# MANNALAL KHETAN ETC. ETC v. KEDAR NATH KHETAN & ORS. ITTC. November 25, 197 6

- **Citation:** [1977] 2 S.C.R. 190
- **Court:** Supreme Court of India
- **Decided:** 1977
- **Bench:** A. N. Ray, M. H. Beg, Jaswant Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mannalal-khetan-etc-etc-v-kedar-nath-khetan-ors-ittc-november-25-197-6-7025
- **Pages:** 8

## Headnote

Co111pauies .A.ct 1956- S. 108-Scope of-!'S/uill not register
transfer of
-lhares"-lf n1a11datory or directory-Tests for deciding.
lnterpretMti~n~Jfandatory or directory-Tests for determining-1Von-com·
·C
p/{4nce not cleclared an offence-If provision could be called direcrory.
D
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Section 108 of the Companies Act, 1956 provides that a company lhall 1101
register transfer of shares unless a proper instrument of transfer duly stamped
and executed by or on behalf of the transferor and by or on behalf of the
transferee_. has been delivered to the company along \\'ith the share certificate.
The appellaRts ;;i.nd the respandents were members of a fan1ily.
The family
heJd ~ares ia a company, and in addition, the members were doing partnership
business. To reali5e large sums of income tax dues from the firms and individual partners, the Income-tax Department issued notices to the company to
pay to that department any amount due to the firm or its partners.
.A. receiver
appoiated by the Collector took ·possession of the appellants' shares along lVith
duly signed blank transfer deeds.
Later_ shares belonging to the family in the
company ·were attached under 0. 21, r. 46, C.P.C.
I.1 the meantime the
appellants in settlement of their accounts \\tith the respondents agreed for transfer of certain shares to the respondents as soon as the transfer became permissible.
At the iHstance of respondents l and 2, however, the company,
by a
resolutio11, transferred the appellants' shares to the respondents. The appeliants
gave notice to the re!!pondents that the shares under attachment of the Incometax Department had been sold by the Collector and that the transfers
\\'ere
illegal a-itd void. The re5pondents contended that it \\-'as not a ca'ie of transfer
but oAe of tra11.smi!!5ion.
l• a petition u1J.der s. 155 of the Companies Act the appello1nts contended
{hat the transfer v;·as in contravention of the mandatory provisions of s. 108
and that the
sitares had been attached by the Collector under 0. 21, r. 46
C.P.C.
A si•:le Judge of the .High- Court held the transfer to- be illegal and
'°•id.
On appeal a Division Bench held that the provisions of s. 108
v;ere
directory a111d not mandatory and that the provisions of s. 64, C.P.C. and 0. 21,
r. 46 prevailed over the prohibitory order contained in Form 18 in Appendix
E of Schedule I of the C.P.C., but that the attachment and appointment
of
Receiver. did -?Ot divest a party of his right to his property.
Allo¥.-ia~ the appeal,
HELD: The provisions of s .. 108 of the Companies Act afe manJatory nnd
the Hi:h Court erred in holding that they \Vere directory. [197BJ
(l)(a) The v.:ord5 .. shaII not register" are mandatory in character.· The
mandatory character is strengthened by the negative form of the
failguage
"·hich is used to emphasise the insistence of compliance \\-'ith the provisions of
the Act.
Negative words are clearly prohibitory and are ordinarily used as a
le!;i!ll<1.tive device to make a statutory provision imperative.
(See State of Bi!iar
v. Afalu1rajdhiraia Sir Katneslni-•ar Singh of Darb!ianga &: Ors. [1952] S.C.R.
889 at pp. 988-89; M. Pentiah & ors. v. ~!uddala Veeramallappa & Ors. [19611
2 S.C.R. 295 at p. 308 and Additional District ft.1agistrate, Jaba/91tr_ v. Shivakant
Slwkl• [1976) Supp S.C.R. 172 followed. [l95D-EJ
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MANNALAL KHETAN V. KEDAR NATH (Ray, C.J.)
