May, 2020 the Division Bench made some observation that the Probate Court has no jurisdiction over the matter.* It is submitted that two members of APL filed notes of argument and they have made allegation against the plaintiffs but such allegation is not supported by any affidavit. That being so the note cannot be used against the plaintiff. Such allegation, therefore, cannot be considered.* He submits that even when a petition is filed before the Probate Court it is necessary to plead that Probate Court had jurisdiction over the matter. Such pleading being absent. The Court cannot consider the prayer made by the petitioner.* He submits Order 7 Rule 1 CPC requires a party to plead that the Court has got jurisdiction over a matter but the same not having been done the application is not maintainable.* He submits that according to Section 141 CPC all the provisions of CPC are applicable to a civil proceeding including probate proceeding. Therefore, noncompliance of Order 7 Rule 1 attracts dismissal of the application on the ground of jurisdiction. He is also submits that according to Section 495 of the Indian Succession Act jurisdiction of the Court is to be decided first.* GA No. 1845 of 2019 : Drawing attention to the prayers, Mr. Mitra submits that prayers in GA 1845 of 2019 are not at all maintainable as those have been sought for against a third party companies and Probate Court has no jurisdiction to pass order against such Companies. He relies on the following decisions (2017) 4 CHN 114. He refers to Section 269 of Indian Succession Act particularly Section 269(2) which says about the power of Probate Court. AIR 2011 Bom 136 (para 5 and 14) also discusses about the limitation of the Court under Section 269 (2) in passing interlocutory order particularly to the person belonging to excepted category.* He submits that a Probate Court can only consider an application for appointment of Administrator Pendente Lite and can pass interim order only when such an application is pending but once Court has appointed Administrator Pendente Lite it cannot pass any interlocutory order. He relies on an unreported decision in Title Suit No. 9 of 2017 passed by Arindam Mukherjee. J. He relies on paragraph 7 of the decisionThe plaintiffs principally raised the following points on jurisdiction:(1) That the defendant’s applications seeking a direction upon the plaintiff to implement APL’s decision are untenable in law. The plaintiff under the provisions of Company Law has no authority to implement the decision of APL in his personal capacity. It has to go through the process laid down under the Companies Act. Therefore, the prayer itself is not maintainable and this Court cannot grant the relief sought for.(2) That Probate Court does not decide title. If any dispute is raised with regard to title over a property or assets that is to be decided before appropriate forum and if it is a company then certainly by the company Courts. It is submitted that even Civil Court has no jurisdiction to entertain such disputes; therefore, the Probate Court cannot go to this question whether Priyamvada Devi Birla had controlling interest over Birla Corporation, Birla Cable Ltd. or Vindhya Tele Links the appellants herein.(3) All decisions are to be taken through the Annual General Meeting of the Company and not by its director only. The Annual General Meeting or other meetings be it ordinary or special are governed by Companies Act and cannot be challenged before the Probate Court. Therefore, Probate Court has got no jurisdiction.Counsel for the plaintiff submitted that none of the prayers made by the defendants are amenable to the jurisdiction of Probate Court. It is his submission that even if Division Bench or Hon’ble Supreme Court directed for final determination of the application for interim relief such order cannot confer jurisdiction on the Court which inherently lacks. A Probate Court only decides the possibility of the grant of Probate or refusal thereof.It is the further case of the opposite parties/plaintiffs that the estate was limited in its extent to only the share holdings directly in the name of PDB and shares held by certain Investment Companies had nothing else excepting any opportunity of all the principal manufacturing companies those were Revenue Generating Companies of the MP Birla Group. It was contended by the plaintiffs/opposite parties that the shareholding of the estate in Birla Corporation is limited only to the extent of 16.04%.It is important here to take note that Mr. A.K Mitra learned senior advocate had occasion to argue on behalf of HVL in support of the aforesaid prayer. He submitted that Administrator Pendente Lite (APL) is to be appointed for preservation and protection of the shares held by PDB. His submission as recorded by the learned Single Judge was that "The main estate of the said deceased are the share held by her, of the various companies. He submitted that an APL is to be appointed for preservation and protection of these shares." Therefore, according to Mr. Mitra APL was to be appointed for preservation and protection of those shares held by PDB.(b) He further submitted, besides shares in every Birla Group of Companies there are some bonds, fixed deposits, mutual funds and investment shares which are all recorded in the name of said deceased.(c) Since death of the said deceased a bank account was opened by R.S. Lodha (RSL) in the name of the estate of the said deceased and therein all interest, income dividends from mutual funds and dividends from all the shares both investment companies and share in MP Birla Group of Companies are regularly deposited.(d) He submitted that appointment of APL should be made conferring power, duties and responsibilities to the extent and mentioned in prayers of his client’s application. According to him necessity for appointment of APL’ was to protect and preserve the controlling block of shares and not to make the estate vulnerable to risk, loss and deterioration of M.P. Birla Group of Companies which have been performing satisfactorily. This is exactly the submission of Mr. Mitra where he cited the decision in Arcelormittal India Private Ltd. -Vs. - Satish Kumar Gupta and Ors. Reported in (2019) 2 SCC 1.In the said decision it was also submitted by HVL that there was complete safeguards against dilution of controlling block of shares in M.P. Birla Group of Companies as the Regulation framed under the SEBI and other provision of SEBI clearly safeguard the interest of the shareholders. According to him, there is no possibility of clandestine dilution of M.P. Birla Group of Companies. It was pointed out that interim measure already taken by this Court in the judgment and orders reported in 2005 WBLR (Cal) 311 had been confirmed by the Division Bench and would be good enough during pendency of the testamentary suit as the injunction order would be adequate for protection and preservation of M.P. Birla Group of Companies. According to HVL, APL cannot lawfully be authorized to take steps for exercising voting rights in respect of the shares held by the deceased.It was also argued on behalf of HVL by Mr. Mitra relying on a decision in AIR 2006 Cal 259(Paragraph 1) that Probate Court has no jurisdiction to pass such orders because the companies are not parties to the proceedings before it. He submitted that, in fact, the Division Bench of this Court in the decision reported in ILR 2007 (II) Cal 377 held that shares cannot be registered in the name of APL.On the issue of jurisdiction or no-jurisdiction of the probate Court Mr. Anindya Kumar Mitra on behalf of HVL relied heavily on the above two decisions AIR 2006 Cal 259 Para 1 by a Single Bench and ILR 2007 (II) Cal 377 by Division Bench. Mr. Mitra also submitted that decision rendered by the Division Bench earlier reported in ILR 2007 (II) Cal 377 on the question of APL over shares, is to operate as precedent in this case. He also submitted referring to a decision of Hon'ble Supreme Court reported in AIR 2005 SC 2377 that the judgment will not be precedent only if the point was not raised or no consideration was given to that point. On the contrary the defendants submitted that the main estate is the controlling block of shares of MP Birla Group of Companies as such APL has to be appointed over the same.It was also submitted on behalf of the defendants that during the period when RSL was administering, charges had been brought in the board of directors of the MP Birla Group of Companies by RSL. Even after the death of the RSL family members of RSL would continue to exercise control over the company of MP Birla Group behind. Referring to Section 211 of the Indian Succession Act it was submitted that the Administrator of a deceased person is his legal representatives for all purpose and all properties of the deceased. It was contended that powers of Administrator on certain properties is the same as the power of an executor, although, the source of such power is different as the executor derives his power from the will and whereas the APL derives its powers from the statute. In this case immediately after death of the said deceased RSL transferred shares of the said deceased in the investment companies in his own name. To justify the said action of RSL, it was submitted by the learned counsel for Lodha before the Division Bench that RSL was duty bound and obliged as executor, to take control of the shares and transmission was applied, not in his personal name but as executor to the estate. It was further submitted that if the executor is entitled to have the share transferred then there is no embargo for APL to do the same thing. Hence APL to be appointed by this Court not only for the controlling block of shares held by the deceased, transferred in his personal name as aforesaid but also voting right in respect thereof if it is necessary for the betterment of the estate of PDB. The Single Bench in the aforesaid judgment and order dated 27th August, 2010 held that "The plea of res judicata in this case is not applicable as the parties are not same for HVL and others cannot be accepted to be successor-in-interest qua executor to hold them or any of them litigating under the same title within the meaning of Section 11 of the Code of Civil Procedure. Therefore, I overrule the contention that the said judgment is binding precedent or operate as res judicata on this issue. I consequently, hold that APL can be appointed over the estate of the deceased including shares of the companies, owned and held by the deceased under the provision of Section 247 of Indian Succession Act. In order to appreciate my above view scope of Section 247 of the Said Act is to be examined and the said section is set out hereunder:“S.247. Administration, pendent lite.- Pending any suit touching the validity of the Will of a deceased person or for obtaining or revoking any probate or any grant of letters of administration the Court may appoint an administrator of the estate of such deceased person, who shall have all the rights and powers of a general administrator, other than the right of distributing such estate, and every such administrator shall be subject to the immediate control of the Court and shall act under its direction.”It was also held “It is plain from the above provision that all the powers of General Administrators are conferred upon APL, only exception that unlike executor and administrator, APL cannot give assent to legacy or distribute assets on estate in terms of Will. It would further appear from the said Section that the Probate Court has power to appoint APL over the estate of the deceased pending any proceedings in which the validity of the will of the deceased person is questioned, or for obtaining or revoking probate or grant of Letters of Administration. The said section also provides that power of appointment of APL is not only conferred upon the probate Court, but the Civil Court too is clothed with power to appoint in any suit adjudging the validity of the will of a deceased person. The aforesaid power has been supplied by the legislature to the Court undoubtedly to take interim measure pending final disposal of the proceeding.”It was contended by Mr. Mitra for the plaintiff that APL can take possession of the sharescripts only for limited purpose, namely, to collect dividends and to meet the outgoings of the estate, and not for any other purpose. In other words APL cannot have any right, as ownership of shareholding does not vest in him, unlike official assignee in case of insolvency of any person. This contention, as per the Hon’ble Single Judge (K.J. Sengupta) as His Lordship then was advanced with the support of the judgment of the Supreme Court reported in AIR 1985 SC 520 : (1985) 2 SCC 167. Justice Sengupta held that the judgment of the Supreme Court is clearly distinguishable as it has been rendered examining power of the Receiver under the provision of Section 182A of the U.P. Land Revenue Act, 1901 and Civil Procedure Code.Thus, it appears that this learned Court on an earlier occasion in between the parties held in clear and unambiguous term that probate Court has jurisdiction to appoint APL under Section 247 of the Indian Succession Act. While passing the said order the Hon'ble Single Bench also held "In view of this discussion as above I am unable to accept the contention of Mr. Mitra that APL cannot have any privileges of the owners of the shareholders. If this argument is accepted then the APL cannot take any measure, in a situation when the price of the shares of the company will be falling steadily in the market he will not be to sell the same or take appropriate measure to arrest loss. I accept the legal principle as argued by Mr. Mitra that the position of the APL cannot be equated with the executor or the administrator to whom Probate or Letters of Administration has been granted finally by the Probate court by reason of the fact that by virtue of Section 211 of the Indian Succession Act they become the de-jure owner of the estate of the deceased until and unless administration of the Estate is complete. In my view the APL has to take all lawful steps as an administrator till the decision of the proceedings is taken finally by the Court but his status would be to akin to administrator appointed by the Court under Section 211 of the Indian Succession Act with exception mentioned in Section 247.Law is now well settled by the Supreme Court by a large number of decisions that voting right is essentially impartible adjunct to the share as correctly pointed out by Mr. Pal. This proposition of law cannot be disputed nor has been disputed by Mr. Mitra, still I feel to quote same authorities”.“I am of the view provision of Section 247 of the said Act cannot be read in isolation of Section 211 of the said Act, for word Administrator owes its origin to Section 211, which undisputably provides vesting, hence, incident of vesting inheres in Section 247 temporarily.Thus, I think that the appointment of APL as suggested by Mr. Mitra's client, HVL in his prayer or in the body of the petition for limited purpose is neither acceptable nor tenable under law. When the statute provides for the power of general administration, it encompasses all powers and it cannot be truncated as suggested. No authority has been cited as APL will act for limited purpose to represent the estate in a situation like this when no one can legally take charge of the estate. It is legally incorrect to urge that appointment of Administrators over estate including shares of deceased amount to appointment to take control of the companies for Board of Directors of each and every company run the company. Apprehension of the affectation of business of running company with appointment of Administrator during analogy of Receiver is in my opinion misplaced here at the moment. Hence decisions reported in AIR 1987 Cal 194 and 1988 CLT 61 are inapplicable in this case. I accordingly answer second and third issues in the negative. I repeat appointment would be over the entire estate."The said judgment and order passed by the Hon'ble Single Judge was challenged in appeal by HVL and Ors. The Division Bench presided over by the Hon'ble the then Chief Justice Patel by Their Lordship judgment and order dated 23rd August, 2012 disposed of the same. In the appeal it was the specific contention raised by HVL that there is no necessity for conferring powers on the APL to get the shares of the deceased recorded in their names and to take over responsibility of running the M.P. Birla Group of Companies and it was therefore, contended that the impugned order authorizing the APL for getting shares transferred in their names was illegal and could not be done whereas the respondents Birla sought that an APL and/or receiver to be appointed to take over possession of all movable and immovable assets and properties of the PDB including the share holdings of those companies as specified in schedule Annexure “B” by substituting instead and in place of RSL wherefrom his name appears and/or directed to take all decisions and because all rights in the company referred to in Annexure “A”.On perusal of the said judgment of the Division Bench it appears that the issues raised by the plaintiffs before the Single Judge and which were decided against them and was appealed against and which was affirmed by the Appeal Court, has once again been argued before this Court starting from the question of jurisdiction of the Probate Court and that of the rights of APL in respect of the shares of the deceased which formed major part of the estate and to take over responsibility of the MP Birla Group of Companies (emphasis given by me).Points being raised now are the same raised before the Bench presided over by Justice J.N. Patel decided against HVL. The Division Bench while deciding the appeal discussed on the issue that the affairs of a company could only be said to have been conducted in a manner oppressive to some part of the members of the company where shareholders, having a dominant power in the Company, either exercised that power to procure that something was or was not done in the conduct of the Company's affairs or procured by an express or implied threat of an exercise of that power that something was not done in the conduct of the company's affairs. The Court held that "The position of an APL is similar to that of a Receiver, with this distinction that the APL represents the estate for all purposes (except distribution) whereas the Receiver does not represent the estate nor the parties but simply holds the estate for the benefit of the successful litigant. In our opinion, the rights and powers of the General Administrators over the estate of the deceased depends on the nature of the property both movable and immovable and the respective statute which governs acquisition and enjoyment of such property in so far as stocks and shares of the companies are governed by the Companies Act. In the light of the rules and regulations under the Companies Act, there are two modes by which shares of a company can be obtained, i.e. by transfer and/or transmission as provided under Section 108 of the Companies Act to be entered into the register of members. In the fact situation of the case the stocks and shares which forms major part of the estate left by the deceased are the subject matter of administration of the estate, and the only manner these can be administered is by exercising property rights in the shares except distribution to the beneficiaries till the final adjudication in the matter."On the question of controlling block of shares the Division Bench observed "In the present case, it is not disputed that the deceased has controlling block of shares in M.P. Birla Group of Companies and if the rights flowing from such shares are kept in abeyance during the pendency of the suit it may be detrimental to the interest of the companies as a whole as the companies may be managed by minority shareholders and/or suffer at the hands of vested interest.We fail to understand the hesitation on the part of the appellants 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 power of M.P. Birla Group of Companies and safeguard the interest of the ultimate beneficiaries."Ultimately the Division Bench observed "We find that the parties for the purpose of administration of the estate having agreed to appointment of 3 Member Committee as Joint Administrators they shall be entitled to exercise of the rights and powers of General Administrators over the estate of the deceased other than the right of distributing such estate and we, therefore, direct them (i) to prepare and file an inventory of the assets of the estate and appraisal of the value of such assets and (ii) to take over possession of the assets of the estate in the manner of provided under the law considering the nature of the property.a) From Receivers and Special Officers appointed by the Probate Court;b) From Executor’s legal heirs;c) From the present Institution and companies as the case may be The Receivers and Special Officers, appointed by the learned Single Judge (Probate Court will hand over the assets to the Joint Administrators. Recievers/Special Officers appointed by the Probate Court will on handing over the assets out of the estate of the deceased for which they were appointed will stand discharged on their submission and settlement of accounts by the Court.The appeals and applications stand disposed of, however, there shall be no order as to costs"After this order was passed a prayer was made for grant of stay of the effect and operation of the order for a period of four weeks in so far it relates to joint administrator exercising their rights relating to the shares and stocks of the Company to enable the appellants to take appropriate steps in the matter. On such prayer a limited stay for a period of four weeks was granted. The said Division bench order was challenged before the Hon'ble Apex Court by HVL and others which was numbered as Special Leave Petition (Civil) No. 30109 of 2012.The points of attack against the Division Bench judgment, inter alia, were on the issue of jurisdiction of the Probate Court and also the issue whether APL has any right and/or authority to be exercised over the controlling block of share in MP Birla Group of Companies (emphasis supplied by me) Few of the grounds in the said SLP will clearly show how the appellants were aggrieved by the order of the Division Bench.It was, inter alia, challenged(i) whether Administrator Pendenti lite appointed under Section 247 of the Indian Succession Act 1925 are the representative of the deceased/testatrix and the assets being part of the estate of the testatrix can be vested in such officers of Court as held by the High Court.(ii) Whether Probate Court can override the provision of Companies Act, 1956 and in particular Section 108 thereof by authorizing the Administrators Pendente lite to apply to the companies for recording their names in the registrar of members of the Companies without any deed of transfer and without administrator pendente lite being the legal representative of the deceased share holder.? It was also contended whether learned judges would not have rendered any finding as to what is detrimental to companies in absence of such companies and their share holders.(iii) Whether PDB had controlling block of shares in MP Birla Group of Companies.(iv) Whether earlier Division Bench judgment of this Hon’ble Court dated 11th October, 2007 (from which special leave petitions were dismissed as withdrawn) operated as res judicata between the parties to the suit and consequently this Court ought not to have passed orders on the subsequent applications for APLs in light of what had been decided in the said earlier judgment.It is on record that the said S.L.P. (c) No. 30109/2012 fled by HVL & Others was taken up together with SLP (c) No. 31442 of 2012 and SLP (c) No. 31533 of 2012 were dismissed by the Hon’ble Apex Court by its order dated 26.11.2012.Mr. Anindya Kumar Mitra, learned Senior advocate appearing for the plaintiff/opposite party cited following decisions:1. Harsh Vardhan Lodha and Ors. -Vs. - Ajay Kumar Newer and Ors. reported in 2016 SCC Online Cal 1541;2. P. Suseela and Ors. -Vs. - University Grants Commission and Ors. reported in (2015) 8 SCC 129;3. Mrs. Bacha F Guzdar -Vs. - Commissioner of Income Tax reported in AIR 1955 SC 74;4. Prem Raj -Vs. - The D.L.F. Housing and Construction Pvt. Ltd. reported in AIR 1968 SC 13555. Santosh Kumar Bannerjee -Vs. - Sidheshwar Banerjee reported in 1997 CWN 8946. SEBI (listing obligation and disclosure requirements) Regulations, 2015;7. Mt. Kulwanta Bewa and Ors. -Vs. - Karam Chand Soni and Ors. reported in AIR 1938 Cal 714;8. Sufiya Bee –Vs. – Mohd. Vajahath Hussain alias Fasi reported in (2011) 2 SCC 94;9. Western Coalfields Ltd. -Vs. – Special Area Development Authority, Korba and Anr. reported in (1982) 1 SCC 125;10. Vodaphone International Holdings BV -Vs. - Union of India and Anr. reported in (2012) SCC 613;11. Subarban Bank Pvt. Ltd. -Vs. - Thariath and Anr. reported in AIR 1968 Kerala 206;12. Jagadish Prasad and Anr. -Vs. - P.T. Paras Ram and Ors. reported in AIR 1941 ALL 360 and13. Murarka Paint & Varnish Works (Pvt.) Ltd. -Vs. - Mohanlal Murarka Ors. reported in 1965 CWL 32.Mr. Mitra has also relied on (i) Regulation No. 17 of SEBI (listing obligation and disclosure requirement) Regulation, 2015 (listing Regulation) and (ii) Written submission filed by respondent 1(a) to 1(c) of Khaitan and Company advocate during earlier stage of this proceeding. From the written submission he relied on point no. 3.2, 5.2, 5.3, 5.4 and 7.1.5. He tried to illustrate the scope of Administrator and General Administrator within the meaning of Section 247 of the Indian Succession Act and relied on ILR 1947 (2) Cal 195 (Kali Kumar Chatterji -Vs. – Rash Vehari Bannerjee).Mr. Mitra submitted that APL is also the legal representative of the deceased for all purpose. Mr. Mitra also relied on point no 7.2.3 of the notes of submission and cited AIR 1933 Bombay 342 (Pandurang Shamrao Laud –Vs. – Dwarkadas Kalliandas)Mr. Mitra submitted that APL will exercise all rights and powers over various properties which form part of the estate of the deceased vis-a-vis right to vote.