Summarize the following court judgment. vil Appeal No. 5 186 of 1989. From the Judgment and Order dated 31.8.1989 of the Delhi High Court in Company Appeal No. 35 of 1988. F.S. Nariman	 Ashok K. Mahajan and Subhash Sharma for the Appellants. Anil B. Devan and Vinoo Bhagat for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI	 CJ. Leave granted. This is an appeal from the judgment and order of the Division Bench of the High Court of Delhi	 dated 31st Au gust	 1989. The appellant No. 1 M/s World Wide Agencies (P) Ltd. is a private limited company incorporated under the provisions of the Indian (hereinafter referred to as 'the Act ') to which Table 'A ' of Schedule 1 to the Act applies	 as stipulated under the Articles of Association of the company. As per the memorandum of associ ation the appellant company was carrying on the business of travel agents at G 40	 Connaught Circus	 New Delhi. The authorised Share capital of the company was to the tune of Rs.5 lakhs divided into 5000 equity shares of Rs. 100 each. The paid up capital as per the last annual return filed by the company with the Registrar of Companies	 was Rs.2	01	000. The company had at all relevant times 7 share holders and the total number of shares subscribed and paid up was 2010 shares. The appellant No. 2 Mrs. Amrit Kaur Singh	 at all rele vant times	 was a shareholder holding 545 fully paid up shares in the share capital of the company	 and was also the whole time working Director of the company	 holding the office from 1974 onwards. Late Mr. S.K. Desor was a British national. He held 600 shares in the said company	 acquired by him from the Ex Managing Director Mr. Amrik Singh Saluja and his family. The respondents Nos. 2 & 3 to this appeal are children of late Mr. S.K. Desor who died on 5th March	 1985. As per the certified copy of the annual return made up to 15th February	 1984 548 the shareholders of appellant No. 1 (company) were as fol lows: Mr. S.K. Desor 600 shares Mrs. Amrit Kaur Singh 545 shares Mr. Yash Pal Malhotra 250 shares Mrs. Amrit Gupta 200 shares Mrs. Savitri Devi Kohli 5 shares Mr. A.S. Saluja 5 shares Mr. Balwant Singh 405 shares 2010 shares A petition under sections 397 & 398 of the Act and in the alternative for winding up of the company was filed by the respondents on 25th March	 1985	 wherein it was alleged that on 12th March	 1985 respondent No. 1	 being the widow of late Mr. S.K. Desor	 applied as a legal heir of late S.K. Desor to the Board of Directors of the appellantcompany for transmission of 850 shares held by her late husband. It is stated that the shares of Yash Pal Malhotra had been ac quired by late Mr. S.K. Desor; and that respondent No. 1 filed an affidavit of her daughter Ms. Kim Paul	 relinquish ing her claim to the shares of her late father. The Board of Directors resolved that they had no objection to transmis sion of the shares held by Mr. S.K. Desor but the actual transmission would take place on respondent No. 1 's obtain ing Reserve Bank of India 's permission and the succession certificate. The respondent No. 1 's application for allot ment of 5 shares as per her letter of the same date was allowed by the Board of Directors	 and it was resolved that in view of allotment of these shares	 her interest in the shares of her late husband	 she be appointed as a Director of the company	 subject to Reserve Bank of India 's permis sion. It is stated in the judgment under appeal that at the said meeting of the Board of Directors	 they recorded their deep appreciation for the services rendered by late Mr. S.K. Desor as Managing Directorcum Chairman of the company	 and. mourned his passing away. The quorum of the said meeting was two Mrs. Amrit Gupta and Mrs. Savitri Devi Kohli. It is recorded in the judgment under appeal that on 23rd March	 1985 the Board of Directors held another meeting. The minutes of the meeting of 12th March	 1985 were confirmed by the two above mentioned Directors. The third Director	 Mrs. Amrit K. Singh	 however	 objected as she stated that she had not been informed of the last meeting. Various averments had been made in the petition with 549 regard to oppression and removal of certain valuables of Mrs. Amrit K. Singh and illegal operation of the bank ac count etc. It was also asserted that Mrs. Singh was holding 545 shares benami and these in fact belonged to Mr. S.K. Desor. A preliminary objection was raised on behalf of Mrs. Amrit K. Singh regarding the maintainability of the petition on the ground that the appellants were not members of the company as their names had not been recorded in the register of members. A further objection was taken that a composite petition under sections 397 & 398 of the Act with an alternative prayer for winding up of the company was not maintainable. The learned single Judge of the High Court sitting as a Company Judge dealt with the application and held that the appellants who were the wife and children of late Mr. S.K. Desor and had obtained letters of administration. u/s 290 of the Indian Succession Act read with section 273 of the Act	 as also the permission of the Reserve Bank of India	 should be treated as members for the purpose of maintaining a petition sections 397 & 398 of the Act. The learned single Judge also held that