191
(b) The tests for finding out when a provision is ma!1datory or dir~ctory
, are : the purpose for which the provision has been made, its nature, the mtention of the Je.gislature in making the provision, the general inconvenience or
injustice which may result to the person from reading the provision one V'.ay
·or the other. the relation of the particular provision to other provisions dealmg
with the same subject and the language of the proviswn. Prohibition and negative words can rarely be directory.
Negative, prohibitory and exclusive words
nre indicative of the legislative intent when the statute is man

## Text

190
MANNALAL KHETAN ETC. ETC.
v.
KEDAR NATH KHETAN & ORS. ITTC.
November 25, 197 6
(A. N. RAY, C. J., M. H. BEG AND JASWANT SINGH, JJ.J
Co111pauies .A.ct 1956- S. 108-Scope of-!'S/uill not register
transfer of
-lhares"-lf n1a11datory or directory-Tests for deciding.
lnterpretMti~n~Jfandatory or directory-Tests for determining-1Von-com·
·C
p/{4nce not cleclared an offence-If provision could be called direcrory.
D
-G
Section 108 of the Companies Act, 1956 provides that a company lhall 1101
register transfer of shares unless a proper instrument of transfer duly stamped
and executed by or on behalf of the transferor and by or on behalf of the
transferee_. has been delivered to the company along \\'ith the share certificate.
The appellaRts ;;i.nd the respandents were members of a fan1ily.
The family
heJd ~ares ia a company, and in addition, the members were doing partnership
business. To reali5e large sums of income tax dues from the firms and individual partners, the Income-tax Department issued notices to the company to
pay to that department any amount due to the firm or its partners.
.A. receiver
appoiated by the Collector took ·possession of the appellants' shares along lVith
duly signed blank transfer deeds.
Later_ shares belonging to the family in the
company ·were attached under 0. 21, r. 46, C.P.C.
I.1 the meantime the
appellants in settlement of their accounts \\tith the respondents agreed for transfer of certain shares to the respondents as soon as the transfer became permissible.
At the iHstance of respondents l and 2, however, the company,
by a
resolutio11, transferred the appellants' shares to the respondents. The appeliants
gave notice to the re!!pondents that the shares under attachment of the Incometax Department had been sold by the Collector and that the transfers
\\'ere
illegal a-itd void. The re5pondents contended that it \\-'as not a ca'ie of transfer
but oAe of tra11.smi!!5ion.
l• a petition u1J.der s. 155 of the Companies Act the appello1nts contended
{hat the transfer v;·as in contravention of the mandatory provisions of s. 108
and that the
sitares had been attached by the Collector under 0. 21, r. 46
C.P.C.
A si•:le Judge of the .High- Court held the transfer to- be illegal and
'°•id.
On appeal a Division Bench held that the provisions of s. 108
v;ere
directory a111d not mandatory and that the provisions of s. 64, C.P.C. and 0. 21,
r. 46 prevailed over the prohibitory order contained in Form 18 in Appendix
E of Schedule I of the C.P.C., but that the attachment and appointment
of
Receiver. did -?Ot divest a party of his right to his property.
Allo¥.-ia~ the appeal,
HELD: The provisions of s .. 108 of the Companies Act afe manJatory nnd
the Hi:h Court erred in holding that they \Vere directory. [197BJ
(l)(a) The v.:ord5 .. shaII not register" are mandatory in character.· The
mandatory character is strengthened by the negative form of the
failguage
"·hich is used to emphasise the insistence of compliance \\-'ith the provisions of
the Act.
Negative words are clearly prohibitory and are ordinarily used as a
le!;i!ll<1.tive device to make a statutory provision imperative.
(See State of Bi!iar
v. Afalu1rajdhiraia Sir Katneslni-•ar Singh of Darb!ianga &: Ors. [1952] S.C.R.
889 at pp. 988-89; M. Pentiah & ors. v. ~!uddala Veeramallappa & Ors. [19611
2 S.C.R. 295 at p. 308 and Additional District ft.1agistrate, Jaba/91tr_ v. Shivakant
Slwkl• [1976) Supp S.C.R. 172 followed. [l95D-EJ
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MANNALAL KHETAN V. KEDAR NATH (Ray, C.J.)
