[1996] UGHCFD 1

# **grewranc of WADA**

#### UGANDA AT MH7LAA IN TRT HIGH COURT OP

### CIVIL SUIT NO, 425/1994

SIWOT NARESH KARA\* PLttimFF

### WSUS

HORATW DHARAMSfc

DEPEJTDAETT BHATIA\* .........

BJP0S. U1 W HONOURABLE HR, JUSTlca ³fS, LUUAirZT

#### JUDg-W

case and sought Court's The Pl-i'at;j.ff sued the Defendant in this intervention as follows,

- a declaration that the will dated 3,2.83 of iiAiilBAI . HIIAES'ISY is a valid will. (1) - (2) An order that a caveat plas ad upon the Plaintiff's application for Probate in respect of Probate ^Sli^H Administration Cause Ko# 164/19^3 in the High Court of Uganda be *k* vacated# - **(3)** General damages. - **(4)** Coots of this suit. - Interest on (') and (4) at Bank rate from ?us date **(5)** of judgment till pcr-ment in full. - (6) Any other remedy Court me?,' deem appropriate.

In lii.3 U. S. D. the Defeadajxt, and also oO'Xntsi'"-olaimed by soo -ing to bo batt claim the deceased's will. ong other tban'?s, denied the above st ^or under

while the Plaintiff's side called the Dofenda'it's silo put up one witness. At tha tins of hearing this case, three witnesses in a bid to prove its case,

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The Plaintiff's and Hr\* Pe ter oase as oaa be gathared thfl of \*WM (ie. toe n^atlK (Bn)j Janes Skasbs Huswro {Fo)( fejetly

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®"⁴ the deoaasea (th. late Hmlbw ln India but nad drx'uiah oitizenship. She got married at the age of ¹⁴ - ¹⁶ years and spent her early years in Uganda together with her husband the late Dharensy Eorarji Shatia.

The deceased and her nusband had three children\* nanioly, the Plaintiff, her sister ffalini Sharrdi Hassni ar.d the Defendant.

During ths deceased¹ s ntcy in Uganda, slio becaua a shareholder in a fa^ly Oanpsqy celled Lhararay Horaji DhcMla Ltd. She held 25,3 of ths *¹* shares in the Held Company.

The said Company aimed proprty which included a buildinc located at 5. PETlia'nentary Avenue in Kampala- and a plot of land, at IZararpe on the cutside of Kampala\*'

(including the Plaintiff) went to India. The deceased left Uganda in 1972. She and her husband and the family

The deceased did not return to Uganda after that.

Scune .roof with the late husband shared the At one point in India, the deceased a.-<d bar Defendant's faitly, but because the latter did. not treat the deceased and her husband veil, the two faailios eventually separated\*

They did not even look after the docaasod and her sister ^ho did so. The Dcfendaxt's family than kept a distance\* Kfter her husbmd died in 1984. It was the Plaintiff

deceased male a will (io. ^Ixh. nP1")» Before her death She told, the Plaintiff that flat where she lived\* in 1£X), the tho Baid will was kept in an e'rrolcw in a cupboard at the

the Plaintiff looked for the said will and found it said it would bs. when she deceased died, the deceased had earlier on Concotuantly, in the exact place where

Under the daid will, the deceased appointed the Plaintiff an executrix and gave the Defendant only 2000 rupees (ie. the equivalent of US $\beta$ 100). The Plaintiff showed that will to har sister, but not to the Defendant who was simply notified of its contents which were not a surprise to him any way, since he did not enjoy a good relationship with the deceased.

The above will was in English; and according to FW2, it was translated to the deceased by him in Cujarati before she signed it.

PNZ and one Mrs. Patel also signed the said will as witcesses. They did so at the same time.

The above aside, because the Defendant was the one looking after the family interests in Uguals, the Plaintiff on several occasions requestested him to transfer the deceased's shares in Dharamay Koraji Bhatia Ltd to her. but the Defendant refused to do so.

As a result of the above therefore, the Plaintiff had no choice, but to apply for probate of the decessed's estate under Probate and Administration Cause No. 164 of 1983 with a view to snabling herself to take control of the said shares.

Unfortunately, the Defendant placed a caveat upon the above application. Hence this suit, in which the Plaintiff is seeking Courts orders for reliefs outlined under paragraph 8 of the plaint.

On the contrary, the Defendant's case which is under the evidence of the Defendant himself was briefly as follows:

That both the decessed and the Defendant's Lather (the late Dharamay Moraji Bhatia) were born in India. They then came to Uganda and lived here until 1957 when they left and settled permanently in India.

Except for very brief visits here, they navar lived in Uganda again.

All the same, during their stay in Ugarda the Defendant's family acquired a number of properties ranging from, Plot 8 Wilson Road; Martin Road, Plot 72 Kamala Road, to houses at Nakasoro and Buganda Road.

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*^rJHie* fatlily also had a Cocrpany called Dharansjr Moraji *&* Sens Ltd. in which the Defendant and the deceased had eh^ee.

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trustee® with Liza of the They were and he was also She Defendant Jiad. a good relationship pith his parents. faaily properties in Uganda doind' business with thea in India before they died.