a composite petition was maintainable. The appellant Mrs. Amrit K. Singh filed an appeal for herself and	 as she alleged	 as "Working Director" from the judgment and order dated 21st September	 1988 of the learned single Judge. It appears that the appellants	 aggrieved thereby	 had also moved this Court under article 136 of the Constitution. This Court by its order dated 18th January	 1989 stayed the further proceedings before the learned single Judge and directed expeditious disposal of the appeal pending before the division bench or the High Court	 from the said order of 21st September	 1988 which had been admit ted on 13th October	 1988	 for consideration by the Division Bench of the High Court of the application for. directions. By a judgment and order delivered on 31st August 1989 the Division Bench dismissed the said appeal and held that the petition section 397 & 398 was maintainable by the respondents in the facts and circumstances of the case	 and that a composite petition sections 397	398 & 433(f) of the Act was maintainable. Aggrieved thereby	 the appellants preferred this appeal to this Court. We are concerned with two questions of law	 namely	 whether the legal heirs of a deceased shareholder can be treated as members of the company for the purpose of main taining a petition sections 397 & 398 of the Act	 and whether a composite petition under sections 397	 398 & 550 433(f) of the Act is maintainable. We had the advantage of hearing Mr. F.S. Nariman	 counsel for the appellants and Mr. Anil Diwan for the respondents. It may be mentioned that during the pendency of the appeal before the High Court	 without prejudice to the rights and contentions of the parties	 an emergent meeting of the Board of Directors was directed by the High Court to be held on 28th January	 1989 to consider the question of registration of 450 shares belonging to the deceased Mr. S.K. Desor in the name of Mrs. Margarat T. Desor and her son Sameer K. Desor	 being re spondents Nos. 1 & 3 respectively. It further appears that as per the directions of the Division Bench	 dated 27th January	 1989 the court had appointed Chairman Mr. C.K. Mahajan and Mrs. Margarat T. Desor were not permitted to vote at the said meeting. At a meeting held subsequent thereto	 by a majority	 it was resolved not to register the respondents Nos. 1 & 3 as members. It must	 however	 be noted that the Division Bench vide its order dated 27th January	 1989 had directed that no effect would be given to the said Resolution. The question	 therefore	 which is material to be consid ered	 is	 whether the legal heirs of a deceased shareholder whose names are not entered in the register of members	 are entitled to maintain petition sections 397 & 398 of the Act. It was contended on behalf of the appellants that sections 397 & 398 of the Act must be strictly construed. Section 397 of the Act which is in chapter VI of the Act under the heading "Prevention of Oppression and Mismanage ment"	 provides as follows: "Application to Court for relief in cases of oppression.(1) Any member of a company who complains that the affairs of the company are being conducted in a manner prejudicial to public interest or in a manner oppressive to any member or members including any one or more of themselves may apply to the Court for an order under this section	 provided such members have a right so to apply in virtue of section 399. (2) If	 on any application under sub section (1)	 the Court is of the opinion (a) that the company 's affairs are being conducted in a manner prejudicial to public interest or in a manner oppressive to any member or members	 and 551 (b) that to wind up the company would unfairly prejudice such member or members	 but that otherwise the fact would justify the making of a winding up order on the ground that it was just and equitable that the company should be wound up; the Court may	 with a view to bringing to an end the matters complained of	 make such order as it thinks fit. " On behalf of the appellants it was contended that the right which is a specific statutory right	 is given only to a member of the company and until and unless one is a member of the company	 there is no right to maintain application u/s 397 of the Act. Mr. Nariman contended that there was no automatic transmission of shares in the case of death of a shareholder to his legal heir and representatives	 and the Board has a discretion and can refuse to register the shares. Hence	 the legal representatives had no locus standi to maintain an application sections 387 & 398 of the Act. Mr. Nariman submitted that the rights under sections 397 & 398 of the Act are statutory rights and must be strictly construed in the terms of the Statute. The right	 it was submitted	 was given to "any member" of a company and it should not be enlarged to include "any one who may be entitled to become a member". In order to decide the question involved	 it would be necessary to examine certain provisions of the Act. Section 2(27) of the Act states that "member" in relation to company does not include a bearer of a share warrant of the company issued in pursuance of section 114 of the Act. Section 41 of the Act provides as follows: "(1) The subscribers of the memorandum of a company shall be