(1) At point No. 8.6 he submitted that share is a property and relied on Chiranjit Lal Chowdhuri –Vs. – Union of India and Ors. reported in AIR 1951 SC 41 (paragraph 52, 54, 59, 60, 69 and 78).(2) Life Insurance Corporation of India –Vs. – Escorts Limited & Ors. reported in AIR 1986 SC 1370 Para 84 and transfer share and terms of share.(3) AIR 1965 ALL 135 (paragraph 6, 8, 14, 15, 19 and 20)(4) AIR 1990 SC 737He also referred to point no.8.11 submitting that shares get automatically transmitted to APL by operation of law. He then referred to point no. 12.7.2 and submitted on the binding precedent and refers to the following decisions:-(1) Union of India & Ors. –Vs. – Dhanwanti Devi and Ors. reported in (1996) 6 SCC 44 (Para- 10)(2) Rajendra Singh Lodha –Vs. – Ajoy Kumar Newar & Ors. reported in ILR 2007 (2) Cal 377.P.Suseela (supra) cited by Mr. A.K. Mitra to argue on the issue of binding precedent. Citing paragraph 25 of the decision Mr. Mitra argued that a Single Bench decision of this Court being passed in between the parties is binding on another Single Bench. He refers to the decision by the Coordinate Bench in Harshvardhan Lodha and Ors. -Vs. - Ajay Kumar Newar in connection with the self-same suit. It is a decision in PDV (supra) reported in (2016 SCC cal 1541) which is binding on this Court and since the Coordinate Bench held that probate Court does not have jurisdiction over the issue involved in the earlier application being GA 508 of 2016, this Court should also not entertain all these applications. We will deal with the issue whether or not probate Court has jurisdiction to entertain the applications moved before this Court when we will consider Mr. Mitra's submission with regard to the decision by the Coordinate Bench in PDV (supra). In the present decision the Hon'ble Apex Court has, however, held that the case would be different if there appears distinction within the facts of the two cases. Therefore, it is required to go into whether the fact situation of the case decided by the Coordinate Bench in Harsh Vardhan Lodha and Ors. (supra) has got the same set of fact in the present applications now being considered by this Court.Mrs. Bacha F Guzdar (supra) has been cited to argue that share holders are not owners of the property of the Company. However, the analogy sought to be drawn by the appellant that share holders in a Company is analogous to that of partners inter se is wholly inaccurate. The Hon'ble Apex Court held partnership is merely an association of persons for carrying on the business of partnership and in law the firm name is a compendious method of describing the partners. Such is, however, not the case of a company which stands as a separate juristic entity distinct from the shareholders. Description of the fact involved in the case is required to be discussed to appreciate the ratio of the decision and it is applicable in our case. In the cited case the appellant, share holder in two different companies received dividends. The two companies carried on business of growing/ manufacturing Tea. By Rule 21 of the Indian Income Tax Rules, 1922, made in exercise of the powers conferred by Section 59 of the Indian Income Tax Act, it is provided that "income derived from the sale of tea grown and manufactured by the seller in the taxable territories shall be computed as if it were income derived from the business and 40% of such income shall be deemed to be income, profits and gains, liable to tax." According to the appellant, the dividend income received by her in respect of the shares held by her in the said Tea companies is to the extent of 60% agricultural income in her hands and therefore, pro tanto exemption from tax while the Revenue contends that dividend income is not agricultural income and, therefore, the whole of the income to be liable to tax. The Income Tax Officer and on appeal, the Appellate Assistant Commissioner both concurred in holding the whole of the said income to be liable to tax. Income Tax Appellate Tribunal confirmed the view that the dividend income could not be treated as agricultural income in the hands of the shareholder and decided in favour of the Revenue but agreed that its order gave rise to a question of law and formulated the same as set out above and referred it to the High Court. The High Court upheld the order of the Tribunal but granted leave to appeal to The Supreme Court. The Supreme Court observed that when it was argued by the appellant that an investor buys in the first place a share of the assets of the industrial concern proportionate to the number of shares he has purchased and also buys the right to participate in any profits which the company may make in the future. That a shareholder acquires a right to participate in the profits of the company may be readily conceded but it is not possible to accept the contention that the shareholder acquires any interest in the assets of the company. Ultimately, however, Supreme Court dismissed the appeal and rejected the contention of the appellant. Therefore, the issue on which decision has been rendered and the observations which were made are nothing but a sweeping one, and incidentally being not on the core issue involved in the case, cannot be considered to be a ratio of the decision and has got no application in this case.Harsh Vardhan Lodha (supra) has been cited to develop an argument that this Court being a probate Court has no jurisdiction to entertain applications which according to the plaintiffs/opposite party are within the ambit of the Companies Act and should lie before the Company Court. The decision was rendered by Coordinate Bench on May 19, 2016 on an application being GA 508 of 2016 and two other applications being GA 654 of 2016 and GA 354 of 2016 in connection with TS No. 06 of 2004. GA 508 of 2016 is a demurer application filed by plaintiffs having caveatable interest in probate proceeding. To oppose certain transaction sought to be made by HVL. During pendency of the probate proceeding the executor RS Lodha (RSL) died and the legal heirs (present plaintiffs) were substituted in place of deceased executor who filed an application on the basis of which the proceeding was converted into a proceeding to one for grant of letters of administration. In an appeal from the order passed by the Probate Court the Hon'ble Division Bench presided over by the then Chief Justice, appointed a committee of Administrators Pendente Lite and in absence of one of the members being Retired Judge of the Supreme Court having tendered resignation, Committee became non-functional, and as a result whereof, the estate was not being looked after by the committee. In such situation the defendants who came to know from various newspapers reporting that Birla Corporation Ltd. in which Priyamvada Devi Birla had some share was negotiating with Reliance Infrastructure Limited for acquiring four of its cement manufacturing units by purchasing its shares in some States of the country involving a huge investment to the tune of Rs.4000- 4,200 crores, two applications were taken out by two sets of defendants apprehension that the debt burden of Birla Corporation Limited will increase by about Rs.3100/- crores if the said deal was executed with Reliance Infrastructure Limited. Identical apprehension of enhancing of debt burden amounting to Rs.1500/- crores approximately of the company, namely, Birla Corporation Limited was also expressed by the defendants/applicants in case the said company executes the deal of taking over the units of other cement manufacturing company. It was alleged in those applications that since the estate of Priyamvada Devi Birla was the promoter of Birla Corporation Limited and its control vests with the estate of Priyamvada Devi Birla directly or indirectly through interlinking, chain and cross holding of shares, whenever any policy decision which had material impact on the fortunes of the company is required to be taken, the promoter group of the said company should be consulted even though under the provision of the Companies Act formal control vests with the Board of Directors. It was further alleged therein that the fiduciary position held by the director of the company also demanded that before making such huge commitment, the Directors of the company should have consulted the promoters and the promoter group which includes the estate of Priyamvada Devi Birla which has large stakes in the success or failure of the said company. It was also alleged therein that even this Hon'ble Court while appointing a committee of APL on 23rd August, 2012, made it clear irresistibly, expressly or impliedly that any major policy decision affecting the interest, could be taken by this Hon'ble Court through the Committee of APL as constituted by the said order dated 23rd August, 2012.Mr. A.K. Mitra learned senior advocate appearing for the plaintiffs while opposing the maintainability of the application filed by the defendants made a prayer on the principles underlying order 7 Rule 11 of the Code of Civil Procedure. He submitted that the application did not disclose any cause of action. He submitted that entire application was based on certain information collected by the applicants from various newspaper reports and that such reports were not admissible in evidence and further that the reliefs sought for were without any foundation. Mr. Mitra pointed out that probate Court while dealing with a testamentary suit only acts as a Court to find out as to whether the Will was the last Will of the testator or not and further as to whether the Will was duly executed by him and properly attested by the attesting witnesses or not and further as to whether at the time of execution the testator was physically fit and mentally alert or not, or is there any suspicious circumstances in executing the Will. Therefore, according to Mr. Mitra Testamentary Court will have no jurisdiction to decide any dispute relating to the title of the testator in the property bequeathed under the Will and the business of the testamentary Court is very restricted. He submitted that Probate Court has no jurisdiction to decide any foreign issue. While arguing these points of maintainability and the business of the testamentary Court in respect of foreign issue Mr. Mitra relied on various decisions before the Coordinate Bench which have again been cited here before this Court. The decisions cited before the Coordinate Bench and those relied on again here are as follows:-1. Mrs. Bacha F Guzdar -Vs. - Commissioner of Income Tax reported in AIR 1955 SC 74;2. Murarka Paint & Varnish Works (Pvt.) Ltd. -Vs. - Mohanlal Murarka Ors. reported in 1965 CWL 32.3. Jagadish Prasad and Anr. -Vs. - P.T. Paras Ram and Ors. reported in AIR 1941 ALL 360 and4. Subarban Bank Pvt. Ltd. -Vs. - Thariath and Anr. reported in AIR 1968 Kerala 206;Mr. Mitra has also advanced similar argument before this Court on issues which had already been argued earlier before the Coordinate Bench. On going through the decision rendered by the Coordinate Bench it appears that the Coordinate Bench was of the opinion that interim order is always granted in aid of the ultimate relief which is, in fact, an age old established principles of law and followed by all the Indian Courts. The Coordinate Bench held that since the only ultimate relief before the parties in the probate proceeding was in respect of grant or refusal of the probate and/or letter of administration in aid of which the defendant's prayer could not be accessed through, the Coordinate Bench held that merely because there was apprehension of some future action which might be taken by the plaintiffs in respect of the proposed deal with Cement Manufacturing Units of Reliance Infrastructure for which the defendants’ attack on the issue of value depreciation of the shares of Birla Corporation Ltd. cannot be construed to be the cause of action for a suit or proceeding and on the basis thereof Court cannot grant any relief. The Coordinate Bench also held that Section 247 of the Indian Succession Act provides additional duty upon the testamentary Court, that is, to say whether because of the Act or omission on the part of any of the parties value of the properties belonging to the estate of the deceased must dissipate or not and in the event it is found that by any action or omission at the instance of any of the parties the value of any movable or immovable property belonging to the estate of the deceased is likely to be dissipated then the Probate Court would appoint administrator pendente lite who would have all rights and powers to grant administrator other than the right of distributing such estate and such administration shall be subject to the immediate control of the Court.Whether or not the decision arrived at by the Coordinate Bench on 19th May, 2016 on the Interlocutory administration arising from T.S. 06 of 2004 is binding on this Court while deciding this application one has to scrutinize the scope of the application on which the Coordinate Bench rendered the decision on 19th May, 2016 and the scope of the present applications which are being decided by this Court now. Before the Coordinate Bench it was the grievance of the defendants made through their applications that Birla Corporation Ltd. in which PDB had some shares was negotiating with Reliance Infrastructure Ltd. by acquiring four of its cement manufacturing units by purchase of its shares in other states involving huge investment and the defendants took out applications before the Probate Court on the apprehension that debt burden of Birla Corporation Ltd. will increase enormously. It was alleged in those applications that since the estate of PDB is the promoter of Birla Corporation Ltd. and it was being controlled by PDB directly or indirectly through interlinking, chain and cross holding of shares, whenever any policy decision which has material impact on the future of the company, the promoter group of the said company should be consulted. Precisely this grievance was about the future deal of Birla Corporation Ltd. with some other companies and more precisely that it was related to future acquisition of property which, ultimately, may not be considered to be the property of the estate. Therefore, the Coordinate Bench held that it was beyond the jurisdiction of the probate Court. Here it is profitable to rely on paragraph 159 of the judgment and order dated May,19, 2016, which clearly said “To conclude, I hold that since the decision of the Board of Directors in taking over four cement manufacturing units of Reliance Infrastructure is not subject to the control of the Promoters’ controlling power over the management of the said company and further since the Probate court cannot pass any direction and/or injunction order against any person who is not a party to the Probate proceeding and further since no adjudication of a foreign issue is possible before the Probate court in the absence of any party who has no caveatable interest in the Probate proceeding, this Court holds that the relief claimed by the applicants in the applications, cannot be granted.” In my considered view the ratio arrived at by the Coordinate Bench is not binding on this Court while deciding the present applications, for the simple reason that fact situation is different inasmuch as plaintiff has got a caveatable interest and that he is a party contesting the application by filing affidavits. The application was dismissed on the ground that it was not maintainable before the probate Court and that maintainability could not be justified on the touchstone of the principles underlying Order 7 Rule 11 of the Code of Civil Procedure. The Coordinate Bench further held that there was no cause of action in those applications to have been made; that there was no issue raised in those applications rather those were foreign issues which could not be considered by the Court in a probate proceeding and further within the meaning of Section 247 Administrator can be appointed by the Court at the best. On the earlier occasion applications were made when APL was not functioning as I have already pointed out earlier but at present APL is very much functional and the decision has taken by the APL Committee is not being carried out by some of the parties. Therefore, there is a clear distinction between the two situations in which the applications made in the past and applications those have been made now before this Court. Another point of distinction has been shown in this case where prejudice has already been caused and defendants raised alarm about dissipation or the value of the assets because of the action of the plaintiff no.1, who happens to be The Chairman of the Board of Directors of Birla Corporation.Further, if jurisdiction under Section 247 is allowed to be assumed then APL has certainly got a role in the decision making process to protect the interest of the estate of the deceased and any party having caveatable interest would be entitled to agitate before the Court in case of any prejudice being caused to the ultimate benefit derivable from the grant or refusal of the Letter of Administration.It has also been noticed that the Coordinate Bench clearly arrived at a finding that in view of the several decisions of this Court at various interlocutory stages in the instant probate preceding, it has now been settled that exercise of the controlling power over the MP Birla Group of Companies is a valuable asset of the estate of Mrs. Birla. Such findings of this Hon’ble Court arrived at different stages of the interlocutory proceedings, was not only binding upon the parties but also was binding upon that Court and accordingly the Coordinate Bench held that it had no hesitation to hold that such controlling power was an important and valuable asset belonging to the estate of Mrs. Birla. This finding has never been challenged by the plaintiffs (emphasis supplied by me).In this connection it may also be noted that plaintiff HVL is a Chairman of BCL has a duel role and in any one capacity if his action appears to be prejudicial to the interest of the estate and the capacity under which such prejudice is caused is amenable to the Probate Court which cannot shut its eyes refusing to interfere with the proposed action on the part of such person causing prejudice to the interest of any party having caveatable interest in the assets. However, in view of what has been held in paragraph 132 by the Co-ordinate Bench I refrain myself from holding that by virtue of controlling power of PDB in the said companies, namely, Birla Corporation, Birla Cable Ltd. and Vindhya Telelinks, the defendants can seek an order of injunction directly against those companies who are not parties but since APL is now functioning, defendants can seek relief through APL.Lastly, situation has totally taken a different shape as soon as APL after its re-constitution took a decision and comes to the probate Court for a direction that the parties may be directed to implement the decision taken by such APL. Whether such an attempt on the part of the party/defendants for an order for implementation of the decision taken by the APL would be without jurisdiction or not. The answer simply is that if the APL has been appointed by a Court earlier and it would be the duty of that Court to see that validly taken decision of APL should be implemented. Interference with the Committee Will tantamount to interference with the order passed by the Court by which they have been appointed for the purpose of protecting and preserving the interest of the estate and restraining them from distributing the assets before the testamentary suit is decided. I hold this relying on the decision of Co-ordinate Bench and in this regard paragraph 144 is set out below:“144. In my view, in case any circumstance as aforesaid arises where intervention of the Court is necessary for preserving the estate of the deceased, the Probate Court at best can pass necessary direction upon "APL" to initiate appropriate proceeding before appropriate forum for seeking appropriate reliefs in accordance with law and it is only that appropriate forum which in my view, can pass appropriate order after adjudicating the rights of the parties including that of the stranger.”Further, it is equally important to take note of the observations made by the Co-ordinate Bench holding that it is the ‘APL’ to safeguard the interest of the estate of the deceased. Paragraph 160 is important and is set out below:“160. The applications are thus, rejected with the observation that the estate of the deceased cannot be left uncontrolled and since the "APL" has now become defunct, the parties may approach before the appropriate forum for making such "APL" functional so that whenever the Probate Court feels necessary, the probate Court can pass appropriate direction upon the "APL" for safeguarding and/or protecting the estate of the deceased.”In view of the above thus there should not any doubt, and I also hold that this Court has jurisdiction to consider the aspect of interim orders sought for principally under G.A. No. 1735 of 2019 and G.A. No. 1845 of 2019.Reliefs sought for here are challenging interference with Annual General Meeting of the companies proposing name of plaintiff no.1 as nonexecutive Director and payment of profit based remuneration to him, injunction restraining plaintiff no.1 from participating in the election and to take any benefit out of proposed resolution of the companies contained in the application being G.A. 1735 of 2019 and implementation of APL’s decision dated 19th July, 2019.Since I have held that the companies being not parties here, they are not amenable to the jurisdiction to Probate Court. Therefore, prayer for interim injunction against the companies those who were appellants before the Division Bench and not parties on this proceeding, is refused.Mr. A.K. Mitra, has strenuously argued that APL’s decision by majority cannot be recognized unless it is passed unanimously.Prem Raj (supra) has been relied on to argue that in absence of any order, Court cannot have any jurisdiction. With deepest of respect to the learned counsel for the plaintiff I am unable to subscribe to the view that there is no occasion for the Court to pass any order without there being any initial order. The decision rendered in 115 application, where, issue of jurisdictional error was raised and Court cannot assume jurisdiction without there being any erroneous order being passed. Therefore, the decision so cited has no manner of application in the present case.Santosh Kumar Banerjee (supra) has been relied on by the learned advocate for the plaintiff/opposite party is also not applicable in this case where the Court held that where indubitably question of maintainability is a mere question of law and decision thereof goes to the jurisdiction of the trial Court to pass an interim order in the suit and therefore, irrespective of the issue of maintainability before the trial Court, superior Court can go into the question without any doubt. The principle laid down in the cited decision has no bearing in the present case. Question of law raised before the Supreme Court is the settled position of law but how this principle is applicable in the fact situation of the present case is not answered.Mt. Kulwanta Bewa (supra) lays down that whole of Succession Act is only to provide for representation of the deceased's estate for purpose of administration, and is not intended to cut down the rights of the beneficiaries. This is the settled principles of law in probate proceeding. When APL is functioning this issue is no more important. APL has been authorized to take care of the beneficial interest of the parties. The interest is protected inasmuch as APL is not authorized to distribute the share.Sufiya Bee (supra) has been cited to apprise this Court about the value of precedent. The decision lays down that pronouncing of law by a Division Bench of a Court is binding on another Division Bench of the same or a smaller number of judges of that Court. This Court does not confront at all with this settled proposition of law. I am quite aware of this binding precedent which is the Constitutional mandate upon all Courts including Sub-ordinate Judiciary. The decision has been cited to impress upon this Court that the judgment and order dated 19th May, 2016, passed by a Coordinate Bench is binding upon this Court but unfortunately, fact situation are so different, it cannot be said that the same is binding on this Court as to deal with present issues involving interim applications.Western Coalfield Ltd. (supra) has been cited on the issue whether share holders are owners of company or not. In this regard we have already discussed the decision in Mrs. Bacha F. Guzdar (supra), the decision was cited on the issue whether Birla Corporation is a promoter company and it has got controlling power over other companies having interlinking chain and cross holding