In fact at one time, the Defendant's family was lining with his parents in tha aaa-j house in India, but erantually they separated not because ox a bad roj.a;,ioii3aip, nut sinply because the Defendant's fani 1y wanted to livo oil tbolr ^o'rn\*

all the oeru\*.u»iios> Later ou when tho dooocsod diod? the Defonlmt was by her side\* He did all ac a-as? .r,equlr(ri to do am tho sc.u *:o* put hor to rest arul finalise

Howover, three yeaora And kks this happened whan he discovered that the Plaintiff had Jiade n application to Court io enable her to obtain probate in respect of the deceased's estate\* At that bine; he never hoard of or sot my will\* later (io\* 1?J3) ho caM to know that ihere was a will\*

Although the said (which eijaatures Ke saw tho will then, rfirich io now 2zh\*"?1". will contained the deceased's signature and that of lira\* Patel as a witness the Defendant knew vary well) he disputed its validity in that it was too ojiinlicated for '-ox uned-Acatod. mother to understand\*

educated; and finally it It was further translated io her by PW2 who was nou sufficiently flisonherited him beoauso under it> he obtained only ²⁰⁰⁰ rupees which ie equivalent to US / 100.

The Dofo. daiV folt quite asgrioved by the deceased\*s trill despite the fact that bis parants had. orcMdoi for hia and Hs tra sons vary rail in impact of ths f3Di?y raopertics in Ugjwda drains their life

He could not radersta^ W the Plaintiff and his other sister xho had boon 430 rail rrevidod for as far er tbs fa-aiiy pr.^isG In Ifeanda were concerned, new bad an ad^s errar his radar the deceased's will.

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The Defendant's side therefore called upon Court to find that the decessed's will was invalid or if valid the Defendant should be better provided for under it or that this Court had no jurisdiction to hear this matter.

Having had time to consider the avidence on record, and to reflect upon the submissions of both counsel, I have doolded to smead the agreed issuas as follows:

- 1. Whether the deceased was at the time of her death domiciled in India? - 2. Whether this suit can lawfully be sustained against the Defendant? - 3. Whether the will in issue is valid and was made by the deceased? - 4. Musther the Defendant is emittled to have provision made by Court from the estate of the deceased and if so, how much?

As far as the first issue is concerned, Mr. Mulira conceded during his final submissions that the feceased was demiciled in India at the time of her death.

Ofcourse, there was also shandant evidence from both sides to show that the above was true. Forexample, the Plaintiff told Court that despite the fact that the deceased had a spell in Ugarda where she even acquired sheres in a Coupany called Dharamsy Moraji Bhatia Ltd., she was born in India. She returned to that country in the early seventics, settled and remained there until her death in 1990.

The above was also continued by the Defendent in his testinomy.

In the circumstances, it is clear that the first issue had to be ensuared in the affirmative.

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As far as the second issue is concerned, having established that the deceased was demiciled in India before her death, a perusal of section 3 of the Probate (Re-Sealing) Lot (Cap. 144) would reveal that matters relating to her esiste were not correctly handled in this case,

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For the sake of removing doubt in that respect, I will reproduce she above section 3 which reads as follows:

> "3. Where a Court of probate in any part of the commonwealth ..... had .... granted probate or letters of administration in respect of the estate of a deceased person, the probate of letters so granted may, on being produced to, and a copy thereof deposited with. the High Court, be sealed with the scal of that Court, and thereupon shall be of the like force and effect and have the same operation in Ugauda as if granted by Court".

From the above therefore, it is quite clear that the Plaintiff was supposed to have probate in respect of the decommend's estate from a court of probate in India before moving this Honourable Court.

It is important to point out too that if she had obtained that probate, the only lawful application she could have made for re-sealing of that probats.

Meedless to say, the Plaintiff I did not obtaine the above probate. As a result therefore, all she purported to do under Probate and Administration Cauce No. 164/1953 and subsequently this suit, was improper, miscenceived and had no legitimacy in 15%.

Accordingly, this suit cannot be larfully sustained against the Defendant.

Having come to the above conclusion in respect of the second issue, I believe that the rest of the issues herein, would now not arise. (They are irrelevant).

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In ths circunstances, I hero no choice, but to order that ths Plaintiff's case against ths Defendant is hereby diawissed with costa.

Be that as it nay, I aa also of the view that the Defendant'^s Gounter«claim(l is td-soonoaived, for its present basis is the deceased's will which should never have been before this Court.

I would accordingly diffldss it with costs as well, and I so order.

3. S. Luwizi (. Judge) 12/2/96

**bqfoyet** Att **Mr. Haabale far Plaintiff. Mr. Byenkya for Defendant.** lir. Mulindwa c/clarSc.

• LugayLzi

(judgo) 12/2/96

### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL SUIT NO.425 OF 1994

1A^N NARESH KARA PLAINTIFF

# VERSUS

^rROTAM DHARAMSY BHATIA DEFENDANT

DECREE

(Claim for declaratory orders in respect of the validity of a will and counterclaim for share in deceased's estate.)

^s suit and counterclaim coming for final disposal before Justice Lugayizi on day of February 1996 in the presence of Mr. Ebert Byenkya of Byenkya, uka & Co. Advocates and Mr. Peter Mulira of Mulira & Co. Advocates,

IS HEREBY ORDERED as follows:-

That the suit be dismissed with costs to the Defendant.

That the counterclaim be dismissed with costs to the Plaintiff.

VEN under my hand and the seal of the court the A?:.. day of February 1996.

*I V* registrar

e consent

& CO. ADVOCATES MUL

Wkya, KIHIKA & CO. Locates