191
(b) The tests for finding out when a provision is ma!1datory or dir~ctory
, are : the purpose for which the provision has been made, its nature, the mtention of the Je.gislature in making the provision, the general inconvenience or
injustice which may result to the person from reading the provision one V'.ay
·or the other. the relation of the particular provision to other provisions dealmg
with the same subject and the language of the proviswn. Prohibition and negative words can rarely be directory.
Negative, prohibitory and exclusive words
nre indicative of the legislative intent when the statute is mandatory.
[195F-G]
Raja Buland Sugar Co. Ltd. v. Municipal Board, Rampur [1965] 1 S.C.R.
970 and Seth Bik/m1j Jaipuria v. Union of India [1962] 2 S.C.R. 880 at pp. 89394, followed.
(2) (a) In holding thats. 108 is directory and not mandatory for the reason
that non-compliance with the section was not declared an offence, the
High
Court failed to consider the provisions of s. 629-A of the Act which prescribes
a penalty where ne> specific penalty is provided in the Act. It is a question of
construction iit each case whether the legislature intended to prohibit the doing of
the act altogether or merely to make the person who did it liable to pay the
penalty. [196BJ
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(b) A contract is void if prohibited by a statute under a
penalty,
even
without express declaration that the contract is void,
because such a penalty
implies a prohibition. If a contract is made to do a prohibited act, that contract will be unenforceable. If a contract is expressly or implied by prohibited
by statute one has to see not what acts the statute prohibits but what contracts
it prohibits. One is not concerned with the intent of the parties. [l 96C-E]
D
St. John Shipping Corporatio!l v. Joseph Rank [1957] l Q.B. 267, referred
to.
(c) The maxim a pactis priratomm publico juri non derogat11r means that
private agreement cannot alter the general law.
What is done in contravention of the provisions of an Act of Legislature cannot be made the subject of
action. [196FJ
·
Mellis v. Shirlay L.B. [1885] 16 Q.B.D. 446 referred to.
(cl) ln every case where a statute inflicts a penalty for doing an act, though
the act be not prohibited, yet the thing is unlawful because it is not intended
that a statute would inflict a penalty for a lawful act. [196G]
( e) .If a penalty is imposed by statute for preventing something being clone
on some gropnd of public policy, the thing prohibited, if done, will be treated
as void, even though the penalty imposed is not enforceable. [197 A]
In the present case in addition to tbe prohibition issued under 0. 21, r. 46,
a separate prohibitory order was issued to the company in Form 18 in Appendix
·E of the First Schedule of the C.P.C. Therefore, the company by registering the
transfer of shares was obviously permitting the transfer and such action being
in violation of the prohibition is contrary to law. [l97D]
(3) When the receiver held the scrips and the transfer forms. It was not
open to the owners to exercise rights of ownership or to transfer their ownership to anyone else. [197F]
C1v1L APPELLATE JURISDICTION :
Civil Appedl Nos. 1805 to
1808 of 1968.
Aprea! from the Judgment and Decree date<l the 24th May, 1963
of the AllaJ1abad High Court in Special Appeals Nos. 108 to 111 of
1963.
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R. S. Gae, (in CA. 1805/68) and I . .lohn. for the Appellants in
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:all the Appeals.
Ex parte, for Respondents in all the appeals.
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SU?REJ\!E COURT REPORTS
[1977] 2 s.c.R.
The Judgment of the Court was delivered by
. RAY, C.J.-These f~~r appeals by certificate raise two questions.
Fmt, whether the pr?v1s1ons of sect10n. 108 of the Companies Act,
1956 are ma~datory m regard to transfer of shares.
Second, can a
company havmg been served with notice of attachment of shares
register transfer of shares in contravention of the on.Ier of attachment.