of shares. The same has also been discussed by the Coordinate Bench in the earlier decision and made a clear finding to that effect which I respectfully agree.Vodafone International (supra) has been cited to argue that Company is a separate legal persona and the fact that all its share are owned by one person or by the parent company has nothing to do with its separate legal existence. If the owned company is wound up, the liquidator, and not its parent company, would get hold of the assets of the subsidiary. The decision is based on fact dispute involving the Vodafone Group with the Indian Tax Authority in relation to the acquisition by Vodafone International Holdings. In the decision, however, it was held subsidiary control exercised by the parent of the holding company retain its own legal existence and ownership of its own assets because directors of subsidiary should be responsible to their own company rather than to parent/holding company. In the decision it was held, ordinarily residence of both parent company and subsidiary company for tax purpose shall be taken to be placed where they are incorporated or registered. In the decision ultimately, a question arose as to what is the nature of the 'control' that a parent company has over its subsidiary. It was not suggested that a parent company never has control over the subsidiary. For example, in a proper case of 'lifting of corporate veil', it would be proper to say that the parent company and the subsidiary form one entity. But barring such cases, the legal position of any company incorporated abroad is that its powers, functions and responsibilities are governed by law of its incorporation. No multinational company can operate in a foreign jurisdiction save by operating independently as a 'good local citizen'. Therefore, the decision has no manner of application to establish that PDB had no control over the units of Birla Corporation Ltd. The decision has got no application in the present case.Suburban Bank Pvt. Ltd. (supra) has been placed to clarify the extent of powers of share holder in General Meeting. The decision is distinguishable on fact. Inasmuch as it has been held that "The directors had acted fully within their powers in deciding to enforce the liability under the promissorynote, notwithstanding the recommendation contained in the resolution Ext. P10 passed by the shareholders at their general meeting. The view taken by the lower appellate court that the Board of Directors had no authority to over-ride the decision of the General Body is, therefore, incorrect."This finding was arrived at in the decision which was based on the fact that the trial Court rejected the defence contention and held that the resolution of the general body relied on by the defendant was a mere recommendation which was not binding on the board of directors of the company and in that the power as decided to realize the full amount due by the defendants on the said promissory-note. In this view the suit was decreed by the trial Court as prayed for in the plaint.In the appeal of the 2nd defendant the lower Appellate Court held that even though, resolution passed in the general body meeting was couched in the form of a recommendation, it was really a final decision taken on the matter by the general body of share holders and the Board of Directors that no right to override the said decision of the general body. It, therefore, held that in the light of resolution the liability of the defendants under the promissory note should be deemed to have been fully remitted and bank was not entitled to realize any further amount from the defendants. In the result the decision of the trial Court was set aside and the suit was dismissed. The appeal filed by the plaintiff /Bank has been allowed by the Single Bench of Kerala High Court.Jagdish Prasad (supra) has been relied on to argue that "When powers are vested in a board of directors by the articles of association of a company, they cannot be interfered with by the shareholders as such. If the shareholders are dissatisfied with what directors do, their remedy is to remove them in the manner provided by the articles. But so long as a board of directors exists and particular powers are vested in it by the articles, then they are entitled to exercise those powers without interference by the shareholders". This decision is also not on the fact of the present case and it is distinguishable on fact. Ratio of the decision is based on the principles where articles of association vested discretion to any director to refuse to register the transfer of share by shareholders to any person whom they consider any company's interest undesirable to admit to membership whether exercise of such discretion by the director requires to be assigned with reasons or whether they could be exposed to suspicion of mala fide for withholding their reasons.Murarka Paint & Varnish Works Pvt. Ltd. (supra) has been relied on to argue that Company related matter has to be decided before the Company Court and not by a suit. The ratio decided by the decision does not satisfy the requirement of the issues in this case. The ratio of the decision is not applicable in the fact of the present case.Mr. Mitra in his argument also brought to the notice of the Court some of the argument earlier made in the written submission made by Khaitan Company Advocate on the provisions of Section 247of Succession Act. Dealing with it and showing distinction between administrator and General Administrator, he submitted that the decision of 19th May, 2016 in GA 654 of 2016 arising from TS 06 of 2004 be taken note of as regards the findings of Court on the issue 'control of a company'. We have already discussed the point earlier and same may not be repeated once again.Mr. Jishnu Chowdhury learned counsel for the plaintiff appearing physically in Court mentioned that this Court should decide only two applications i.e., G.A. 1735 of 2019 and 1845 of 2019 and not the other three applications being G.A, 1761 of 2019, G.A. 1786 of 2019 and G.A. 2007 of 2019 filed by the plaintiffs as affidavits were not called for.Mr. Kapoor learned counsel for the defendants/applicants, submitted, however, that all these intra parties applications involve identical questions of law and fact and should be heard analogously. This Court, however, on perusal of the judgment and order dated 04.05.2020 passed by the Division Bench holds that all those five applications should be heard and disposed of analogously by a common judgment. Relevant portion of the said judgment is quoted below:“The learned Single Judge leaving the issue to be decided later on after considering in detail the material disclosed in all the applications filed both by the plaintiffs and the defendants along with supporting documents thereto erred in law…”By the affidavit in support of master summons filed on 30th July, 2019 numbered as GA 43 of 2019 (old GA 1735 of 2019) the petitioner made out the following case:(i) Administrator Pendente Lite passed an order on 19th July, 2019 (Annexure A to the affidavit hereinafter referred to as the Committee). This Administrator Pendente Lite (APL) now comprises of Justice Mohit S. Shah (Retd.), Justice AC Chakrabortti and M.K. Sharma. The said Committee by the aforesaid order held that for the purpose of protection and preservation of the estate of Late Smt. Priyamvada Debi Birla (hereinafter referred to as the 'estate') scope and ambit of the estate includes share holding in various companies of MP Birla Group both directly and indirectly and through cross and chain share holdings.APL Committee was appointed by the Division Bench of this Court in the probate proceeding and in course of functioning the present Committee comprising Mr. Justice Mohit S Shah (former Chief Justice of High Court of Bombay and Calcutta), Mr. Mahendra Kumar Sharma, Mr. Amay Chandra Chakrabortti deliberated in meeting held on 15th and 16th June, 2019. Prior to 15th and 16th June, 2019, a meeting was held on 28th April, 2019 where in pursuance of a consensus that all necessary steps would be taken to substitute the name of Mr. Justice Mohit S. Shah (Retd.) in place of Justice A.P. Shah (Retd.) as a shareholder and as a Director in the records of all the concerned companies and the concerned bank accounts and other investments and other consequential decisions were also taken to give effect to the above substitution. Learned counsel for the parties also addressed APL Committee on the procedure to be followed by such APL, particularly on the question whether APL is to take decision unanimously or by majority. All contentious issues were placed for consideration before the said APL on 15th and 16th June, 2019. After considering the submission made on behalf of the respective parties APL observed:"38.Having considered all the relevant facts and circumstances and having considered that he major part of the estate of late Mrs. P.D. Birla consists of direct and indirect holding, through chain and cross holdings in various companies, controlling interest in several M.P. Birla Group Companies, particularly the companies with the percentage of shareholdings set out in the chart annexed at as Annexure- “X” to this decision, APL Committee is of the considered view that during pendency of the Probate proceedings before the Calcutta High Court in relation to the estate of late Mrs. P.D. Birla, it is necessary for the protection and preservation of the estate of late Mrs. P.D. Birla to see that –A. all three Members of APL Committee are nominated as Directors on Board of directors of:(i) East India Investment Co. Pvt. Ltd.,(ii) Gwalior Webbing Co. Pvt. Ltd.,(iii)Boroda Agents & Trading Co. Pvt. Ltd.,(iv)The Punjab Produce & Trading Co. Pvt. Ltd., and(v) Punjab Produce Holdings Ltd.There can be no dispute that the estate of late Mrs. P.D. Birla has, directly or indirectly, majority shareholding in all the above companies and APL Committee will get weightage on the Board of the above companies. This will also ensure that in case Justice Mohit S. Shah (Retd.) is unable to attend any meeting of any the above companies, APL Committee does not go unrepresented.(It was already unanimously decided at APL Committee meeting held on 28th April 2019 that whenever Justice Mohit S. Shah (Retd) attends meetings of the Board of Directors or the shareholders, Justice Mohit S. Shah (Retd.) will be nominated / elected as the Chairman of the meetings).B. one person recommended by APL Committee for each of the following companies is nominated / continues to be nominated as a director on the Board of Directors of the companies:(i) Universal Cables Ltd.,(ii) Hindustan Gums & Chemicals Ltd., (iii) Birla Cable Ltd., (iv) Birla Corporation Ltd., (v) Vindhya Telelinks Ltd. and in its three wholly owned subsidiaries August Agents Ltd, Insilco Agents Ltd, Laneseda Agents Ltd.39. The Committee would like to observe that while it does not envisage any difficulty in implementation of its decisions arrived at unanimously, in cases where its decisions are arrived at by majority, such decisions will bind all the parties and the concerned party required to implement such decisions shall take all necessary steps for their implementation. In case, any such party does not do so, the other party/ies will be at liberty to pursue their remedies including approaching the Calcutta High Court or any other appropriate forum.40. Wherever necessary, the Committee may approach the Hon’ble High Court for appropriate directors by filling a Report, but the parties are also at liberty to approach the Hon’ble High Court for seeking appropriate directions and/or clarifications, so that, as far as possible, the estate of late Mrs. P.D. Birla is not burdened with avoidable costs.41. It is also necessary to indicate at this stage that the Committee Members held deliberations amongst themselves at the meeting held on 28th April 2019 and also at the meetings held on 15th and 16th June 2019. The Committee Members tried to reach a consensus, but were unable to arrive at a unanimous decision. In view of the divergence of opinions of Members of the Committee, Mr. Justice Mohit S. Shah had circulated two page extract from the book “Shackleton on the Law and Practice of Meetings”, Thirteenth Edition (2014), pages 86-87, paragraph 7-30 (Majrity – Definition) and paragraph 7-31 (A Majority vote binds and Minority). The relevant extracts from the said treatise read as under:“MajorityDefinition7-30. Majority is a term signifying the greater number. In legislative and deliberative assemblies, it is usual to decide questions by a majority of those present and voting. This is sometimes expressed as a “simple” majority, which means that a motion is carried by the mere fact that more votes are cast for than against, as distinct from a “special” majority where the size of the majority s critical.The principle has long been established at the will of a corporation or body can only be expressed by the whole or a majority of its members, and the act of a majority is regarded as the act of the whole”.“A majority vote binds the minority7-31. Unless there is some provision to the contrary in the instrument by which a corporation s formed, the resolution of the majority, upon any question, is binding on the minority and the corporation, but the rules must be followed”42. The same propositions in “Shackleton on the Law and Practice of Meetings”, in the Eleventh Edition (2014), have been approved by the Apex Court in State of Madhya Pradesh Vs. Mahendra Gupta & Ors. (2018)3 SCC 635. In the said decision, the Apex court also has observed as under:“15. The Multi-member body transacts its business after debate, consultation and discussion. The view of multi-member body is expressed unanimously or by votes. For various kind of decisions by multi-member body special majorities are also provided for acceptance of the decision. Normally, all decisions of a multi-member body are expressed by opinion of majority of the members present except where the special majorities are provided in the statue itself.”(emphasis supplied)There is no statutory provision or any judicial direction requiring APL Committee to depart from the above general rule enunciated by the Apex Court.43. Apart from the internal deliberations of the Committee at the meetings held on 15th & 16th June 2019, the Committee members have also held internal deliberations through exchange of emails. In view of absence of a unanimous decision, APL Committee is left with no other alternative but to render its decision through a majority of 2:1. Accordingly, Mr. M.K. Sharma is rendering his views separately.44. The Committee would also like to clarify that the suggestion of Mr. A.C. Chakrabortti regarding appointment of Chairman of five Investment Companies mentioned in sub-para (a) of para 44 of this decision is kept open for discussion on another occasion. Of course, APL Committee has already decided on 28th April 2019 that Mr. Justice Mohit S. Shah (Retd.) would act as the Chairman of the meetings of the respective companies, whenever he is present at the meetings.”The APL Committee in the said meeting decided that during pendency of the Probate proceedings before the Hon’ble High Court at Calcutta, being Probate Suit T.S. no. 6 of 2004 and connected proceeding (including Civil Suit Nos. 73 to 77 of 2010 and CP No. 1 of 2010) pending before the Hon’ble High Court at Calcutta – (a) All the three members of APL Committee would continue to be the directors of (i) East India Investment Co. Pvt. Ltd. (ii) Gwalior Webbing Co. Pvt. Ltd. (iii) Boroda Agents & Trading Co. Pvt. Ltd. (iv) Punjab Produce & Trading Co. Pvt. Ltd and (v) Punjab Produce and Holdings Pvt. Ltd.(b)Mr. Justice D.G. Karnik (Retd.) will continue to be a Director on the Boards of Universal Cables Ltd., Vindhya Telelinks Ltd. and Birla Corporation Ltd;(c) Mr. Justice D.G. Karnik (Retd.) will be appointed as a Director on the Boards of (i) August Agents Ltd., (ii) Insilco Agents Ltd and (iii) Laneseda Agents Ltd.;(d) Mr. Justice J.P. Devadhar (Retd.), Former Judge, Bombay High Court and former Chairman, Securities Appellate Tribunal, Mumbai, will be a Director on the Board of Directors of Hindustan Gums and Chemicals Ltd., upon vacancy arising in the said Board of Directors;(e) Mr. Justice J.P. Devadhar (Retd.) will be a Director on the Board of Directors of Birla Cables Ltd.Secretary to the Committee was directed to communicate all the 13 Companies about the said decision along with a true copy of it within a week from date when the decision was taken and was further directed to send copies thereof to all the directors of each of the said companies.By this affidavit the defendant no.1(b)/petitioner agitated that it is necessary to the meaningful and proper implementation of the order dated 19th July, 2019 which held that the estate has control over the direct and indirect share holding in various companies, trust and societies of the MP Birla Group. The estate is under control of the Committee by virtue of orders of this Hon’ble Court. Hence it is demanded that exercise of voting rights and casting of votes controlled by the estate as to be by the Committee and/or at the instance of the Committee and no one else. Consequently, the Committee cannot be deprived of its voting rights, which are within its exclusive competence as the General Administrator of the estate.It is the further contention of the defendant/petitioner that Committee has stepped into the shoes of Priyamvada Debi Birla (PDB) who stood as single individual promoter and as the single directing hand of the promoter’s group of shares in all of the companies and philanthropic and charitable organizations, trusts and societies and was in exclusive control of the Estate. As per the petitioner the estate being in germio legis, rights of PDB vis-a-vis the estate of the deceased can only be exercised by the Committee and none else.It has been alleged that the plaintiffs/respondents on earlier occasions too, deliberately disregarded and defied the direction of the Committee. The Committee unanimously by its letter dated 8th July, 2013 specifically advised all the companies of MP Birla Group to give prior information before taking any decision with regard to the change in management or managerial personnel of the company as also fixation of the date of Annual General meeting and Extra Ordinary General Meeting. However, none of the companies followed such direction rather acted in complete defiance despite the said issue was discussed and brought to the attention of the plaintiffs/respondent Harsh Vardhan Lodha specifically in the Board Meeting of Gwaliar Webbing Company Pvt. Ltd and East India Investment Company Private Ltd.It has been alleged that the plaintiffs/respondents have consistently taken a stand before the Committee that various companies including the major listed manufacturing companies as well as trust and societies are not part of the controlling interest and controlling power vested in the Estate. While the plaintiffs /respondents have taken a stand that Estate has only 16.04% shareholding (direct and only a minuscule part indirect) in BCL and not 62.90% (which includes both direct and indirect share holding). According to the petitioner the stand taken by the plaintiff/respondents are mala fide and uncovers their real objective, which is clearly to sub-serve their personal interest. The plaintiff/respondent by passed the decision and/or direction of the committee and rendered it a paper decision only. According to the petitioner, the plaintiffs have been continuously acting in a manner detrimental to the estate. Therefore, the petitioner has prayed for implementation of the decision of the Committee passed on 19th July, 2019. According to the petitioners, this Hon’ble Court should also direct the committee to exercise its voting rights in the share holdings of the estate (directly and indirectly by casting of votes to the ensuing General Meeting of UCL, VTL. BCab and BCL through the chairman Justice M. S. Shah or any person(s) as the Hon’ble Court may deem fit in terms of the decision of the Committee. It has also been prayed that if circumstances necessitate in view of what has been pleaded in the present affidavit notice may also be issued to the concerned companies, trust and societies of MP Birla Group for taking effective decision. The petitioner also prayed to keep in abeyance the impugned resolutions in the notices for convening the annual general meeting of UCL, VTL, BCab, and BCL.Mr. Kapoor submits that the purported question shown by the plaintiff /opposite party is in ignorance of the shareholding held through cross and chain shareholding and other philanthropic and charitable societies. According to the petitioner it has been falsely contended by the defendant that the same could not be part of controlling rights of the estate. However, according to the petitioner such contentions were rejected by the Committee and it, inter alia, determined the shareholding of Birla Corporation to be 62.9%.Next issue raised by the petitioners that at a subsequent meeting on 20th and 21st July, 2019, the Committee considered three applications dated 14th July, 2019, 17th July, and 18th July, 2019 filed by them before the Committee. Concerning some proposed resolution in the notices for convening Annual General Meeting Vindhya Telelinks Ltd. (VIL), Birla Cable Ltd. (BCL), Universal Cable Ltd. (UCL) and Birla Corporation Ltd. (BCL). In their application dated 14th July, 2019 and 18th July, 2019 the petitioners agitated before the Committee that the resolutions vis-a-vis remuneration by way of profit related commission to the non-executive Directors and particularly huge remuneration to the plaintiff/respondent HVL was highly objectionable. Application dated 14th July, 2019 and 18th July, 2019 being Annexure “F” at page 118 of GA 1735 of 2019 discloses an objection addressed to the APL on the subject "Resolutions regarding remuneration of non-executive directors in the Notice for Annual General meetings of Universal Cables Limited, Vindhya Telelinks Limited and Birla Cable Limited" Those notices for Annual General Meeting of the said Companies are on record.Mr. Kapoor argued that the testamentary Court has two fold power (i) it relates to grant or not to grant of probate or Letters of Administration with the will annexed and to administer the property during pendency of the probate suit and where provisions of Section 247 is attracted. He has referred to page 23 of his notes. Mr. Kapoor refers to the orders of the Division Bench particularly, the control of the Administrator Pendente Lite over the assets and/or estate of the deceased. He submits that controlling block of shares are part of the estate left by the deceased. He submitted that PDB had controlling interest over the companies through inter linking. He submitted that 62.09% of shares over the companies and therefore, APL should be allowed to intervene in the management of the Company as those companies are the assets of PDB. He has specifically pointed out that controlling block of shares of PDB in the companies in question had already been accepted by the plaintiffs as has been duly recorded by the Division Bench presided over by the Hon’ble Justice Patel, where APL was appointed. The decision was challenged before the Supreme Court but SLP was dismissed. According to Mr. Kapoor if controlling block of shares of PDB were never disputed rather admitted no further evidence is required to be shown by the defendants to argue that PDB had controlling block of shares in the companies in question and that being so APL is the only authority to manage those companies but not the plaintiffs. He further submitted that plaintiffs’ father being an executor was in possession of the estate including companies but as soon as the executor died an Administrator Pendente Lite has been appointed and HVL should not be in management of those companies and cannot claim any interest therein. He should have handed over the assets of the company and other assets to APL instead of keeping control over the same. He submits that a Court in an Administration Suit, Section 247 has enough power to ascertain the extent of the estate and reach wherever the estate goes. Because the power of the administration Court is to secure and preserve the estate but not to distribute the assets. He has referred to Section 2(a) of the Administrator General Act, 1963 which defines “Assets”. Regarding controlling block of shares to the extent of 62.09%, he has shown from his note at page 12 paragraph 36 the extent of share which in total 62.09%. He submits that plaintiffs cannot be permitted to approbate or reprobate because at one point of time this plaintiffs No.1’s father admitted controlling block of shares and he made petition before the Court to protect such controlling block of shares and after his expiry the present plaintiff who has prayed for Letter of Administration is taking a stand contrary to one which was taken by his father.The proposed ordinary resolutions under Item no.6 of the notices issued on 16.05.2019 of 74th Annual General Meeting the Universal Cables Ltd. discloses payment of remuneration/compensation by way of profit related commission or otherwise as permissible to the Non-Executive Directors including the independent Directors of the Company effective form the financial year commencing from 1st April 2019 of such sum or sums as determined by the Board of Directors based on the recommendation of the Nomination and Remuneration Committee provided that payment of such remuneration/compensation by way