STATE OF GUJARAT Vs. KEKHUSHRU ARDESHAR BHUJWALA

JUDGEMENT

(1.) This matter arises in respect of the administration of the estate of one Ardeshar Faramji Bhujwala (hereafter referred to as the deceased) by the Court under a preliminary decree passed on April 28 1956 in Regular Civil Suit No. 267 of 1955 filed by present respondent No. 1 for administration of the estate of the deceased. Original defendant Nos. 1 to 6 were heirs of the deceased and were joined as such. Original defendant No. 7 was the State of Saurashtra which was the mortgagee of some property of the deceased; and original defendant Nos. 8 and 9 were the creditors of the deceased. A plea was taken during the pendency of the suit that the State of Saurashtra was not a necessary party to this suit for administration. This plea was taken by defendant No. 7 State of Saurashtra. The trial Court accepting this plea deleted the State of Saurashtra as defendant No. 7. Thereafter the preliminary decree came to be passed on April 28 1956 as stated above.

(2.) The aforesaid preliminary decree gave a direction inter alia to take accounts from the State of Saurashtra for the mortgage debt on the property known as Lathi State Utara. Pursuant to this direction a notice was issued to the State of Bombay (on account of reorganization of States) to file accounts; and in compliance with this notice accounts were filed by the said State showing that Rs. 96 655 were due under the mortgage to that State. The Administrators submitted their report to the Court on August 6 1958 holding that Rs. 41 965 were due to the State of Saurashtra under the mortgage including interest upto 6-8-1958. Against this report of the Administrators the State filed objections. The Court held that Rs. 37 760 with interest were due to the said State till December 31 1951 The Court directed the heirs of the deceased to deposit this amount with future interest in Court within six months and provided in the final decree that if the heirs do not deposit this amount the administrators may sell away the property and after deducting the expenses of sale pay the mortgage dues to the State and deposit the surplus if any in the Court for the purpose of its distribution amongst the heirs of the deceased. The State of Gujarat filed an appeal against this final decree in the District Court of Rajkot at Gondal being Civil Appeal No. 42 of 1964 contending that the State of Saurashtra was not a necessary party to the suit; and having been deleted no decree could have been passed against it by the trial Court. This contention was not accepted by the Appellate Court. As regards the correctness of the amount adjudicated by the trial Court the objections urged by the State also were not accepted by the District Court. The result was that the States appeal to the District Court failed and that led to Second Appeal to this High Court being Second Appeal No. 503 of 1966 by the State of Gujarat.

(3.) Out of the contentions raised before the learned Single Judge on behalf of the State of Gujarat only three which have been repeated here at the time of hearing of this Letters Patent Appeal survive and they are: (1) Original defendant No. 7 State of Saurashtra having been deleted by an order of the trial Court it was not open to the same Court to adjudicate upon the mortgage dues of the State because the State was not a party to the proceedings; (2) In any case if the State was made a party it would have been able to show that it had acquired the equity of redemption by means of a document; and the property therefore ceased to belong to the deceased and no administration of the said property could be made: and (3) In the absence of a notice under sec. 80 of the Code of Civil Procedure adjudication as to the claim as to the mortgage dues of the State could not have been made by the trial Court.