The appellant Mannalal Khetan and the respondents Kedar Nath
Khetan and Durga Prasad Khetan are members be.longing to two
branches of the Khetan Family. The respondent Lakshmi Devi Sugar
Mills Private Ltd. is a privat0 company. lt was incorporated on 7
April 1934 under the Indian Companies Act, 1913.
The Khetan family held shares in th..: respon;.;ent company and in
two other companies Maheshwari Khetan Sugar Mills Private Ltd.
and Ishwari Khetan Sugar Mills Private Ltd. The: shaes stood in the
names of (1) M/s. Gancshnarayan Onkarnrn[ Khctan, (2)
M/s.
Sagarmal Hariram Khetan, ( 3) Sri. '.\fannalai Khetan and ( 4) Sri
Radhakrishna Khetan.
The members of the Khetan
family did partnership business at
various places.
Civil Suit No. 337 of 1948 was filed in the Bombay
High Court for dissolution of the partnership and for
taking
the
accounts.
On 3 July 1953 the Official Receiver of the Bombay High
Court was appointed Receiver of the properties of the partnership
firms.
There were lar~e income tax arrears and other tax liabilities outstanding against the firms and individual partners. f'or the realisation
of the income tax dues the Income Tax Department issued in 1950 a
notice under section 46(5) (a) of the Indian Income Tax Act, 1922
requiring the respondent company to pay any amount due to the firm
of Ganesh Narayan Onkarmal or its partners to that department.
On 16 June, 1953 a Receiver was appointed by the Collector of
Bombay in execution of the tax recovery certificate issued by the
Income Tax Officer S. VI Central Bombay.
Sub;,equently
under
orders of the Bombay High Court the Rccchcr appointed by the
Collector of Bombay took over papers of the di;;soived firm from the
Receiver appointed by the
Bombay
High Court.
The
Receiver
appointed by the Collector of Bombay also took. pm.session of shares
standing in the names of M/s. Sagarmal Hariram Khetan, Sri Mannalal Khetan and Sri Radhakrishna Khetan along with blank transfer
deeds signed by them.
The Additional Collector of Bomba) issued to the Collector of
Deoria two certificates under which on 8 March 1954 and
18131
October 1955 cer1h :·)1are3 of the respo' dent company belonging to
the Khetans were attached under Order 2 1 Rule 46 of the Code of
Civil Procedure.
On 31 July, 1957 the members of the Khetan family
entered
into agreement among them for exchange of blocks of shares held by
them in the respondent company and other companies in ~ettlement
of Lheir differences and disputes.
These agreements
provided
for
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MANNALAL KHETAN V. KEDAR NATH (Ray, C.J.)
193
transfer of shares in the re'spondent company and in the Maheshwari
Khetan·Sugar Mills Private Ltd. belonging to Sagannal Hariram and
Ganesh Narayan Onkarnath groups to which the appellants belonged
to the group of Kcdarnath Khetan to which respondents 1 and 2
belonged.
These transfers were in lieu of shares in lshwari Khetan
Sugar Mills Private Ltd. to be transferred by the group of respondents
1 and 2 to the group of the appellant. It is significant to notice that
the agreements recited that the shares in the respondent
company
were under attachment of the Income Tax authorities, and, therefore,
they could not be immediately transferred.
The agreement was that
as soon as the transfer of the shares became permissible or if the
Income Tax authorities so permitted, transfers as agreed and contemplated would be effective.
On 8 April, 1958 and 3 October, 1959 the Board of Directors of
the respondent company passed a resolution for transfer of the shares
belongi!lg to the appellant group to the group of respondents No. 1
and 2.
These resolutions were passed on the applications made on
behalf of respondents No. 1 and 2 and others of their group.
The
shares were thereafter entered in the respondent company's register
in the names of respondents No. 1 and 2 and others of their group.
On 14 January, 1962 the appellant along with Kamla Prasad
Khetan and Mataden Khetan gave notice to respondent No. 1 and
Durga Prasad Khetan that the shares of the Ishwari Khetan Sugar
Mills Private Ltd. which were under attachment of the Income Tax
authorities had been sold by the Additional Collector of Bombay on
23 September, 1961.
The notice stated that the agreements
had
become impossible of performance and the consideration of reciprocal
promises disappeared.