of profit related commission or otherwise (excluding Goods and Service Tax, if any, thereon) shall be in such proportion/manner and upto such extent for each financial year commencing on or after 1st April, 2019 as the Board of Directors shall determine from time to time within the overall maximum limit of 1% (one percent) per annum of the Net Profits of the Company for the relevant financial year computed in the manner as laid down under Section 198 and other governing provisions of the Act and rules made thereunder. Proposed resolution further provides that the remuneration/compensation by way of profit related commission or otherwise as permissible (excluding Goods and Services Tax, if any, thereon) to the Non-Executive Director(s) shall be in addition to the remuneration by way of sitting fees for attending meeting(s) of the Board of Directors and/or Committee(s) thereof or for any other purpose whatsoever as may be decided by the Board of Directors within the limit as prescribed under Section 197(5) of the Act and reimbursement of expenses for participation in the Board and other meetings.Item no.7 of the notice is a subject resolution which accorded for payment of remuneration/compensation by way of profit related commission or otherwise as permissible (excluding Goods and Services Tax, if any, thereon) of an amount not exceeding 0.75% (seventy five basis points)of Net Profits of the Company for the financial year 2019-20 (1st April, 2019 to 31st March, 2020) to Shri Harsh. V. Lodha, Non-Executive Chairman of the Company, which may exceed fifty percent of the total annual remuneration/compensation by way of profit related commission or otherwise payable to all Non-Executive Directors of the Company, within the overall maximum limit of 1% (one percent) per annum of the Net Profits of the Company to all Non-Executive Directors as fixed/approved by the members of the Company. It was further proposed to be resolved for remuneration/compensation by way of profit related commission or otherwise (excluding Goods and Service Tax, if any, thereon) to Shri Harsh.V. Lodha, Non-Executive Chairman of the Company, would be in addition to the remuneration by way of sitting fees for attending meeting(s) of the Board of Directors and/or Committee(s) thereof or for any other purpose.Under another notice dated 16.05.2019 in respect of Vindhya Telelinks Ltd. for the proposed 36th Annual General Meeting of the members of the Vindhya Telelinks Ltd. scheduled to be held on 5th August, 2019, the proposed resolutions under Item no.3 of G.A. 1735 of 2019 disclosed for appointment of a director in place of Shri Harsh Vardhan Lodha who would retires by rotation at the said Annual General Meeting and being eligible offered himself for re-appointment. Under Item No.6 of the said notice it was proposed to be resolved to accord sanction for payment of remuneration /compensation by way of profit related commission or otherwise as permissible to Non-Executive Directors including Independent Directors of the Company effective from the financial year commencing 1st April, 2019 of such sum or sums as determined by the Board of Directors based on the recommendation of the Nomination and Remuneration Committee provided that payment of such remuneration/compensation by way of profit related Commission or otherwise (excluding Goods and Service Tax, if any, thereon) shall be in such proposition/manner and upto such extent for each financial year commencing on or after 1st April, 2019 as the Board of Directors shall determine from time to time within the overall maximum limit of 1% (one percent) per annum of the net profit of the Company for the relevant financial year computed in the manner as laid down in Section 198 and other governing provisions and rules made thereunder.Under Item no.7 in a special resolution it was proposed to be resolved to accord sanction for payment of remuneration/compensation by way of profit related commission or otherwise as permissible (excluding Goods and Service Tax, if any, thereon) of an amount not exceeding 0.75% (seventy five basis points) of Net Profits of the Company for the financial year 2019-20 (1st April, 2019 to 31st March, 2020) to Harsh Vardhan Lodha, non-executive Chairman of the Company which may exceed 50% of the total annual remuneration/compensation by way of profit related commission or otherwise payable to a non-executive directors of the company, within the overall maximum limit of 1% per annum of the net profits of the Company to non-executive directors as fixed/approved by the members of the Company.Mr. Hirak Mitra, learned senior advocate appearing for the defendant no. 2, while submission at the initial stage before lockdown was declared on the following decisions:1. Smt. Radhika Bhargava and Ors. -Vs. – Dr. Rajun Sahagal and Ors. reported in AIR 2019 Bom 68;2. British American Tobacco Co. Ltd. -Vs - Inland Revenue Commissioners reported in [1943] of England Law Reporters (Annotated vol-1)3. Zacharia -Vs. – Republic of Cyprus and Anr. reported in [1963] House of laws page 634;4. Films Rover International Ltd. and Ors. vs. – Cannon Films Sales Ltd. Reported in [1986]3 ALL ER 772Smt. Radhika Bhargava (supra) has been cited by Mr. H. Mitra to argue on the issue of jurisdiction of probate court. He argues that not only probate Court has authority to pass order, this Court has rightly passed the interim order on 2nd, 5th & 9th August, 2019 and the same must continue till disposal of the suit. In the cited decision question arose whether the application under Section 301 of Indian Succession Act, 1925 can be made only by a beneficiary or legatee, who accepts the Will and, as to whether it can be made by any person who seeks to dislodge the Will or contest the application for Probate or Letters of Administration with the Will annexed. In the given case appellants and respondent no.5 lodged caveat and filed affidavit in support thereof for passing the grant of probate of the Will. As such, the probate petition came to be converted into testamentary suit. It was alleged, respondent nos. 1 and 2 were not properly administering the estate of the deceased. It was the case that though certain details were sought from the said respondents they were not responding. As such the appellants were required to file Miscellaneous Petition under the provision of Section 301 of the Succession Act. Certain directions came to be issued by the learned Single Judge in the said proceeding. However, a preliminary objection to the tenability of the said proceedings under Section 301 came to be raised by respondent no1 and 2, on the ground that the application under Section 301 can be made only by a beneficiary or legatee who accepts the Will and it cannot be made by a person who seeks to dislodge the will and contest the application for probate or letters of administration with the Will annexed. After formulating questions, the learned Single Judge held the Miscellaneous petition to be misconceived and not maintainable against the said order. Appeal was filed and the Hon'ble Division Bench of Bombay High Court held that the finding of the learned Single Judge that the person who challenges the Will if allowed an application under Section 301, would amount to promoting into approbate and reprobate, is not correct. Relying on a decision of the Hon'ble Apex Court in the case of Chiranjilal Goenka –Vs. – Jasjit Singh reported in 1993 AIR SCW 1439, the Division Bench after considering the case in detail came to the conclusion that the finding of the learned Single Judge that Application under Section 301 for removal of executor can be made only by a beneficiary and legatee who accepts the Will and cannot be made party by a person who seeks to dislodge the will and contest the application for probate or letters of administration with will annexed, is not sustainable. The Matter was, however, remanded to the learned Single Judge for a fresh decision on merits. The Appeal before the Division Bench was allowed.British American Tobacco Co. Ltd. (supra) cited by Mr. H. Mitra is a decision rendered by the House of Lords on the issue of 'controlling interest' in a Company.In the given case appellant Company held shares of 11 companies operating outside the United Kingdom, which were not, therefore, liable to be assessed to National Defence Contribution. In the case of four of those companies, the appellant Company itself controlled more than 50% of the votes. In the case of the remaining seven companies more than 50% of the votes were controlled by the appellant company in conjunction with a company or companies in this the appellant company controlled more than 50% of the votes. In the decision House of Lords held "The appellant company had a controlling interest in all the companies within the meaning of Finance Act, 1937 Sched. IV, para 7(b) and the dividends received by the appellant company from these companies should be included in his income liable to National Defence Contribution.” In the editorial of the decision so cited it has been mentioned that it was unsuccessfully contended that a control by a bare majority holding is insufficient. The argument was that, who have a controlling interest, a controlling company must have such a holding that it could ensure passing of resolutions which must be passed by more than a bare majority of votes. This contention has been rejected by all the Courts and in a few sentences VISCOUNT SIMON, L.C., has shown that a bare majority of votes is sufficient to effective control of a company. House of Lords in the decision cited opined "the meaning of the word 'interest’ in the enactment under consideration, and, where one company stands in such a relationship the another, the former can properly be said to have a controlling interest in the latter. This view appears to me to agree with the object of enactment as it appears on the face of the Act. I find it impossible to adopt the view that a person who, by having the requisite voting power in a company subject to his will and ordering, can make the ultimate decision as to where and how the business of the company shall be carried on, and who thus has, in fact, control of the company’s affairs, is a person of whom it can be said that he has not in this connection got a controlling interest in the company.As to what may be the requisite proportion of voting power, I think a bare majority is sufficient. The appellant company has, in respect of each of the foreign companies referred to in the case, the control of the majority vote. I agree with the interpretation "controlling interest" adopted by ROWLATT J., in Noble Vs. Commissioners of Inland Revenue ...."It was further held in the decision "The owners of the majority of the voting power in a company are the persons who are in an effective control of its affairs and fortunes. It is true that for some purposes a 75% majority vote may be required, as, for instance (under same company regulations) for the removal of the directors who oppose the wishes of the majority; but the bare majority can always refuse to re-elect and so in the long run got rid of a reclacitrant board. Nor can the articles of association be altered in order to defeat the wishes of the majority, for a bare majority can always prevent the passing of the necessary resolution.” Ultimately, the appeal was dismissed.Zacharia (supra) has been cited by Mr. H. Mitra on the issue how far Court is entitled to interfere with use of discretionary power of the Administrator Pendente lite (APL). The decision has also been referred by the House of Lords. During hearing of the appeal, question arose whether the appeal under Section 10 of the Act of 1881, being in a Criminal cause or matter, could be entertained by the House of Lords notwithstanding that no certificate was asked for or given by the Court below pursuant to Section 1(2) of the Administration of Justices Act 1960, that a point of Law of General public importance was involved in the decision.The Divisional Court dismissed the application under both heads and refused leave to appeal. Subsequently leave was granted by House of Lords.In the cited decision it was held "(1) that the House of Lords had jurisdiction to hear the appeal merely on leave granted, for the court’s power to grant relief under Section 10 of the Fugitive Offender’s Act, 1881, were an adjunct to its power to protect by habeas corpus, and that, accordingly, where, as here, an application for the writ was joined with proceedings under Section 10, and the provision of Section 15(3) of the Administration of Justice Act, 1960, that struck out the statutory restriction on the grant of leave to appeal applied to both forums of proceedings.(2) That a court acting under section 10 of the Act of 1881 was confined to the considerations of which it was there directed to take account; and that whether the alleged offences were of a political nature was irrelevant.Per Lord Hodson and Lord Devlin. If the application for the return of the fugitive had been made for purposes of political revenge, that would have been material to show that it was not made in good faith in the interests of justice.(3) That there was no ground on which it would be proper to interfere with the exercise under section 10 of the discretion of the Divisional Court; and that, accordingly, the appeal must be dismissed.”The House of Lords observed "This question, which is undoubtedly of importance, having been disposed of, what remains? My Lords, the Divisional Court has exercised a discretionary jurisdiction under Section 10 of the Act. Interference with such an exercise can only be justified if that court has clearly acted on some wrong principle, committed some error of law or failed to consider matters which demanded consideration. That is a principle upon which this House, sitting as a final Court of Appeal, has always acted and will, I hope, continue to act, not least in matters of criminal jurisdiction which have traditionally been the province of the Court of King’s Bench. I should therefore, be content to say that I see no possible ground in this case for substituting my own view, if I had a different one, for that of the Divisional Court."Films Rover International (supra) has been cited by Mr. H. Mitra on the issue of grant or refusal of interlocutory orders of injunction. The decision deals with the ratio and/or test of whether injustice to defendant if plaintiff granted injunction but failing at trial outweighing injustice to plaintiff if injunction refused to plaintiff succeeding at the trial.In the decision it was held that in determining whether to grant an interlocutory injunction the question for the Court was not whether the injunction sought was mandatory or prohibitory but whether the injustice that would be caused to the defendant if the plaintiff was granted an injunction and later failed at trial outweighed the injustice that would be caused to the plaintiff if an injunction was refused and he succeeded at the trial. The Court held "This seems to me to involve a substantial risk of a special kind of injustice. Denial of the injunction may enable a party to achieve a commercial objective by a calculated disregard of the basic principle of a civil society that ‘men perform their covenants made.’ The film would is tough and ruthless but not a state of nature. In weighing the risks of injustice which granting or refusing the injunction would entail, I have taken this qualitative consideration into account."It was argued on behalf of plaintiff/opposite parties that no direction and or order even can be passed against plaintiff if cannot be passed against Birla Corporation of which plaintiff is the chairman of The Board of Directors. It was also argued that no jurisdiction to interfere with internal management of the company and lastly that APL has got minority share. On the issues the decision referred to by Mr. H. Mitra in Films Rover International (supra) is very apt to hold that the Court has all the discretionary power to exercise or to protect the estate. In this regard it may be mentioned that power of APL had already been categorically specified in the order of the Division Bench presided over by Chief Justice, Patel as His Lordship then was and which was challenged before the Hon'ble Apex Court but ultimately failed. Can it now be contended by the plaintiff that APL will be onlooker? In my view, this, appointment of APL becomes meaningless and the order under which they have been appointed gets then frustrated and nugatory.Mr. S.N. Mukherjee learned senior advocate appearing for the defendant no. 1(b)/petitioner submitted that probate Court is the only Court which should act in terms of Section 247 of the Indian Succession Act to protect and preserve the interest of the estate left by the deceased. According to him a Probate Court shall always act as the guardian of the properties left by the deceased for the interest of the legatees and in order to protect such interest this Hon'ble Court appointed APL Committee which, in fact, has taken initiative by its resolution dated 19th July, 2019 which is yet to be implemented. Mr. Mukherjee has drawn this Court’s attention to a judgment and order dated 25th April, 2005 passed by the Company Law Board, order dated 24th August, 2005 of this Hon'ble Court, order dated 28th June, 2006 of the Company Law Board and order dated 10th May, 2013 of this Hon'ble Court.He has particularly pointed out that part of the order dated 25th April, 2005 where the Company Law Board has observed "There is no dispute that the Late Mrs. Birla was in control of respondents Nos.1 to 28 and that the Will executed by her is under challenge before the Calcutta High Court. In the petition, the petitioners themselves have offered that Sri Lodha is controlling respondents Nos.1 to 28. If it is so, the question of Investigation under Section 247 (1A) to find out the facts about the shares does not arise.”It has been submitted that respondents Nos.1 to 28 comprises 'both companies and estates'.The said order further reveals that it was an admitted fact that before the demise of Mrs. Birla, even though her direct share holding in the company was negligible by virtue of her controlled respondents Nos. 1 to 28 which holds over 60% shares in the company, she was not only materially interested in the company but was also able to control the company.Relying on a decision in World Wide Agencies Pvt. Ltd. -Vs. - Mrs. Margarete Desor reported in 1990 (67) Comp (CAS) 607, it was held by the company Law Board that on the death of a share holder, the shares developed on the legal heirs instantaneously. Therefore, all the interest of Mrs. P.D. Birla in the company and respondents Nos. 1-19 shall devolve in the legal heirs immediately on her demise, who is the lawful legal heirs is an issue before the Calcutta High Court and Board declined to assume jurisdiction to enquire into the same.Aforesaid Order dated 25.04.2005 was passed on an application by the petitioners who collectively held 0.0016% shares in M/s Birla Corporation Ltd. (29th respondent of the Company) sought for an investigation into the membership of the Company in terms of Section 247(1A) of the Companies Act, 1956 for determining the true persons who are or have been financially interested in the success or failure, whether real or apparent, of the company.The said application was dismissed by the order dated 25th April, 2005 and while dismissing the said application the Company Law Board found that estate of Mrs. Birla, controlling majority of the shares in the company was indicated and that the said estate had not brought about any change in the compensation of the Board of Directors of the company. In other words, it was the estate of Late Mrs. Birla controlling majority shares in the company, which was found to be materially interested in the affairs of the company. Company Law Board found that no case had been made out to order an investigation in terms of Section 247 (1A) of the Act and challenged the said order dated 25.04.2005. An appeal was filed under Section 10A of the Companies Act. The Hon'ble Appeal Court held, the appellants, who admittedly owned less than 0.16% of the shares of the Company, filed application in the Company Law Board under Section 247(1A) read with Section 250 of the Companies Act, inter alia, praying for orders seeking investigation under the aforesaid provision solely on the ground as disclosed in the application the death of Smt. Birla who had controlling interest in Respondent no.1 to 28 who jointly held 63.8% of the shares of the company and disputes with regard to the alleged Will allegedly executed by her. The said appeal was dismissed and the order passed by the Company Law Board was upheld.Mr. Mukherjee has also brought to the notice of this Court a judgment and order dated 10th May, 2013 passed in APO No. 154 of 2011 arising out of CP No. 1 of 2010, an appeal from an order passed by the Company Law Board (CLB) presided over by its Chairman on 9th February, 2011. By the said order, the CLB disposed of all the interlocutory applications filed in connection with a petition registered as CP No. 1 of 2010. The said petition was instituted by the appellants Birla Education Trust & Ors. before the CLB alleging mismanagement of the affairs of respondent no.1 Birla Corporation Ltd. (The Company). In the said petition separation of the members of the said company by its present management had also been alleged. Appellant no.1 is a Charitable Trust whereas the appellant nos. 2 to 6 are Companies incorporated under the provision of Companies Act, 1956. Main relief prayed for in the said petition in substance is for separation of the board of directors of the company. Direction was also prayed for on the Securities Exchange Board of India (SEBI) requiring them to cause enquiry in regard to the allegation of violations of the provisions of different regulations concerning management of a company by the present management. Permanent injunction was also sought for in the petition by restraining the respondents therein from exercising any voting right or any other right in the Company till final decision is taken by the appropriate judicial forum in relation to the Succession to the Estate of PDB (since deceased).While dealing with the said matter this Hon’ble Court took note of the fact that on the death of M.P. Birla his widow Priyamvada Devi Birla came to exercise control over 62.9% of the shares of the Company, which was held by different entities, over which, PDB had control. On her death, there was a dispute over succession of her estate and a probate proceeding was pending before this Court in respect of her Will, the legality of which was under challenge. Under the said Will, which was subject matter of a probate proceeding R.S. Lodha being father of respondent no.2 claimed to be the executor of the said Will, under which the property of PDB was also claimed to be bequeathed to him. Said R.S Lodha passed away. A Division Bench of Our Court in an appeal proceeding arising out of the probate suit being T.S. 6 of 2004, appointed a three member panel as Administrator Pendente Lite (APL) over the estate of late PDB. The said action was prosecuted by the respondent no.2. In the said appeal the Court observed "The basic reasoning on which the appellants’ claim is based on this count, however, is directly relatable to the issues being examined in the probate proceeding. Claim of the appellants on this point in this appeal, in my prima facie view would have overlapping effect vis-a-vis the issues involved in the probate proceeding. In these circumstances, I do not think it would be proper for me to pass any order or express opinion pertaining to the estate of PDB. It would be for the APLs to take appropriate step so far as the estate of PDB is concerned, in terms of the direction of the Division Bench of this Court."The Hon'ble Court further observed “Foundation of the claim of the respondent No.2 to manage the affairs of the company is derived from his control or influence over the entities having 62.9% shareholding of the company. The Division Bench of this Court has empowered APLs to exercise all rights flowing from the ownership of the shares of PDB. It has also been submitted on behalf of the respondents that an inconsistent case is being run by the appellants as it has been pleaded in the main petition that Late M.P. Birla as also Priyamvada Devi Birla had transferred their properties including shares to five charitable trust. The jurisdiction to decide on this issue, thus, in my opinion, has largely shifted from the domain of CLB to the Probate Court and for trial of suits."Based on the observation of this Hon'ble High Court in the said appeal it was submitted that there is no doubt that this Court hearing probate proceeding is the only Court to pass necessary orders for implementing the decision of APL. It has acted in terms of the order passed by the Division Bench arose from the probate proceeding concerning appointment of Administrator Pendente Lite within the meaning of Section 247 of the Indian Succession Act. According to Mr. Mukherjee if the probate Court does not look into this aspect and if no direction is issued for implementation of the decision of the APL, object of their appointment will be frustrated.Mr. Mukherjee has relied on a decision in Arcelormittal India Private Ltd. -Vs. - Satish Kumar Gupta and Ors. Reported in (2019) 2 SCC 1 and argued that M P Birla Group of Companies was under the control of P.D. Birla (PDB). He has referred to paragraphs 48, 50, 53 and 55 of the said decision in which the term "Management", 'Control' and 'Promoter' has been explained.However, Mr. Mukherjee is not on the issue which has been discussed in the decision. On the expression 'control' the Hon'ble Apex Court says the expression 'control' is defined in Section 2(27) of the Companies Act, 2013. Section 2 (27) is set out below:“S.2(27). “Control” shall include the right to appoint majority of the directors or to control the management or policy decisions exercisable by a person or persons acting individually or in concert, directly or indirectly, including by virtue of their shareholding or management rights or shareholders agreements or voting agreements or in any other manner.”The Hon'ble Apex Court says that the expression 'control' has been defined in two parts, the first part refers to the de jure control, which includes the right to appoint a majority of the director of a Company. The Second part refers to de facto control. So long as a person or persons acting in concert, directly or indirectly, can positively influence, in any manner, management or policy decisions, they could be said to be 'in control'.Mr. Mukherjee, therefore, submitted, the Birla Group of Companies are within the control of PDB and forms part of the Estate because the decision, says "So long as a person or persons acting in concert, directly or indirectly, can positively influence, in any manner, management or decisions, they could be said to be "in control".Mr. Mukherjee refers to SLP (c) No. 30109 of 2012 filed by Harsh Vardhan Lodha challenging the Division Bench decision presided over by Justice J.N. Patel the then Chief Justice of this Court whereunder APL was appointed. The Division Bench had the occasion to deal with the appeal filed by the plaintiff challenging the judgment and order dated 27.08.2010 of the learned Single Judge.The aforesaid judgment and order was passed by one of the learned Judges of this Court on an application being GA 3714 of 2008 and GA 3718 of 2008 filed in connection with PLA 242 of 2004 which has been subsequently converted into T.S. No. 6 of 2004. The first one was filed by one G.P Birla and Pratap Kumar Khaitan in the capacity of executors of the testamentary document said to be last Will of PDB executed in 1982 and the second one was filed by one Debendra Kumar Mantri and Smt. Radha Devi Mohta. The two applications were made at a point of time when sole executor R.S. Lodha in connection with testamentary instrument of 1999 died and there was no person to take control and possession of the estate left behind by PDB (since deceased). The said applications were being heard and in course of hearing one H.V. Lodha (HVL) Aditya Bikram Lodha, Sushila D. Lodha, Menaxi Periwal also made an application being G.A. 3731 of 2008 in connection with Testamentary Suit no. 6 of 2004. They claimed themselves to be heirs and legal representative of one R.S. Lodha, who died intestate and prayed that Harsh Vardhan Lodha, be a specifically authorized/empowered to carry out, discharge the following acts and functions relating to the estate of Priyambada Devi Birla as Administrator Pendente lite thereof.