deemed to have agreed to become members of the company	 and on its registration	 shall be entered as members in its register of members. (2) Every other person who agreed in writing to become a member of a company and whose name is entered in its register of members	 shall be a member of the company. " Section 26 of the English Companies Act	 1948 in sub stantially the same. Section 109 of the Act states as follows: "A transfer of the share or other interest in a company of a 552 deceased member thereof made by his legal representative shall	 although the legal representative is not himself a member	 be as valid as if he had been a member at the time of the execution of the instrument of trans fer. " In this connection	 it would be relevant to refer to Articles 25 to 28 of Table A of the Act	 which deal with the transmission of shares and which are in the following terms: "25.(1) On the death of a member the survivor where the member was a joint 	holder	 and his legal representatives where he was a sole holder	 shall be the only persons recognised by the company as having any title to his interest in the shares. (2) Nothing in clause (1) shall release the estate of a deceased joint holder from any liability in respect of any share which had been jointly held by him with other persons. 26.(1) Any person becoming entitled to a share in consequence of the death or insolvency of a member may	 upon such evidence being produced as may from time to time properly be required by the Board and subject as hereinafter pro vided	 elect	 either (a) to be registered himself as holder of the share; or (b) to make such transfer of the share as the deceased or insolvent member could have made. (2) The Board shall	 in either case	 have the same right to decline or suspend registration as it would have had	 if the deceased or insolvent member had transferred the share before his death of insolvency. (1) If the person so becoming entitled shall elect to be registered as holder of the share himself	 he shall deliver or send to the company a notice in writing signed by him stating that he so elects. (2) If the person aforesaid shall elect to transfer the share	 he shall testify his election by executing a transfer of the share. 553 (3) All the limitations	 restrictions and provisions of these regulations resulting to the right to transfer and the registration of transfers of shares shall be applicable to any such notice or transfer as aforesaid as if the death or insolvency of the member had not occurred and the notice or transfer were a transfer signed by that member. A person becoming entitled to a share by reason of the death or insolvency of the holder shall be entitled to the same dividends or other advantages to which he would be entitled if he were the registered holder of the share	 except that he shall not	 become being registered as a member in respect of the share	 be entitled in respect of it to exer cise any right conferred by membership in relation to meetings of the company: Provided that the Board may	 at any time	 give notice requiring any such person to elect either to be registered himself or to transfer the share	 and if the notice is not complied with within ninety days	 the Board may thereafter withhold payment of all divi dends	 bonuses or other moneys payable in respect of the share	 until the requirements of the notice have been complied with. " Article 28 is more or less in para materia to articles 32 of Table A to the English Companies Act. It may also be mentioned	 as it ' has been mentioned by the High Court	 that section 210 of the English Companies Act	 before its amendment in 1990	 was substantially the same as section 397 of the Act. As mentioned hereinbefore	 it is the admitted case of the parties that the regulation for management of the compa ny as contained in Table A to the Act apply to appellant No. 1 and the said relevant provision in the articles of associ ation of the company regarding transfer of shares is Article 17	 which is as follows: "No share shall be transferred to any person other than a shareholder of the company so long as any member of the company is willing to purchase the same at fair value. This clause shall not apply to the executor of administrator of a deceased shareholder	 if there is will or to the heir or lineal decend ents where no letter of administration has been taken." 554 Mr. Nariman submits that in view of the specific provi sions of section 397 of the Act only a member is entitled to move a petition under sections 397 and 398 of the Act and that member is one whose name is in the register of members in view of section 41 of the Act	 as mentioned hereinbefore. In this connec tion	 it is was emphasised that not only must the applicant be a member but in terms of section 399 of the Act	 he has to fulfil the conditions laid down under clauses (a) and (b) of section 399 of the Act. These should be construed so as to mean what the words say. According to Mr. Nariman	 a member is not	 in view of the scheme of the Act	 the representative of a deceased member. It is true that it must be a member and section 41 of the Act provides that a member of a company is a person who has applied in writing and "whose name is entered in the regis ter of members" is entitled to move the petition. It appears in this case that names of respondent Nos. 2 and 3 had not then been entered in the register of members at the relevant time when the application was made. But the name of Late Shri S.K. Desor was still on the register of members and the requisite shareholding for moving a petition under sections 397 and 398 of the Act was held by him. This question	 though res integra so far as this country is concerned	 has been considered in England	 where Pennycuick	 J. had occasion to consider this in Re Jermyn Street Turkish Baths Ltd.	 