The notice further stated that the powers of
attorney executed in favour of th~ respondent company by h: appellant in respect of their shares in the Maheshwari Khetan Sugar Mills
Private Ltd. and Laxmi Devi Sugar Mills Private Ltd. were revoked
and cancelled.
The notice concluded by saying that the respondents
had no right, authprity, or power to act on behalf of or in the name
of the appellants in pursuance of the said power of attorney.
By another notice dated 14 January, 1962 the appellants informed
the respondent company that the transfer of shares in the company's
register had been made illegally and without authority because no
proper instruments of transfer duly stamped and executed by and/ or
on behalf of the appellants were delivered to the re'spondent company
and that the shares were under attachment by the Collector of Deoria
for recovery of income tax arrears on the certificate issued by the
Additional Collector of Bombay. The notice to the respondent company also said that certain shares in blank transfer forms were in
possession of the Receiver appointed by the Additional Collector of
Bombay in the income tax recovery proceedings. The notice concluded
by 'stating that the respondent company was informed that the alleged
transfer of shares from the names of the appellants as well as the
deletion of their names from the registelf was illegal and void.
/ ·
Respondent No. 1 and Durga Prasad Khetan contended in answer
to the notice that the appellant had no right, title or interest in the
14-1458SCI/76
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194
SUPREME COURT REPORTS
[1977] 2 S.C.R.
shares mentioned in the notice, that the shares had not been transferred but had been transmitted subject to the orders of the Income
Tax authorities under section 46(5) (a) of the Income Tax Act, and
that the ?~ares of the lshwari Khetan Sugar Mills !--td.
were sold by
the Add1t10nal Collector of Bombay in recovery of the income tax
arrears in spite of the protests lodged by the respondent and that the
power of attorney in respect of the shares could not be cancelled by
the appellant.
The respondents denied that the transfer:; were illei;al
and without authority.
In this background the appellant on 17 July, 1962 filed a petition
in the High Court of Allahabad under section 155 of the Companies
Act 1956 referred to as the Act against the respondents.
The appellant contended first that the transfers of all the shares in the respondent
company's register were illegal because the transfers were without any
proper instrument of transfer.
The appellant also contended that the
transfers were in contravention of the mandatory provisions of section
108 of the Act and articles of the respondent company. The second
contention of the appellant was that no legal transfer of the shares in
question should have been made because at the time of the alleged
transfer the shares had been surrendered along with blank transfer
forms to the Receiver appointed by the Collector of Bombay in execution proceedings for recovery of the income tax due~.. The appellant
also alleged that other shares had been attached by the Collector of
Deoria in pursuance of the two certificates issued by the Collector of
Bombay under Order 21 Rule 46 of the Code of Civil Procedure.
The learned Single Judge directed the respondent company
to
rectify the register of its members by removing the names of respondents No. 1 and 2 and to restore the names of the original share
holders. The learned Single Judge rejected the contention of the respondents that it was a case of transmission of shares.
The learned
Judge said that the transmission of shares occurred only by operation
of law and this was a case of transfer by voluntary act of the parties
which could not amount to transmission.
The learned Judge also held
that although the transferees divested themselves of all powers and
control in respect of the shares in question by executing irrevocable
powers of attorney in favour of the transferees, mere transfer of control
did not amount to transfer of possession.
The learned Judge further
held that the agreements to which reference has already been made
were not instruments of transfer and the transfer of shares which were
under attachment in pursuance of the certificate issued by t~e Additional Collector under Order 21 Rule 46 0£ the Code of Civil Procedure was illegal and void.
The transfer of the shares which had been
surrendered to the Receiver appointed by the Collector of Bombay
was also held by the learned Judge to be bad on the same
ground.
The respondents preferred an appeal.
The Division Bench of the
High Court set aside the order passed by the Co!11.P~ny Judge and
dismissed the applications of the appellant.
