Judgment Ruma Pal, J.—An internecine dispute between the members of a family relating to the controlling interests in companies has given rise to the nine appeals which are being disposed of by this judgment. Given the number and nature of the proceedings, to avoid any confusion, the parties are referred to by their names and not in the capacity in which they have sued or been sued except when describing the collec­tive stand of all the respondents in these appeals, when they are referred to simply as ‘the respondents’. 2. The main protagonists in all the litigations are Madhusoodhanan, Srinivasan, Ravi and Mani who are brothers, with Madhu­soodhanan on one side and Srinivasan, Ravi and Mani on the other. The parents of the four were one K. Sukumaran and Madhavi both of whom are deceased. K. Sukumaran died before the litigations between the parties erupted and Madhavi died during the pendency of the litigation. While she was alive she supported Srinivasan, Ravi and Mani. The four brothers are married and have children. It is unnecessary at this stage to clutter and narration of facts with the names of the wives and children, who will be referred to by name when the particular litigation in which they are involved is considered. The dispute began with a struggle over the controlling interest in a company by the name of Kerala Kaumudi Pvt. Ltd. (hereinafter referred to as Kerala Kaumudi). 3. Kerala Kaumudi is a private company incorporated under the Indian Companies Act, 1913 which was promoted in 1955 by the parents of the four brothers. Besides Kerala Kaumudi other “family” concerns were incorporated including Kaumudi Investments Pvt. Ltd., Kerala Exports (P) Ltd., Kaumudi News Pvt. Ltd., Laisa Publications Pvt. Ltd., Shiv Printers and Publishers, Ravi Printers & Publishers Pvt. Ltd., Kaumudi Films Outdoor Unit, Electronic & Euipment Corporation and Ravi Transports. However, the core of the controversy is the control of Kerala Kaumudi. 4. The business of Kerala Kaumudi (which was the flagship company) is to own and publish newspapers, journals and other literary works and undertakings. Its authorised share capital is 20 lakhs divided into 2000 shares of Rs. 1000/- each. The total number of issued and paid up equity shares in Kerala Kaumudi was 1575. 4. The business of Kerala Kaumudi (which was the flagship company) is to own and publish newspapers, journals and other literary works and undertakings. Its authorised share capital is 20 lakhs divided into 2000 shares of Rs. 1000/- each. The total number of issued and paid up equity shares in Kerala Kaumudi was 1575. During the life time of K. Sukumaran each of the brothers along with their parents had shares in Kerala Kaumudi and the shareholding was as follows: Sr. No. 1. Mani  222 shares 2. Vaisa Mani   84 shares (Mani’s daughter) 3. Sukumaran Mani   84 shares (Mani’s son) 4. Madhusoodhanan  390 shares 5. Srinivasan  390 shares 6. Ravi  390 shares 7. Madhavi    3 shares 8. Sukumaran    9 shares 9. Kaumudi Investments  3 shares Private Ltd. Total 1575 shares 5. Sukumaran died on 18th September 1981. He was the Managing Director of Kerala Kaumudi from 1955 to 1973 and its Chairman from 1973 till his death. He was succeeded as Chairman by his widow Madhavi. Madhu­soodhanan was appointed as Managing Director of Kerala Kaumudi in 1973 immediately after Sukumaran died. On 25th January 1985. Madhusoodhanan was appointed as Managing Director and Editor of Kerala Kaumudi for life. He was also empowered to exercise the powers given to the Direc­tor under Article 79 of the Articles of Association. At the same time Srinivasan was appointed as General Manager of Kerala Kaumudi for life and Ravi was appointed as Director and Executive for life. To give effect to these appointments. Article 69A and Article 74 of the Arti­cles of Association of Kerala Kaumudi were amended. 6. The disputes between the parties started soon after the death of Sukumaran in September 1981. When these reached a head, on 29th Novem­ber, 1984 a resolution was taken at a meeting (Ex. P-190) of the company which was signed by the four brothers and Madhavi by which the controlling interests in the different family companies were agreed to be given to the four brothers on the basis of their active interest in a particular concern. Kerala Kaumudi’s control was to be with Madhu­soodhanan, in implementation. Transfer of shares in these companies were effected between the brothers and their respective families. The disputes however did not abate. On 24th October, 1985 an agreement was entered into between the parties in an attempt to resolve their dif­ferences. This agreement has been exhibited in the proceedings as Ext. Kerala Kaumudi’s control was to be with Madhu­soodhanan, in implementation. Transfer of shares in these companies were effected between the brothers and their respective families. The disputes however did not abate. On 24th October, 1985 an agreement was entered into between the parties in an attempt to resolve their dif­ferences. This agreement has been exhibited in the proceedings as Ext. P1. On 23rd December 1985, a second agreement (Ext. P-2) was entered into by which it was, inter alia, agreed that all the various family controlled companies and firms would be divided among the four broth­ers. 7. On 16th January 1986 a third agreement was entered into, which has been marked as Ext. P3. The parties to the third agreement were Mad­havi, Madhusoodhanan, Srinivasan and Ravi. Briefly speaking. Ext. P3 is about the division of effective control of the “family” concerns amongst the four brothers. It relates to the transfer of Mani’s shares in Kerala Kaumudi to Madhusoodhanan. In addition, the parties’ agree­ment that Madhusoodhanan would have the major share holding in Kaumudi Investments Pvt. Ltd., Kerala Exports (P) Ltd. and Kaumudhi News Pvt. Ltd., Mani the majority share holding of 52 per cent in Laisa Publica­tions Pvt. Ltd. (which has subsequently changed its name to Kala Kaumudi Pvt. Ltd.), Srinivasan 52 per cent in Shiv Printers and Pub­lishers, and Ravi, the majority holding in Ravi Printers and Publish­ers (P) Ltd., Kaumudi Films Outdoor Unit. Electronic and Euipment Corporation and Ravi Transports, is also recorded. 8. According to Madhusoodhanan, Mani and his children had already transferred their entire holding of 390 shares in Kerala Kaumudi to Madhusoodhanan in May 1985, prior to the third agreement. As a result, Mani and his children had no shares in Kerala Kaumudi, Madhusoodhanan had 612 shares, and Sreenivasan and Ravi had 222 shares each Nine shares continued to stand in the name of the late K. Sukumaran and three shares in the name of Madhavi. In addition, the two children of Madhusoodhanan had 84 shares each. Sreenivasan’s daughter, Anju had 168 shares. Ravi’s son, Deepu, had 168 shares and KIPL continued to hold 3 shares. 9. On 23rd July 1986, a Board meeting of Kerala Kaumudi was held at which Madhavi assumed the powers of the Managing Director in purported ouster of Madhusoodhanan. The meeting is disputed by Madhusoodhanan. Sreenivasan’s daughter, Anju had 168 shares. Ravi’s son, Deepu, had 168 shares and KIPL continued to hold 3 shares. 9. On 23rd July 1986, a Board meeting of Kerala Kaumudi was held at which Madhavi assumed the powers of the Managing Director in purported ouster of Madhusoodhanan. The meeting is disputed by Madhusoodhanan. He says that no such meeting was in fact held and that the minutes were subsequently drawn up. A second Board meeting, which is also disputed by Madhusoodhanan, was held on 1st August 1986 in which a decision was taken to increase the paid-up share capital of Kerala Kaumudi by issuing 425 additional shares of Rs. 1000/- each. At a Board meeting held on 8th August 1986 these additional shares were issued to Ravi and Sreenivasan and one share was transferred by Ravi to Mani. This meeting as well as the allotment of the additional shares is not accepted by Madhusoodhanan. On 16th August, 1986 at an Extraordinary General Meeting Madhusoodhanan was removed as Managing Director of Kerala Kaumudi and Article 74 of the Articles of the company ­deleted. 10. In this background, several proceedings were filed by the parties against each other some of which may be taken up for consideration together. The first lot consists of six matters relating directly to Kerala Kaumudi and the share holding in Kerala Kaumudi. The six are : (i) C.P. No. 14 of 1986 filed by Madhusoodhanan for rectification of the company’s share register under section 155 of the Companies Act, 1956 by cancellation of the allotment of 425 shares to Ravi and Sreenivasan and for removal of the name of Mani from the company’s share register. (ii) Company petition, C.P.No. 31 of 1988 filed by KIPL for similar reliefs. (iii) A suit filed by Madhusoodhanan in the Munsif’s Court, Trivandrum being O.S.No. 1329 of 1986 (subsequently re-numbered as C.S.No. 3/89, when withdrawn to the High Court) for a decree declaring that he continued to be the Managing Director of Kerala Kaumudi and for a declaration that the Board meetings held on 23.7.86, 1.8.86 and the meetings subsequent thereto were illegal and ultra vires the Articles of Association of the company. (vi) A suit being O.S.No. 482/88 (subsequently re-numbered as C.S.No 5/89, when withdrawn to the High Court) filed by KIPL against Kerala Kaumudi for similar reliefs. (vi) A suit being O.S.No. 482/88 (subsequently re-numbered as C.S.No 5/89, when withdrawn to the High Court) filed by KIPL against Kerala Kaumudi for similar reliefs. (v) A suit filed by Madhusoodhanan for specific performance of the third agreement, Ex.P.3.(O.S. No. 483/88, subsequently re-numbered as C.S. 6/89 when withdrawn to the High Court.) (vi) C.P. No. 26 of 1987 filed in 1987 by Mani and his children for a declaration that the transfer of 390 shares by them to Madhu­soodhanan pursuant to the Board’s decision dated 21.5.85 was illegal and void and for rectification of the share register by recording them as the owners of 222, 84 and 84 shares respectively. 11. These six matters are now numbered as CA Nos. 3253-3258 of 1991 before us. 12. The second set of litigation being Company Petition No. 15 of 1986 was filed in 1986 by Mani’s wife Kastoori Bai, daughter Valsa, Ravi’s wife Shylaja, and Sreenivasan’s wife Laisa fas well as Madhavi for rectification of the share register of KIPL. This is now numbered as CA 3260 of 1991. 13. The third set consists of CP No. 11 of 1987 (now CA 3261 of 1991) filed by Vaishak, the minor son of Madhusoodhanan, for rectification of the share register of Kerala Kaumudi. 14. The fourth set of proceedings originally consisted of two suits filed before the Munsif’s Court, Trivandrum relating to the office premises of Kerala Exports and KIPL. The suit filed by Kerala Exports, (numbered on transfer as CS No. 2 of 1989) was for a mandatory injunc­tion to restrain Kerala Kaumudi, Sreenivasan, Ravi and Madhavi from disturbing its functioning in Kaumudi Buildings. O.S.No. 1569 of 1988 (subsequently numbered as CS 4 of 1989) was a similar suit filed by KIPL before the Munsif’s Court for restraining the defendants from preventing the peaceful functioning of KIPL’s administrative office in Kaumudi Buildings. 15. All the original suits were transferred to the High Court under the provisions of Section 446 of the Companies Act and were heard along with the several company petitions noted earlier. About 296 documents were tendered in evidence by the parties. Seven witnesses were examined. The four witnesses who deposed in support of Madhusood­hanan were P.K. Kurien, Advocate (PW 1), Mohan Raj, former Personal Assistant to Madhusoodhanan (PW 2) Vasudevan, former Company Secretary (PW 3) and Madhusoodhanan himself (PW 4). About 296 documents were tendered in evidence by the parties. Seven witnesses were examined. The four witnesses who deposed in support of Madhusood­hanan were P.K. Kurien, Advocate (PW 1), Mohan Raj, former Personal Assistant to Madhusoodhanan (PW 2) Vasudevan, former Company Secretary (PW 3) and Madhusoodhanan himself (PW 4). As far as the opponents were concerned, Mani (RW 1), Srinivasan (RW 2) and Laisa Srinivasan (RW 3) gave evidence in support of their stand. 16. The Single Judge decided CP No. 14 of 1986 in Madhusoodhanan’s favour. The application for rectification was allowed and the allot­ments of shares made in the meeting held on 8.8.86 were set aside and rectification of the share register of Kerala Kaumudi by deleting the further allotment of 425 shares each to Sreenivasan and Ravi was directed. The prayer for cancellation of the transfer of one share in favour of Mani was, however, disallowed. However, the petition filed by KIPL (CP No. 31 of 1986) which had virtually asked for the same reliefs as in CP No. 14 of 1986 was dismissed by the learned Single Judge on the ground of delay. Madhusoodhanan’s suit (C.S.No. 3 of 1989) and KIPL’s suit (CS No. 5 of 1989), were decreed by holding inter alia that the meetings held on 23.7.86, 1.8.86, and 17.8.86 in so far as they affected Madhusoodhanan and by which Madhu­soodhanan had been removed as Managing Director and Article 74 of the Articles of Association of the company was deleted, were illegal and invalid. Madhusoodhanan was declared to be the Managing Director of the Compa­ny. The suit filed by Madhusoodhanan for specific performance of Ext. P3 (CS No. 6 of 1989) was also decreed. Mani and his children’s appli­cation for setting aside the transfer of 390 shares (CP No. 26/87) was dismissed. An ­arbitrator was appointed for determining what amount was payable by Madhusoodhanan to Mani for the shares transferred by Mani to Madhusoodhanan. 17. The second set of proceedings initiated by Mani’s wife and others viz. CP No. 15 of 1986, for rectification of the share register of KIPL and the third set filed by Madhu­soodhanan’s minor son, Vaishak for rectification of the share register of Kala Kaumudi (CP No. 11 of 1987) were dismissed. 18. 17. The second set of proceedings initiated by Mani’s wife and others viz. CP No. 15 of 1986, for rectification of the share register of KIPL and the third set filed by Madhu­soodhanan’s minor son, Vaishak for rectification of the share register of Kala Kaumudi (CP No. 11 of 1987) were dismissed. 18. The two suits filed by Kerala Exports and KIPL (CS 2 of 1989 and CS 4 of 1989 respectively) relating to their continued possession in Kaumudi Buildings were decreed. 19. The aggrieved parties preferred appeals in each of the matters. By a common judgment, the Division Bench reversed the findings of the learned Single Judge in all of the appeals except in the appeal from CS 2 of 1989. Nine Special Leave Petitions were filed in this Court in the separate proceedings on which leave was granted on 27th August 1991. 20. We propose to deal with issues which can be said to be common to the different sets of litigations before giving our conclusions on each appeal separately. 21. The underlying question in the first set of litigations viz. who has the controlling interest in Kerala Kaumudi has given rise in turn to the following topics : (A) The transfer of shares by Mani and his children to Madhu­soodhanan. (B) The removal of Madhusoodhanan as Managing Director; (C) The issue of additional shares to Ravi and Srinivasan, and (D) Specific performance of the agreement (Karar) dated 16.1.1986. Transfer of shares by Mani and his children to Madhusoodhanan 22. In C.P. 26/87, Mani and his group prayed for rectification of the share register of Kerala Kaumudi by deleting the name of Madhusoodhan­an as a shareholder in respect of the shares which Mani and his group had transferred to him in 1985. The prayers proceed on the basis that there was in fact a transfer of shares in 1985 which was, after two years, sought to be set aside. The grounds on which this was asked for were : A. The consideration for the transfer had not been agreed upon and no consideration had in fact been paid. B. No proper documents had been executed effecting the trans­fer. C. Neither Vaisa nor Sukumaran Mani, a minor had any knowledge of the transfer and the transfer of their shares was invalid. B. No proper documents had been executed effecting the trans­fer. C. Neither Vaisa nor Sukumaran Mani, a minor had any knowledge of the transfer and the transfer of their shares was invalid. D. Section 108 of the Companies Act, 1956 had not been complied with in respect of any of the transfers. 