ZINNIA MEHERNOOSH KHAJOTIA Vs. STATE

JUDGEMENT

(1.) THE above suit is filed for declaration that the suit property forms a part of the estate of one Captain M.R. Khajotia, since deceased for appointment of the plaintiff as the administrator on behalf of the General Body of Creditors for taking possession of the properties and the title deeds of the properties forming the estate of the deceased, for disclosing the entire estate of the deceased and for the incidental acts of giving public notice, selling off the properties and utilising the proceeds to satisfy the claims of the creditors and to handover possession as per the claims of the creditors.

(2.) THE plaintiff was the creditor of the deceased under certain loans and advances. The deceased had acknowledged his liabilities to repay the loans and credits. The plaintiff had sued in the Queens Bench Division of the Royal Courts of Justice in London, England, U.K. A moratorium was granted to the deceased. The plaintiff refrained from prosecuting the suit upon the deceased agreeing to repay the debts as agreed by the parties. The deceased failed to perform his obligations under such agreement. The plaintiff sought to pursue the suit to lift the stay granted. In the meantime Captain Khajotia expired on 2nd March, 2006. Defendant Nos. 1 and 2 who are the wife and son of the deceased sought control of the estate of the deceased. The plaintiff sought to pursue his claim against the defendants through his Solicitor's notice. The plaintiff sought to join all the heirs of deceased in the application to lift the stay of the suit and to proceed against the estate of the deceased under the special provision in that behalf contained in the Civil Procedure Rules 19.8.

(3.) THE defendants filed their affidavits in the English Court. The defendants claimed that there was no genuine purpose which would be achieved by allowing the claim to proceed against such estate. The Court considered the position in England as well as in India of small estates where ''there is no point in incurring costs of appointing personal representatives ''. The defendants' contention was raised on the ground that there were no assets as also on the ground that the defendants were resident and domiciled in India and did not live in England. The English Court, after setting out the entire history of the litigation did not join the defendants as parties to the proceedings, but allowed the plaintiff to proceed in the absence of persons representing the estate of the deceased.