The D1v1s1on Ben~h held
that the provisions contained in section 108 of the Act were dir~c~ory
and not mandatory. The Division Bench also held that the prov1S1ons
of section 64 of the Code ofCivil Procedure and Order 21 Rule 46
\
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MANNALAL KHETAN V. KEDAR NATI-I (Ray, C.J.)
195
prevailed over the prohibitory order contained in Form 18 in Appendix E of Schedule l of the Code.
The Division Bench held that the
appointment of the Receiver did not divest a party of his right
to
property and the mere fact that shares were handed
over to the
Receiver
with blank
instruments of
transfer did not
make any
difference.
The provision contained in section 108 of the Act states that "a
company shall not register a transfer of shares ...... unless a proper
instrument of transfer duly stamped and executed by or on behalf of
the transferor and by or on behalf of the transferee. . . . . . . . has been
delivered to the company along with the certificate relating to the shares
or debentures ........ or if no such certifical~ is in existence along
with the letter of allotment of the shares".
There are two provisos
to section 108 of_ the Act. We are not concerned with the first proviso
in these appeals.
The second proviso states that nothing in this ~ec
tion shall prejudice any power of the company to register as shareholder or debenture holder any person to whom the right to any shares
in, or debentures of, the company has been transmitted by operation
of law.
The words "shall not register" are mandatory in character.
The mandatory character is strengthened by the negative form of the
language. The prohibition against transfer without complying with the
provisions of the Act is emphasised by the negative language. Negative language is worded to emphasi·se the insistence of compliance with
the provisions of the Act.
(See State of Bihar v. Maharajadhiraj Sir
Kameshwar Singh of Dcvbhanga & Ors. C), M. Pentiah & Ors. v.
Mudriala Veeramallappa & Ors. ( 2) and Additional District Ma<Jistrate,
Jabalpur v. Shivakant Shukla(3 ).
Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statutory provision imperative.
In Raza Buland Sugar Co. Ltd. v. Municipal Board Rampur('l)
this Court referred to various tests for finding out wheR a provision is
mandatory or directory.
The purpose for which the provision
has
been made, its nature, the intention of the legislature in making the
provision, the general inconvenience or injustice which may result to
the person from reading the provision one way or the other, the relation of the particular provi'sion to other provisions dealing with the
same subject and the language of the provision are all to be considered.
Prohibition and negative words can rarely be directory. It has been
aptly stated that there is one way to obey the command and that is
COOlpletely to refrain from doing the forbidden act.
Therefore, negative, prohibitory and exclusive words are indicative of the legislative
intent when the statute is mandatory.
(See Maxwell on Interpretation of Statutes 11th Ed. p. 362 seq.; Crawford Statutory Construction,
Interpretation of Laws p. 523 and Seth Bikhmj Jaipuria v. Union of
lndia( 5 ).
(1) [!952] S.C.R. 889, 988-89.
(3) [1976] Supp. S.C.R. 172.
(5) [1962] 2 S.C.R. 880, 893-94.
(2) [1961] 2 S.C.R. 295, 308.
(4) [1965] 1 S.C.R. 970.
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196
SUPREME COURT REPORTS
(1977] 2 S.C.R.
The High Court said that the provisions contained in section 108
of the Act are directory because non-compliance with section 108 of
the Ac_t is not declared an offence.
The reason given by ihe High
Court 1s that when the law does not prescribe the consequi;:nces or does
not lay down penalty for non-compliance with the provision contained
in secti?n 108 of th~ Act the provision is to be considered as directory.
The High Court failed to consider the prov'ision contained in section
629(A) of the Act. Section 629(A) of the Act prescribes the penalty
where no specifi_c penalty is provided elsewhere in the Act.
It is a
question of construction in eac,h case whether the legislature intended
to prohibit the doing of the act altogethor, or namely to make the
person who did it liab'.e to pay the penally.
Where a contract, express or implied, is expressly or by implication
forbidden by statute, no court will lend its assistance to give it effect.