23. The learned Single Judge rejected all four contentions, and in our view, rightly. The Division Bench held in favour of Mani and his group on grounds which are legally and factually unsustainable for the reasons stated in the following paragraphs. 24. The documentary evidence relating to the transfer, shows without a shred of doubt that there was a valid transfer of shares. To begin with the minutes of the meeting held on 19th March 1985 [Ex. R-62(a)] which were signed by Mani, records: “Shares of Sri M.S. Mani. All the shares in Kerala Kaumudi owned by Sri M.S. Mani and family would be pledged by him to Sri M.S. Madhu­soodhanan who shall extend financial facilities to Sri M.S. Mani. The loan will be paid with 22 percent interest by Sri Mani when Sri M.S. Madhusoodhanan shall release the shares of Sri M.S. Mani. The modus operandi of the transaction shall be decided in consultation with barrister P.K. Kurien of Menon and Pai”. 25. The intention of Mani and his group to transfer their shareholding to Madhu­soodhanan is evident from this. Although the mode of transfer was subsequently changed, this intention was affirmed at the Board meeting of Kerala Kaumudi held on 23rd April 85. The fifth and sixth resolutions as appearing in the minutes of the meeting [Ex.P.-62(b)] which were also signed by Mani read as under : “Sri M.S. Mani Letter of resignation from the direct directorship of Kerala Kaumudi (Pvt.) Ltd. effective from 23.4.85 afternoon submitted by Sri M.S. Mani was approved by the Board. (6) Shares owned by Sri M.S. Mani and family in Kerala Kaumudi (P) Ltd. “Shares owned by Sri M.S. Mani and family in Kerala Kaumudi (P) Ltd. will be transferred to Sri M.S. Madhusoo­dhanan forthwith on a consid­eration to be mutually agreed between the transferor and the transfer­ee. The liabilities of Sri M.S. Mani to the income tax department etc. up to 31st March, 1985 should be settled by Kerala Kaumudi (P) Ltd. before finally deciding a consideration for the share transfer. The liabilities of Sri M.S. Mani to the income tax department etc. up to 31st March, 1985 should be settled by Kerala Kaumudi (P) Ltd. before finally deciding a consideration for the share transfer. The Kerala Kaumudi (P) Ltd. undertakes to discharge the liabilities aris­ing on account of personal guarantees given by Sri M.S. Mani for the company”. (Emphasis supplied). 26. The sixth resolution clearly envisages three distinct stages: an immediate and unconditional transfer of shares, then, the settlement of the Mani’s income tax liabilities by Kerala Kaumudi and, after both these stages, the determination of the consideration for the transfer to be mutually agreed on. 27. The Division Bench, therefore, erred in holding that the agreement for transfer of shares was conditional on the determination of the price of the shares and in concluding that as there had been no such determination, no transfer could have taken place. The express inten­tion was to effect an immediate transfer of the shares and to agree upon the consideration later. Section 9 of the Sale of Goods Act, 1930 permits this.1 28. Section 4 read with Section 2(10) of the Sale of Goods Act, 1930 require that the contract of sale must provide for the payment of money as a consideration for the transfer of goods, or to put it differently, that a price must be paid. But Section 9 of the 1930 Act allows the parties not to fix the price at the time of the transfer and to leave the determination of the amount of consideration to a later date. An agreement which provides for the future fixation of price either by the parties themselves or by a third party is capable of being made certain and is not invalid as provided under Section 29 of the Contract Act, 1872 [See : illustration (e)]. In view of such categoric and clear statutory provisions, the submission of learned counsel representing Mani that such a contract is void for uncertainty because the price was not fixed, is unacceptable. The passage from Banjamin’s Sale of Goods (1974 Edn.) relied on which says. “If the price is left to be agreed upon subsequently between the parties, there will ordinarily be no binding contract, on the grounds of uncertainty, unless and until they later reach agree­ment on a price. The passage from Banjamin’s Sale of Goods (1974 Edn.) relied on which says. “If the price is left to be agreed upon subsequently between the parties, there will ordinarily be no binding contract, on the grounds of uncertainty, unless and until they later reach agree­ment on a price. Moreover, an agreement to leave the price open to further negotiation will normally exclude any inference that the price should be a reasonable price in accordance with the provisions of section 8(2).” may be an exposition of the law as it is in England and cannot be seen as an authority on the interpretation of section 9(1) of the Sale of Goods Act. Besides, the same passage cited goes on to say: “But in accordance with the principle that the Courts will endeavor to uphold bargains which the parties believe themselves to have conclud­ed, especially in the case of executed or partially executed con­tracts, it may sometimes be possible either to infer an intention that at any rate a reasonable price should be paid if no price is later settled, or to have regard to other circumstances, such as the course of dealing between the parties.” 29. In this case, there can be no doubt that the first stage of the agreement for the immediate transfer of shares was executed and the Division Bench erred when it held to the contrary. 30. The questions as to what would be the reasonable price for the shares, the mode of its determination and whether any consideration has already been paid by Madhu­soodhanan to Mani are considered subse­quently. 31. The minutes of the Board meeting held on 21st May 1985 [Exhibit P-62 (C)] of Kerala Kaumudi record that the following share transfer deeds were placed before the Board, namely, the deeds relating to the transfer of 222 shares by M.S. Mani to Madhusoodhanan, 84 shares by Valsa Mani to Madhusoodhanan, 84 shares by Sukumaran Mani to M.S. Mani and 84 shares by Mani to Madhusoodhanan. The Board resolution goes on to record. “After discussion the share transfers were approved by the Board and the Managing Director and any other Director was authorised to sign the relative now share certificates to be issued in favour of Sri M.S. Madhusoodhanan and to affix the common seal of the company in the share certificates in the presence of the Company Secretary.” 32. “After discussion the share transfers were approved by the Board and the Managing Director and any other Director was authorised to sign the relative now share certificates to be issued in favour of Sri M.S. Madhusoodhanan and to affix the common seal of the company in the share certificates in the presence of the Company Secretary.” 32. The minutes of the Board meeting held on 21st May 1985 were read and approved on 4th June 1985. Both meetings were attended by Madhavi, Madhusoodhanan, Srinivasan and Ravi and the minutes signed by Madhavi as Chairman. The transfer of the shareholding of Mani and his children was also admittedly entered in the Company’s Share Certificate Ledger (Ex. P-90). 33. It is evident from this that the share transfer forms which were placed before the Board had been executed and were otherwise duly completed, or else the question of the approval of such transfer would not arise. 34. Apart from these minutes, are the minutes of the meeting held on 26th August 1986, when Madhusoodhanan, was already effectively removed from the control of Kerala Kaumudi. Item No. 4 of the minutes relates to the transfer of a share by Ravi to Mani. Countering Madhusoodhan­an’s objection to such transfer, the minutes tellingly record : “Smt. C.N. Madhavi pointed out that the sale consideration of the shares held by Sri. M.S. Mani which was around 24 percent of the total shares of the ­company at the time of transfer had not been paid by Sri. M.S. Madhu­soodhanan. She pointed Shri M.S. Mani was the senior most Director of the company and he is the eldest son of late Sri Sukumaran, the founder of the company. She also pointed out that Sri M.S. Mani is eligible for 1/5 of the shares held in the name of his father. She further pointed out that it is prestigious for the company that Sri M.S. Mani, the former senior Director and glorious editor of the newspaper to be a shareholder of the company”. 35. In the Annual Return of Kerala Kaumudi dated 27th June 1985 filed under section 159 of the Companies Act, 1956 with the Registrar of Companies, in the list of past and present members and debenture holders, the names of all parties have been given including the names of Mani, and his children. 35. In the Annual Return of Kerala Kaumudi dated 27th June 1985 filed under section 159 of the Companies Act, 1956 with the Registrar of Companies, in the list of past and present members and debenture holders, the names of all parties have been given including the names of Mani, and his children. However against their names it has been mentioned that they had effected transfer of their shareholding to Madhusoodhanan. Particulars of the transfer made by each as well as the date of registration of the transfers have been given as 21st May, 1985. (Ex. P-128). 36. On 1st March 1986 in keeping with the statutory requirement relat­ing to the ­ownership of newspapers, a statement was ­published in Form IV. In the list of sharehol­ders the names of Madhusoodhanan, Ravi, Visakh Madhusoodhanan, Deepu Ravi, M.S. Srinivasan, Julie Madhusood­hanan & Anju Srinivasan are mentioned. There is no mention of Mani or either of his children as shareholders (Ex.P-86). There was no protest by Mani or any of the other shareholders which would have naturally been made if the statements were incorrect. 37. Even after the ouster of Madhu­soodhanan from the Board of Kerala Kaumudi, in the Annual Return dated 26th September, 1986 [Ex.P.128 (a)], in the list of shareholders filed with the Registrar of Companies as part of the Annual Return of Kerala Kaumudi, Mani is shown as holding only one share and Madhusoodhanan as holding 612 shares in the company. This return has been filed under the signatures of Srinivasan and Ravi as Managing Director and Director of Kerala Kaumudi respectively together with a certificate by Ravi and Srinivasan under section 161(2) of the Companies Act, 1956. They certified that the return states the facts as they stood on the day of the annual general meeting correctly and completely and that since the date of the last annual return the transfer of all the shares and debentures and the issue of all further certificates of shares and debentures had been appropriately recorded in the books maintained for the purpose. 38. This was again done in the Annual Return of Kerala Kaumudi filed under the signature of Ravi and Srinivasan dated 28th July 1987 (Ex.P.131(a)). Madhusoodhanan is shown as holding 612 shares and Mani is shown as holding only one share. 38. This was again done in the Annual Return of Kerala Kaumudi filed under the signature of Ravi and Srinivasan dated 28th July 1987 (Ex.P.131(a)). Madhusoodhanan is shown as holding 612 shares and Mani is shown as holding only one share. Under section 164 of the Companies Act, 1956, the annual returns, the certificates and statements there­in, “shall be prima facie evidence of any matters directed or autho­rised to be inserted therein” under the Act. 39. The explanation given by Mani that he did not respond to the statutory declarations although they did not show his name or the names of his children as shareholders of Kerala Kaumudi because there was an agreement to transfer the sharee and because of the close relationship between parties, is specious. According to Mani’s evi­dence, he had not agreed to transfer his shares at all because the consideration had not been fixed. Furthermore, the relationship be­tween the parties was anything but cordial. It was only after Madhu­soodhanan had initiated proceedings in 1986, that Mani, more than two years after the transfer for shares filed the application for rectifi­cation of the share register. 40. Even if there were any doubt on the issue, the fact which settles the matter conclusively are the admissions in the counter affidavit filed by Madhavi in CP No. 14 of 1986 on behalf of herself and on behalf of Ravi, Srinivasan and Mani (wherein Mani is referred to as the “fifth counter petitioner” and Madhusoodhanan as “the petitioner”) She has affirmed: (a) “In fact the fifth counter petitioner left the company in the year 1985 and has transferred all the 390 shares belonging to him and his children (major daughter and minor son) to the petitioner, receiving only a miniscule part of a consideration and accepting the promise of the petitioner to pay him the balance without even insisting on formal documents to evidence the promise of the petitioner”. (b) “Once Article 74 was amended to the petitioner’s liking, his attitude started changing slowly. Even then we did not take it seri­ously. That is why the fifth counter petitioner transferred his shares to the petitioner, giving him literally a strangle hold on the compa­ny”. (c) He (Mani) and his minor son had held 306 shares in the company which he had transferred to the petitioner in 1985". (d) “The petitioner holds 612 equity shares of Rs. That is why the fifth counter petitioner transferred his shares to the petitioner, giving him literally a strangle hold on the compa­ny”. (c) He (Mani) and his minor son had held 306 shares in the company which he had transferred to the petitioner in 1985". (d) “The petitioner holds 612 equity shares of Rs. 1000/- each of the company”. 41. Mani has also said in an affidavit affirmed on 28th November, 1986 in Application 305/86 (arising out of CP No. 14/86). “After the meeting was over the petitioner and respondents 2 to 5 that is, the mother and sons had informal talk in the same room. During the course of this, the second respondent asked the petitioner why he has not paid the balance consideration for shares transferred by me to him in 1985. The ­petitioner said that he would pay the same as and when he had money. The second respondent thereupon suggested that the peti­tioner may in that event transfer the shares back to me.” 42. The one share which is shown in Mani’s name in the Annual Return for 1986 and 1987 was sold by Ravi to Mani at a meeting held on 26 August, 1986. As has been recorded in the minutes (Ex. P. 62(N)) and affirmed in the same affidavit of Madhavi in C.P. No. 14/86 on behalf of Ravi, Srinivasan, Mani and herself: “The meeting of the Board of Directors held on 26th August, 1986 expressly considered the question whether the fifth respondent (Mani) is to be selected as one whom it is desirable in the interest of the company to admit to its membership. The Board resolved that the fifth respondent (Mani) is not only a desirable person, but his admission to the membership of the company will enhance its prestige and strengthen its administration. The Board felt that in the circumstances it was essential that the fifth respondent (Mani) was to be inducted as a member of the company”. 43. That he was “admitted” to membership and “inducted” as a member of the company by the transfer of one share on 26th August 1986 has been acknowledged by Mani himself in his affidavit affirmed in the same proceedings on 28 November, 1986. 44. 43. That he was “admitted” to membership and “inducted” as a member of the company by the transfer of one share on 26th August 1986 has been acknowledged by Mani himself in his affidavit affirmed in the same proceedings on 28 November, 1986. 44. This admission to membership was in terms of Article 24(a) of the Articles of Association of Kerala Kaumudi, which directs that no share shall be transferred to a person who is not a member so long as any member or any person selected by the Directors as one whom it is desirable in the interest of the company to admit to membership, is willing to purchase the same at fair value. In other words a non-member of the company can be sold a share of the company even when a member wishes to purchase it, provided the Directors select him as “a person whom it is desirable in the interest of the company to admit to membership” and provided that such person is willing to purchase the share. 