(i) Operation of bank accounts pertaining to an estate of late Priyambada Devi Birla including the Bank Account No. 0100002100579690 opened by late Rajendra Singh Lodha in Punjab National bank, Brabourne Road Branch, Kolkata,(ii) Collection of dividend and all other incomes of the estate of late Priyambada Devi Birla and deposit of the same in the said account no. 0100002100579690,(iii) Submission of Income Tax and Wealth Tax returns pertaining to estate of late Priyambada Devi Birla during pendency of the above T.S. No.6 of 2004,(iv) Submission of account to the estate of late Priyambada Devi Birla in terms of the order of the Hon’ble Division Bench dated 11th October, 2007.Mr. Viswanathan appearing for the defendant no.1(d) and 2 submitted from his written note that (1) even a third party is not beyond the control of the Probate Court dealing with the Letters of Administration with Will annexed. (2) Companies and institutions within the M.P. Birla Group are not third parties/strangers. (3) Testamentary Court as well as APL Committee has jurisdiction to pass order against third parties and/or strangers to the proceeding in question. (4) Testamentary Court as well as APL Committee has jurisdiction to pass order against HVL irrespective of his position and capacity. (5) The plaintiffs and noticee companies are estopped from disputing the decision dated 19th July, 2019 and 30th July, 2019 of the APL Committee. Reliance placed by plaintiffs on the first interim report of the APL Committee in relation to the purported inventory is an act of trickery and mis-representation and (6) HVL and his nominee in the APL Committee are acting against the interest of the estate and with the sole object of rendering the APL Committee nugatory and only to stop the functioning of the APL Committee by any means whatsoever.On the issue that testamentary Court’s jurisdiction to pass orders even against the strangers, Mr. Viswanathan submitted that companies and institutions are not third parties/strangers to this proceedings. Controverting the contention made by the plaintiffs that companies and the institutions such as the societies and trusts within M.P. Birla Group are strangers to the testamentary proceeding. He submitted that estate includes the controlling block of shares representing the controlling interest and controlling power over the M.P. Birla Group. According to him this has been judicially held to be the most valuable assets of the estate and the said institutions and/or companies such as institutions including societies and trusts are constituents of the said controlling block of shares/controlling interest/controlling power, which has been conclusively and judicially held to be assets of the estate and that those are admittedly controlled by the estate.According to him jurisdiction of the testamentary Court extends to any matter that concerns the preservation of the estate in question. Nobody can be allowed to do indirectly what cannot be done directly. The testamentary Court is entitled to pass all orders which are essential to effectuate its final orders. Such a power is available to the Court and is traceable to Section 247 of Succession Act. While exercising such powers, if the Court finds that any party or person is doing or abating the omission protagonists in dissipation or trespassing of the assets the long arm of law will extend to check the activity of that party and person.In the present case the companies and institutions have been from the very beginning aware and cognizant of these proceedings. In fact, it has been companies and the said institutions’ own stand in various proceedings before the learned Company Law Board and this Hon’ble Court with the issue regarding the control of the estate which includes controlling block of shares representing controlling interest in and controlling power over M.P. Birla Group (including the said companies and institutions) is pending before this Hon’ble Court. In this regard judgment dated 25th April, 2005 (paragraph 47 at page 50, 51B and 51C; page 52 and page 61 of vol.2 of G.A. 1735 of 2019.)Mr. Viswanathan has placed reliance on a few decisions in Atulabala Dasi and Ors. –Vs. – Nirupama Devi reported in AIR 1951 Cal 561; Nagubai Ambal –Vs. – B. Shama Rao reported in AIR 56 SC 593; State of Madhya Pradesh –Vs. – Mahendra reported in (2018) 3 SCC 635; Election Commission of India and Anr. –Vs. – Suvramaniyam and Anr. reported in (1994) 4 SCC 104 but since these decisions have been cited for the first time in reply, on the objection raised by the plaintiffs, those are not taken into consideration to form an opinion.Mr. Sibal appearing for defendant no. 3(a) in support of the prayers made in the application filed by the defendants submitted (a) The decision dated 19th July, 2019 and 30th July, 2019 of the APL Committee as also the consequential action of the said APL has to be implemented.(b) APL is entitled to take decision by majority.(c) HVL should be injuncted from offering himself as a Director or proposing himself as a candidate for re-appointment as a Director or holding any decision whatsoever in ‘VTL’ ‘BCL’, ‘Universal Cable Limited’ and ‘Birla Corporation Limited’ and any other Company or institution within M.P. Birla Group.(d) Exercise of voting rights in relation to the controlling block of shares in companies within the M.P. Birla Group as determined in the decision dated 19th July, 2019 of the APL Committee shall be exercised in accordance with the direction of the APL.(e) Voting in respect of resolution no.3, 6 and 7 of Birla Cable Limited; resolution no. 3, 6 and 7 of VTL; resolution no. 5 and 6 of BCL and resolution no. 6 and 7 of Universal Cable Limited shall be quashed. And the concerned companies shall conduct a re-voting on the said resolutions as per law.He submitted that as a consequence of acceptance of his submission the plaintiff’s application being G.A. 1761 of 2019, G.A. 1786 of 2019 and G.A. 2007 of 2019 praying respectively for setting aside the decision dated 19th July, 2019 passed by the APL Committee; setting aside the decision dated 19th July, 2019 of the APL Committee and by setting aside the direction of the APL Committee issued on 1st August, 2019, 2nd August, 2019 and 8th August, 2019 following the decision dated 30th July, 2019 passed by the APL.Mr. Sibal strenuously argued that companies having advanced their argument at length not only on jurisdiction but also on merit cannot take a plea that Probate Court’s order should not touch them and their submission that Probate Court should not pass any order against strangers to the probate proceeding is also untenable. He submitted that wherever the estate of the deceased faces a conflict of interest with any person and according to him in the present case, the plaintiffs, the Court should immediately take steps to preserve the estate and remove the conflict whether such conflict is at the instance of companies or any other person irrespective of plaintiffs’ association therewith. He submitted that Probate Court is duty bound to preserve the estate to protect the interest of the beneficiaries under the Will. So long the proceeding for probate continues Probate Court is to preserve the estate. He further submitted that when ‘control’ has been agreed, no deference later on can be presumed and if argued this becomes meaningful and it is contrary to ‘corporate democracy’. He submitted that HVL cannot have a different stand from that of his father RSL who agreed and accepted control of the deceased over the companies in proceedings of the year 2005. To argue that word ‘control’ has been established from the acts and conducts of the parties; their submissions in various proceedings before this Court and the Company Court; and acceptance of intra party decision passed by the Company Court and the High Court as well. In this regard he refers to the order passed by a Coordinate Bench of this Court presided over by Justice Indira Banerjee where all the companies in the Birla Group were parties. He also referred to the order passed by the Division bench presided over by Justice Pinaki Chandra Ghosh (page 331 para 301 of G.A. 1761 of 2019). He pointed out that the Division bench, in fact, affirmed the decision of the Single Bench with the only exception that prayer for appointment of Administrator was refused by the Division Bench holding that interim injunction which was passed by the Single Judge was sufficient to preserve the interest of the beneficiaries. According to Mr. Sibal the Division Bench presided over by Justice Patel itself authorized the APL to act and took note of the controlling power of the deceased (Vol.2 of G.A. 1735 of 2019 at pages 229 to 233 para 307). According to Mr. Sibal companies cannot espouse the cause of shareholders and companies are not one and the same.On the issue of controlling block of shares Mr. Sibal submitted that Section 2(27) is relevant for the purpose and the same is set out below:“S.2(27). “Control” shall include the right to appoint majority of the directors or to control the management or policy decisions exercisable by a person or persons acting individually or in concert, directly or indirectly, including by virtue of their shareholding or management rights or shareholders agreements or voting agreements or in any other manner.”On the issue of majority and/or unanimity of the decision of APL Mr. Sibal reiterates what has been submitted by Mr. Viswanathan appearing for defendant no. 1(d) and 2. He, however, submitted that Mr. Chinoy appearing for one of the noticee companies argued that a person/ shareholder cannot exercise its vote unless its name appear on the Registrar of Companies. However, the position is different after 2013 Act came into force and the decision whatever relied on by Mr. Chinoy are pre 2013. Therefore, those have no direct bearing in the present case.Appearing for Birla Cable Limited a noticee Company, Mr. Bachawat learned senior advocate, at the beginning of his submission has drawn attention of this Court to G.A. No. 834 which is essentially and demurrer application challenging the maintainability of the defendants’ application being G.A. 1735 and 1845 of 2019.Mr. Bachawat candidly submitted before this Court that he has got a very limited submission to protect his client’s interest. He submitted (i) Probate Court cannot decide the right of a third party that is to say an entity which is not a party to the proceeding, Court cannot pass any order against it. (2) His client being a Public Limited Company it is listed company and it is not owned by Birla which is governed by its Articles of Association. (3) Indian Succession Act does not allow the jurisdiction of the Probate Court to affect third party interest. (4) Since his client is a Company, disputes and differences against such Company, cannot be decided by Probate Court. (5) The application by which the defendants have sought an order from the Probate Court having not made any pleading as regards jurisdiction the same should be rejected. (6) Point of the jurisdiction having already been decided earlier in an intra party proceeding the same issue cannot be reopened and lastly, (7) He submitted if the balance of convenience and inconvenience is to be weighed, it is not to change existing status quo of the Company. He further adds that Administrator Pendente Lite appointed by this Court in its Probate jurisdiction has no right of management by the Company. According to him APL is nothing but an ordinary shareholder which has got only 1,20,000/- shares out of 3 crores held by the Company. According to Mr. Bachawat with this negligible amount of shares APL is trying to control the Company by introducing a concept which is not recognized by the Company Law.On the issue of Court’s lack of jurisdiction to pass an order against third party he relied on a decision in West Bengal Housing Board –Vs. – Pramila Sanfui and Ors. reported in (2016) 1 SCC 743 wherein the Hon’ble Apex Court held “The learned Subordinate Judge has erred in passing order of temporary injunction under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908, in respect of the property in question after it was included to the suit schedule as order of temporary injunction can be granted against only the parties to the suit property. Further, the grant of police protection without impleading the appellants to the original suit proceedings is also not legally permissible and the therefore the said order is liable to be set aside.” On the same issue Mr. Bachawat has also drawn attention of this Court to a decision in Harsh Vardhan Lodha and Ors. –Vs. – Ajay Kumar Newar decided by a Co-ordinate Bench which I have discussed threadbare in this decision and relied on paragraph 148 which says “…This Court has no hesitation to hold that the probate Court cannot pass any injunction order against a third party as third party who has no caveatable interest in the probate proceeding cannot be allowed to be added as party in the probate proceeding and also for the reason that no order can be passed effecting the right of the stranger without adjudicating his right and adjudication of his rights in the proceeding is impossible as probate Court cannot decide any foreign issue un-connecting with the probate proceeding.” He has also distinguished the principles laid down in Babulal Khandelwal –Vs. – Balkishan D. Sanghvi reported in (2008) 10 SCC 485 cited by Mr. Kapoor on which he submitted that the decision relates to any intestate succession and therefore, Hon’ble Apex Court directed for joining the third party in the proceeding. According to Mr. Bachawat the said decision has no bearing on the present case which relates to a testamentary succession. He further submitted that jurisdiction of testamentary Court is very limited and in view of the observation made by the Division bench earlier against interim order passed by me which was confirmed by the Hon’ble Apex Court while rejecting the Special Leave Petition filed by the defendants/petitioner Mr. Bachawat submitted that this Court would decide the jurisdiction first on the proposition that whether Probate Court can pass an order as sought for by the defendant/petitioner in respect of his client. The Birla Cable Limited, a noticee company, he has filed to that effect an application being G.A., 834 of 2020 whereby he has made a prayer for rejection of petitioner’s prayer “C” and “D”.Accepting what has been submitted by Mr. Bachawat that the noticee company Birla Cable Limited being not a party to the probate proceeding Court cannot pass any order of injunction and the application being G.A. 834 of 2020 which has been filed can be decided even without calling for any affidavit from the respondent, in fact, the opposite party namely, the defendants have also not prayed or filing any written objection to this application. I am of the view that in this case also the noticee company can neither be joined as a party defendant nor can any order of restrain be passed against such company who is not a party to the proceeding. Therefore, further elaboration on the submission of Mr. Bachawat is not necessary. Where he made submission on merit whether or not the APL’s decision should be implemented or whether APL has rightly taken decision as Administrator Pendente Lite or not, is not a matter to be gone into in detail. Therefore, G.A. 834 of 2020 stands disposed of to the effect that his Probate Court cannot decide any issue against a stranger to the probate proceeding and no order in this probate proceeding can be passed against this noticee company.G.A. 843 of 2020 has also been filed by Birla Cable Limited seeking an order for necessary correction in the order dated 12th June, 2020 by recording its submission as indicated in paragraph 5 of the application. Since this Court has already observed that no order can be passed against stranger noticee company this application has become infructuous and more so this Court is of the opinion that no part of this submission made in Court has been omitted while recording the order dated 12th June, 2020. Purported attempt seeking correction of the order is a ploy to delay the hearing of the case.C.C. No. 20 of 2020 is an application for contempt at the instance of Birla Cable Limited one of the noticee companies in this proceeding. The company has alleged that although there was no direction for serving notice upon it on the contrary the defendants/petitioners were restrained from issuing notice upon the company without first hearing objection which was sought to be made by the learned counsel for the plaintiff. Therefore, this application is to be disposed of after hearing the alleged contemnors. Let a copy of this application be served upon the respondents. Alleged contemnor will be at liberty to mention for inclusion in the list.At the outset of his argument Mr. Chinoy learned senior counsel appearing for Birla Corporation, a noticee company raises jurisdictional issue and submitted that since his client Birla Corporation Limited was not a party to the administration proceeding, this Court will refrain from exercising its jurisdiction as a Probate Court or Administration Court within the scope of Indian Succession Act and from passing any order against this Company which might adversely affect its interest. He first submitted that the prayer which have been made, if allowed, it will surely cause prejudice to his client’s interest who is not a party to the proceeding. He submitted that (a) No interim order can be passed against a third party to a proceeding being Title Suit No. 6 of 2004; (b) No order of injunction can be passed in the testamentary suit where his client is not a party and lastly (c) In view of the provisions of Section 430 of the Companies Act, 2013 jurisdiction of Civil Court is barred and according to him if any dispute arises concerning the affairs of the Company including any issue as regards share held by PDB should be settled by a proceeding before a Company Law Board.On the issue whether interim order can be passed against the third party to a proceeding like his client Birla Corporation Limited (BCL), he relies on a decisions in Krishna Kumar Birla –Vs. – Rajendra Singh Lodha reported in (2008) 4 SCC 300; Rajendra Singh Lodha –Vs. – Ajoy Kumar Newer and ors. reported in ILR 2007 (2) Cal 327 and 2016 (120) Vol-2 CWN 673 and an un-reported judgment dated 4th May, 2020 of the Division Bench.He submitted that the jurisdiction of the Probate court is very limited to the extent that it can only examine genuineness of the will and other consequential issues like testamentary capacity of the testatrix to make the Will, due attestation of the Will and whether the same is the last will of the testatrix.There is no controversy to the proposition relied on by Mr. Chinoy that this court cannot extend its jurisdiction to his client who is not a party to the present proceeding. Since this Court lacks jurisdiction over an entity which is not a party to the proceeding this Court does not feel it prudent to deal with other issues particularly the intricacies of all the provisions of Companies Act.Mr. Chinoy, fairly submitted that so far the jurisdiction of this Court is concerned he adopt the same submission as has been advanced by Mr. Bachawat on behalf of Birla Cable Limited. He has also filed a written notes of submission of Birla Corporation. It is the categorical submission that so far Prayer-B of the application filed by the defendant is concerned the same is not maintainable. Inasmuch as APL cannot exercise “its voting rights flowing from the shareholding in various companies, trust and societies of M.P. Birla Group of Companies for being part of the controlling interest and controlling power vested in the estate of PDB by casting its vote at the ensuing Annual General Meeting (AGM) of Birla Corporation Limited on 13th August, 2019 through its Chairperson.”His main thrust of argument is that Priyamvada Devi Birla had only 1260 shares in Birla Corporation and as the plea of ‘controlling interest’ cannot exercise voting right over the entire shares held by the Company. It is his contention that there are 22 members of Birla Corporation and to this extent he has drawn attention of this Court to Annexure “F” at page 239 of affidavit-in-reply filed by Arvind Kumar Newar and further that even if Priyamvada Devi Birla had any controlling share, controlling group requires to file return and that not having been filed defendant/petitioner cannot claim any advantage under the Company Law in the name of “controlling interest”. He submits that the Company being not a party to the proceeding no order can be passed against it and in particular the Probate Court cannot extend its jurisdiction over anyone who was not brought into the array of parties. According to Mr. Chinoy Court cannot pass an order which it is not authorized under the law. He submits that according to Company Law members on register can only vote and none else. He submits that Priyamvada Devi Birla (PDB) expired on 3rd July, 2004. However, from 2004 to 2012 Mr. Birla’s name continued on the company’s registrar of members for the said 1260 shares. In the return filed before the stock exchange, the company had disclosed its ‘share holding pattern on 31.12.2008 including that shareholding of promoter and promoter group comprising of 22 companies, trust and societies, and one individual (holding 1260 shares) aggregating to 484, 34, 191 shares equivalent to 62.09% of the total shareholding. The return disclosed a note that Mrs. Priyamvada Devi Birla shown as one of the promoters and/or one of the persons having control over the Company and/or persons acting in concert expired on July, 3 2004 as also informed under regulation 8(2). Mr. RSL as executor of the last will and testament of Late Mrs. Priyamvada Devi Birla, as a matter of caution has been included on the said list. According to him the APL ought to have registered its name in accordance with the articles of association with the company but in absence thereof it cannot enjoy any privilege incidentally to the ownerships of the shares. It is his submission that Birla Corporation Ltd. had recorded the names of the APL Committee upon the share certificates and in the company’s register of members in respect of Late Priyamvada Devi Birla said 1260 shares as “representatives of the estate of deceased PDB in the capacity as Administrator Pendente Lite.” From 2012 till 2019 APL Committee had exercised voting only in respect of the said 1260 shares