The Company there was incorporated in 1946 and represented a joint venture by L and section In 1952	 S transferred his shareholding to Mrs. P who became a director of the company. L died in 1953 and thereafter Mrs. P was mainly responsible for the company 's affairs. The petition ers therein were appointed administrators in L 's estate in 1960	 and in 1961	 at their request	 the names of the peti tioners therein were entered in the register of members of the company against the name of L as administrators of L. On the questions whether the entry constituted merely a note of the grant of administration or the registration of the petitioners as members	 and whether the petitioners were members of the company for the purposes of presenting a petition under section 210 of the English Companies Act at p. 65 of the report	 Pennycuick	 J. noted that it was contended before him that the petitioners therein were not members of the company and hence had no locus standi to present the petition bearing in mind that petition under section 210 of the English Companies Act could only be presented by a member of the company. In the facts of that case	 Pennycuick	 J. held that the petitioners were duly registered as members of the company but he proceeded to hold that even if it were so	 the personal representatives of a deceased member must be regarded as members of the company for the purposes of 555 section 210 Of the English Companies Act. In this connection	 reference was made to the decision of Buckley	 J. in Re Bayswater Trading Co. Ltd.	 	 where at p. 609 of the report	 it was held that 'member ' would in clude representative of a deceased member for the purpose of section 353 of the English Companies Act. This judgment of Penny cuick	 J. went up in appeal to the Court of Appeal and it was reversed. See Re Jermyn Street Turkish Baths Ltd.	 But on the point whether the repre sentative of a deceased member can maintain an action under section 210 of the English Companies Act	 the views of Penny cuick	 J. were not reversed or modified. Mr. Nariman submit ted that the observations of Pennycuick	 J. were obiter for the decision of the case. We are unable to agree. Indeed	 this was a point specifically referred to by Pennycuick	 J. as being raised and specifically decided. But we need not detain ourselves with this controversy because the decision of the English Courts are not binding in the courts of India. But the observations or the reasoning are of persua sive value. We are clearly of the opinion that having regard to the scheme and the purpose of sections 397 and 398 of the Act	 the reasoning on a para materia provision of the English Act would be a valuable guide. The said construction	 appears to us	 to further the purpose intended to be fulfilled by petitions under sections 397 and 398 of the Act. It facilitates solution of problems in case of oppression of the minorities when the member is dead and his heirs or legal representa tives are yet to be substituted. This is an equitable and just construction. This construction	 as suggested by Penny cuick	 J. does not militate against either equity or justice of the such situation. We would	 therefore	 adhere to that construction. In this connection	 it may be mentioned that in the 1972 Edition of Gore Browne on Companies	 it has been stated as follows: "It has recently been settled that the person al representatives of a deceased member	 even though they are not registered as members	 are entitled to present a petition under section 210. In Re. Jermyn Street Turkish Baths Ltd.	 Pennycuick	 J. held that on its true construc tion section 210 required that the word 'member ' should include the personal represen tatives of a deceased member	 on whom title of his shares devolved by operation of law. " In 1st Supplement January 1978 of Gore Browne on Compa nies	 at para 16	 it is stated that "while the shares remain in the name of the deceased holder	 his estate is prima facie entitled to any subsequent benefits deriving from the shares". At p. 491 of Buckley on Companies 	 the decision of Re Jermyn Street Turkish Baths Ltd. 's case (supra) has also been referred to and it was observed that for the purpose of the petition under section 210 of the English Companies Act	 'member ' includes the personal representatives of a deceased member. Buckley also notes that this decision referred herein was reversed without affecting this point by the Court of Appeal. In Halsbury 's Laws of England	 4th Edition	 Vol. 7	 para 1010	 at p. 604	 same view has been expressed. The division bench of the Delhi High Court also noticed that the view expressed in Re Jermyn Street Turkish Baths (supra) also finds indirect support from various other decisions of the English Courts. Reference was made to the decision in James vs Buena Venture Nitrate Grounds Syndicate Ltd.	 [1896] 1 Chancery Division 456; Re Dlewellyn vs Kasintoe Rubber Estate Ltd.	 and New Zealand Gold Extraction Company (Newbe ryyautin Proces) Ltd. vs Peacock	 These decisions do indicate that the right of members in similar	 though not identical situations	 should be construed as being belonging to the legal representative or heirs of deceased members. Our attention	 however	 was drawn to the decision of Supreme Court of Victoria in Re Meyer Dougals Pty. Ltd.	 ; by Gowans	 J. Article 22 of Table A to the Victorian Companies Act	 1938 (4602) provides as follows that: "22. A person becoming entitled to a share by reason of the death	 bankruptcy or insolvency of the holder shall be entitled to the same dividends and other advantages to which he would be entitled if he were the registered holder of the share	 except that he shall not before being registered as a member in respect of the share be entitled in respect of it to exercise any right conferred by membership in relation to meeting of the company. " Gowans	 J. in that case found that there was a "careful distinction between members and persons entitled to share by reason of the death of a member but who are not registered appear to deny the status of a member to a legal personal representative who is not a member". On an analysis of various decisions	 Gowans	 J. was of the view that a de ceased 's estate and its representative may in a particular context have to be treated as not a member and in view of the provisions of section 186(1) of the Victorian Companies Act	 1961 which provides "any member of a company who complains that the affairs of the company are being conducted in manner oppressive to one or more of 557 the members (including himself) may . apply to the court for an order under that section"	 Gowans	 J. came to the conclusion that there was no reason for treating the word "members" in that section as not applying to a legal repre sentative who is not entitled to be accorded the right which registration would give him to vote in regulating the con duct of the company 's affairs. The object of the section	 which is in para materia to section 399 of the Act	 was to pro vide a remedy for the case where	 notwithstanding the fact that a person possesses the right of a member enabling him to participate in the conduct of the affairs of the company	 he can claim that he as a member or as one of a number of members	 is or are being oppressed by those who conduct the affairs of the company. According to Gowans	 J.	 it should not be treated as applying to someone who is not so entitled and cannot so claim. With respect	 we are unable to accept this view. Having regard to the purpose of the section as we conceive it	 it would not be just construction to deny the legal representatives of the deceased member the right of maintain a petition under sections 397 and 398. We would prefer to accept the view of Pennycuick	 J. in Re Jermyn Street Turkish Baths Ltd. 's case (supra). It appears to us that this will be in consonance with the equity of the sections. In Gower 's Principles of Modern Company Law	 at p. 68	 reference has been made to Re Jermyn Street Turkish Baths Ltd. 's	 case (supra) and also to Re Meyer Douglas Pry Ltd. 's	 case (supra)	 which	 according to the learned author	 seems to be more convincing. Mr. Nariman also referred us to the comments in Hahlo 's Casebook on Company Law	 2nd Edi tion	 p. 35 1	 where in footnote	 reference was made to Re Jermyn Street Turkish Baths Ltd. 's	 case (supra)	 which have been followed in some decisions. It was noted as fol lows: "It appears doubtful whether personal repre sentatives of deceased shareholders	 who themselves are not	 or cannot become	 registered as shareholders	 can be regarded as "members" for the purposes of section 210 of the 1948 Act: Re Cuthburt Cooper & Sons Ltd.	 [1937] Ch. 392 and Re Meyer Douglas Ltd.	 at 655. " We do not agree for the reason mentioned before. It further appears to us the Australian judgment does not reconcile to logic in accepting that legal representative can petition for winding up	 which is called the "sledge hammer remedy"	 but would refuse the lesser and alternative remedy of seeking relief against oppression and mismanage ment though the latter remedy requires establishment of winding up on just and equitable grounds as a precondition for its 558 invocation. It would be rather incongruous to hold that the case for winding up on just and equitable grounds can be made out by the legal representatives under section 439(4)(b) of the Act but not the other. This does not appear to be logi cal. It appears to us that to hold that the legal represen tatives of a deceased shareholder could not be given the same right of a member under sections 397 and 398 of the Act would be taking a hyper technical view which does not ad vance the cause of equity or justice. The High Court in its judgment under appeal proceeded on the basis that legal representatives of a deceased member represent the estate of that member whose name is on the register of members. When the member dies	 his estate is entrusted in the legal