Dar es Salaam: Chavda revives family property case

Written by FAUSTINE KAPAMA

FAMOUS businessman Vidyadhar Chavda has rushed to the Court of Appeal, seeking orders for restoration of his oldest case in the Tanzanian Judiciary, involving distribution of family properties.

In his appeal, Mr Chavda is asking appellate judges to quash a decision given by High Court Judge Emilian Mushi, who had declared the end of his case, which has been dragging in court for almost 20 years without being heard.

On April 19, 2012, Judge Mushi 'struck out' the case opened by Mr Chavda against his sister-in-law, Dr (Mrs) Indira P. Chavda, on grounds that its plaint was drawn by an advocate, who was not qualified by law to act for the businessman.

"Now that the amended plaint has been struck out, the whole case comes to an end (eventually), since there are no further proceedings pending in this case," Judge Mushi had declared. But before concluding so, Judge Mushi had this to say:

"As a matter of concern, it is a fact that this is one of the oldest cases in our civil registry. The said case was filed in this court in 1993 and for reasons which are beyond my comprehension, no hearing has taken off."

In the memorandum of appeal, Chavda states, among others, that the trial judge (Mushi) erred in law and facts by failing to take notice that there was no order in Civil Case 130/1993, disqualifying Mkono and Company Advocates to represent him in the matter.

Before the suit was filed in court, the parties voluntarily submitted their dispute to arbitrators, one Nimrodi Mkono of Mkono and Company Advocates and Givish Chande, a businessman. However, the arbitrators failed to deliver their award and the arbitration failed.

Upon such failure, two suits were filed, which included Civil Case Number 130 of 1993 between Vidyadhar Chavda against Dr (Mrs) Indira P. Chavda and Civil Case Number 136 of 1994 between Pravinchandra Chavda against Vidyadhar Chavda, currently pending before High Court Judge Iman Aboud.

Facts of the case in which Vidyadhar is seeking its restoration indicate that one Kadvibai Mulji Chavda, also known as Kadvibai Jiwa died on March 7, 1964. She had made her will on September 11, 1957, appointing Girdharlal Mulji Chavda and Mohanlal Jayran Chavda as her executors and trustees.

She had empowered the said Girdharlal to appoint a new trustee or trustees of her will. She had a trust of all her properties for the benefit of sons of Girdharlal. The latter appointed Dr Indira along with Jivraj Vagraj Patel, now deceased, as new trustees of the said trust so that it could be completed by distribution of the estate to the beneficiaries.

In terms of the said will, the trust had to be distributed to the beneficiaries upon expiry of 21 years after the death of Kadvibai Chavda. Since the latter died on March 7, 1964, the distribution of the trust fund had to be made by trustees on March 7, 1985.

As of the date of distribution, Vidyadhar and his brother Pravinchandra were the only remaining sons of Girdharlal, thus had equal interests of the trust fund. It is claimed that the trust fund was not distributed and in any event Vidyadhar has not been given his share.

Suit particulars show that Dr Indira did not disclose to Vidyadhar the terms and conditions of the trust and till the date thereof has not furnished an account of their administration of the trust funds or disclose how and in what manner the trust funds remain invested.

"The defendant (Indira) is the wife of Vidyadhar's brother, whereas in an obvious attempt to favour her husband, she is committing a breach of her duty and responsibilities as a trustee of the said trust. The plaintiff (Vidyadhar) has a grave and genuine apprehension that the defendant will collude with her husband in order to deny him his just share in the trust fund," reads part of plaint of the suit.

Vidyadhar had, therefore, requested the court in the suit to declare him a bona-fide beneficiary of the trust created to which Indira is the trustee and to direct her to distribute the trust funds in accordance with the terms created by the deceased Kadvibai Chavda under her will.

Source: Daily News (07/01/2013): http://www.dailynews.co.tz/index.php/local-news/13400-chavda-revives-family-property-case