TMI Blog2011 (1) TMI 1513X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the deceased in Jersey and the British Virgin Islands. The first five Defendants were constituted as the deceased's trustees the deceased, who was a majority (51%) share holder in Jagatjit Industries Ltd (JIL) through a series of corporate holdings, and trusts. Of these, Hirgo Trading Ltd owned 1,225,000 GD Rs, representing 25,100,000 shares of JIL; that company is registered in British Virgin Islands, and administered by the first Defendant (Investec) as trustee of the deceased. Orissa Holdings Ltd held about 1,000,000 shares in JIL; 60% of its shareholding was owned directly by the deceased, and 40% was held by Tresiles Trust Ltd, a private trust owned by the deceased, and also by Theodores, a trust company owned by the deceased. 5500 GD Rs in JIL were directly held by the deceased, in addition. The sixth Defendant the executrix of the deceased's two wills; the seventh Defendant is the deceased's wife; the eighth Defendant is the son of the deceased, and the ninth Defendant claims to be the legitimate son of the deceased. This legitimacy claim is the subject matter of a suit CS(OS) No. 650 of 2006, pending before this Court. 3. There are three proceedings pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiated by the ninth Defendant. It however, did hold that if this Court determined the validity of the wills before it did, then it (the Jersey court) would be bound by such decision. 7. On the institution of the present suit, this Court had passed an interim order dated 17.05.2007 restraining the Defendants from dealing with the testate property in any manner. Despite this the trustees applied to the Royal Court of Jersey, on 22.05.2007, for permission to spend monies from the estate, and if necessary, to sell the GD Rs for the purpose of obtaining legal opinion and initiating legal proceedings. On these averments, the Plaintiff seeks a permanent injunction restraining the trustees from either themselves or through their directors, agents, nominees or assigns, dissipating, parting with, selling, transferring, or encumbering in any manner, any part of the estate of the deceased and also to restrain them from initiating any proceedings with respect to the estate till the disposal of the probate proceedings pending before this Court. A consequential injunction restraining Defendants 8 and 9 from supporting any such action of the trustee first to fifth Defendants is also claimed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treating themselves as not being bound by the order of this Court. 11. The Plaintiff argues that the first five Defendants are not entitled to seek directions from any Court, except the Court of Probate, which is, this Court. It is urged that this Court has ruled that it possesses jurisdiction to continue with the probate proceeding. Furthermore, the Royal Court of Jersey too has ruled that this Court possesses territorial jurisdiction and is the appropriate and convenient forum. The Defendants are subject to the jurisdiction of this Court being possessed of the estate which is the subject matter of the wills. If the estate is dissipated during pendency of the estate, these proceedings would be rendered infructuous and meaningless. Further, nothing will be gained by the threatened action of the trustee Defendants. Even otherwise this Court has the closest and real connection with the matter as the deceased was domiciled in India and the applicable governing law is Indian Law and the estate is also inter alia ultimately an interest in JIL, an Indian Company. 12. The Plaintiff lastly argues that this Court has territorial jurisdiction over the subject matter of the Suit. The wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directions, and reliefs are claimed, are situated overseas, either in the British Virgin Island, or in Jersey. Therefore, the subject matter of the proceedings are outside the territorial jurisdiction of the court, and consequently, the equitable relief of injunction ought not to be granted in this case. 15. It is contended that the reliefs of injunction claimed against the first five Defendants and the eighth and ninth Defendants are barred under the provisions of Section 41 of the Specific Relief Act. It is also argued, besides that the Plaintiff has been mismanaging the affairs of JIL; consequently the court should decline to exercise its discretion and grant the reliefs claimed in this case. 16. The ninth Defendant urges that the Plaintiff is also disentitled to equitable relief, because the first five trustee Defendants were deliberately omitted and not impleaded in any testamentary proceeding, pending in this Court. It is urged, in addition that though the Jersey court had earlier ruled that this Court could go ahead with testamentary proceedings, yet, later, in 2007, it deleted the restrictions placed on the trustees, from dealing with trust properties, since it was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the wills are be determined in this matter. It would be necessary to recall that the will was executed in Delhi by the deceased who had a permanent abode in Delhi. The Plaintiff who is the sole beneficiary of the will is also a resident of Delhi. The sixth Defendant, executrix appointed under the wills, and in whom (by reason of Section 211 of the Indian Succession Act) the estate vests and without whose permission the estate cannot be dealt with, is also a resident of Delhi. Even otherwise this Court has the closest connection with the matter as the deceased was domiciled in India and the applicable governing law is Indian and the estate is also inter alia ultimately an interest in JIL, an Indian Company. 