45. If the transfer by Mani and his children of their entire shareholding in Kerala Kaumudi to Madhusoodhanan had not been effected, there was no question of “admitting” Mani to the membership of the company. The minutes of the meeting held on 26 August, 1986 which have been admitted by Srinivasan and the affidavits of Madhavi and Mani thus prove that Mani and his family held no shares in the company until the single share was transferred by Ravi to Mani under Article 24(a) on 26th August, 1986. 46. We have been unable to understand the logic of the Division Bench by which it sidestepped this inevitable conclusion, when it said “It is open to a party to take an extra precaution to ward off possible disconcerting experiences while planning for the future”. Ignoring – or at least not giving sufficient weight – to the wealth of evidence in favour of the submissions of Madhusoodhanan, the learned Judges of the Appellate Court sought to base their assessment of the evidence on the absence of documents, such as income tax returns of Madhusoodhan­an, which according to them would have shown the acquisition of the additional shares by Madhusoodhanan from Mani, an exercise which was entirely uncalled for in the face of the positive evidence already on record and the repeated admissions of Mani and his group before the Court. 47. Furthermore, under Section 194 of the Companies Act , 1956, minutes of meetings kept in accordance with the provisions of Section 193 shall be evidence of the proceedings recorded therein and, unless the contrary is proved, it shall be presumed under Section 195 that the meeting of the Board of Directors was duly called and held and all proceedings thereat to have duly taken place. The onus was on Mani to disprove that the transfers had not taken place as recorded in the minutes of the Board meeting held on 21 May, 1985, an onus that he has singularly failed to discharge. Learned counsel for Mani submitted that the statutory presumption was not available as Madhusoodhanan had admitted that no formal meetings were held and that the minutes were prepared after informal discussions by the Company Secretary and shown to Srinivasan who signed the same after it was approved by Madhusood­hanan. The submission is unacceptable for three reasons. First: The Articles of Association of the Company (Art. 81) allow Directors to regulate their meetings as they think fit. Also Art. 89 says that a resolution in writing circulated to all the Directors and assented to by a majority of them shall be as valid as a resolution passed at a meeting of the Board of Directors. Second, Section 193(1) of Companies Act 1956 provides: ‘‘193(1)  Minutes of proceedings of general meetings and of Board and other meetings.— Every company shall cause minutes of all proceedings of every general meeting and of all proceedings of every meeting of its board of directors or of every committee of the Board, to be kept by making within thirty days of the conclusion of every such meeting concerned, entries thereof in books kept for that purpose with their pages consecutively numbered.” 4. Whether the admission of students to minority educational institution, whether aided or unaided, can be regulated by the State Government or by the university to which the institution is affiliated? 5. (a) Whether the minorities' rights to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students? (b) Whether the minority institutions' right of admission of students and to lay down procedure and method of admission, if any, would be affected in any way by the receipt of State aid? 5. (a) Whether the minorities' rights to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students? (b) Whether the minority institutions' right of admission of students and to lay down procedure and method of admission, if any, would be affected in any way by the receipt of State aid? (c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities? 6. (a) Where can a minority institution be operationally located? Where a religious or linguistic minority in State 'A' establishes an educational institution in the said State, can such educational institution grant preferential admission/ reservations and other benefits to members of the religious/linguistic group from other States where they are non-minorities? (b) Whether it would be correct to say that only the members of that minority residing in State 'A' will be treated as the members of the minority vis-a-vis such institution? 7. Whether the member of a linguistic non-minority in one State can establish a trust/society in another State and claim minority status in that State? 8. Whether the ratio laid down by this Court in St. Stephen's case (St. Stephen's College v. University of Delhi) is correct? If no, what order? 9. Whether the decision of this Court in Unni Krishnan, J.P. v. State of A.P. (except where it holds that primary education is a fundamental right) and the scheme framed thereunder require reconsideration/ modification and if yes, what? 10. Whether the non-minorities have the right to establish and administer educational institution under Articles 21 and 29(1) read with Articles 14 and 15(1), in the same manner and to the same extent as minority institutions? and 11. What is the meaning of the expressions "education" and "educational institutions" in various provisions of the Constitution? Is the right to establish and administer educational institutions guaranteed under­ the Constitution? 52. The Bench did not answer 4 out of 11 questions. The Hon'ble Chief Justice, B.N. Kirpal delivering the majority judgment considered the questions answered by the Bench under the following headings: 1. Is there a fundamental right to set up educational institutions and if so, under which provision? 52. The Bench did not answer 4 out of 11 questions. The Hon'ble Chief Justice, B.N. Kirpal delivering the majority judgment considered the questions answered by the Bench under the following headings: 1. Is there a fundamental right to set up educational institutions and if so, under which provision? 2. Does the judgment in Unni Krishnan case require reconsideration? 3. In case of private unaided institutions can there be government regulations and if so to what extent? 4. In determining the existence of a religious or linguistic minority, in relation to Article 30, what is to be the unit, the State or country as a whole? and 5. To what extent can the rights of aided minority institutions to administer be regulated? 53. We are not concerned with the subject under heading 1. The core issues in this matter revolve around headings 2, 3 and 5 aforementioned. 54. We are, thus, concerned in this case with Question No. 3(b), 4, 5(a), 5(b), 5(c) and 9. 55. The answers to the relevant questions are in the following terms: A.3(b) Article 30(1) gives religious and linguistic minorities the right to establish and administer educational institutions of their choice. The use of the words "of their choice" indicates that even professional educational institutions would be covered by Article 30. A.4 Admission of students, to unaided minority educational institutions, viz., schools and undergraduate colleges where the scope for merit-based selection is practically nil, cannot be regulated by the State or University concerned, except for providing the qualifications and minimum conditions of ­eligibility in the interest of academic standards. The right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of 'the Constitution, the state government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions. A minority institution does not cease to be so, the moment grant-in-aid is received by the institution. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions. A minority institution does not cease to be so, the moment grant-in-aid is received by the institution. An aided minority educational institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and at the same time, would be required to admit a reasonable extent of non-minority students, so that the rights under Article 30(1) are not substantially impaired and further the citizens’ rights under Article 29(2) are not infringed. What would be a reasonable extent, would vary from the types of institution, the courses of education for which admission is being sought and other factors like educational needs. The State Government concerned has to notify the percentage of the non-minority students to be admitted in the light of the above observations. Observance of inter se merit amongst the applicants belonging to the minority group could be ensured. In the case of aided professional institutions, it can also be stipulated that passing of the common entrance test held by the state agency is necessary to seek admission. As regards non-minority students who are eligible to seek admission for the remaining seats, admission should normally be on the basis of the common entrance test held by the state agency followed by counselling wherever it exists. A.5(a) A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not be tantamount to mal-administration. Even an unaided minority institution ought not to ignore the merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence. A.5(b). While giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe bye-rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the state qua non-minority students. A.5(b). While giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe bye-rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the state qua non-minority students. The merit may be determined either through a common entrance test conducted by the University or the Government concerned followed by counselling, or on the basis of an entrance test conducted by individual institutions - the method to be followed is for the university or the government to decide. The authority may also devise other means to ensure that admission is granted to an aided professional institution on the basis of merit. In the case of such institutions, it will be permissible for the government or the university to provide that consideration should be shown to the weaker sections of the society. A.5(c) So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to an university or board have to be complied with, but in the matter of day-to-day management, like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself. For redressing the grievances of employees of aided and unaided institutions who are subjected to punishment or termination from service, a mechanism will have to be evolved, and in our opinion, appropriate tribunals could be constituted, and till then, such tribunals could be presided over by a Judicial Officer of the rank of District Judge. The State or other controlling authorities, however, can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a principal of any educational institution. Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State, without interfering with the overall administrative control of the management over the staff. Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State, without interfering with the overall administrative control of the management over the staff. Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee. A. 9 The scheme framed by this Court in Unni Krishnan case and the direction to impose the same, except where it holds that primary education is a fundamental right, is unconstitutional. However, the principle that there should not be capitation fee or profiteering is correct. Reasonable surplus to meet cost of expansion and augmentation of ­facilities does not, however, amount to profiteering. 56. The conflict has to be resolved keeping the aforementioned findings in view. CORE QUESTIONS : 57. (i) Whether unaided professional institutions are entitled to lay down their own fee structure? (ii) Whether in view of the judgment of this Court in T.M.A. Pai Foundation (supra) private and unaided professional institutions are entitled to have their own admission programme? (iii) Whether the State Governments are entitled to lay down the quota of total seats to be filled up by the management? RELEVANT FINDINGS OF THIS COURT IN T.M.A. PAI FOUNDATION 58. The right to establish and administer educational institutions was held to be guaranteed to citizens under Article 19(1)(g) of the Constitution of India and to the minorities under Article 30. 59. One of us (Chief Justice Khare) while agreeing with the majority delivered a separate opinion relating to aided minority institutions and non-minority institutions as also interpretation of the right of the minorities under Clause (1) of Article 30 vis-a-vis clause (2) of Article 29 and held that such right is limited by the conditions laid down in clause (2) of Article 29 and clause (3) of Article 28. 60. Quadri, J. agreed with the aforementioned view stating: "259. In regard to the minorities seeking recognition and/or aid it was observed in Kerala Education Bill, 1957 ( AIR 1958 SC 956 : 1959 SCR 995 ) that the minorities cannot surely ask for aid or recognition for an educational institution run by them in unhealthy surroundings, without any competent teachers, possessing any semblance of qualification, and which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars. In such matters, "the State can insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institutions to be aided", (emphasis supplied). Thus, it is clear that regulations postulated for granting recognition or aid ought to be with regard to the excellence of education and efficiency of administration viz. to make certain healthy surroundings for the institutions, existence of competent teachers possessing requisite qualifications and maintaining fair standard of teaching. Such regulations are not restrictions on the right but merely deal with the aspects of proper administration of an educational institution, to ensure excellence of education and to avert maladministration in minority educational institutions and will, therefore, be permissible. This is on the principle that when the Constitution confers a right, any regulation framed by the State in that behalf should be to facilitate exercise of that right and not to frustrate it." 61. Pal, J. also agreed with the said view stating: "Similarly, the Constitution has also carved out a further exception to Article 29(2) in the form of Article 30(1) by recognising the rights of special classes in the form of minorities based on language or religion to establish and administer educational institutions of their choice. The right of the minorities under Article 30(1) does not operate as discrimination against other citizens only on the ground of religion or language. The reason for such classification is not only religion or language per se but minorities based on religion and language. Although, it is not necessary to justify a classification made by the Constitution, this fact of 'minorityship' is the obvious rationale for making a distinction, the underlying assumption being that minorities by their very numbers are in a politically disadvantaged situation and require special protection at least in the field of education. Articles 15(4), 337 and 30 are therefore facets of substantive equality by making special provision for special classes on special considerations." 62. Articles 15(4), 337 and 30 are therefore facets of substantive equality by making special provision for special classes on special considerations." 62. One of us (Variava, J.) speaking for himself and Bhan, J. agreed with the majority but thought it appropriate that a mechanism therefor should be set up observing: "So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as conditions of affiliation to a University or Board have to be complied with, but in the matter of day-to-day Management, like appointment of staff, teaching and non-teaching and administrative control over them, the Management should have the freedom and there should not be any external controlling agency. However, a rational procedure for selection of teaching staff and for taking disciplinary action has to be evolved by the Management itself. For redressing the grievances of such employees who are subjected to punishment or termination from service, a mechanism will have to be evolved and in our opinion, appropriate tribunals could be constituted, and till then, such tribunal could be presided over by a Judicial Officer of the rank of District Judge. The State or other controlling authorities, however, can always prescribe the minimum qualifications, salaries, experience and other conditions bearing on the merit of an individual for being appointed as a teacher of an educational institution. Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State without interfering with overall administrative control of Management over the staff, Government/University representative can be associated with the selection committee and the guidelines for selection can be laid down. In regard to un-aided minority educational institutions such regulations, which will ensure a check over unfair practices and general welfare, of teachers could be framed. There could be appropriate mechanism to ensure that no capitation fee is charged and profiteering is not resorted to. The extent of regulations will not be the same for aided and unaided institutions." 63. The majority held that there is an apparent conflict between the provisions of clause (2) 'of Article 29 and clause (1) of Article 30. There could be appropriate mechanism to ensure that no capitation fee is charged and profiteering is not resorted to. The extent of regulations will not be the same for aided and unaided institutions." 63. The majority held that there is an apparent conflict between the provisions of clause (2) 'of Article 29 and clause (1) of Article 30. Article 29 guarantees the right to every citizen not to be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste; language or any of them; whereas clause (1) of Article 30 confers a fundamental right to set up educational institutions of their choice. 64. A delicate balance was sought to be struck by stipulating that minority educational institutions may admit non-minority students to a "reasonable extent" so that the rights of both minorities and non-minorities are protected. However, the extent to which such balance is to be struck may be determined by the State having regard to such factors as 'the type of institution', 'course of education', population and educational needs of minorities'. It was further laid down that the minority institutions are required to admit students having regard to inter-se merit amongst the applicants. Non-minorities students, who qualify the test, would be entitled to seek admission against the "allotted seats" as per their own respective cumulative merit. 65. However, one of us Variava, J. , speaking for himself and Bhan, J. clearly held that where the minority institutions take aid from the State they do not have any right to admit students of minority community alone. For arriving at the said conclusion, the learned Judge referred to the history of the said provision and the intention of the founding fathers, which was the conferment of a right of minorities to establish "a secular state wherein people belonging to the different religions should all have a feeling of equality and non-discrimination". 66. The learned Judge further referred to the significance of conditional clause, 'at their own expense' in the draft article VI which reads as follows: "Citizens belonging to national minorities in a state whether based on religion or language have equal rights with other citizens in forming, controlling and administering at their own, expense, charitable, religious and social institutions, schools and other educational establishments with the free use of their language and practice of their religion. No legislation providing state-aid for schools shall discriminate against schools under the management of minorities whether based on religion or language." 67. The learned Judge further observed that by reason of Article 30(1) no 'special' or 'additional' right is conferred on the minorities. 68. Expression 'minorities’ although is not defined in the Constitution, one of us Khare, CJI, referred to the Year Book on Human Rights (1950) and Encyclopaedia Britannica and some other standard works on the theme of protection of minorities. 69. Though in para 153 the view regarding merit was expressed, but while answering the question No. 7 was left open to be answered by the appropriate Benches. 70. The majority opined that the minority status of a group of persons would be determined on the basis of population of the State or Union Territory concerned and not on the whole of the country. It was further held that education within the meaning of the provision of Article 30 would mean and include education from primary level to the post-graduate level and would include professional education as well. 71. The Bench, however, overruled the dicta in Unni Krishnan's case (supra) that education is not a 'business’ or 'occupation' within the meaning of Article 19(1)(g) of the Constitution of India, wherein referring to State of Bombay vs. R.M.D. Chamarbaugwala [ 1957 SCR 874 ] and incorporating the doctrine of res extra commercium, the Court had ­observed: "While the conclusion that 'occupation' comprehends the establishment of educational institutions is correct, the proviso in the aforesaid observation to the effect that this is so provided no recognition is sought from the state or affiliation from the concerned university is, with the utmost respect, erroneous. The fundamental right to establish an educational institution cannot be confused with the right to ask for recognition or affiliation." 72. While declaring that the Scheme framed in Unni Krishnan's case (supra) and the directions issued to the Government, UGC and other concerned bodies to give effect to the same vis-a-vis privately managed educational institutions as unconstitutional, it upheld two propositions : (1) primary education is a fundamental right; and (2) the institution cannot charge any capitation fee or otherwise take recourse to profiteering. It was observed : "The scheme framed by this Court in Unni Krishnan's case and the direction to impose the same, except where it holds that primary education is a fundamental right, is unconstitutional. However, the principle that there should not be capitation fee or profiteering is correct. Reasonable surplus to meet cost of expansion and augmentation of facilities does not, however, amount to profiteering. " 73. The Bench agreed with the contention of the private institutions that affiliation and recognition has to be made available to every institution that fulfils the conditions for grant thereof observing : ''The private institutions are right in submitting that it is not open to the Court to insist that statutory authorities should impose the terms of the scheme as a condition for grant of affiliation or recognition; this completely destroys the institutional autonomy and the very objective of the institution." 74. The Court, however, laid emphasis that in professional education merit should be the criteria. 75. With a view to appreciate the extent to which the Scheme formulated in Unni Krishnan was not found favour with T.M.A. Pai Foundation (supra), we may set out the observations of this Court in T.M.A. Pai Foundation (supra) as follows: 1. Establishment of Educational Institutions All citizens have a right to establish and administer educational institutions under Articles 19(1)(g) and 26, but this right is subject to provisions of Articles 19(6) and 26-A. (See Answer to Question Nos. 10 & 11). 2. Admission to Courses (i) Private Unaided Professional Colleges: (a) Admission to .professional colleges should be based on merit by common entrance test conducted by the Government agencies (See Paragraph 59) (b) Certain percentage of seats can' be reserved for admission by management out of those students who have passed common entrance test held by itself or by the State agency and the rest of the seats may be filled up on the basis of counselling by the State agency. Prescription by percentage has to be determined by the Government according to local needs (See Paragraph 68) (c) When one considers the Constitution Bench's earlier statements that higher education is not a fundamental right, it seems unreasonable to compel a citizen to pay for the education of another more so in the unrealistic world of competitive examinations which assess the merit for the purpose of admission solely on the basis of marks obtained where urban students always have an edge over rural students. Those who seek professional education must pay for it. (See Paragraphs 37 &70). 2(ii) Private aided professional institutions: 76. It would be permissible for the authority giving aid to prescribe, by Rules or Regulations the conditions on the basis of which the admissions shall be granted to different aided colleges by virtue of merit coupled with reservation policy of the State. The merit may be determined either through the common entrance test conducted by the University or the Government followed by counseling or on the basis or entrance, test conducted by individual institution, and method to be followed is for the Government or University to decide. 2(iii) Private aided minority institutions: 77. The State Government is not entitled to interfere with the right of minority educational institutions to admit students of their choice so long as the admission is on a transparent basis and the merit is adequately taken care of. The right not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellency thereof, specially in the case of admission to professional institutions. (See Page 588, Q 4). 2(iv) Unaided minority institutions: 78. Such institutions would have the right of admission of students belonging to minority groups and at the same time would be required to admit reasonable extent of non-minority students as notified by the State Government. In case of professional institutions it can also be stipulated that passing of common entrance test held by the' State agency is necessary to seek admission. [Page 588, Qs. 4, 5 (a) and 5(b)]. 3. Reservation of Seats 79. In case of professional institutions it can also be stipulated that passing of common entrance test held by the' State agency is necessary to seek admission. [Page 588, Qs. 4, 5 (a) and 5(b)]. 3. Reservation of Seats 79. ...While the State has a right to prescribe qualifications necessary for admission, private unaided colleges have right to admit students of their choice subject to objective and rational procedure of selection and the compliance with the conditions if any requiring admission of certain percentage of students belonging to weaker sections by granting them free scholarships or scholarships if not granted by the Government (paragraph 53). 4. Fee Structure 80. (i) ..Scheme of "free" and ''Payment" seats was evolved on the presumption that the economic capacity of the 50 per cent of admitted students would be greater than the remaining 50 , whereas the converse has proved to be the reality. In this scheme, the "Payment" seat student would not only pay for his own seat, but also finance the cost of a "free seat" classmate. It seems unreasonable to compel a citizen to pay for the education of another, more so in the unrealistic world of competitive examinations which assess the merit for the purpose of admission solely on the basis of marks obtained where urban students always have an edge over rural students. In practice, it has been the case of the marginally less merited rural or poor students bearing the burden of a rich and well exposed and urban students. (See Paragraph 37). (ii) The decision in Unni Krishnan insofar as it framed the Scheme relating to grant of admission and fixing fee was not correct, and to that extent the said decision and consequent direction given to UGC, AICTE, Medical Council of India, Central and State Governments etc.; is overruled. (Paragraph 45). (iii) A rational fee structure should be adopted by the management and it would not be entitled to charge capitation fee and appropriate machinery can be devised by the State or University to ensure that no capitation fee is charged and that there is no profiteering, though a reasonable surplus in furtherance of education is permissible. The conditions of granting recognition or affiliation can broadly cover academic and educational matters including, the welfare of students and teachers (Paragraph 69, Q.9.). 81. The problem presented in these matters should be viewed from the aforementioned perspective. 82. The conditions of granting recognition or affiliation can broadly cover academic and educational matters including, the welfare of students and teachers (Paragraph 69, Q.9.). 81. The problem presented in these matters should be viewed from the aforementioned perspective. 82. There is a fundamental right to set up educational institutions both under Article 19 (1) (g) and Article 30 of the Constitution of India. It held that the Scheme framed by this Court in Unni Krishnan did not impose reasonable restrictions within the meaning of Clause (6) of Article 19 of the Constitution of India. The unaided institutions compared to the aided institutions will have more autonomy to run the institutions. However, in the matter of non-professional institutions, the autonomy is absolute which is not the case in professional Institutions. 83. The right to establish and administer an institution comprises of the right: (a) to admit students; (b) to set up a reasonable fee structure; (c) to constitute a governing body; (d) to appoint staff (teaching and-non-teaching); and (e) to take action if there is dereliction of duty on the part of any em­ployees. 84. As regards fee structure, it was held that the fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions. Although an educational institution is not a business, in order to examine the degree of independence that can be given to a recognized, educational institution, like any private entity that does not seek aid or assistance from the Government, and that exists by virtue of the funds generated by it, including its loans or borrowings. It is important to note that the essential ingredients of the management of the private institution include the admission of students and recruiting staff, and the quantum of fee that is to be charged. 85. An educational institution is established for the purpose of imparting education of the type made available by the institution. Different courses of studies are usually taught by teachers who have to be recruited as per qualifications that may be prescribed. It is no secret that better working conditions will attract better teachers. More amenities will ensure that better students seek admission to that institution. Different courses of studies are usually taught by teachers who have to be recruited as per qualifications that may be prescribed. It is no secret that better working conditions will attract better teachers. More amenities will ensure that better students seek admission to that institution. One cannot lose sight of the fact that providing good amenities to the students in the form of competent teaching faculty and other infrastructure costs money. It has, therefore, to be left to the institution, if it chooses not to seek any aid from the government, to determine the scale of fee that it can charge from the students. One also cannot lose sight of the fact that we live in a competitive world today, where professional education is in demand. We have been given to understand that a large number of professional and other institutions have been started by .private parties who do not seek any governmental aid. In a sense, a prospective student has various options open to him/her where, therefore, normally economic forces have a role to play. The decision on the fee to be charged must necessarily be left to the private educational institution that does not seek or is not dependent upon any funds from the Government. 86. Since the object of setting up of an educational institution is charitable in nature, capitation fee and profiteering cannot be allowed to be indulged in: (a) although the institutions may generate a reasonable revenue surplus for the purpose of development of education and expansion of the institutions. (b) For admission in a professional institutions, merit must play an important role and meritorious candidates should not be treated unfairly or put at a disadvantage by preferences shown to less meritorious but more influential applicants. 87. Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission for which appropriate regulations can be made. As regards determination of merit, it was stated: "Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies." 88. Educational institutions; however, cannot grant admission on their whims and fancies and must follow some identifiable or reasonable methodology of admitting the students. Any scheme, rule or regulation that does not give an institution the right to reject candidates who might otherwise be qualified according to, say, their performance in an entrance test, would be an unreasonable restriction under Article 19(6), though appropriate guidelines/modalities can be prescribed for holding the entrance test in a fair manner. Even when students are required to be selected on the basis of merit, the ultimate decision to grant admission to the students who have otherwise qualified for the grant of admission must be left with the educational institution concerned. However, when the institution rejects some students, such rejection must not be whimsical or for extraneous reasons. 89. The principles governing private unaided professional colleges were dealt with separately in paragraphs 67, 68 and 69; the relevant portions whereof read thus: "It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forgo or discard the principle of merit. It would, therefore, be permissible for the university or the government, at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the Management sufficient discretion in admitting students. This can be done through various methods. For instance; a certain percentage of the seats can be reserved for admission by the Management out of those students who have passed the common entrance test held by itself or by the State/University and have applied to the college concerned, for admission, while the rest of the seats may be filled up on the basis of counseling by the state agency. This will incidentally take care of poorer and backward sections of the society. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the government according to the local needs and different percentages can be fixed for minority unaided and non-minority unaided and professional colleges The same principles may be applied to other non-professional but unaided educational institutions viz., graduation and post graduation non-professional colleges or institutes, In such professional unaided institutions, the Management will have the right to select teachers as per the qualifications and eligibility conditions laid down by the State/University subject to adoption of a rational procedure of selection. A rational fee structure should be adopted by the Management, which would not be entitled to charge a capitation fee. Appropriate machinery can be devised by the state or university to ensure that no capitation fee is charged and that there is no profiteering, though a reasonable surplus for the furtherance of education is permissible. Conditions granting recognition or affiliation can broadly cover academic and educational matters including the welfare of students and teachers. STATUTES OPERATING IN THE FIELD: 90. The Parliament in exercise of its power conferred upon it under Entry 66 List I of the Seventh Schedule of the Constitution of India enacted the Medical Council of India Act, University Grants Commission Act and All India Council for Technical Education Act. Regulations have also been framed pursuant to or in furtherance of the regulation making power contained therein. Section 10(1)(i) of the AICTE Act reads as under :- "10. Functions of the Council.— (1) It shall be the duty of the Council to take all such steps as it may think fit for ensuring co-ordinated and integrated development of technical and management education and maintenance of standards and for the purposes of performing its functions under this Act, the Council may– (a) undertake survey in the various fields of technical education, collect data on all related matters and make forecast of the needed growth and development in technical education; (b) co-ordinate the development of technical education in the country at all levels: (c) allocate and disburse out of the Fund of the Council such grants on such terms and conditions as it may think fit to– (i) technical institutions" 91. Section 12A of UGC Act is as ­follows : "12A. Section 12A of UGC Act is as ­follows : "12A. Regulation of fees and prohibition of donations in certain cases.—(1) In this section,– (a) "affiliation", together with its grammatical variations, includes in relation to a college, recognition of such college by, association of such college with, and admission of such college to the privileges of, a University; (b) "college" means any institution, whether known as such or by any other name which provides for a course of study for obtaining any qualification from a university and which, in accordance with the rules and regulations of such University, is recognized as competent to provide for such course of study and present students undergoing such course of study for the examination for the award of such qualification; (c) "prosecution" in relation to a course of study, includes promotion from one part or stage of the course of study to another part or stage of the course of study; (d) "qualification" means a degree or any other qualification awarded by a University; (e) "regulations" means regulations made under this Act; (f) "specified course of study" means a course of study in respect of which regulations of the nature mentioned in sub-section (2) have been made; (g) "student" Includes a person seeking admission as a student: (h) "university" means a university or institution referred to in sub-section (1) of section 22, (2) Without prejudice to the generality of the provisions of section 12 if, having regard to– (a) the nature of any course of study for obtaining any qualification from any University; (b) the types of activities in which persons obtaining such qualification are likely to be engaged on the basis of such qualification; (c) the minimum standards which a person possessing such qualification should be able to maintain in his work relating to such activities and the consequent need for ensuring; so far as may be, that no candidate secures admission to such course of study by reason of economic power and thereby prevents a more meritorious candidate from securing admission to such course of study; and (d) all other relevant factors, the Commission is satisfied that it is necessary so to do in the public interest, it may, after consultation with the university or universities concerned, specify by regulations the matters in respect of which fees may be charged, and the scale of fees in accordance with which fees shall be charged in respect of those matters on and from such date as may be specified in the regulations in this behalf, by any college providing for such course of study from, or in relation to, any student in connection with his admission to, and prosecution of, such course of study : Provided that different matters and different scales of fees may be so specified in relation to different universities or different classes of colleges or different areas. (3) Where regulations of the nature referred to in sub-section (2) have been made in relation to any course of study, no college providing for such course of study shall - (a) levy or charge fee in- respect of any matter other than a matter specified in such regulations; (b) levy or charge any fees in excess of the scale of fees specified in such regulations, or (c) accept, either directly or indirectly, any payment (otherwise than by way of fees) or any donation or gift (whether in cash or kind), from, or in relation to, any student in connection with his admission to, and prosecution of, such course of study. (4) If, after making, in relation to a college providing, for a specified course of study, an inquiry in the manner provided by regulations, and after giving such college a reasonable opportunity of being heard, the Commission is satisfied that such college has contravened the provisions of sub-section (3), the Commission may, with the previous approval of the Central Government, pass an order prohibiting such college from presenting any students then undergoing such course of study therein to any university for the award of the qualification concerned. (5) The Commission shall forward a copy of the order made by it under sub-section 14) to the university concerned, and on and from the date of receipt by the University of a copy of such order, the affiliation of such college to such university shall, in so far as it relates to the course of study specified in such order, stand terminated and on and from the date of termination of such affiliation" and for a period of three years thereafter affiliation shall not be granted to such college in relation to such or similar course of study by that or any other university, (6) On the termination of the affiliation of any college under sub-section (5), the Commission shall take ail such steps as it may consider appropriate for safeguarding the interests of the students concerned. (7) The provisions of this section and the regulations made for the purposes of this section shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force." 92. (7) The provisions of this section and the regulations made for the purposes of this section shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force." 92. Detailed regulations have been framed under the aforementioned three Acts regulating admission of students, percentage of the minority students to be admitted into non-minority institutions, determination of fee and matters incidental thereto and ancillary therewith. By reason of the said regulations, the State Government, however, have been delegated with the power to determine the fee structure in respect of professional institutions where for requisite guidelines have been issued; pursuant whereto and in furtherance whereof committees have been constituted for the said purpose. 93. The States of Tamil Nadu, Maha­rashtra, Karnataka and Andhra Pradesh enacted, statutes prohibiting collection of capitation fee and regulating admission in professional colleges. In terms of the provisions of the said Acts, the management of the professional colleges is prohibited from charging any fee other than fee determined under the said Acts. The right of the minorities under Article 30 of the Constitution, however, stands protected thereby. The respective State Governments enforced the said statutes in respect of self-financing private institutions, minorities or otherwise. They further issued various Government orders in exercise of their powers under Article 162 of the Constitution of India after the judgment in T.M.A. Pai Foundation. The University Grants Commission, the A.I.C.T.E, and the Medical Council of India, issued provisional/ad hoc guidelines covering the same subject purported to be in terms of the provisions of the principal statutes governing the field in the light of the judgment of this Court in T.M.A. Pal Foundation. The State Governments also in terms of the observations made by this Court issued various orders or adopted resolutions providing for enforcement of their reservation policy as also determining the fee structure. 94. Constitutionality of such Government orders came to be challenged, inter alia, by way of writ petition before the High Courts of Andhra Pradesh, Karnataka and Kerala. Certain interim orders had been passed therein which are under challenge in several Special leave petitions. 95. As noticed hereinbefore, in T.M.A. Pai Foundation's case (supra) only orders and directions issued pursuant to Unni Krishnan have been declared unconstitutional. 96. However, the question with regard to constitutionality or otherwise of the said statutes. Rules and Regulations had not been examined. Certain interim orders had been passed therein which are under challenge in several Special leave petitions. 95. As noticed hereinbefore, in T.M.A. Pai Foundation's case (supra) only orders and directions issued pursuant to Unni Krishnan have been declared unconstitutional. 96. However, the question with regard to constitutionality or otherwise of the said statutes. Rules and Regulations had not been examined. In particular the parliamentary acts and the regulations framed thereunder have not been referred to. The question as to whether the field with regard to the higher education is covered by the parliamentary legislations or not was not adverted to. The extent and scope of the legislative competence of the Parliament and the State Legislatures within the meaning of Entry 66 of List I and Entry 25 of List III of the Seventh Schedule of the Constitution also had not been adverted to. In the aforementioned premise, one of us, Variava, J. stated : "393, The learned Chief Justice has repeatedly emphasised that capitation fees cannot be charged and that there must be no profiteering. We clarify that the authorities concerned will always be entitled to prevent by enactment or by regulations the charging of exorbitant fees or capitation fees. There are many such enactments already in force. We have no gone into the validity or otherwise of any such enactment. No arguments regarding the validity of any such enactment have been submitted before us. Thus those enactments will not be deemed to have been set aside by this judgment. Of course now by virtue of this judgment the fee structure fixed under any regulation or enactment will have to be reworked so as to enable educational institutions not only to break even but also to generate some surplus for future development/expansion and to provide for free seats." 97. Although the parties have raised their contentions as regards constitutionality of some of the provisions of the aforementioned statutes, keeping in view the limited scope for which this Constitution Bench has been constituted, we refrain ourselves from going there into. This exercise has to be undertaken in appropriate cases. ARE THE RIGHTS UNDER ARTICLE 19(1)(g) AND ARTICLE 30(1) OF THE CONSTITUTION OF INDIA EQUAL ? : 98. T.M.A. Pai Foundation (supra) for the first time brought into existence the concept of education as an 'occupation'. This exercise has to be undertaken in appropriate cases. ARE THE RIGHTS UNDER ARTICLE 19(1)(g) AND ARTICLE 30(1) OF THE CONSTITUTION OF INDIA EQUAL ? : 98. T.M.A. Pai Foundation (supra) for the first time brought into existence the concept of education as an 'occupation'. In no uncertain terms, it was, held that all citizens of India irrespective of the fact as to whether they belong to a minority group or not have a right to establish and run on institution. A right conferred on a citizen of India in terms of Article 19(1)(g) of the Constitution of India indisputably is subject to reasonable restrictions, which may be imposed in public interest under clause (6) thereof. The makers of the Constitution no doubt while enacting Article 30 of the Constitution of India intended to confer on the minorities the same right as that of the majority. But, does it mean that for all intent and purport no further or additional right exists in the minority community is the question. 99. Drawing our attention to paragraphs 54, 65, 138, 139, 224-229 of the judgment, Mr. Venugopal and Mr. Vaidyanathan, the learned senior counsel for the respondents would submit that the minority right is equal to that of the majority and not vice-versa. According to learned counsel, if it is to be held that the minority exercises a higher right than the majority, the same would be counter productive to the Indian ethos, Right to admit students of their own choice, the learned counsel would contend, in a professional college, therefore, is not absolute. 