on diverse dates when Annual General Meetings of the Committee were held. Therefore, Mr. Chinoy submits that it is the settled position of law under Section 47 and Section 2(55) and Section 88 as also Section 105 and Section 113 of the Companies Act, only a person or entity whose name has been recorded as a member in company’s “registrar of members” can exercise voting rights at any General Meeting of the company.He relied on the following decisions on the core issue that members not being on register cannot exercise voting right:-Mothalone –Vs. – Bombay Life Assurance Co. Ltd. Reported in 1954 SCR 117 : AIR 1953 Sc 385;Howrah Trading Co. Ltd. –Vs. – CIT reported in AIR 1959 SC 775;Balkirhsnan Gupta –Vs. – Swadeshi Polytex Ltd. Reported in (1985) 2 SCC 167Vodaphone International Holding BV –Vs. – Union of India reported in (2012) 6 SCC 613;Killick Nixon Ltd. –Vs. – Bank of India reported in 1982 SCC Online Bom 57.In Mothalone (supra) has laid down the law that even Court receiver was not entitled to the allotment of new shares in his own name. Referring to paragraph 32 of the decision Mr. Chinoy drew attention of this Court to the finding “That privilege was conferred by section 105-C only on a person whose name was on the register of members. The receiver's name admittedly was not in the register and the company was not bound to entertain that application.” He has also drawn attention to the passage “The matter might have been different if the company was a party to the suit and was ordered by the court to register the receiver's name in place of Reddy for the 484 shares purchased by Sir Padampat and was also ordered to issue new shares in the name of the receiver.” He pointed out that in this decision Court observed “We are however quite clear that the company not having been impleaded in that suit, it was not bound to issue the now shares in the name of a person whose name was not already in the register of members even if he represented a person whose name was already in the register. The High Court was thus right in dismissing the receiver's suit.”The principles laid down in the said decision has been consistently followed in the other subsequent decisions as referred to above by Mr. Chinoy. Therefore, according to him APL not being on the register of companies cannot exercise voting rights.Looking at the proposition as laid down by the Courts including the Apex Court, Mr. Chinoy submits it appears from the unbroken chain of authority that only a member on register can vote. And according to him this is the absolute proposition with no exception. He submits that taking the principles underlying the above mentioned decisions Prayer-B of the petition is not maintainable.Mr. Chinnoy, relied on Howrah Trading Co. Ltd. (supra) on the same issue and drew attention of this Court to paragraph 7 where it has been quoted “The company recognises no person except one whose name is on the register of members, upon whom alone calls for unpaid capital can be made and to whom only the dividend declared by the company is legally payable.”Next decision relied on by Mr. Chinoy is Balkrishnan Gupta and Ors. (supra) and has drawn attention of this Court to paragraph 29 which says “Mere appointment of a Receiver in respect of certain shares of a company without more cannot, therefore, deprive the holder of the shares whose name is entered in the Register of Members of the company the right to vote at the meetings of the company or to issue a notice under Section 169 of the Act.”He next relied on Life Insurance Corporation of India (supra) and submitted that the ratio in the earlier judgment has been followed by the Hon’ble Apex Court. He relied on paragraph 84 of the decision to demonstrate the rights of a shareholder namely to say (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. He has emphasized that a transfer effective between the transferor and transferee is not effective as against the Company and persons without notice of the transfer until the transfer is registered in the company’s register. According to him until the transfer is registered in the books of the company the person whose name is found in the register alone is entitled to receive the dividends, notwithstanding that he has already parted with his interest in the shares.He next relies on a decision in Vodaphone International Holdings BV (supra) and submitted that a share represents a bundle of rights like right to (1) elect Directors, (2) vote on resolution of the company, (3) enjoy the profits of the company if and when dividend is declared or distributed, (4) share in the surplus, if any, on liquidation. He also reiterates that voting rights vests any persons only whose names in the Register of Members.Mr. Chinoy next and last relies on Killick Nixon Ltd. (supra) and this decision, however, takes note of Mothalone (supra) and reiterates the same issue that “The Company, however, recognises only the person who is its members as a share-holder. In other words, the rights that may exist between the Company and its members or shareholders can be exercised only by members.” Mr. Chinoy therefore, submitted that from the above mentioned unbroken chain of authorities it appears that only a member on the register of the Company can exercise voting rights and according to him this is an absolute proposition.There is no dispute about the proposition, however, in my view these decisions cannot address the issue involved in the present case. Since I have already held that this Probate Court has a limited scope to exercise jurisdiction in respect of entities not parties in the proceeding, flouting or not-flouting by the APL of the provisions of the Companies Act is not an issue to be decided by this Court. Parties will be at liberty to raises the same before appropriate forum for redressal.G.A. 831 of 2020 has been filed by Birla Corporation seeking recall of my order dated 8th June, 2020 Annexure “A” to the G.A., whereby I expressed that the noticee company/appellants at whose instants the Division Bench passed orders holding that the impugned order would not have been passed against one who was not party to the proceeding cannot survive. After the said order passed by the Division Bench remanding the matter back for rehearing I had directed to issue notice upon the companies who challenged my order in appeal before the Hon’ble Division Bench. Since notices were duly served upon the said noticee companies and in pursuance thereof they have argued the matter at length including the question of jurisdiction it is no more open for them to pray for recall of the order dated 08.06.2020 because of the further development and the noticee companies having made their submission both on merit and jurisdiction, the application being G.A. 831 of 2020 has become infructuous and the same is, therefore, rejected.G.A. 842 of 2020 has also been filed by Birla Corporation Limited seeking an order for necessary correction in the order dated 12th June, 2020 by recording its submission as indicated in paragraph 5 of the application. Since this Court has already observed that no order can be passed against stranger noticee company this application has become infructuous and more so this Court is of the opinion that no part of his submission made in Court has been omitted while recording the order dated 12th June, 2020. Purported attempt seeking correction of the order is a ploy to delay the hearing of the case.G.A. 832 of 2020 has been filed by Birla Corporation questioning the jurisdiction of Probate Court to entertain G.A. 1735 of 2019 and they have also made a prayer to reject prayer “C” and “D” thereof. In view of the observation made in G.A. 831 of 2020, no further reason is required to be assigned in rejecting this application as the parties have already made their submission both on merit and jurisdiction which will be found from their written notes submitted. Therefore, this application is also disposed of with no orders.C.C. No. 19 of 2020 is an application for contempt at the instance of Birla Corporation one of the noticee companies in this proceeding. The company has alleged that although there was no direction for serving notice upon it rather the defendants/petitioners were restrained from issuing notice upon the company without first hearing objection which was sought to be made by the learned counsel on behalf of the plaintiff. Therefore, this application is to be disposed of after hearing the alleged contemnors. Let a copy of this application be served upon the respondents. Alleged contemnor will be at liberty to mention for inclusion of the list.Mr. Bandopahdyay, learned senior advocate appearing for Vindhya Telelinks Private Limited has also elaborately made submission both on the issue of jurisdiction and on merit that APL cannot interfere with management of the Companies on the issue of controlling interest on the estate of Priyamvada Devi Birla (since deceased). Like the other noticee companies Mr. Bandopahdyay has also elaborated his submission to the effect (1) that Court has got no jurisdiction to decide the application filed by the defendants; (2) APL has no authority to adjudicate upon the issue and the same is without jurisdiction and therefore, this Probate Court cannot pass any order in implementation of APL’s resolution even though the same is done by majority which ought to have been passed by unanimity; (3) it is only for the aggrieved party in terms of the order passed by the Division Bench which appointed APL could have filed the application but the defendants cannot do so rather they have been trying to convert the probate Court into an Execution Court which is not permissible in law at the same time Mr. Bandopahdyay argued that an application has also been filed by his client to set aside the resolution of the APL which is also pending herein by this Probate Court. And without first deciding the said application the present application filed by the defendants/petitioners cannot be considered; (4) over the issue of controlling block as contemplated by the APL Mr. Bandopahdyay submitted that the new concept has been introduced and cannot be applicable irrespective of the fact that R.S. Lodha sought protection from the Court on the controlling interest of the estate of the deceased; (5) Mr. Bandopahdyay specifically submitted that the APL’s decision is an adjudication over the issue of controlling interest which is not permitted under the law. He, however, submitted that such adjudication is not permissible and that apart, because of Section 430 of the Companies Act Probate Court’s jurisdiction has also the authority exercised by APL is barred under the law. Mr. Bandopahdyay also submitted that the defendants relied on a judgment passed by Single Bench arising out of decision of a Company Court where 22 companies of Birla Group of Companies were parties. He submitted that the said Single Bench decision of Justice Aniruddha Bose (as His Lordship then was) is not binding upon this Court inasmuch as the Bench cannot be held to be a co-ordinate bench for the sole reason that the High Court Single Bench decided the matter as a statutory authority not as a Judge of this Court. Therefore, the issue decided therein is not binding on this Court. He submitted that in 2012 Administrators Pendente Lite were appointed but till date they were not able to take over possession of the assets and particularly when in the affidavit of assets entire estate has not been incorporated and that being so what has not been shown in the affidavit of assets cannot be claimed by APL to be part of the estate.According to Mr. Bandopahdyay, a Probate Court only decides the issue whether will is genuine or not. His first submission is that if his client has no caveatable interest in the probate proceeding no notice can be given to it and even his client cannot be joined as a party in the probate proceeding. He submitted that since his client is not a party this Court’s jurisdiction as a Probate Court cannot be extended over the stranger. This submission is common by all the three noticee companies like Mr. Bachawat and Mr. Chinoy. Mr. Bandopahdyay also relied on a judgment in Priyamvada Devi Birla (deceased) and Harsh Vardhan Lodha & Ors. –Vs. – Ajay Kumar Newar & Ors. reported in 2016(120) vol. 2 CWN 673 and submitted that since his client is not a party to the proceeding no order can be passed against him. He relies on paragraph 159 which is set out below:“Probate Court cannot pass any protection and/or injunction order against any person who is not a party to the probate proceeding and further since no adjudication of a foreign issue is possible before a Probate Court.” The decision is of a Co-ordinate Court which decision has been thoroughly discussed herein before.There is no difficulty for this Court to accept this proposition as submitted by Mr. Bandopahdyay. Probate Court cannot extend its jurisdiction over a person or entity who is not a party to the proceeding.Mr. Bandopahdyay relied on Kirshna Kumar Birla –Vs. – Rejendra Singh Lodha and Anr. reported in (2008) 4 SCC 300 on the issue of his client having no caveatable interest and therefore, no order passed by the Probate Court can bind him. According to the said decision jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the will. The proposition is a settled proposition of law there cannot be two opinions to it.Mr. Bandopahdyay cited decision Saroj Agarwalla (dead) through Legal Representative Abhishek Agarwalla –Vs. – Yasheel Jain reported in (2017) 14 SCC 285 to bring it to the notice of the Court that when Court passed an order without jurisdiction the same would be nullity. On this proposition he relied on Chief Engineer, Hydel Project and Anr. –Vs. – Ravinder Nath and Ors. reported in (2008) 2 SCC 350. This is well settled proposition on corum non judice.He submitted that the entire matter should have been taken to the National Law Tribunal because the grievance of the defendants/petitioners touches the provisions of Company Act and Probate Court has nothing to do in it.G.A. 833 of 2020 has been filed by noticee company Vindhya Telelinks and has challenged the jurisdiction of the Probate Court in the same line the other noticee company Birla Corporation has moved. Therefore, the observation made in G.A. 831 of 2020 and 832 of 2020 is applicable for disposal of this G.A. 833 of 2020. And accordingly G.A. 833 of 2020 is disposed of without any order.G.A. 844 of 2020 has also been filed by Vindhya Telelinks Limited seeking an order for necessary correction in the order dated 12th June, 2020 by recording its submission as indicated in paragraph 5 of the application. Since this Court has already observed that no order can be passed against stranger noticee company this application has become infructuous and more so this Court is of the opinion that no part of this submission made in Court has been omitted while recording the order dated 12th June, 2020. Purported attempt seeking correction of the order is a ploy to delay the hearing of the case.C.C. No 18 of 2020 is an application for contempt at the instance of Vindhya Telelinks Limited one of the noticee companies in this proceeding. The company has alleged that although there was no direction for serving notice upon it rather the defendants/petitioners were restrained from issuing notice upon the company without first hearing objection which was sought to be made by the learned senior counsel on behalf of the plaintiff. Therefore, this application is to be disposed of after hearing the alleged contemnors. Let a copy of this application be served upon the respondents. Alleged contemnor will be at liberty to mention for inclusion in the list.Since I have already held that noticee company being not a party to the proceeding no order can be passed against it. I do not wish to discuss the other issues raised by Mr. Bandopahdyay and any observations may prejudice his client, whether APL has the authority to take steps against him or not.Summing up the submission as has been made on behalf of the three noticee companies by Mr. Chinoy, Mr. Bandopahdyay and Mr. Bachawat, this Court is of the firm opinion that so far they are concerned no order of restraint of any kind can be passed by this Probate Court since they are not parties to the proceedings.The companies have raised numerous contentions and those are as follows:(i) They are not parties to the testamentary suit and hence, this Court cannot pass orders which affects them and binds them.(ii) This Court lacks jurisdiction to deal with the application filed by the defendants/petitioners.(iii)They are organizers of the Annual General Meeting and are blind folded to look beyond the Registrar of Members in accepting the votes at such Annual General Meeting.(iv)They have, for the first time sought to raise question on the decision passed by the APL Committee.Since the core issue in the applications under hearing is whether three Administrators appointed by this Court should act by majority or unanimously, certain clarifications were necessary from the end of the Administrators. Leave was granted to Mr. Joy Saha, to represent two of the Administrators (Hon’ble Mr. Justice (Retd.) Mohit S. Shah and Mr. A.C. Chakrabortti) who took the decision by majority declining the note of objection and/or note of descent made by the other Administrator Mr. M.K. Sharma. Mr. Joy Saha, learned senior advocate appeared before this Court and made very precious submission as regard the stand taken by two of the members of the APL Committee.Mr. Saha has drawn attention of this Court of the order dated 10.04.2019 whereby a Division Bench of this Court inter alia observed “For effective functioning of the APL Committee, which shall consists of the Hon’ble Justice Mohit Shantilal Shah (Retired) and two nominees of the respective parties, we direct the two nominees to render fullest cooperation to the Hon’ble Justice Mohit Shantilal Shah (Retired) in order to enable His Lordship to effectively discharge his duties for the purpose of smooth administration of the estate and also to prevent any stalemate in the process of such smooth administration.” Mr. Saha submits that the tenor of the order is amply clear that the APL which consists of two members respectively appointed by the plaintiffs and defendants and the third one was a retired Chief Justice of this Court and Bombay High Court so that no stalemate condition persists like the earlier occasion where the APL could not function years together. Therefore, it was Mr. Saha’s contention that obviously the Court indicated that the APL should function jointly but in case of differences of opinion majority decision should prevail. According to him since the members are nominated by the parties there are high chances of differences of opinion between the two and unanimity can never be expected.Mr. Saha contended that the two of the Joint Administrators adopted the resolution in question get support from the order of the Company Law Board dated 25.04.2005, order dated 24.08.2005 passed by one of the Hon’ble Single Judges of this Court, order dated 23.08.2012 passed by the Hon’ble Division Bench which appointed APL and the order dated 10.05.2013 by an Hon’ble Single Judge of this court and the order dated 11.10.2007 (order of Pinaki Chandra Ghosh. J. paragraph 39-40) where it was consistently held that the deceased had majority shares and controlling interest for being part of the estate. Therefore, Mr. Saha submits that no wrong has been committed by the Administrators in adopting the resolution.He submits that earlier minutes of the meeting of the APL Committee dated 21.07.2017, 26.03.2017, 28.04.2019 and 15.06.2019 would show that the decision earlier taken by the APL Committee although accepted and not challenged over the same issues should be considered to be acquiescence.He submitted that in the earlier decision it was decided that Justice A.P. Shah, the Chairman of the APL Committee would be nominated as Director in the Tier-I and Tier-II investment companies when remuneration and that whenever he would be present at any of the meetings of the said companies, he would be nominated as the Chairman of the meetings. It was also decided that the other members of the APL Committee namely, Mr. A.C. Chakrabortti and Mr. M.K. Sharma would continue to be Directors of Tier-I and Tier-II companies, where they had been previously appointed. In those cases, where Mr. A.C. Chakraborty or Mr. M.K. Sharma were not Directors in the specific Tier-I and Tier-II Investment Companies, the Chairman would invite them to attend the meeting. These decisions were taken with the concurrence of Mr. H.V. Lodha. Therefore, it was decided that the APL Committee would be able to monitor the functioning of the Tier-I and Tier-II companies. These minutes were signed by all three members of the APL. He has also pointed out that on a previous occasion while a minute was prepared on 26.03.2017 and 21.07.2017 it was categorically mentioned about the nomination of directors which is now being opposed. The relevant portions of the said minute is set out below: - “During the hearings, the APL Committee suggested to the lawyers appearing on behalf of Mr. H.V. Lodha that Justice (Retd.) A.P. Shah, the Chairperson of the APL Committee, would be nominated as Director in the Tier I and Tier II Investment Companies. This suggestion was met with approval by the lawyers appearing on behalf of Mr. H.V. Lodha, who is fact, also stated that a similar suggestion had been put forth by them to the Chairperson of the previous APL Committee. It was also agreed that whenever, Justice (Retd.) A.P. Shah is present at any of the meetings of these companies, he will be nominated as the Chairman of the meeting. It was made clear that Justice Shah would not be accepting any remuneration for attending the meetings. The lawyers appearing on behalf of Mr. H.V. Lodha agreed to take requisite steps to complete the formalities for the nomination of Justice Shah as Director on the Tier I and Tier II Investment Companies by the end of May 2017. It was also agreed that the other members of the APL Committee, namely, Mr. A.C. Chakrabortti and Mr. M.K. Sharma, would continue to be Directors of the Tier I investment companies, where they had been previously appointed. In those cases, where Mr. A.C. Chakrabortti or Mr. M.K. Sharma, were not Directors in a specific Tier I or Tier II investment company, the Chairman would invite them to attend the meeting, as and when required.”Mr. Saha also drawn attention to the relevant portions of the minute dated 28.04.2019 which speaks of substitution of Justice Mohit S. Shah (retired) in place of A.P. Shah (Retd.) as Director of any Company. Relevant portions are set out below ( para 3 and 4):“3. There was a consensus at the meeting that all necessary steps be taken to substitute the name of Justice Mohit S. Shah (Retd.) in place of Justice A.P. Shah (Retd.) in the records of all the concerned companies and the concerned bank accounts and other investments.4. The Committee also decided that wherever Justice A.P. Shah (Retd.) was a Director of any company, in view of his resignation, Justice Mohit S. Shah (Retd.) gives his consent. Whenever Justice Mohit S. Shah (Retd.) attends meetings of the Board of Directors or the General Meetings of the shareholders, Justice Mohit S. Shah (Retd.) will be nominated/elected as the Chairman of the meeting.”Therefore, Mr. Saha submits that the plaintiffs cannot raise objection with regard to the appointment of Justice Mohit S. Shah (Retd.) as Director and this is not the first time according to Mr. Saha if the earlier minutes had been accepted then there cannot be any objection to continue the same even by the present Administrators. Mr. Saha has drawn attention of this Court to various documents being a letter dated 08.07.2013, 02.02.2014 and 18.03.2014. Letter dated 08.07.2013 was issued by Justice R.V. Raveendran former Judge, Supreme Court which speaks of controlling block of shares and the relevant portion is set out below :“In view of the aforesaid, the controlling block of shares in your company vests with the estate of late Smt. Priyamvada Devi Birla, which is represented by this Committee.The above position had been intimated to you and it is surprising that no mention about this important matter, which has a bearing on ownership, control and management of the company, has been made in the Directors Report to the shareholders. The disclosure of this material factor would be in the interests of good Corporate Governance.”Letter dated 02.02.2014 was also issued by Justice R.V. Raveendran which also speaks of control of Mrs. P.D. Birla over the companies and disclose that request was made to furnish companies financial result and other matters; and letter dated 18.03.2014 written by Justice R.V. Raveendran also speaks of a subject “Information regarding financial result of the Company etc.” This also precisely speaks of control of the deceased over the Birla Group of Companies and all these minutes were signed by all the members of the APL showing that the practice so followed was unanimously taken. According to Mr. Saha it is only now after appointment of Mr. Mohit S. Shah, these objections are being raised which should not be accepted. Mr. Saha has also drawn attention of this Court to the provision of Section 89(10) and Section 90 of the Companies (Significant Beneficial Ownership) Rules, 2018 and Companies (Significant Beneficial Ownership) Rules, 2019 and submitted that the argument which was advanced on behalf of the Companies that unless someone’s name is not on the Registrar