Recovery of Shares

Legal Framework for the Recovery of Shares of a Deceased Shareholder

The ownership of shares in a company is a critical aspect of corporate governance and investment. Shareholders invest capital in a company having the expectation of getting a return on their investment, either through dividends or through the appreciation of the value of their shares. However, disputes can arise when shares are unlawfully transferred or sold or when there is a disagreement over the ownership or control of a company.
When a company shareholder passes away, their shares may need to be transferred to their beneficiaries or heirs. The process of recovery of shares of a deceased shareholder can be complex and may require a thorough understanding of the company’s governing documents and ownership structure. This may involve obtaining legal or financial assistance to complete the process correctly.

In general, the first step in the recovery of shares of a deceased shareholder is to determine how the shares were held, such as in the shareholder’s name or a trust. Then, the company’s governing documents should be reviewed to determine the requirements for transferring the shares after a shareholder’s death. This may include providing specific documentation, such as a death certificate and proof of authority to act on behalf of the estate.

The legal framework for the recovery of shares of a deceased shareholder is complex and varies by jurisdiction. Generally, the legal remedies available to shareholders include actions for specific performance, injunctions, and damages. These remedies may be pursued through various legal channels, including the courts, arbitration, and mediation. The specific procedure for pursuing legal remedies will depend on the applicable law, the nature of the dispute, and the desired outcome.

The Legal Framework for Recovery of Shares of a Deceased Shareholder

In India, the legal framework for the recovery of shares of a deceased shareholder is governed by the Indian Succession Act, 1925, the Companies Act 2013^[1], and the guidelines issued by the Securities and Exchange Board of India (SEBI).

Below mentioned is a detailed analysis of the legal framework and guidelines for the recovery of shares in India:

1. Appointment of legal representative: The legal representative of the deceased shareholder must be appointed. This could be the executor of the will, the administrator of the estate, or any other person appointed by a competent court.
2. Notification to the company: The legal representative must notify the company of the shareholder’s death and provide proof of their appointment as the legal representative.
3. Submission of documents: The legal representative must submit the following documents to the company:
   • Death certificate of the shareholder
   • Probate of the will or a succession certificate issued by a competent court
   • Share certificate(s) of the deceased shareholder
4. Verification of documents: The company will verify the documents submitted by the legal representative and ensure they are in order.
5. Transfer of shares: The company will transfer the shares to the legal representative once the documents are verified. The legal representative can then distribute the shares according to the will’s provisions or the intestacy laws.

The SEBI has issued guidelines for transmitting shares, which the companies must follow. These guidelines require the company to transfer the shares within 30 days of receiving the documents from the legal representative. If the company fails to transfer the shares within this period, it may be liable for penalties. The following are the key provisions of the SEBI guidelines:

• Disclosure of transmission process: The company must disclose the process for the transmission of shares on its website and provide clear instructions for the legal representative to follow.
• Processing of transmission requests: The company must process the transmission requests within 30 days of receipt and the required documents.
• Rejection of transmission requests: If the company rejects the transmission request, it must provide the reasons for the rejection in writing to the legal representative.
• Transfer of shares: The company must transfer the shares to the legal representative along with all rights, dividends, and bonuses.
• Penalty for delay: If the company fails to transfer the shares within 30 days, it may be liable for a penalty of 1% per month on the value of the shares.

It is important to note that the specific provisions for the recovery of shares of a deceased shareholder may vary depending on the company’s articles of association and the state in which it is incorporated. Therefore, seeking legal advice is advisable to ensure the procedure is followed correctly.

Legal Remedies for the Recovery of Shares of a Deceased Shareholder

The legal remedies available for the recovery of shares of a deceased shareholder will depend on the specific circumstances of the case, as well as the jurisdiction in which the company is located.

Below, we will discuss some of the most common legal remedies that may be available.

Reissuance of share certificates

One of the most common remedies for the recovery of shares of a deceased shareholder is issuing share certificates. This remedy may be appropriate in cases where the shareholder has lost or had their share certificate stolen. The shareholder can apply to the company for a new share certificate issued in their name, effectively replacing the lost or stolen certificate.

In many jurisdictions, the company must verify the shareholder’s identity and confirm that they are the rightful owner of the shares before issuing a new certificate. The company may also require the shareholder to provide a statutory declaration or affidavit confirming that they have not transferred or sold the shares to another party.

Restitution or unjust enrichment

In cases where shares have been unlawfully transferred or sold, the shareholder may be able to seek restitution or recovery based on principles of unjust enrichment. Restitution is a legal remedy that seeks to restore the plaintiff to the position they would have been in if the wrongful Act had not occurred. Unjust enrichment refers to situations where one party has been unjustly enriched at the expense of another party.

To establish a claim for restitution or unjust enrichment, the shareholder must show that they had a valid ownership interest in the shares and that they were wrong.

Injunctions

Under section 40 of the Companies Act, Injunctions are legal orders issued by a court that requires a person or entity to do or refrain from doing something. In cases where shares have been unlawfully transferred or sold, a shareholder may seek an injunction to prevent the transferor or transferee from dealing with the shares.

For example, suppose a shareholder discovers that their shares have been transferred without their consent. In that case, they may seek an injunction to prevent the transferee from selling or disposing of the shares until the matter is resolved.

Specific performance

Under Section 36 of the Companies Act, Specific performance is a legal remedy that requires a party to fulfil a specific obligation rather than providing monetary damages. In cases where shares have been unlawfully transferred or sold, a shareholder may be able to seek specific performance to require the transferor or transferee to transfer the shares back to them.

To establish a claim for specific performance, the shareholder will typically need to show that there is no other adequate remedy available and that the transfer of the shares is necessary to provide them with the relief they seek.

Damages

Under Section 46 of the Companies Act, In cases where shares have been unlawfully transferred or sold, a shareholder may also seek monetary damages to compensate them for any losses due to the wrongful Act. Damages may include the value of the shares when they were wrongfully transferred and any other losses that can be directly attributed to the transfer.

In addition to the Companies Act, shareholders may have access to other legal remedies, such as those available under the Indian Contract Act of 1872 and the Specific Relief Act of 1963. Overall, the legal framework for the recovery of shares of the deceased shareholder in India provides shareholders with a range of legal remedies to protect their interests and ensure that they receive the relief they are entitled to under the law.

Conclusion

The process of recovery of shares of a deceased shareholder is a complex process that requires a better understanding of the company’s governing documents and ownership structure. The general steps involved in this process include determining the ownership structure, reviewing the company’s governing documents, obtaining required documentation, contacting the company’s transfer agent or investor relations department, and obtaining legal assistance if necessary.

It is essential to note that the specific steps involved in recovering shares may vary depending on the company’s governing documents, ownership structure, and other factors. Seeking guidance from legal or financial experts is recommended to ensure the process is completed correctly and the shares are transferred to the appropriate parties.

Overall, in the recovery of shares of a deceased shareholder requires attention to detail, patience, and a willingness to seek expert guidance when necessary. Following the appropriate steps and seeking assistance as needed can complete the process successfully, and the shares can be transferred to the appropriate parties.

Also Read:
Challenges in Recovering Shares
Essential Directions on Recovery of Shares in India