100. On the other hand, the learned counsel appearing on behalf of the Writ Petitioners-Applicant would contend that the discussions in T.M.A. Pai Foundation centered round the question as to whether the right conferred upon minorities under Article 30 was subject to clause (2) of Article 29 or not. Our attention was drawn to paragraphs 31 to 45 of the judgment and in particular para 31, 45 and 459 of the judgment. Our attention was drawn to paragraphs 31 to 45 of the judgment and in particular para 31, 45 and 459 of the judgment. The learned counsel would submit that while considering the question as to whether this Scheme framed by this Court in Unni Krishnan was reasonable, it was categorically held that the provisions contained therein to the extent that 50 seats would be free seats and 50 thereof would be payment seats and all examinations would be conducted through Common Entrance Test (GET) and the ceiling on fees was declared unconstitutional as being violative of clause (6) of Article 19 of the Constitution of India. It was submitted that in the event if it be held that the said provisions are ultra vires for the purpose of clause (6) of the Article 19 the same consequences must ensue for construction of Article 30 of Constitution of India. It was contended that having regard to the majority decision of this Court, if it is held, having regard to clause (2) of Article 29 of the Constitution that vi the event an aid is granted to a professional institution, they will be subject to the same restrictions which any other self-financed scheme institution would face in terms of clause (6) of Article 19 of the Constitution of India then, no purpose can be held to have been achieved by the Constitution makers in enacting clause (1) of Article 30 of the Constitution of India. 101. A citizen of India whether belonging to a minority community or not will have the right under Article 19. A person belonging to a minority community apart from 19(1) (g) has a right to establish, administer institution of their choice. In T.M.A. Pai Foundation this Court held that minority institutions can establish and run a professional institution in terms of clause (1 ) of Article 30 of the Constitution having regard to the fact that they have a right to establish an institution of their own choice. 102. A citizen of India with a view to establish an unaided professional institution exercises his right of occupation. To the said extent admittedly the right of the minority and non-minority is equal. Article 30, however, seeks further to protect the minorities so that they may admit students in the institution established by them. This privilege is not extended to the non-minority community. To the said extent admittedly the right of the minority and non-minority is equal. Article 30, however, seeks further to protect the minorities so that they may admit students in the institution established by them. This privilege is not extended to the non-minority community. They also have a right to establish an institution and admit students of their own choice; in terms of Para 68 of the judgment in T.M.A. Pai but they do not have any right of admitting students belonging to a particular locality or speaking a particular language as such institutions are not meant to serve the said purpose. But the same for all intent and purport having regard to the question involved the matter may not he of much consequence as would appear from the discussions made hereinafter. The Bench held : "36. The private unaided educational institutions impart, education, and that cannot be the reason to take away their Choice in matters, inter alia, of selection of students and fixation of fees. Affiliation and recognition has to be available to every institution that fulfills the conditions for grant of such affiliation and recognition. The private institutions are right in submitting that it is not open to the Court to insist, that statutory authorities should impose the terms of the scheme as a condition for grant of affiliation or recognition; this completely destroys the institutional autonomy and the very objective of establishment of the institution. 103. The Scheme framed in Unni Krishnan was held to be unconstitutional by this Court and only in that context it was observed: ''38. The scheme in Unni Krishnan's case has the effect of nationalizing education in respect of important features, viz., the right of a private unaided institution to give admission and to fix the fee. By framing this scheme, which has led to the State Governments legislating in conformity with the scheme the private institutions are indistinguishable from the government institutions; curtailing all the essential features of the right of administration of a private unaided educational institution can neither be called fair nor reasonable. Even in the decision in Unni Krishnan's case. It has been observed by Jeevan Reddy, J., at page 749, para 194, as follows: "The hard reality that emerges is that private educational institutions are a necessity in the present day context. Even in the decision in Unni Krishnan's case. It has been observed by Jeevan Reddy, J., at page 749, para 194, as follows: "The hard reality that emerges is that private educational institutions are a necessity in the present day context. It is not possible to do without them because the Governments are in no position to meet the demand - particularly in the sector of medical and technical education which call for substantial outlays. While education is one of the most important functions of the Indian State it has no monopoly therein. Private educational institutions - including minority educational institutions - too have a role to play." However, it was also noticed : 132. Having regard to our finding on the question of transfer of Mani’s 390 shares to Madhusoodhanan in May, 1985, perhaps the appropriate translation is the one put forward by the official translator which is set out above as (C). This difference of opinion, however, is really of no moment, because the subject matter of Madhusoodhanan’s claim for specific performance is limited to that part of the Karar which provides for the division of shares of the late Sukumaran and Madhavi in the percentage of 50 : 25 : 25 between Madhusoodhanan, Ravi and Srinivasan, on Madhavi’s death. Before considering the merits of this claim, we may briefly refer to the remaining clauses of the Karar. Clauses 4 to 10 relate to the division of assets and shareholding in various family concerns so that each of the brothers had 52 percent shareholding in different concerns as specified below: Mani Laisa Publications Private Ltd. Madhusoodhanan Kaumudi Investment Private Ltd.; Kaumudi Exports Private Ltd.; Kaumudi News Service Private Ltd. Ravi Ravi Printers and Publi- shers Private Ltd.; Kaumudi Films Outdoor Unit; Electronics and Equipment Corporation; Ravi Transport Srinivasan Srinivasan Printers and Publishers Private Ltd. 133. All other establishments were required to be closed down and Madhusoodhanan was appointed for that purpose. Clause 9 provides that if any shareholder in any of the concerns wishes to sell his shares, they must be offered to the “52 shareholders” at a price to be fixed by the others. If the 52 shareholders refuse to purchase the share, the others would have to do so at the value fixed by the concerned company’s auditors according to the Company’s balance-sheet for the previous year. If the 52 shareholders refuse to purchase the share, the others would have to do so at the value fixed by the concerned company’s auditors according to the Company’s balance-sheet for the previous year. Clause 10 provides that the agreement would bind the four brothers and their heirs in the event of the death of any one of them before the agreement was completely implemented. The last clause in the Karar is clause 11. It provides that all pending litigation regarding the subject matter of the Karar, should be withdrawn and that all disputes should be mutually settled, and if this is not possible the matter should be referred to an acceptable third party whose decision would be binding. 134. On 2nd December 1987 Madhavi died and on 10th October 1988, Madhu­soodhanan filed C.S. 6/89 for transfer of 50 of the late Sukumaran and Madhavi’s shares to him and the transfer of 50 of KIPL’s shareholding in Kerala Kaumudi to Ravi and Srinivasan in terms of the Karar. The defendants in the suit were Mani, Srinivasan, Ravi, Kerala Kaumudi and KIPL. They first filed a four page written statement in which they contended that the suit was not maintainable, that the suit was bad for mis-joinder and non-joinder of parties, that the suit had been improperly valued and proper court fees not paid, that the suit was barred by limitation, that the Karar was barred by the provisions of the Specific Relief Act, 1963 and that the court did not have the jurisdiction to entertain the suit. 135. The learned Single Judge decided each of the issues raised in favour of Madhusoodhanan and decreed the suit. The Division Bench allowed the appeal (A.S. 211/9). The reasons which persuaded the Division Bench to allow the appeal were first: no steps had been taken by Madhusoodhanan for determination of the price of 390 shares or the ‘inherited shares’ of for making the same known to the other parties or for carrying out the other provisions in the Karar—in particular closing down of Blue Travels, Kaumudi Hotels and Blue Transports. Second, there was not averment in the plaint regarding consideration and no relief sought for in relation to the fixation or payment of consideration. Second, there was not averment in the plaint regarding consideration and no relief sought for in relation to the fixation or payment of consideration. Third, in contravention of Section 16 of the Specific Relief Act there was no averment in the plaint about the preparedness of Madhusoodhanan to pay the consideration; fourth, since there has been no transfer of the 390 shares, it was not possible to enforce the Karar in respect of the bulk of shares regarding which specific performance had been claimed. Fifth, Madhusoodhanan could not claim specific performance of only that part of the agreement which was in his favour without performing the obligations which were cast on him by the other clauses. These clauses were inseparable and part performance of the agreement was not possible. Sixth, there was an undue delay in filing the suit. Seventh, compared to the assets owned by Kerala Kaumudi and KIPL, both of which were to go to Madhusoodhanan in terms of the Karar, the worth of Kala Kaumudi (allotted to Mani) and Ravi Printers (allotted to Ravi) was insignificant, the last fact justifying the court’s refusal to grant specific performance of the Karar under section 20 of the Specific Relief Act. The appeal was, therefore, allowed and the suit dismissed. 136. We have already said that except for clauses 1, 2, 3 and 11, all the other clauses of the Karar related to the division of the several concerns among the four brothers. In deciding whether the agreement should be implemented, the Appellate Court overlooked the basic fact that each of brothers had been given the majority shareholding of 52 percent in the companies specified against their names in the Karar. Since the other three brothers had taken the full benefit of the Karar, they were bound to comply with all its terms. It was not open to them to accept that portion of the Karar which was in their favour and jettison the rest. And the Karar which is in the nature of a family settlement seeking to settle disputes between brothers, having been already acted upon at least to the extent that the four brothers were each given the majority shareholding in the different companies as mentioned in the Karar, should not be lightly interfered with. (See K.K. Modi versus K.N. Modi and others: (1998) 3 SCC 573 ). 137. (See K.K. Modi versus K.N. Modi and others: (1998) 3 SCC 573 ). 137. The Division Bench has not adverted to this all. It is also on record that Madhu­soodhanan had transferred the bulk of his shareholding in the companies which were to be under the majority control of the other three brothers. The learned Single Judge had hold that Madhusoodhanan had given evidence that he had taken steps for closing down the companies not mentioned in the Karar. This finding has not been questioned. All the clauses except for the transfer of the ‘inherited shares’ to Madhusoodhanan had been acted on. Madhusoodhanan was entitled to insist on the performance of this clause as well. The respondents cited Article 29 of the Articles of the company in support of their argument that exhibits R. 59 and 60 overrode the Karar insofar as it required that 50 of the shares of the late K. Sukumaran and Madhavi had to be transferred to Madhu­soodhanan on Madhavi’s death. Article 29 says that the executors or administrators of the deceased sole holder of a share shall be the only persons recognised by the company as having any title to the share. It was the contention of the respondents that insofar as the Karar provided for the transfer of the shares of the late Sukumaran and Madhavi to Madhusoodhanan, it was contrary to Article 29 of the Articles of Association of the company and could not be enforced. This submission is made on the basis of the decision of this Court in V.B. Rangaraj versus B. Gopalkrishnan, ( AIR 1992 SC 453 ). 138. That decision must be understood and read after enunciating certain basic principles relating to the transfer of shares and in the background of earlier decisions on the subject. It is settled law that shares are movable properties and are transferable. As far as private companies like Kerala Kaumudi are concerned, the Articles of association restrict the shareholder’s right to transfer shares and prohibit any invitations to the public to subscribe for any shares in, or debentures of, the company. This is how a “private company” is now defined in section 3 (1) (iii) of the Companies Act, 1956 and how it was defined in section 2 (13) of the 1913 Act. 139. This is how a “private company” is now defined in section 3 (1) (iii) of the Companies Act, 1956 and how it was defined in section 2 (13) of the 1913 Act. 139. Subject to this restriction, a holder of shares in a private company may agree to sell his shares to a person of his choice. Such agreements are specifically enforceable under section 10 of the Specific Relief Act, 1963, which corresponds to section 12 of the Specific Relief Act, 1877. The section provides that specific performance of such contracts may be enforced when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done, or when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief. In the case of a contract to transfer movable property, normally specific performance is not granted except in circumstances specified in the Explanation to section 10. One of the exceptions is where the property is “of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market”. It has been held by a long line of authority that shares in a private limited company would come within the phrase “not easily obtainable in the market” (See: Jainarain Ram Lundia v. Surajmull Sagarmull & Ors. A.I.R. (36) (1949) F.C. 211, 218). The Privy Council in The Bank of India Ltd. versus J.A.H. Chinoy: (A.I.R. 1950 P.C. 90) said: “it is also the opinion of the Board that, having regard to the nature of the company and the limited market for its shares, damages would not be an adequate remedy” specific performance of a contract for transfers of shares in a private limited company could be granted. 140. In 1965, this Court while dealing with proceedings rising out of sections 397, 398, 402 and 403 of the Companies Act, 1956 in the case of S.P. Jain versus Kalinga Tubes: A.I.R. 1965 SC 1535, had occasion to consider the effect of an agreement relating to the issue of new shares in a company between two shareholders and an outsider. It may be noted at the outset that there is a distinction between the issue of new shares by a company and the transfer of shares already issued by a shareholder. It may be noted at the outset that there is a distinction between the issue of new shares by a company and the transfer of shares already issued by a shareholder. In the first case, it is the company which issues and allots the new shares. In the second, the transaction is a private arrangement and the company comes into the picture only for the purposes of recognition of the transferee as the new shareholder. Therefore, while it is imperative that the company should be a party to any agreement relating to the allotment of new shares, before such an agreement can be enforced, it is not necessary for the company to be a party in any agreement relating to the transfers of issued shares for such agreement to be specifically enforced between the parties to the transfer. 