Hindocha v Gheewala
| Jurisdiction | UK Non-devolved |
| Judge | Lord Walker of Gestingthorpe |
| Judgment Date | 20 November 2003 |
| Neutral Citation | [2003] UKPC 77 |
| Court | Privy Council |
| Docket Number | Appeal No. 27 of 2002 |
| Date | 20 November 2003 |
[2003] UKPC 77
Privy Council
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Hope of Craighead
Lord Walker of Gestingthorpe
Sir William Aldous
and Others
and Others
[Delivered by Lord Walker of Gestingthorpe]
In a well-known passage near the end of his speech in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, 465, Lord Templeman said of an application for a stay on the grounds that the case should be heard in a more appropriate forum:
"I hope that in future the judge will be allowed to study the evidence and refresh his memory of the speech of my noble and learned friend Lord Goff of Chieveley in this case in the quiet of his room without expense to the parties; that he will not be referred to other decisions on other facts; and that submissions will be measured in hours and not days. An appeal should be rare and the appellate court should be slow to interfere".
This litigation is regrettably far from Lord Templeman's ideal. It is an appeal from the Court of Appeal of Jersey which on 17 June 1999, after a three-day hearing, allowed an appeal from an order made on 16 July 1998 by the Royal Court, granting a stay of the action on the ground of forum non conveniens. The hearing before the Royal Court had occupied most of three days. The action had been commenced on 4 February 1997 and the application for a stay was made on 11 March 1997. More than six years have therefore been occupied in a dispute as to whether the action should be heard in Jersey or in another jurisdiction – that is, Kenya. That is the only issue on this appeal.
The facts in outline
The record in this appeal is voluminous and the background facts are complicated. But for the limited purposes of the appeal the facts can be stated reasonably shortly. The plaintiff in the action, and the only active respondent to the appeal, is Mahesh Shamjibhai Juthabhai Gheewala ("Mahesh"). He is the second (and eldest surviving) son of Shamjibhai Juthabhai Gheewala ("the grandfather") who had six sons (apart from one who died in infancy) and seven daughters. The grandfather died in 1965 domiciled in Kenya. He and his wife (who died in 1988) had come to Kenya from India during the 1920s, and had settled with a house in Nairobi in the 1940s. They and their family engaged in various business enterprises in East Africa (and, later on, in other parts of the world). Their enterprises seem to have prospered greatly, although no clear evidence as to the value of the family fortune, or its geographical spread, was placed before the Royal Court. The Board declined to receive some very late evidence on these matters which Mahesh sought to put forward.
The state of the family, so far as material, can be summarised as follows (without setting out all their names at length). The grandfather's eldest son, Chandrakant, died in 1984. His widow, Mukta, is the second defendant in the action and the first appellant before the Board. Chandrakant and Mukta had two adult sons, Elesh and Shrikesh, and one adult (and married) daughter, Mamta. They are respectively the eighth, ninth and tenth defendants and are also appellants.
The grandfather's third son, Bhupendra, died in 1983, leaving a widow, Aruna, who has obtained a grant of representation to his estate in Jersey. She is the third defendant in the action. The grandfather's fourth, fifth and sixth sons (all in their early sixties) are Madhu, Kirti and Bharat. They are the fourth to sixth defendants respectively. The seventh defendant, Rajani, is a grandson of the grandfather tracing descent through his mother, Keserben, who died in 2000. He has been joined in the proceedings, even though he traces his descent through a female, because of the "structure formula" agreed in 1974 as mentioned below.
The only party to the action which is not a member of the family is a trust company incorporated and carrying on business in Jersey, Compendium Trust Company Limited ("Compendium"). It is in form sued as Mukta's attorney in the administration of Chandrakant's estate. It is the first defendant in the action. Compendium, Aruna, Mukta, Kirti, Bharat and Rajani have been made respondents to the appeal but none of them has appeared either personally or by counsel.
The issue raised in Mahesh's action is, in the broadest possible terms, as to the beneficial ownership of the Gheewala family fortune. This issue is given some (but less than complete) definition in Mahesh's order of justice commencing the proceedings. It pleads in paragraph 2 that until his death the grandfather "was the 'Karta' and manager of the joint Hindu family" and that he was succeeded by his eldest son, Chandrakant. The order of justice then pleads (in para. 3, without further explanation) that after the grandfather's death,
"The coparcenary, for the purposes of the principles of the joint Hindu family, consisted of Chandrakant (including his son), the plaintiff, Bhupendra, Madhu, Kirti and Bharat (being the six sons of [the grandfather])".