repre sentatives. When	 therefore	 these vestings are illegally or wrongfully affected	 the estate through the legal represen tatives must be enabled to petition in respect of oppression and mismanagement and it is as if the estate stands in the shoes of the deceased member. We are of the opinion that this view is a correct view. It may be mentioned in this connection that succession is not kept in abeyance and the property of the deceased member vests in the legal represen tatives on the death of the deceased and they should be permitted to act for the deceased member for the purpose of transfer of shares under section 109 of the Act. In some situations and contingencies	 the "member" may be different from a "holder". A "member" may be a "holder" of shares but a "holder" may not be a "member". In that view of the matter	 it is not necessary for the present purpose to examine this question from the angle in which the learned Single Judge of the Calcutta High Court analysed the posi tion in the case of Kedar Nath Agarwal vs Jay Engineering Works Ltd. and Ors.	 	 to which our attention was drawn. Admittedly in the present case	 the legal representa tives have been more than anxious to get theft names put on the register of members in place of deceased member	 who was the Managing Director and Chairman of the company and had the controlling interest. It would	 therefore	 be wrong to insist their names must be first put on the register before they can move an application under sections 397 and 398 of the Act. This would frustrate the very purpose of the necessity of action. It was contended on behalf of the appellant before the High Court that if legal representatives who were only potential members or persons likely to come on the register of members	 are permitted to file an application under sections 397 and 398 of the Act	 it would create havoc	 as then persons having blank transfer forms 559 signed by members	 and as such having a financial interest	 could also claim to move an application under sections 397 and 398 of the Act. The High Court held that this is a fallacy	 that in the case of persons having blank transfer forms	 signed by members	 it is the members themselves who are shown on the register of members and they are different from the persons with the blank transfer forms whereas in the case of legal representatives it is the deceased member who is shown on the register and the legal representatives are in effect exercising his right. A right has devolved on them though the death of the member whose name is still on the register. In our opinion	 therefore	 the High Court was pre eminently right in holding that the legal representa tives of deceased member whose name is still on the register of members are entitled to petition under sections 397 and 398 of the Act. In the view we have taken	 it is not necessary to consider the contention whether as on the date of petition	 they were not members. In that view of the matter	 it is not necessary for us to consider the decision of this Court in Rajahmundry Electric Supply Corpn. Ltd. vs A. Mageshwara Rao & Ors.	 13. In view of the observations of this Court in Life Insurance Corporation of India vs Escorts Limited & Ors.	 ; at p. 1412	 it is not necessary	 in our opinion	 to consider the contention as made on behalf of the appellant before the High Court that the permission of the Reserve Bank of India had been errone ously obtained and consequently amounts to no permission. In the present context	 we are of the opinion that the High Court was right in the view it took on the first aspect of the matter. The second question was whether a combined petition under sections 397	 398 and 433(f) of the Act was maintainable. In view of the observations of this Court in Shanti Prasad Jain vs Kalinga Tubes	 and the reasoning of the Bombay High Court in Bilasrai Joharmal & Ors. vs Akola Electric Supply Co. Pvt. Ltd.	 	 we are of the opinion that the averments which a petitioner would have to make to invoke the jurisdiction under sections 397 and 398 are not destructive of the averments which are required to be made in a case for winding up under section 433(f) of the Act on the just and equitable ground	 though they may appear to be contradictory. As Halsbury 's Laws of England	 4th Edition	 Volume 7	 at p. 604 605	 discusses that the prayer must be made stating that the affairs are such which fulfil the requirement of winding up but to wind up the company would unfairly prejudice that part of the members	 but otherwise the facts would justify the making of a winding up order on the ground that it was just and equitable that the company should be wound up	 the Court may	 with a view to bringing to an end the 560 matters complained of	 make such order as it thinks fit	 whether for regulating the conduct of the company 's affairs in future or otherwise. We are of the opinion that averments which a petitioner would have to make to invoke the juris diction of sections 397 and 398 of the Act are not destructive of the averments which are required to be made in a case for winding up under section 433(f) on the just and equitable ground	 though they may appear to be rather conflicting if not contradictory. We are in agreement with the High Court that the