141. In S.P. Jain’s case, the company was a private limited company to begin with. An agreement was entered into between two shareholders and S.P. Jain, who was not a member, which internally provided that S.P. Jain would be allotted shares after the share capital of the company was increased equal to those held by the said two shareholders. The company was not a party to it nor were the other shareholders. In terms of the agreement there was an increase in the share capital and shares were allotted to S.P. Jain. Some years later, after the company had been converted into a public company, a decision was taken by the company to issue fresh shares. The shares were not allotted to S.P. Jain. Alleging oppression by the majority shareholders, S.P. Jain filed proceedings in which it was contended that the subsequent allotment of the new shares was in violation of the agreement between S.P. Jain and the two shareholders. In this context, this Court rejected S.P. Jain’s plea on the grounds that S.P. Jain was not a member of the company when the agreement was entered into; the company was not a party to the ­agreement and was not bound by its terms; there was no provision in the agreement as to what would happen if and when the share ­capital was actually increased beyond the increase at the time of the agreement. Therefore it was held that as far as the company was ­concerned, it was free to dispose of shares as its directors or shareholders in a general meeting considered proper without regard to the agreement. 142. The decision does not in any way hold that the transfer of shares agreed to ­between shareholders inter se does not bind them or cannot be enforced like any other agreement. 143. In Rangaraj’s case, relied upon by the respondents, an agreement was entered into between the members of the family who were the only share holders of a private company. The agreement was that for all times to come each of the branches of the family would always continue to hold equal number of shares and that if any member in either of the branches wished to sell his share/shares, he would give the first option of purchase to the members of that branch and only if the offer so made was not accepted, the shares would be sold to others. This was a blanket restriction on all the shareholders, present and future. Contrary to the agreement, one of the shareholders of one branch sold his shares to members of the second branch. Such sale was challenged in a suit as being void and not binding on the other shareholders. This Court rejected the challenge holding that the agreement imposed a restriction on shareholders rights to transfer shares which was contrary to the articles of association of the company. It was therefore held that such a restriction was not binding on the company or its shareholders. The decision is entirely distingushable on facts. There is no such restriction on the transferability of shares in the Karar. It was an agreement between particular shareholders relating to the transfer of specified shares, namely those inherited from the late Sukumaran and Madhavi, inter se. It was unnecessary for the company or the other shareholders to be a party to the agreement. As provided in clause 10 of the Karar. Exhibits R-59 and R-60 did not obviate compliance with the Karar. Both Ex. R-59 and R-60 were executed on 15-7-1985 several months prior to the Karar. The parties who had consciously entered into the agreement regarding the transfer of their parents shares are therefore obliged to act in terms of the Karar. The defence of Ravi and Srinivasan based on Ex. Both Ex. R-59 and R-60 were executed on 15-7-1985 several months prior to the Karar. The parties who had consciously entered into the agreement regarding the transfer of their parents shares are therefore obliged to act in terms of the Karar. The defence of Ravi and Srinivasan based on Ex. R-59 and R-60 should not, in the circumstances, have been accepted by the Division Bench. Having regard to the nature of the shareholding, on the basis of the law as enunciated by the Federal Court and Privy Council in the decisions noted above, it must be held that the Karar was specifically performable. 144. As far as the question of consideration is concerned, we have already held that parties can agree to subsequently determine the price at which the shares were sold and section 9 of the Sale of Goods Act, 1930 expressly provides that such contracts are perfectly legal. Besides, the Karar in terms does not call upon parties to determine the consideration. All it says is that once the consideration was determined by Madhusoodhanan and Mani, it would be made known to the others. Since there was no such determination, there was no question of informing anyone. The finding that there was no determination of the consideration in respect of the inherited shares as a ground for holding that the Karar was not specifically performable is similarly incorrect as the determination of the price formed no part of the Karar. 145. Coming to the reasoning of the Division Bench with regard to non-compliance with section 16 of the Specific Relief Act, 1963. The section provides: “S.16. Personal bars to relief.—Specific performance of a contract cannot be enforced in favour of a person— x x x x x x x x x x x x x x x x x x x x x (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms of the performance of which has been ­prevented or waived by the defendant. Explanation.—For the purpose of clause (c)– (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the Court, (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.” 146. We called for the plaint filed by Madhusoodhanan in order to verify whether the Division Bench was correct in coming to the conclusion that section 16 of the Specific Relief Act had not been complied with. We found that paragraph 14 of the plaint reads: “the plaintiff was always ready and willing to perform his part of the agreement and is even now ready to perform his part of contract. The transfer of shares in respect of other companies have already taken place in accordance with the Karar dated 16-1-1986”. In view of this clear averment, the finding of the Division Bench regarding the contravention of section 16 of the Specific Relief Act, was perverse. 147. On the question of delay the cause of action arose when Madhavi died in December, 1987. It cannot reasonably be said that filing of the suit ten months later was unreasonably delayed since some time must be given to see whether the parties did what they were required to do under the Karar after Madhavi’s death. 148. Finally, the exercise of discretion by the Division Bench purportedly under section 20 of the Specific Relief Act was contrary to the terms of the section itself. Guidelines for the exercise of the Court’s discretion to decree specific performance of an agreement have been statutorily laid down in sub-section (2). The Division Bench appears to have relied on clause (a) of section 20(2) to deny specific performance of the Karar by holding that Madhusoodhanan had obtained an unfair advantage over others under the Karar because he had been allotted the more ‘substantial’ companies. This logic flics in the face of clause (a) of sub-section (2) to section 20 and the explanation thereto—which say: “S.20. This logic flics in the face of clause (a) of sub-section (2) to section 20 and the explanation thereto—which say: “S.20. Discretion as to decreeing specific performance.—x x (2) The following are cases in which the court may properly exercise discretion not to decree specific performance - (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant. x x x x x x x x x x x x x x x x x x x Explanation 1.—Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair ad­vantage within the meaning of clause (a) or hardship within the meaning of clause (b)”. 149. This section is an instance of such legislative clarity that it needs no paraphrasing to highlight its intent. The Division Bench was clearly wrong in its foray into the question of the value of the assets allotted under the Karar. It has, despite Explanation 1 to Section 20(2) refused specific performance of the Karar on one of the excluded grounds viz., inadequacy of consideration. 150. The parties are at loggerheads and it is unlikely that they will mutually agree to a price to be paid for the 390 transferred shares or the ‘inherited shares’ as envisaged at the meeting held on 23rd April, 1985 (Ex. P.62(b)) or to a mutually acceptable third party in terms of clause 11 of the Karar dated 16th January, 1980 (Ex.P-8). The solution to this impasse is available under sub Section 9(2) of the Sale of Goods Act, 1930 read with Article 25 of the Articles of Association of Kerala Kaumudi. Under the first if the price is not fixed in the manner agreed to in the contract of sale the buyer shall pay the seller a reasonable price and what would be a reasonable price would be dependent on the circumstances of the case. Article 24 of the Articles of Association of the company speaks of the ‘fixed price’ and the ‘fair price’. Both of these relate to the ostensible price shown on the transfer deeds. Article 24 of the Articles of Association of the company speaks of the ‘fixed price’ and the ‘fair price’. Both of these relate to the ostensible price shown on the transfer deeds. Nevertheless for the purposes of this case, Article 25 which lays down guidelines for the resolution of disputes between the transferor and transferee, may be relied on. It says: Article 25: “The fair value of share shall be fixed by the Company by a resolution passed by a majority of not less than three fourths of the holders of such shares declaring the fair value. Such resolution shall remain in force for two years from the date of its passing or until annulled whichever is earlier. If at the time a transfer notice is given no resolution fixing the fair value is in force: then any difference in regard thereto shall be referred to two arbitrators, one to be appointed by each party and the provisions of the Indian Arbitration Act, 1940, shall apply”. 151. Although the learned Single Judge in disposing of CP 26/87 gave directions for the appointment of Arbitrators, to determine the value of the shares, in our view it would be more appropriate to do so in decreeing the suit for specific performance of the Karar. It is also not clear from the material on record, in which of the brothers’ name 9 shares of the late Sukumaran and the 3 shares of Madhavi now stand. Who ever is recorded as the owner of the shares shall further transfer six of those shares to Madhusoodhanan. 152. For all these reasons, we have no hesitation in setting aside the decision of the Appellate Court and restoring the decree as passed by the Trial Court as modified below. “Madhusoodhanan will appoint one Arbitrator and Mani and his children, Sukumaran and Ravi will appoint one Arbitrator within one month to decide the following matters. Falling this any one of them may move this Court to appoint an Arbitrator to decide: (a) What was the fair value of one share of Kerala Kaumudi (P) Ltd. on 21-5-1985? (b) What amount was paid or adjusted by or on behalf of M.S. Madhu­soodhanan to M.G. Mani towards the value of shares? What is the balance amount due from Madhu­soodhanan to Mani and his children in respect of the transfer of the 390 shares transferred to M.S. Madhusoodhanan. (b) What amount was paid or adjusted by or on behalf of M.S. Madhu­soodhanan to M.G. Mani towards the value of shares? What is the balance amount due from Madhu­soodhanan to Mani and his children in respect of the transfer of the 390 shares transferred to M.S. Madhusoodhanan. (c) What would be the value of one share on the date of Madhavi’s death? 153. It will be open to the parties entitled to the consideration as determined by the Arbitrators to recover the sums due to them from Madhusoodhanan”. Rectification of the Share register of KIPL 154. The application for the rectification of the share register of KIPL under Section 155 of the Companies Act was filed by Mani’s wife and daughter – Kastoori and Valsa respectively, Srinivasan’s wife – Laisa, and Ravi’s wife – Shylaja. Of the 1000 shares issued of KIPL, Madhavi had 10, Kastoori had 240, Valsa had 10, Madhusoodhanan’s wife, Geetha, had 250, Laisa had 250 and Shylaja and 240 shares in 1982. On 4th March 1985, Laisa who, along with Geetha, was a director of the company till then, resigned. She has admitted her resignation in her evidence when she said “I became the director of the company in 1972. I became a shareholder of the company in 1972. I’m not a director of the company now. In March, 1985 I ceased to be a director. I resigned my directorship in March, 1985". 155. According to Madhusoodhanan, at the Board meeting held on 4th March 1985, which was attended by Geetha and Laisa, Laisa’s resignation was accepted and he was appointed as additional director. At the same meeting, the Board approved the transfer of shares by Laisa, Shylaja, Madhavi and Kasturi to Madhusoodhanan Ravi’s minor sons - Deepu and Darsan, Valsa (Mani’s daughter) and Srinivasan so that the shareholding in KIPL became as follows: Geetha 250 shares Madhusoodhanan 270 shares Srinivasan 160 shares Valsa 160 shares Deepu Ravi 80 shares Darsan Ravi 80 shares 156. According to the four applicant for rectification, they had effected no such transfer. Of the four, only Laisa came forward to give evidence in support of the case of rectification of the share register of KIPL [Ex. P-123 (F)] by restoring the position with regard to the shareholding as it existed prior to March 1985. In her deposition Laisa admitted that she had signed the attendance register of KIPL (Ex. Of the four, only Laisa came forward to give evidence in support of the case of rectification of the share register of KIPL [Ex. P-123 (F)] by restoring the position with regard to the shareholding as it existed prior to March 1985. In her deposition Laisa admitted that she had signed the attendance register of KIPL (Ex. P-123) which showed that she had attended the Board Meeting on 4th March 1985. She also admitted that she had signed the minute books of the company including the minutes of the meeting held on 4th March 1985 as well as blank share transfer forms. However she has come forward with this explanation: “I have given blank share transfer forms and other papers signed when Sri Madhusoodhanan brought them to me. I signed those blank transfer forms and papers because Mr. Madhusoodhanan was looking after the affairs of all sister concerns and my husband told me to sign whatever papers be brought by Mr. Madhusoodhanan”. 157. The learned Single Judge dismissed the application for rectification. He held that the 4 brothers had admitted their signatures in Exhibit P-190 which is a record of decisions taken at a meeting held on 29-11-1984 when one of the decisions taken was to entrust separate concerns to each of the brothers, depending upon who was taking an active interest in the company. The decision was implemented by the share transfers in the sister concerns of Kerala Kaumudi and it was not disputed that in respect of Laisa Publications, Srini Printers, Ravi Printers etc., the respective brothers who were in control of those concerns were given 52 percent shares. As far as KIPL was concerned it was decided: “3(b). In Kaumudi Investments and Kaumudi Exports 52 percent of shares will be held by Sri. M.S. Madhu­soodhanan and family and 16 percent each of shares will be held by Sri M.S. Mani and family, Sri M.S. Srinivasan and family and Sri M.S. Ravi and family”. 158. This was effected as far as KIPL was concerned on 4th March, 1985. In Kaumudi Investments and Kaumudi Exports 52 percent of shares will be held by Sri. M.S. Madhu­soodhanan and family and 16 percent each of shares will be held by Sri M.S. Mani and family, Sri M.S. Srinivasan and family and Sri M.S. Ravi and family”. 158. This was effected as far as KIPL was concerned on 4th March, 1985. It was held that the evidence showed clearly that all the necessary steps had been taken to effect the share transfers and that it was immaterial that the petitioners were not parties to exhibit P-190 because the share transfer deeds had been signed and the signatories were bound by that, particularly when they had not established that they had signed the share transfer documents under any misrepresentation, fraud or undue influence or mistake. 