This pleading is not self-explanatory. Some of the evidence before the Royal Court (in particular an affidavit of Prafulchandra Bhagwati, a retired Chief Justice of India) indicates that a Hindu coparcenary is a narrower concept, comprising fewer individuals, than a Hindu joint family.
The Court of Appeal expressed the view that the evidence for the existence of a Gheewala joint Hindu family was "almost overwhelming" and that it would have been possible to obtain summary judgment to that effect. Their Lordships consider that there is indeed strong evidence that the family adopted some form of pooling of their assets (a form which may have changed from time to time), but both the legal basis of the original pooling, and the effect of various subsequent events, appear to raise questions of law and fact of some difficulty. Their Lordships were referred to the decision of the Court of Appeal for Eastern Africa in Damji v Damji (1955) 22 LR EACA 162, a case concerned with an alleged joint Hindu family in Tanganyika under legislation similar to that in force in Kenya. Under that legislation Hindu law may apply as part of the Kenyan law of succession (an expression which was widely construed in Damji). However it is unnecessary to go further into those issues which will need to be fully explored at trial.
Events subsequent to the grandfather's death are described in the judgments below and for present purposes it is sufficient to identify the most important of them.
(1) According to Mahesh's order of justice (para. 9), in 1970 there was a partial division of assets between Chandrakant, Mahesh "and other coparceners". No details of assets or values have been given. Other parties dispute both the fact of the division and its legal effect on the undistributed assets.
(2) It seems to be common ground that in 1974, after discussions between the grandfather's six sons, a "structure formula" was agreed (although again there are differences as to its legal effect). It is pleaded as follows in the order of justice (para. 11):
"… it was agreed that in the event of the partition of the joint Hindu family, the individual shares of the coparceners (including their family members) and Rajani was as follows: Chandrakant and his family 25%; the plaintiff and his family 20%; Bhupendra and his family 16%; Madhu and his family 16%; Kirti and his family 10%; Bharat and his family 10%; Rajani and his family 3%. It was acknowledged that this division was not the same as a division between coparceners of joint family property in accordance with Hindu law, but this formula, known as the structure formula was what was agreed. However, pending any such partition all joint family properties were held in equal and undivided shares."
Rajani, although the son of a daughter of the grandfather, was included because of his active participation in some of the family businesses.
(3) Some of the parties contend that Mahesh left the joint family in 1976. Mahesh has simply denied this allegation (in his second affirmation, para. 21).
(4) In about 1978, differences arose between Chandrakant and Bhupendra. This led to a process of mediation conducted in London by Professor Tandon, an old family friend (who lived in East Africa but came to London for the mediation). His efforts led to an agreement signed on 8 July 1979, but almost immediately Bhupendra repudiated it on the ground of non-disclosure by Chandrakant. Bhupendra started proceedings in the English Commercial Court, but the proceedings were still on foot when Bhupendra and Chandrakant died in successive years. In 1985 their two widows compromised the proceedings, but the compromise did not bind any other members of the family.
(5) In 1985 Bhupendra's widow, Mukta, applied in Jersey for letters of administration on the basis that Bhupendra had died intestate (although he had made at least one will which Mukta would be likely to have known of). Compendium (which was already involved as trustee of a settlement made by Chandrakant) acted as Mukta's attorney. Mahesh intervened in the proceedings and obtained an injunction holding up the grant of representation.
(6) In 1986 Mahesh also commenced two sets of legal proceedings in Kenya. He sued Aruna for specific performance of an alleged oral contract; those proceedings are now dormant. He also cited Mukta in relation to probate of Chandrakant's will; nothing came of those proceedings until 1994.
(7) In 1994 Mukta applied to the Kenya High Court for probate of Chandrakant's will. Mahesh lodged an objection and also made a cross-application for probate, and Madhu, Kirti and Bharat also filed documents. On 14 February 1996 Pall J ruled that the proceedings must be limited...
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