of Companies he cannot have any voting right is not a correct proposition of law. He has referred to Rule 2(e) of the aforesaid Rules of 2018 Rule 2(e) set out below:-“R.2(e). “significant beneficial owner” means an individual referred to in sub-section (1) of Section 90 (holding ultimate beneficial interest of not less than ten per cent.) read with sub-sectioon (10) of section 89, but whose name is not entered in the register of members of a company as the holder of such shares, and the term ‘significant beneficial ownership’ shall be construed accordingly;Explanation I. – For the purpose of this clause, the significant beneficial ownership, in case of persons other then individuals or natural persons, shall be determined as under –(i) Where the member is a company, the significant beneficial owner is the natural person, who, whether acting alone or together with other natural persons, or through one or more other persons or trusts, holds not less than ten per cent. share capital of the company or who exercise significant influence or control in the company through other means;(ii) Where the member is a partnership firm, the significant beneficial owner is the natural person, who, whether acting alone or together with other natural persons, or through one or more other persons or trusts, holds not less than ten per cent of capital or has entitlement of not less than ten per cent of profits of the partnership;(iii) Where no natural person is identified under (i) or (ii), the significant beneficial owner is the relevant natural person who holds the position of senior managing official;(iv) Where the member is a trust (through trustee), the identification of beneficial owner)s) shall include identification of the author of the trust, the trustee, the beneficiaries with not less than ten per cent interest in the trust and any other natural person exercising ultimate effective control over the trust through a chain of control or ownership;Explanation II. – It is hereby clarified that instruments in the form of global depository receipts, compulsorily convertible preference shares or compulsorily convertible debentures shall be treated as ‘shares’ for the purpose of this clause;”According to Mr. Saha, therefore, the members of the APL committed no wrong in passing a majority view and on the basis thereof any decision taken by them as a representative of the estate.The Division Bench of this Court by its judgment and order dated 23rd August, 2012 appointed three member Committee of Administrators Pendente Lite (APL Committee) to administer the estate of Late PDB for its preservation and protection until the Probate Court decides on the issue of ultimate beneficiaries. APL Committee while arriving at its decision which is sought to be implemented herein by the application under G.A. 1735 of 2019 and G.A. 1845 of 2019 largely took note of the order passed by Justice Aniruddha Bose (as His Lordship then was) (Order dated 10th May, 2013 in the Case of Birla Education Trust and Ors. –Vs. – Birla Corporation Limited and Ors. in APO no. 154 of 2011).The learned advocate General appearing for Mr. M.K. Sharma one of the Administrators appointed by the Division Bench of this Hon’ble Court who gave descent, while countering the submission made by Mr. Saha in support of the majority view of the Administrators pointed out before this Court that the Administrators must act as Joint Administrator and they must act in one voice. Mr. Dutta submitted that members constituted body called administrators cannot be segregated so as to form a majority or minority view. According to him law demands that this body must give one decision jointly and if they cannot act together and failed to rule unanimity they should come before the Court for necessary direction and/or clarification. According to Mr. Dutta whenever any difference of opinion would arise in between the members of the administrators they should come before the Court and seek clarification and whatever the Court suggests they would act accordingly. In support of such contention Mr. Dutta has placed reliance on the following decisions:* Lilavati Kirtilal Mehta Medical Trust and Anr. –Vs. – Charu K. Mehta and Ors. reported in (2009)2 Mah Lj 340;K. Leelavathy Bai and Ors. –Vs. – P.V. Gangadharan and Ors. reported in (1999) 3 SCC 548 andMahinder Singh Gill and Anr. –Vs. – The Chief Election Commissioner, New Delhi and Ors. reported in (1978) 1 SCC 405.In the first decision Lilavati Kirtilal Mehta Medical Trust (supra), however, it appears that two Administrators were appointed by the Court and therefore, the Court observed in paragraph 11 “Both the Administrators were expected to speak with one voice, because it is evident from the order of the Supreme Court that they were to submit report – meaning thereby one report – to the Board of Trustees every two weeks…”The decision in K. Leelavathy Bai (supra) also does not help Mr. Dutta because of the fact that it is completely different where one of the executors appointed under the Will relinquished his status as an executor and action of two of the remaining executors were under scrutiny before the Court. Where two executors are in picture obviously they should act jointly (emphasis supplied by me).Mahinder Singh Gill (supra) the decision is not at all applicable in this case. The ratio which has been decided there “…when a statutory functionary makes an order based on a certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out.” It has been sarcastically mentioned by Their Lordships “Orders are not like old wine becoming better as they grow older.”Mr. Dutta, however, in his notes of argument has pointed out that M.K. Sharma (‘MKS’), Joint Administrator Pendente Lite was appointed by a Division Bench of this Hon’ble Court upon being nominated on behalf of the plaintiffs by an order dated 19th January, 2012. As an officer of the Court, MKS had confined himself to bring to the notice of the Court the factual matters relating to Administration of the Estate of the deceased/PDB whose last registered Will is the subject matter of the testamentary proceedings. He submitted:1. Initially upon being appointed in 2012, Justice Raveendran (Retd.) along with Mr. A.C. Chakrabortti and MKS constituted the APL Committee (upon the resignation of Justice C K Thakkar (Retd.) who resigned after 1 meeting). Before the said Committee, both parties, the plaintiffs and the defendants had filed voluminous papers and on receiving such papers, the APL Committee had decided to write to various shareholders to certain listed companies, being various companies, trust and societies. Letters were addressed on adverse dates last of which was on 8th July, 2013 by the APL Committee to the various share holders. The purpose of the letters was, however, not to exercise any legal control over the affairs of those third parties. No control was ever sought to be exercised by reason of writing such letters.2. That one of the trusts made objection and said that APL have no manner of control or say in respect of its affairs, assets and properties and it is guided by its own Trust Deed and Board of Trustees.3. Shortly after being appointed, the APL Committee had requested the plaintiffs to hand over the share certificates in respect of the share held by the estate which ought to have been with Mr. R.S. Lodha, the Executor of the Estate and father of the plaintiffs. The request was complied with and thereafter the APL Committee applied for recording of their names as joint members representing the Estate of the deceased. This was, however, only in respect of the shares held in the name of PDB and nothing else. The APL Committee in last 8 years till appointment of Justice M.S.Shah (Retd.) as third member has never sought to exercise any voting right over any share not forming part of the Estate of the deceased and whatever votes were cast by the APL Committee were only in respect of the shares of PDB as would appear from the affidavit of assets.4. In terms of the order dated 23rd August, 2012 passed by the Division Bench, the APL Committee was obliged to file an inventory of the assets of the Estate with this Hon’ble Court. The APL Committee held deliberations and came to the consensus that both parties (the plaintiffs and defendants) have stated the same assets as comprising the Estate though had different values. Since this appeared to be the admitted, undisputed and correct factual position, the three joint APLs prepared and signed the unanimous inventory report dated 15th October, 2013 which was supplied to the parties. Since then, in the last 7 years none of the parties have questioned the contents of the said inventory report that it does not reflect truly and correctly the assets of the Estate. According to Mr. Dutta MKS any other interpretation being sought to be now given upon change in personnel of the third member (Justice M.S. Shah (Retd.)) is contrary to the unanimous report of the 3 joint APLs, prepared and signed in 2013.5. After 15th October, 2013 and till Justice Mohit S. Shah (Retd.) became the third member in the year 2019, never has the APL committee claimed shareholding right, right to vote, right to direct voting in respect of any shares which were not stated in the affidavits of assets and/or the said inventory report.6. The APL Committee held 23 number of meetings when Justice Raveendran (Retd.) was the third member and had without any exception only to decide to act when all three members had unanimously agreed on the manner of acting.7. Justice Raveendran (Retd.) resigned by letter dated 2nd October, 2014 stating that as one of the parties (defendants) has reservation about his role and has challenged the order passed on the application by Justice Raveendran (Retd.), he has decided to reiterate his request for acceptance of his resignation.8. Prior to his appointment, Justice A.P. Shah (Retd.) had made a condition that the order of his appointment should clarify that the APL Committee can decide by majority.9. The Division Bench in order dated 23rd August, 2012 laid down powers of the administrators specifically referred to the APLs as Joint Administrators; the word ‘joint’ is used 19 times in the judgment.10. APL Committee had never passed any direction to any of the listed companies to appoint any person as Director. The Nomination Committee of 3 nos. of companies had recommended to the Boards of Directors of such companies for appointment of Justice Karnik (Retd.) as an additional Director in the manner prescribed by law. Justice Karnik (Retd.) is not a nominee Director of the APL Committee and neither has he been appointed as such. The APL Committee also does not have right to nominate any Director on the Boards of these Companies by reason of any law or agreement and any contrary assertion is not correct. That shareholders of companies or administrators must act jointly unless law gives them the power to decide by majority. Joint Administrators are not allowed by the Succession Act to decide by majority.Mr. Dutta has also referred to various provision of the Act which provides the manner of decision to be taken under those statutes. He submitted that in this statutes provides whether 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. Mr. Dutta ultimately concludes that unless all three members of the APL Committee took a unanimous decision, decision so taken by two of the members by majority cannot be implemented and no direction as sought for should be passed by this Court.All the parties in suits (T.S. No.6 of 2004) opposing prayers of the defendants although raised the question of jurisdiction of Probate court to decide upon the powers of the Court to pass interim orders as prayed for by the defendants in G.A. No. 1735 and 1845 of 2019, they argued both on jurisdictional issues and on merits thereof as is evident from their respective written notes filed and oral arguments advanced before this Court.After considering in detail the discussion herein before on the issue of jurisdiction this Court holds :-(i) Section 247 of Indian Succession Act demonstrates larger scope for the court to exercise a jurisdiction to protect and preserve the estate of the deceased through such machineries it deems fit and in the present case through APL, without the right of distributing the assets.(ii) Section 247 in my view enjoins a duty upon the Court as guardian of estate of deceased to not only appoint an Administrator but to render all protection to the administrator during pendency of the suit or proceeding touching the validity of the Will left behind by the deceased.(iii) I am further of the view that while arguing upon the appointment of APL and the parties having subjected themselves to the jurisdiction of such APL it is no more permissible to any one of them to argue that this Court has no jurisdiction to look into the complaint against the APL or to seek orders to ensure smooth functioning of the APL.(iv) On a proper understanding the scope of Section 247 an Administrator Pendente Lite possesses all the powers, rights and duties of an ordinary administrator, and is subject to the control of the court. In my view so long the lis is pending touching the ‘Will’ or ‘Codicil’ Court of administration has not only jurisdiction over the estate of deceased being in custodia legis (in the custody of law) the court appointing APL shall always have authority to oversee APL’s supervision and in the event any apprehension expressed by either of the parties having interest over the estate of the deceased Court can suitably protect and preserve the status quo of the properties under the ‘Will’ and if necessary by issuing appropriate order of injunction of temporary nature during pendency of the Administration Proceeding.(v) The Indian Succession Act was a special law of testamentary succession and it created special forum of probate court to deal with all matters concerning therewith. A conjoint reading of a relevant provision in part IX indicates clearly that exclusive jurisdiction is vested in the special forum created under the Act for grant of probate and matters connected therewith. From the preamble to Indian Succession Act, 1925 it appears that this Act is the result of consolidation of as many as 12 acts. The purpose of consolidating statute is to present the whole body of statutory laws on a subject in a complete form repealing the former statutes. A consolidating statute never intends to alter the law, though it may not be a pure compilation of earlier enactments. This Act is a self-contained complete 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. The probate proceedings shall be conducted by the probate court in the manner prescribed in the act and in no other ways. Therefore, it cannot be argued that there is any lacuna in the act to cover any exigency concerning a probate proceeding or administration proceeding. The Court is well equipped under Section 247 of the Act for administration during pendency of such proceeding. Even if strictly saying provision of Order 39 Rule 1 and 2 may not be attracted for protecting interest of the parties in the pending administration suit but under the act itself court can appropriately deal with a situation wherever it relates to protection and preservation of the estate of the deceased is concerned in a pending suit or proceeding. Therefore, this Court has no hesitation to hold that it has jurisdiction to pass an appropriate order in favour of protection and preservation of the estate of the deceased subject to the entertainability of the prayers made in the application filed by the defendants.Contrary to what has been submitted by Mr. Mitra I hold that because of the very nature of Indian Succession Act which is a self-contained code no provision from the Civil Procedure Code is required to be borrowed for carriage of a proceeding under this Act, consequently his submission that the defendants has not complied with the provisions of Order 7 Rule 1 by not making pleading of jurisdiction the application could not be entertained, is not based on sound principle of law and, therefore, I hold that such submission of Mr. Mitra has no force in the present case. Defendants’ application is very well maintainable.On going through the provisions of Section 247 it appears that a probate Court also takes the responsibility to administer the properties as left by the deceased and to preserve the status quo of such properties left by the Will through Administrator Pendente lite and such Administrator Pendente Lite shall be subject to the immediate control of the Court and shall always act under the Court’s direction by which it has been appointed. In the present case such Administrator Pendenti Lite was appointed consisting of three members. Two nominated by plaintiffs and defendants and the third member was being a neutral person, a retired Judge of the Supreme Court was appointed initially and lastly Justice Mohit S. Shah, a retired Chief Justice of Calcutta and Bombay High Court. Administrator Pendenti Lite adopted various resolution and lastly on 19th July, 2019 and 30th July, 2019 in the interest of the estate so that the estate is preserved in its original form and it can be distributed to the rightful person. Since the Administrator Pendente Lite is under the immediate control of the court and its decision has not been implemented or could not be implemented by reason of objection by the nominee member of the plaintiff and while it is argued by the plaintiffs that the decision not being unanimous the plaintiffs are not inclined to implement the same the defendant/petitioner have come up with a prayer for a direction upon the parties to implement the decision of APL holding that the decision passed by the APL by majority is a good decision for all purpose and it should be carried out.As discussed earlier and the decision cited by Mr. Mukherjee on this issue particularly the judgment dated 10th May, 2013 passed in APO NO. 154 of 2011 arising from CP No.1 of 2020 an appeal from an order passed by the company Law Board (CLB) presided over by its chairman on 9th February, 2011, whereby CLB disposed of all interlocutory applications filed in connection with a petition which was instituted by appellants/Birla Education Trust and Others before the CLB alleging mismanagement of the affairs of respondent no.1/Birla Corporation Limited. A Single Bench of this Court before whom the said order was challenged took note of the fact that on the death of MP Birla his widow PDB came to exercise control over 62.9 % of the shares of the Company which was held by different entities, over which, PDB had control. The Hon’ble Single Bench took note of the Division Bench order arising out of TS. 6 of 2004 whereby APL was appointed and the Hon’ble Single Judge held “It would be for the APL to take appropriate steps so far as the estate of PDB is concerned, in terms of the direction of the Division Bench of this Court.” The said Court also found “foundation of the claim of respondent no.2 to manage the affairs of the company is derived from his control or influence over the entities having 62.09 % shareholding of the company. The division Bench of this court has empowered to exercise all rights flowing from the ownerships of the PDB. The jurisdiction to decide on this issue thus, in my opinion has largely shifted from the domain of CLB to the probate Court and from trial of suits.” As mentioned herein before the decision of the Hon’ble Apex Court in Arcellormittal India Private Limited (supra) says that expression “control” has been defined in two parts, the first part refers to the de jure control, which includes the right to appoint a majority of the director of the company. The second part refers to de facto control, so long a person or persons acting in concert, directly or indirectly, can positively influence, in any manner, management or policy decision they could be said ‘in control’. Incidentally this Court also takes note of paragraph 304 of the decision of the Division Bench decided on 11th October, 2007 in APO No 153 of 2006 and APO 197 of 2006 both arising out of TS no. 6 of 2004 (Rajendra Singh Lodha –Vs. – Ajay Kumar Newar). This decision has been relied on by the plaintiff/opposite parties as also Mr. Bandhopadhya learned senior counsel appearing for Vindhya Telelinks Limited wherein he submitted that PDB having had only 500 shares disclosed in affidavit of assets cannot claim controlling interest over a huge shareholding of Vindhya Telelinks Limited. Paragraph 304 of the said judgment in Rajendra Singh Lodha (supra) the Division Bench observed “The vastness of the estate is nothing but the controlling block of shares in the MP Birla Group of Companies, and in the facts and circumstances of the case, it does not call for an appointment of Administrator Pendente Lite…”It has been rightly observed by APL that it stepped into the shares of Priyamvada Devi Birla (PDB) who stood as single individual Promoter. Therefore, as the single directing hand of the Promoter’s group of shares in all of the companies and other institutions controlled by PDB, such controlling power by virtue of statutory devolution stood devolved upon the APL and consequently it can exercise all such powers as had been exercised by PDB during her lifetime. The view of APL gets approval of the decision of the Apex Court in Areclormittal Private Ltd. (supra) [(2019) 2 SCC 1] as relied on by Mr. Mukherjee. The ratio decided in the decision squarely covers the issue involved in this case on three prime words “Management”, “Control” and “Promoter”; as held by the Apex Court the expression “Management or Control”, the two words take colour from each other, in which case ‘the principle of noscitur a sociis must also be held to apply. Therefore, the word “Control” within the meaning of Section 2(27) of companies Act, 2013, denotes de-jure and de facto is for proactive or positive control not as negative control.The word “Promoter” within the meaning of Section 2(69) of the Act significantly denotes a person who has control over the affairs of the company, directly or indirectly whether as a shareholder, director or otherwise or in accordance with whose advice, directions or instructions the Board of Directors of the Company is accustomed to act.After going through the records including the pleadings of the parties, exhaustive written notes filed by them and the Administrators as also three noticee companies and their elaborate oral submission, the following undisputed facts are apparent namely :1) Late Priyamvada Devi Birla (PDB) died on 3rd July, 2004. She left a Will and Codicil wherefrom T.S. 6 of 2004 arose. In the said Will plaintiffs R.S. Lodha was nominated as Executor to take over the entire management and control over the business and the properties owned by her and left by the deceased directly or indirectly. In the Will directions were issued to the effect:(i) “He will exercise all powers, rights, duties and responsibilities in respect of the business concerns, properties and institutions to the extent I have been exercising;(ii) He will take such steps as are necessary for overseeing of and the control and management of all industries and investment companies owned and managed by me when I was alive…”2) After demise of PDB Late R.S. Lodha took over the control of all management and investment companies along with the trust, and institutions coming under the group as Executor of the Will left by PDB.3) The Company Law Board in its judgment dated 25th April, 2005 in Gouri Shankar Kayan and Ors. –Vs. – East India Investment Company P. Ltd. reported in [2005] 128 Comp Cas 145 (CLB) has regarded inter alia : “It is an admitted fact that before the demise of Mrs. Birla, even though her direct shareholding in the company was negligible, by virtue of her controlling respondents, Nos. 1 to 28 which held/hold over 60 per cent shares in the company, she was not only materially interested in the company and was also able to control the company. It is a well settled law, as held by the Supreme Court in World Wife Agencies (p.) Ltd. v. Mrs. Margaret T Desor [1990] 67 Comp Cas 607, that on the death of a shareholder, the shares devolve on the legal hers instantaneously. Therefore, all her interest in the company and respondents Nos. 1-19 stood devolved on the legal heirs immediately on her demise. Who is the lawful legal heir is an issue before the Calcutta High Court.”4) In the said judgment it was however, held “Thus I find that the estate of the Late Mrs. Birla, controlling majority of the shares in the company is intact and that the said estate has not brought about any change in the composition of the board of directors of the company. In other words, it is the estate of the late Mrs. Birla controlling majority shares in the company, which is found to be materially interested in the affairs of the company. Who is entitled to control the estate is an issue before the High Court for a decision.”5) R.S. Lodha (since deceased) died on 3rd October, 2008 and after his demise the present plaintiff no.1 Mr. H.V. Lodha took the control of all the entities of the group as the alleged universal legatee under the Will of PDB in place of his deceased father by getting himself appointed chairman of the above manufacturing companies and trust and institutions.6) APL Committee has been appointed by the Hon’ble Division Bench presided over by Justice Patel by the order dated 23.08.2012 and aggrieved thereby Mr. H. V. Lodha and others preferred Special Leave Petition before the Hon’ble Apex Court which was dismissed by an order dated 26.11.2012 thereby the judgment dated 23.08.2012 attained finality. Relevant portions of the said judgment is set out below:“Therefore, even though they are appointed by the Court as APL nothing prevents them in their capacity as representatives of the beneficiaries to execute all such rights which flow from the ownership of the shares and so enjoyed by the deceased during her lifetime. Therefore, we have no hesitation to hold that in their capacity as representative of the deceased estate of the deceased vests in them for that limited purpose of administering the same for the benefit of estate of which succession is in abeyance. It is true that in order to enjoy certain rights flowing from the shares and stocks of companies held by the deceased they will have no apply to the respective companies to obtain such benefits viz in case the company comes out with right issue and/or bonus shares which otherwise can only be subscribed by the shareholder. We do not want to discuss the various facets of such exercise of rights of ownership of shares by the Joint Administrators as we think it better to leave it to their best discretion and wisdom and, according to the exigency found to exist. In such an event it would be always open to the parties if they are aggrieved to approach the Probate Court (which has appointed a committee of three persons) as Joint Administrators (who) are subject to the immediate control of the Court and shall act under its direction.We have to accept existence of such rights and powers in APL and the Court which appoints APL has every right to give directions to the Joint Administrators regarding the property as a mode of equitable relief.In the present case, it is not disputed that the deceased has controlling block of shares in M.P. Birla Group of companies and if the rights flowing from such shares are kept in abeyance during the pendency of the suit it may be detrimental to the interest of the companies as a whole as the companies may be managed by minority shareholders and/or suffer at the hands of vested interest.We fail to understand the hesitation on the part of the appellants 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 consist controlling power in M.P. Birla Group of Companies and safeguard the interest of ultimate beneficiaries. This we say is necessary to for the administration of the estate by way of an equitable relief and in the larger interest of the ultimate beneficiaries. Further it is not going to cause any prejudice to the parties to the suit as they will have every right to approach the Court to seek appropriate direction or order in case the Joint Administrators deviate from the trust and faith reposed in them to enable them to exercise all the rights and powers of a General Administrator qua the estate of deceased including the rights of shareholding and shock subject to exception of distributing such estate to any person for which they are accountable to the Court.”It is apparent that the judgment of the Division Bench not only appointed the APL but also lays down the guideline how such APL would exercise its function to preserve and protect the estate within the meaning of Section 247 of the Indian Succession Act. Therefore, APL must act in conformity with the order by which it has been appointed. In view of the said order the APL has got right to exercise of such powers and perform such acts as the deceased had before her death. The decease