(See Mellis v. Shirley('). A contract i1s void if proh.bikd by a srJ,ute
under a penalty, even without express declaration that the contract
is void, because such a penalty implies a prohibition.
The penalty
may be imposed with intent merely to deter persons from entering
into the contract_ or for the purposes of revenue or that the contract
shall not be entered into so as to be valid at law.
A distinction is
sometimes made between contracts entered into with the object of
committing an illegal act and contracts expressly or impliedly prrhibited by statute.
The distinction is that in the former class one has
only to look and see what acts the statute prohibits; it does not matter
whether or not it prohibits a contract; if a contract i's made to do a
prohibited act, that contract will be unenforceable.
In the latter
class, one has to consider not What ac! the statute prohibi's, bu what
contracts it prohibits. One is not concerned at all with the intent of
the parties, if the parties enter into a prohibited contract, that contract
is unenforceable.
(See St. John Shipping
Corporarion
v.
Joseph
Rank( 2).
See also Halsbury's Laws of England Third Edition Vol.
8, p. 141).
It i's well established that a contract which involves in its fulfilment
F
the doing of an act prohibited by statute is void.
The legal maxim
A
pac.~is privatorum publico juri non derogatur means that private
agreements cannot alter the general law.
Where a contract, express
or implied, is expressly or by implication forbidden by statute,
no
court can lend its assistance to give it effect.
(See Mellis v. Shirley
L.B.) (Supra). ·What is done in contravention of the provisions of
an Act of the Legislature cannot be made the subject of an action.
G
If anythlng is against law though it is not prohibited in the statute
but only a penalty is annexed the agreement is void.
In every case
where a statute inflicts a penalty for doing an act, though the act be
not prohibited, yet the thing is unlawful, because it is not intended
that a statute would inflict a penalty for a lawful act.
Penalties are impo·sed by statute for two distinct purposes ( 1) for
H
the protection of the public against fraJ:Jd, or for some other object of
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public policy; (2) for the purpose of securing certain sources of
. \
(I) L.R. (18~') 16 Q.B.D. 446.
(2) [1957] I Q.B. 267.
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MANNALAL KHETAN V. KEDAR NATH (Ray, C.J.)
19 7
revenue either to the state or to certain public bodies. If it is. clear that
a penalty is imposed by statute for the purp~se of. preventm~ something from being done on some ground of public po!Icy, the thmg prohibited, if done, will be treated as void, even though the penalty
imposed is not enforceable.
The provisions contained in section 1 O~· of the Act a~e for ~he
reason indicated earlier mandatory. The High Court erred rn holdmg
that the provisions are directly.
Some of the shares were attached by the Collector of Deoria pursuant to two certificates isisued by the• Collector of Bombay.
Other
share's were surrendered
along with blank
transfer forms to the
Receiver appointed by the Collector of Bombay in execution proceedings.
Order 21 Rule 46 of the Code of Civil Procedure lays down that
in the case of shares in the capital of a corporation the attachment
shall be made by a written order prohibiting in the case of the share,
the person in whose name the share may be 'standing from transferring
the same.
In the present case, in addition to the prohibition issued
under Order 21 Rule 46 a separate prohibitory order was issued to the
company in Form No. 18 in Appendix E of the First Schedule of the
Code of Civil Procedure.
Therefore, the company by registering the
transfer of ·shares was obviously permitting the transfer and such action
on the part of the company being in violation of the prohibition is
contrary to law.
Shares which had not been attached but had been surrendered to
the Receiver appointed by the Collector of Bombay came from the
possession of the Receiyer in the partnership suit.
The Receiver in
the partnership suit took possession of the 'shares along with blank
transfer forms in the year 1953. When the Receiver held the scrips
and the transfer forms it was not open to the persons in whose names
the shares originally stood to exercise rights of ownership in respect
thereof or to transfer their ownership to anyone else.
For the fore<=!oing rea·sons we set aside the decision of the High
Court.
The order of the learned Single Judge dated 5 March, 1963
is restored.
There will be no order as to cost's.
P.B.R.
Appeal allowed.
A
B
c
D
E
F