21. In Stroud's Judicial Dictionary a cause of action is defined as the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed, the Plaintiff must prove in order to obtain judgment. The phrase cause of action in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. In Union of India and Ors. v. Adani Exports Ltd. and Anr AIR 2002 SC 126, the Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oked. Part IX of the Act deals with probate, letters of administration and administration of assets of the deceased. Under Section 218(1), if the deceased is a Hindu, having died intestate, administration of his estate may be granted to any person who, according to the rules for the distribution of the estate applicable to such deceased, would be entitled to. Under Section 218(2), when several such persons apply for letters of administration, it shall be in the discretion of the court to grant letters of administration to any one or more of such persons. Section 220 refers to effect of letters of administration. It inter alia states that letters of administration entitle the administrator to all rights belonging to the intestate. Section 221 inter alia states that letters of administration shall not render valid any intermediate acts of the administrator which acts diminish or damage the estate of the intestate. 23. The Royal Court of Jersey has also held that this Court is the forum conveniens and the court of territorial jurisdiction with regard to determination of the validity of the wills, and that the decision of this Court will be binding on it, if it is made before the Ro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . A compromise was arrived at by the parties to the suit, that is, the eighth and ninth Defendants and the Plaintiff. Now, even if the deceased is declared to have died intestate, the estate will vest only in his legal heirs of the deceased, i.e., his widow (seventh Defendant) eighth Defendant (subject to his being declared a legitimate heir by this Court), the ninth Defendant, and the Plaintiff. Now since a compromise has already been reached with regard to this issue by the interested parties, there is no need for the first five Defendants, who are merely trustees, and have no interest in the estate, to initiate such proceedings. 27. The court cannot help noticing that since the trustee Defendants are not parties to the probate proceedings, the orders of this Court, for preservation of the estate may be treated by them as not binding upon them. From the conduct of the Defendants in applying to the Royal Court of Jersey for permission to use the monies and GD Rs of the assets of the estate for funding their litigation, it is clear that they are treating themselves as not being bound by the order of this Court. It is also apparent that if they are allowed to continue with such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Defendant, against whom injunction is sought, is amenable to the personal jurisdiction of the court; (b) if the injunction is declined the ends of justice will be defeated and injustice will be perpetuated; and (c) the principle of comity --respect for the court in which the commencement or continuance of action/proceeding is sought to be restrained --must be borne in mind; (2) in a case where more forums than one are available, the Court in exercise of its discretion to grant anti-suit injunction will examine as to which is the appropriate forum (Forum conveniens) having regard to the convenience of the parties and may grant anti-suit injunction in regard to proceedings which are oppressive or vexations or in a forum non-conveniens; (3) . (4) ... (5) ... (6) ... (7) the burden of establishing that the forum of the choice is a forum non-conveniens or the proceedings therein are oppressive or vexatious would be on the party so contending to aver and prove the same. 31. In this case, this Court's jurisdiction, has been determined and found. It has also been recognized by the foreign court, i.e. Jersey court. However, on its own evaluation of the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seeking to enforce an arbitration clause in a unenforceable contract would compel the Plaintiff company to subject itself to the jurisdiction of a tribunal, which was very clearly not voluntarily agreed to by both parties. In another case, i.e. Board of Control for Cricket in India v. Essel Sports Pvt. Ltd. and Ors. 167 (2010) DLT 176 this Court used the test of overlapping issues to grant an anti-suit injunction against the Defendant. This test is used to determine whether the facts and issues in the instant suit and the suit to be initiated in the Court of foreign jurisdiction have substantially overlapping issues, such that the resolution of these issues and disputes in the Indian Court will substantially do away with the grievance of the Defendant which finds reflection in its foreign claim. Using this test in the instant factual matrix, it becomes clear that once the probate and other related proceedings are complete, there will be a resolution of most issues with regard to the affairs of the testate estate of the deceased of which the Defendants 1-5 are trustees of, and in relation to which they seek to initiate legal proceedings. This Court applied the Modi principles to h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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