159. The Division Bench reversed the decision of the learned single Judge in M.F.A. No. 312 of 1990. It was held that since exhibit P-3, or the Karar, had not been accepted as a valid document, “the projected basis of the transfer disappears” and “the further recording in the minutes of the company would not be sufficient to give legal efficacy to the transfer of shares”. 160. Since we have held that the Karar was a valid agreement, this reason of the Division Bench will not stand. Besides, as observed by the learned single judge, all the necessary documents had been duly executed to effect the transfers of the shareholding as approved in the meeting held in March 1985 in the annual return of KIPL in respect of the year ending on 30 September 1985, this shareholding is reflected. (EX. P-212), Further this is in keeping not only with Karar but also with Ex. P-190 according to both of which Madhu­soodhanan and his group were to have 52 percent shareholding in KIPL and the remaining three brothers - 16 percent each. 161. The explanation given by Laisa that she used to sign whatever papers had been sent by Madhusoodhanan is unbelievable. The Division Bench by relying upon a narrative in a biography of Norman Birkett (The Life of Lord Birkett of Ulverston by H. Montgomery Hyde) chose to accept it. According to Laisa herself, she had been a director of the company, operated the banking accounts and otherwise done whatever was necessary in the discharge of her duties as a director since 1972. According to Laisa herself, she had been a director of the company, operated the banking accounts and otherwise done whatever was necessary in the discharge of her duties as a director since 1972. As we have noted earlier, differences between the 4 brothers had been simmering for a long time which manifested itself in 1984. This was also noted by the Division Bench when it said, “in the year 1984, differences became somewhat apparent”. In the circumstances, Laisa’s facile explanation, that she signed every document in 1985 because of her faith and trust in Madhusoodhanan is clearly false. 162. The next reason given by the Division Bench for allowing the application for rectification was that the original share transfer deeds had not been produced. Madhu­soodhanan had filed an application for production of the original share transfer deeds. He said that he could not produce the share transfer deeds because they were in the ­administrative office of KIPL and that he had been prevented from entering that office. That the administrative office of KIPL is within the Kerala Kaumudi premises in a separate room was also the finding of the Division Bench. Madhusoodhanan and his group’s grievance that they were being denied access to KIPL’s office since April, 1986 was not rejected by the Division Bench as not genuine. But the Division Bench observed “A mere alibi of ­inability to enter the office, cannot be accepted as a sufficiently strong reason for their grievous omission”. The conclusion is as startling as it is unreasonable . For the reasons given ­earlier in connection with transfer of shares in Kerala Kaumudi, we are of the view that here also, the minutes and the other records of the ­company, which prima facie raise a pre­sumption of their veracity, have not been sufficiently disproved by the evidence tendered on behalf of the petitioners in the application for rectification. 163. Apart from the provisions of the Companies Act, Article 41 of the Articles of Association of KIPL (Ex. 163. Apart from the provisions of the Companies Act, Article 41 of the Articles of Association of KIPL (Ex. P-180) also provides: “Where minutes of the proceedings of any general meeting of the company or of any meeting of the Board of Directors has been made and signed in accordance with provisions contained in the preceding article 10 unless the contrary is proved, the meeting shall be deemed to have been duly called and held and all proceedings thereat to have duly taken place, and in particular, all appointment of directors made at the meeting shall be deemed to be valid”. 164. The only evidence or “proof” to the contrary in this case is Laisa’s unacceptable oral evidence. Therefore the minutes of the meeting held on 4th March, 1985 must be taken to have correctly recorded the transfer of shares resulting in the present shareholding, the appointment of Madhusoodhanan as additional director and the resignation of Laisa as a director of KIPL. 165. The next reason given by the Division Bench for permitting ratification of the share register of KIPL was that no price had been fixed for the shares and that there were not even negotiations with parties regarding such fixation of price. This is for reasons already stated, an incorrect statement of the law. Moreover in this case there is the additional factor which has persuaded us to hold that the Division Bench was wrong, namely Article 16 of the Articles of Association of KIPL which says: “the Board of Directors shall fix price at which the shares for the time being forming part of the capital of the company may be purchased in pursuance of transfer notice and the price thus fixed shall be known as the `fair value’. Until the `fair value’ has been fixed as herein provided, a sum equal to the capital paid up on any share shall be deemed to be the fair value of such share.” 166. The Division Bench’s final conclusion that there had been a non-compliance with section 100 of Companies Act because there was no indication about any purchase of stamps or about the share transfer deeds having been duly stamped, is an exercise in speculation. The Articles of Association of KIPL themselves require compliance with section 108 before any transfer can be effected. The Division Bench’s final conclusion that there had been a non-compliance with section 100 of Companies Act because there was no indication about any purchase of stamps or about the share transfer deeds having been duly stamped, is an exercise in speculation. The Articles of Association of KIPL themselves require compliance with section 108 before any transfer can be effected. When the minutes recorded that share transfer deeds had been placed before the Board, when the transfers were approved by the Board in the presence of the only witness for the petitioners, and when none of the documents which were duly maintained by the company recording the transfers of the shares had been disproved, we cannot uphold a finding that the share transfer deeds must have been improperly stamped or ­executed in violation of the provisions of Section 108 of Companies Act. 167. No further reason has been given by the Division Bench for upholding the prayer for rectification of the share register of KIPL. We have, therefore, no compunction in setting aside the decision of the Division Bench and restoring that of the learned Single Judge dismissing the application. Rectification of the Share Register of Kala Kaumudi 168. The next matter is the application for rectification of the Share Register of Kala Kaumudi filed by the minor son of Madhu­soodhanan, Visakh (CP 11/87; MFA No. 285/90; CA 3261/191). This appeal need not detain us as both the courts below have concurrently held that the application had no merit. 169. In keeping with the Karar, Mani and his family have the controlling interest in the company. In June 1985, of the 500 issued shares, Mani and his family held 260, Madhusoodhanan and his children held 80 shares, Srinivasan and his children held 80 shares and Ravi and his children held 80 shares after effecting share transfers by the brothers and their respective groups inter se. A decision was taken by the Board of Directors to increase the paid-up capital of company from Rs. 5 lakhs to Rs. 10 lakhs by the issue of 500 equity shares of Rs. 1000 each. Notice of this was given to the applicant who received it but did not apply to be allotted any of the additional shares. Mani and his wife, Kasturi, offered to purchase 279 shares each. The offer was accepted and additional shares issued in the name of Mani and his wife. 1000 each. Notice of this was given to the applicant who received it but did not apply to be allotted any of the additional shares. Mani and his wife, Kasturi, offered to purchase 279 shares each. The offer was accepted and additional shares issued in the name of Mani and his wife. According to Visakh, he had not been given notice of the offer of the additional shares. The trial court considered the various exhibits tendered in evidence by Mani and his group, including the local delivery book (Ex. R-48), which was signed by Madhusoodhanan, the father and guardian of Vaisakh, to negative the submission of Visakh. We see no reason to interfere with this finding of fact. It is true that the Division Bench proceeded on an erroneous basis when it held that the learned Single Judge had dismissed the application on the ground of delay. Since we have upheld the factual finding of the court of the first instance, this misreading of the Trial Court’s judgment by the Division Bench is of no consequence. 170. We accordingly dismiss the appeal being C.A. 3261/91 without any order as to costs. Civil Suit No. 4 of 1989 171. This brings us to the remaining appeal which arises from a decree passed in a suit filed by KIPL. The suit was originally numbered as OS 1569/88 when it was filed in the Munsiff’s court in Trivandrum. After it was withdrawn on 16 February 1989 by the order of the High Court, it was renumbered as C.S. 4/89, in the suit. KIPL had prayed for a decree of permanent injunction restraining Kerala Kaumudi or any of its Directors or staff or anyone claiming through or under them or any of their agents from disturbing or preventing the peaceful functioning of KIPLs administrative office or in any way obstructing the peaceful possession and enjoyment of the said premises by the defenants until KIPL was evicted under due process of law. 172. That the administrative office of KIPL was in Kaumudi Buildings, Pettah, Trivenadrum cannot be in dispute in view of the categorical finding of the Division Bench to this effect, as noted earlier. According to KIPL, the entire administration of KIPL was carried on from this office. 172. That the administrative office of KIPL was in Kaumudi Buildings, Pettah, Trivenadrum cannot be in dispute in view of the categorical finding of the Division Bench to this effect, as noted earlier. According to KIPL, the entire administration of KIPL was carried on from this office. It has been further averred in its plaint, that Geetha, Madhusoodhanan’s wife, had been denied access to the administrative office when she went there along with a staff in August 1986. She was informed by the reception office that the keys to the room were with Srinivasan who refused to hand over the keys to Geetha. 173. Srinivasan filed a written statement on behalf of Kerala Kaumudi in which it was denied that KIPL had its administrative office in Kaumudi Buildings. According to Srinivasan, Geetha used to sit in Madhusoodhanan’s office when he was the Managing Director of Kerala Kaumudi. 174. On behalf of the plaintiffs, entries in the telephone directory (Ex. P-181), notices and letters issued by the income tax office addressed to KIPL at Kaumudi Buildings (Ex. P-182, 184 and 185) as well as a letter from the Commissioner of Income Tax (Ex. P. 183) similarly so addressed were proved by Madhu­soodhanan. Srinivasan has been unable to explain why the letters and notices to KIPL by the concerned authorities should be addressed to Kaumudi Buildings unless KIPL was functioning from that place. Additionally, Srinivasan also said, in his evidence, “All the sister concerns of Kerala Kaumudi had postbox No. 99 and post office was instructed to put the correspondence addressed to the sister concerns in that postbox No.”. The postbox number in question was Kerala Kaumudi’s. He also said, “At the time when application for telephone was given, applications were given in the name of all ­sister concerns as well as Kerala Kaumudi, in order to get telephone easily. These telephones were allotted. All the telephones are installed in Kerala Kaumudi Buildings “and that for all the sister concerns the telex No. is the same. In view of all this evidence, including the ­admission by Srinivasan, amply justifies the ­conclusion reached by the Trial Court while ­decreeing the suit that KIPL had an office in Kaumudi Buildings to which members of its management and staff have the right of access. 175. In view of all this evidence, including the ­admission by Srinivasan, amply justifies the ­conclusion reached by the Trial Court while ­decreeing the suit that KIPL had an office in Kaumudi Buildings to which members of its management and staff have the right of access. 175. A similar suit had been filed by Kaumudi Exports which was decreed by the learned Single Judge on substantially the same evidence. (C.S. No. 2 of 1989). The appeal from the decree was dismissed by the Division Bench (A.S. No. 205 of 1990). No further appeal has been preferred by the respondents. 176. Logically, the Division Bench should have also rejected the appeal preferred from the decree in CS No. 4/49. However the Division Bench rejected the appeal on the sole ground that although KIPL had been denied access in 1986, the suit had been filed only in 1988. According to the Division Bench “The inaction for a period of two years can be taken to have resulted in the extinction of the present possession. If the plaintiff does not have present possession, injunction could not be an available relief”. This strange piece of reasoning appears to proceed on the basis that the period of ­limitation for extinction of a possessory right is two years which it is not. Besides the claim of KIPL was that it was being denied access. The denial was a continuous one. It was therefore open to KIPL to file a suit while such denial continued by seeking to injunct the obstructers from continuing with the obstruction. Srinivasan’s evidence and the documents referred to hereinabove prove beyond a shadow of doubt, that the adminstrative office of KIPL was in Kaumudi Buildings. That is also what the Division Bench has held. Having come to this conclusion, the division bench erred grievously in denying KIPL the relief it claimed only on the ground of delay, as if what was being dealt with by the Division Bench were an interlocutory application for interim relief. This appeal, C.A. 3259/91, is therefore allowed. 177. To sum up Civil Appeals 3253-58 of 1991 from M.F.A. 330/90 are allowed, and the decision of the Trial Court affirmed with the directions earlier specified. Civil Appeals 3260 and 3261 of 1991 are dismissed Civil Appeal No. 3259 of 1991 is also allowed. This appeal, C.A. 3259/91, is therefore allowed. 177. To sum up Civil Appeals 3253-58 of 1991 from M.F.A. 330/90 are allowed, and the decision of the Trial Court affirmed with the directions earlier specified. Civil Appeals 3260 and 3261 of 1991 are dismissed Civil Appeal No. 3259 of 1991 is also allowed. The decision of the Division Bench is set aside and the decree of the Trial Court is resorted. 178. Before concluding our judgment in all these appeals, we would like to record our displeasure in the manner in which the paper books have been prepared. Documents which are vital for decision on the several issues raised, continue to remain in Malayalam without ­being translated, several exhibits as well as the pleadings, such as plaints, written statements etc. are not on record. Therefore, although our decisions in these nine appeals, except for two, are in favour of Madhusoodhanan and his group, we make no order with regard to the costs to which the appellants would otherwise have been entitled. Appeal allowed. **************** 1 Ascertainment of price (1) The price in a contract of sale may be fixed by the contract or may be left to be fixed in manner thereby agreed or may be determined by the course of dealing between the parties. (2) Where the price is not determined in accordance with the foregoing provisions, the buyer shall pay the seller a reasonable price. what is a reasonable price is a question of fact dependent on the circumstances of each particular case.