Please Login To View The Full Judgment!

d had controlling shareholding in the investment Companies either by direct investment or along with other Investment companies. APL while exercising its authority over the estate of the deceased does not appear to have violated the order dated 23rd August, 2012 and therefore, it cannot be said that parties are not bound by the decision of the APL unless a contrary is proved. If a party is aggrieved by the decision of APL, it can reasonably be concluded now that since, the APL without any specific order from the Court has taken decision by majority instead of unanimity the same could have been agitated long before but having accepted the same and having subjected itself to the jurisdiction of the APL Committee recognizing that APL has got the authority to exercise within the scope of the order dated 23rd August, 2012, it is now an absurd proposition raised by the plaintiffs that since the APL has not taken any unanimous decision the same cannot be either implemented or be made binding upon the parties. In my view once the parties allowed themselves and they participated in the meeting without raising any objection that its decision if not unanimous cannot be deliberated in the meeting and after resolution has been adopted by majority it is no more open for the plaintiffs to agitate that the APL’s decision ‘by majority’ is not binding on them.It is also on record of the order dated 23rd March, 2005 arising out of G.A. 4374 of 2004 and G.A. 4375 and G.A. 4376 of 2004 filed in connection with the present suit Court has held “It is admitted position that Lodha has already got possession of the majority of shares of the holding companies from the said deceased lady and by the mechanism of interlocking shareholding with other groups of companies, the entire M.P. Birla Group of companies can in fact be controlled and managed by either by Lodha himself or his nominee.”Further this Court in its order dated 10th May, 2013 in Birla Education Trust and others –Vs. – Birla Corporation Ltd. and others by Justice Aniruddha Bose (as His Lordship then was) in APO No. 154 of 2011 arising out of A.C.O. No. 42 of 2011 arising out of C.P. No. 1 of 2010 filed against order dated 9th February, 2011 passed by Company Law Board has held (Annexure ‘E’ page 94 of G.A. 1735 of 2019)“3. The company in question was originally promoted by Late G.D. Birla, which subsequently came under the control of M.P. Birla group of companies, headed by Late M.P. Birla. On the death of M.P. Birla, his widow Priyamvada Devi Birla (PDB came to exercise control over 62.9 per cent of the shares of the company, which was held by different entities, over which, it appears to me at this stage, PDB had control. On her death there is dispute over succession of her estate and a probate proceeding is pending before this Court in respect of her Will, the legality of which is under challenge. Under the said Will, which is subject of the probate proceeding, R.S. Lodha, being the father of the respondent No.2 claimed to be the executor of the said Will, under which the property of PDB is also claimed to have been bequeathed to him. Said R.S. Lodha has also passed away. A Division Bench of this Court in an appeal proceeding arising out of the probate suit has appointed a three-member panel as Administrators Pendente Lite (APL) over the estate of Late PDB. The said action now being prosecuted by the respondent no.2. I do not consider it necessary in this judgment to narrate in detail the nature of the claims and defence in the probate proceeding as the appellants before me have primarily founded their action as minority shareholders of the company. Some discussion on the said probate proceeding, however, would be necessary, as the right of the respondent no.2 to continue as a director of the respondent no.1, as the his authority to influence the decision making process of other entities who together exercise control over the said 62.9% shares in the company has been questioned on behalf of the appellants.”“8. On the issue of freezing of voting rights on the respondent no.1 of HVL and the other entities over which HVL is alleged to have control, my opinion is that the directions issued by the Division Bench in the said order passed on 23rd August, 2012, would cover that aspect of the matter…. The basic reasoning on which the appellants’ claim is based on this count, however, is directly relatable to the issues being examined in the probate proceeding. Claim of the appellants on this point in this appeal, in my prima facie view would have overlapping effect vis--vis the issues involved in the probate proceeding. In these circumstances, I do not think it would be proper for me to pass any order to express opinion pertaining to the estate of PDB. In would be for the APLs to take appropriate step to far as the estate of PDB is concerned, in terms of the direction of the Division Bench of this Court.”“16. Stand of the respondents on this issue is that in the company of this dimension, such leakage cannot be eliminated altogether, and there is no allegation that any member of the management benefitted from such illegal activities. Foundation of the claim of the respondent No.2 to manage the affairs of the company is derived from his control or influence over the entities having 62.9% shareholding of the company. The Division bench of this Court has empowered the APLs to exercise all rights flowing from the ownership of the shares of PDB. It has also been submitted on behalf of the respondents that an inconsistent case is being run by the appellants as it has been pleaded in the main petition that Late M.P. Birla as also Priyamvada Debi Birla had transferred their properties including shares to five charitable trust. The jurisdiction to decide on this issue, thus, in my opinion, has largely shifted from the domain of CLB to the Probate Court and the Court for trial of suits.”Although, in the present case I have held that the three noticee companies are not amenable to the jurisdiction of the Probate Court for the present and no order of restraint, as prayed for by the defendants, can be passed against them but to deal with the submissions made by the noticee companies referring to various provisions of Company Law and also referred to by learned Advocate General for M.K. Sharma and Mr. Joy Saha for the two other Administrators and the plaintiffs as well that the probate Court’s jurisdiction is very limited only to consider for the grant or refusal on the basis of the will yet some discussion to that effect is necessary. Here as I find the noticee companies took a stand that under the Companies Act, 2013 only the Members on Register of the respective companies are entitled to take decision regarding voting rights under the provisions of the said Act. On this fallacy they tried to assert that APL has no right to direct their shareholders to cast votes in the General Meeting in the manner the APL Committee wants them to cast vote under the provisions of Companies Act, 2013. Some of the provisions of the Companies Act and SEBI Regulations relevant for the present purpose and are reproduced below:“Section 2 (27). “Control” shall include the right to appoint majority of the directors or to control the management or policy decisions exercisable by a person or persons acting individually or in concert, directly or indirectly, including by virtue of their shareholding or management rights or shareholders agreements or voting agreements or in any other manner.Section 2(69):“Promoter” means a persona) Who has been named as such in a prospectus or is identified by the company in the annual return referred to in section 92; orb) Who has control over the affairs of the company, directly or indirectly whether as a shareholder, director or otherwise; orc) In accordance with whose advice, directions or instructions the Board of Directors of the company is accustomed to act:Provided that nothing in sub-clause (c ) shall apply to a person who is acting merely in a professional capacity;Section 47:(1) Subject to the provisions of section 43, sub-section (2) of section 50 and sub-section (1) of section 188,-(a) every member of a company limited by shares and holding equity share capital therein, shall have a right to vote on every resolution placed before the company; and(b) his voting right on a poll shall be in proportion to his share in the paid-up equity share capital of the company.Section 90: Register of significant beneficial owners in a company:(1)Every individual, who acting alone or together, or through one or more persons or trusts, including a trust or persons resident outside India, holds beneficial interests, of not less than twentyfive percent or such other percentage as may be prescribed, in shares of a company or the right to exercise, or actual exercising of significant influence or control as defined in clause (27) of section 2 over the company (herein referred to as “significant beneficial owner”) shall make a declaration to the company, specifying the nature of his interest and beneficial interest or rights and any change thereof, as may be prescribed:Provided that the Central Government may prescribed a class or classes of persons who shall not be required to make declaration under this sub-section.(2) Every company shall maintain a register of the interest declared by individuals under sub-section (1) and changes therein which shall include the name of individual, his date of birth, address, details of ownership in the company and such other details as may be prescribed.(3) The register maintained under sub-section (2) shall be open to inspection by any member of the company on payment of such fees as may be prescribed.(4) Every company shall file a return of significant beneficial owners of the company and changes therein with the Registrar containing names, addresses and other details as may be prescribed within such time, in such form and manner as may be prescribed.(4A) Every company shall take necessary steps to identify an individual who is significant beneficial owner in relation to the company and require him to comply with the provisions of this section.Relevant Regulation under SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011:Regulation 2 (e) :“Control” includes the right to appoint majority of directors or to control the management or policy decisions exercisable by person or persons acting individually or in concert, directly or indirectly, including by virtue of their shareholding or management rights or shareholders agreements or voting agreements or in other manner:Provided that a director or officer of a target company shall not be considered to be in control over such target company, merely by virtue of holding such position;”If the contention raised by the noticee companies are to be accepted the entire concept “control”, “Promoter” or “Promoter Group” and “Beneficial interest”, the provision of Companies Act, 2013 and SEBI Regulations as pointed out thereby appears to be superfluous.In my view denial of these concepts under the Companies Law and the aforesaid regulation will run counter to the estate of PDB and will consistently give rise to a conflict of interest between the estate of PDB and the plaintiffs if such conflict is not removed or at least stopped by action of the Court as an interim measure then ultimate beneficiaries under the Will may be deprived seriously as this growing conflict with the interest of the estate may ultimately, lead to dissipation of the estate without any cheques and balances. Therefore, this Probate Court being a Court Under Section 247 has to to preserve and protect the estate through its administrators but are authorized to administer the estate and without any authority to distribute the assets can take care of the estate by issuing a balanced order in the interest of the beneficiaries.It is, thus apparent that within its power and authority APL Committee, have right to exercise all such powers and perform all such acts as late PDB would have exercised had she been alive. PDB had controlling shareholding in the investment companies either by direct investment or along with other investment companies and PDB as the investment companies together with manufacturing companies through cross shareholding had controlling interest in all those manufacturing companies. This view has been confirmed by both Division and Single Bench of this Court and in view thereof APL Committee is well within its power to ask all entities which were under the control of PDB to exercise their voting right in regard to their investment in the share capital of any of the companies which were under the control of PDB, in the manner considered by the APL as beneficial to the interest of the Estate. All these entities of the group would have exercised their voting right in accordance with the directions of PDB had she been alive. Accordingly, now such entities would exercise voting right flowing from their investment in the companies controlled by PDB in the manner to be guided by the APL Committee.Now let us consider whether in this case an interim order as sought for is at all necessary or not. Before an injunction is granted a question in dispute need not be examined or its decision anticipated. It is not important for the Court to consider while granting injunction whether suit will be dismissed or decreed and the Court is also not required to hold a mini trial but to decide whether the nature and difficulty of the question is such that it was proper that the injunction should be granted until the time for deciding the lis finally between the parties.To make out a prima facie case for temporary injunction, it is not required that plaintiff should establish his title, but it is enough if he can show that he has a fair question to raise as to the existence of the right alleged and that the property in the meantime should be preserved in status quo.The phrases, “Prima facie case”, “balance of convenience” and “irreparable loss” are to be considered basexd on the facts of each particular case and to meet myriad situations presented by man’s ingenuity in given facts and circumstances, it is to be decided with sound exercise of judicial discretion to meet the ends of justice. Prima facie case is that which raises substantial question, of course bona fide, which needs investigation and, ultimately, a decision on merits.A case of temporary injunction is an action preventive in nature and a specie of precautionary justice intended to prevent apprehended wrong or anticipated mischief which if allowed to happened may not be un done and cannot be compensated by money.The principles which largely govern the exercise of discretion by the Court are to the effect that a person who seeks an order injunction must satisfy the Court – firstly, that there is a serious question to be tried in the suit and that on the facts before the Court there is a probability of his being entitled to the relief asked for by him. Secondly, That the Court’s interference is necessary to protect him from that species of injury which the court calls irreparable, before his legal right can be established on trial, and thirdly, that the comparative mischief or inconvenience which is likely to cause prejudice if injunction is refused and the result of refusal might be greater than that which is likely to arise from granting it.This proposition certainly gets support from the ratio decided in Films Rover International (Supra) cited and relied on by Mr. H. Mitra.Here is a case where not only is it the allegation of the defendants that the estate suffers because of the plaintiff’s leading role in every aspect but also similar is the allegation of the APL and which is evident from the record that since 2012 APL’s Judicial members could not work smoothly and they had to resign due to non-cooperation from the end of plaintiffs in particular the plaintiff no.1. Present independent member has been appointed in the year 2019 and, he is too obstructed to function smoothly.In this case trial of the suit is at an advanced stage. Plaintiff no.1 has been examined as propounder and his cross-examination by the defendants is about to be completed. Amongst others, Attesting witness may be examined shortly after Court’s normal function is resume. Therefore, in order keep the estate in the safe hands of the administrators, some restraint should be imposed upon both the plaintiffs and defendants. The balance of convenience in this case is tilted in favour of grant interim protection.Therefore, So far the three noticee companies are concerned, upon consideration of the submissions made by the learned counsels Mr. Kalyan Bandhopadhay, Mr. Bachawat and Mr. Chinoy this Court upon consideration of the ratio decided in West Bengal Housing Board (supra) cited by Mr. Bachawat, is of the firm view that for the present the noticee companies being not parties to this proceeding no order can be passed against them as prayed for by the defendants in their applications being G.A. No. 1735 of 2019 and G.A. No. 1845 of 2019.However, upon consideration of the fact of the case in detail; apprehended injury pleaded in the petition and other materials available on record; submissions made by the counsels for the parties; the apprehended damage at the instance of the plaintiffs with the leadership of plaintiff No.1 in absence of any interim order, prima facie case made out in the application; balance of convenience and inconvenience vis--vis the apprehended injury which might be suffered by the ultimate beneficiaries of the estate of the deceased, this Court is of the view that the defendant/petitioners have made out sufficient case to get an interim order/temporary injunction to preserve and protect the interest of the ultimate beneficiaries under the Will of PDB concerning the estate of the deceased and this Court in aid of the final relief in the Testamentary Suit in exercise of the power conferred under Section 247 of Indian Succession Act, passes the following orders:(a) The plaintiffs shall implement the decision dated 19th July, 2019 and 30th July, 2019 of the APL Committee taken by majority as also all consequential decisions of the APL in furtherance of the said decisions and shall be restrained from drawing any benefit personally from out of the assets of the estate of the deceased during pendency of the Testamentary Suit.(b) Plaintiffs are also restrained from interfering with the decisions of the APL and any decision which might be taken by it in future by majority if the same directly or indirectly relates to the estate of the deceased and further the plaintiff no.1, Harsh Vardhan Lodha is restrained from holding any office in any of the entities of M.P. Birla Group during pendency of the Suit.(c) Defendants are also restrained by an order of temporary injunction from interfering with the APL’s decision by majority during pendency of the suit.Defendant’s applications being G.A. 1735 of 2019 and G.A. 1845 of 2019 together with plaintiff’s applications being G.A. 1761 of 2019 and 1786 of 2019 stand disposed of.In view of the observations made hereinbefore the other applications are also disposed of in the following manner –(1) G.A. 831 of 2020- In view of the discussion and observation made hereinbefore at page, this application has become infructuous and accordingly disposed of.(2) G.A. 832 of 2020 - In view of the discussion and observation made hereinbefore at page 109, this application is also disposed of with no orders.(3) G.A. 833 of 2020 - In view of the discussion and observation made hereinbefore at page 113, this application is also disposed of.(4) G.A. 834 of 2020 - In view of the discussion and observation made hereinbefore at pages 98-99, this application stands disposed of to the effect that this Probate Court cannot decide any issue against a stranger to the probate proceeding and no order in this proceeding can be passed against this company.(5) G.A. 842 of 2020 - In view of the discussion and observation made hereinbefore at pages 108-109, this application becomes infructuous and accordingly disposed of.(6) G.A. 843 of 2020 - In view of the discussion and observation made hereinbefore at page 99, this Court holds that there has been no omission in my order dated 12th June, 2020. This application is disposed of with no orders.(7) G.A. 844 of 2020 - In view of the discussion and observation made hereinbefore at pages 113-114, this application is also disposed of with no order.(8) C.C. 18 of 2020 – In view of the discussion and observation made hereinbefore at page 114, let a copy of the application be served upon the respondents with liberty to mention for inclusion in the list.(9) C.C. 19 of 2020 - In view of the discussion and observation made hereinbefore at page 109, let a copy of the application be served upon the respondents with liberty to mention for inclusion in the list.(10) C.C. 20 of 2020 - In view of the discussion and observation made hereinbefore at page 99, let a copy of the application be served upon the respondents with liberty to mention for inclusion in the list.(11) G.A. 1005 of 2020 – This is an application by defendants seeking direction upon the plaintiffs for implementation of the decisions dated 23.07.2020 and 30.07.2020 of APL Committee and to restrain Mr. H.V. Lodha from offering himself as Director or proposing himself as a candidate for re-appointment in any company or institutions within M.P. Birla Group.In view of the order passed hereinbefore in G.A. 1735 and 1845 of 2019 no separate order is required and on such terms this application stands disposed of.(12) G.A. 1009 of 2020 – This is an application by plaintiffs affirmed on 10.08.2020. By this application plaintiffs prayed for dismissal of G.A. 1005 of 2020, which I have already disposed of and no separate order is required. With this observation this application also stands disposed of.Later- Mr. Abhrajit Mitra, learned senior advocate appearing for the plaintiffs prays for stay of operation of the orders passed today. Such prayer has been considered but owing to the grave consequences which may arise in the event of allowing it, the same is refused.Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.
O R