19770815 TZHC Mwanza

IN T!E }IG COURT OF TJZANIL AT MWANZA :. (1) CIVIL APPEAL No 0 44 OF 1975 (;Fcm the decision of the District Court of Bukoha Bukoha in Civil Appeal iJo 176 of 1974 - Before RIJW$ETA, EQO , DISTRICT NAGITRATE - Original Ndwnilo'irirnary Court Civil Cse,No. 22 of 1974). JOSEPHATI LUJGLALA 0 0 0 0000000000000000000 AP•ELLANT for BI EFRAbL'L I'L.NGULA versus BI HEI.,N4 NJLYHEHEZA 000000000000 a 000000000 000000 RESPONDENT CLIIM: Inheritance of immovable property0 JUDGMENT: KATITI, J.: The respondert, fli Helina Ka1yesheza, successfully filed a suit in Ndwanilo Primary Court, in Bukoba District, against the 'appe11nt Ri Efrazia Igancu1a who has all, alori boon represented Josephot Lutucalola, Th e respondent Bi Helina Kalyesheza, was challenging the propriety of the appellant's inheritance of thL. shamba in question, the appellant being a niecek in relation to the respondent, and the shaobe involved beino her clan's property, having envolved unto them, upon the demise of their father, who was in fact, a maternal grand-father of the apaellant 0 The appellant's appeal, to the district court was dismissed. In appealing, to this court the appellant contends in her memo, that her mother Di Runaajsa was entitled to will the said shamba to her, because she took care of her in her long and durable illness, that her mother was entitled to will to her the shamba, because the rest of her sisters ignored her. When she was sick, she adds, that she spent clot af her money amounting to 6,300/= to maintain the said sharaba0 The facts, ore that the late Kalyeheshoza, died between 1944 and 1945, being outlived by six daughters, including Di Gertulda Kalyehesheza the mother of the appellant 0 Before his death, late Kalyehesheza wrote a will, stipulating that his shamba evolve upon his daughters, as they outlive one another, and that unon the demise of the last of his daughters, the property should fall into the haa.ds of the clan generally0 This will, is even acknowledged by the appe- llant0 Death plucked, one after another, till on 30/12/1973, when Bi Gertulcia Kalychesheza died, after'Jilling" the shamba to her daughter Di Efrozia Igangura, clan wise an outsi( r to the respondent's clan, her clan being "OMUTUNI)U", while Di Gertulda Kalyehesheza and Bi Helina Kalyehesheza were of BAZIDA clan. Both the Primary and the District Court, held that under rules 20 and 31 of the Law of Iheritance G. N. 436 of 1963 Bj Gertulda Kalyehesheza had, only a life interest in the shaia in question - to 'enjoy the fruits thereof0 She had no interest, to pass over to her dauqhter, upon her demise, and that as her (laughter was not a clan member, she could not inherit th some. I do not think, I have anything useful to add. The position is clear, the shamba was a clan oroerty. Late Kalyehesheza had also appreciated this when, he stipulated that in the event, if his daughters dying, the shemba should fall to the clan generally. Further, as the apnollant's mother, can only be said to hove had a life interest, which incidentally was equally a nprociated by their late father, she hd no interest outliving her, to nass to the appellant. 0 I -2- The will boosted and paraded about, can not give what the testator did not have power to piss, to sdmho:ly lse0 The care, the appellant considers was valuable, when her mother was sick, can only betoken to he a. produt of a child and parent care relationship, and not the .. rica fo the shombo 0 In any case, ivan if, the ape1lats mother wonted the core she was enjoyino at the hand of her daughter the apoeliant. to be the price, that would only ac wishful thinking, as she would have nothingto will0 She claims to have invested 6,300/= in this shamba, and therefore seeks compensation if her claim fails 0 'Jell, she may have taken care of her sick mother for ten .ears but that is no equivalence to 6,300/=. She does not say how she speat this money, and she even made tie mention of the same, in the Primary Court 0 This is an after thought, that carries no weight 0 This onpeal must fail. and it is dismissed with"costs. .d U. KATITI JUDGE: HIGH COURT :ihIANZA .. . , . . .. . . ..... 15/8/77.