petition must proceed upto certain stage which is common to both winding up and though there may be some difference in procedure to be adopted	 it is not such which is irrecon cilable and cannot simultaneously be gone into. Indeed these are made in the manner indicated before. It has to be borne in mind that a discretion is conferred on the court and it is only when the Court is satisfied that the facts justify the making of a winding up order on the ground that it is just and equitable that the company should be wound up	 but if the Court is further of the opinion that it would be a remedy worse than the disease	 then the Court can examine whether the alternative relief by way of a direction under ' section 397 can be granted. This is a well accepted remedy exercised by the Courts. We are	 therefore	 of the opinion that the High Court.was right in the view that a composite petition under sections 397	398 and 433(f) of the Act is main tainable. The appeal	 therefore	 must fail and is accordingly dismissed. We dismiss the appeal with costs	 which is as sessed at Rs.5	000. Y. Lal Appeal dis missed.

The appellant No. 1 is a private limited Company incor porated under the Indian Companies Act. The Company had at all relevant times 7 share holders and the total number of shares subscribed and paid up was 2010 shares. The appellant No. 2 is a shareholder and a whole time Director of the Company. Consequent upon the death of one share holder	 Mr. S.K. Desor	 who had controlling interest in the Company	 his legal representatives	 wife and children respondents herein. filed a petition under Section 397 and 398 of the Act and in the alternative prayed for winding up of the company. A preliminary objection was raised on behalf of Mrs. Amrit K. Singh	 appellant No. 2 regarding the maintainability of the petition on the ground that the respondents were not members of the company as their names had not been recorded in the register of members and as such they had no locus standi to file the petition in question. A further objection was also taken that a composite petition under Sections 397 and 398 of the Act with an alternative prayer for winding up of the company was not maintainable. A company Judge of the High Court before whom the peti tion came up for hearing held that the respondents who were the wife and children of the deceased share holder and who having obtained Reserve Bank 's permission and letters of administration according to law should be treated as members for the purpose of maintaining a petition under Sections 397 and 398 of the Act. The company Judge also held that a composite petition was maintainable. Appellant No. 2 preferred an appeal against the order of the Company Judge. The appellants also moved this Court under Article 136 of the Constitution against the order of the Company Judge. This court by its order dated 18th Janu ary 1989 stayed the further proceedings before the Single Judge and directed expeditious disposal of the appeal. The Division Bench dismissed the appeal holding that the peti tion under 546 Sections 397 and 398 was maintainable. Hence this appeal. The same two questions as stated above arose for deter mination by this Court	 Dismissing the appeal	 this Court	 HELD: Succession is not kept in abeyance and the proper ty of the deceased member vests in the legal representatives on the death of the deceased and they should be permitted to act for the deceased member for the purpose of transfer of shares under Section 109 of the Act. [558D] In some situations and contingencies	 the 'member ' may be different from a 'holder '. A 'member ' may be a 'holder ' of shares but a 'holder ' may not be a 'member '. [558E] To hold that the legal representatives of a deceased shareholder could not be given the same right of a member under Sections 397 and 398 of the Act would be taking a hyper technical view which does not advance the cause of enquiry or justice. [558B] In the instant case	 the legal representatives have been more than anxious to get their names put on the register of members in place of deceased member	 who was the Managing Director and Chairman of the company and had the controlling interest. It would. therefore	 be wrong to insist that their names must be first put on the register before they can move an application under Sections 397 and 398 of the Act. This would frustrate the very purpose of the necessity of action. [558F G] The decision of the English courts are not binding on the courts in India. But the observations or the reasoning are of persuasive value. [555C] Re Jermyn Street Turkish Baths Ltd.	 [1970] 3 All E.R. 37; Re Bayswater Trading Co. Ltd. ; James vs Quena Venture Nitrate Grounds Syndicate Ltd.	 [1896] 1 Chancery Division 456; Re Dlewellyn vs Kasintoe Rubber Estate Ltd.	 ; New Zealand Gold Extraction Company	 (Newberyvautin Process) Ltd. vs Peocock	 ; Re Meyer Dougals Pty Ltd.	 [1965] V.R. 638; Kedar Nath Agarwal vs Jay Engg. Works Ltd. and Ors. 	 ; Rajahmundry Electric Supply Corpn. Ltd. vs A. Nageshwara Rao and Ors. 	 ; ; Life Insurance Corporation of India vs Escorts Ltd. and Ors.	 AIR 1986 SC 547 1370 at p. 1412; Shanti Prasad Jain vs Kalinga Tubes	 and Bilasrai Joharmal and Ors. vs Akola Electric Supply Co. Pvt. Ltd.	 	 re ferred to.