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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Hindocha & Ors v. Gheewala & Ors (Jersey) [2003] UKPC 77 (20 November 2003) URL: https://www.bailii.org/uk/cases/UKPC/2003/77.html Cite as: [2004] WTLR 1119, [2003] UKPC 77 |
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Hindocha & Ors v. Gheewala & Ors (Jersey) [2003] UKPC 77 (20 November 2003)
ADVANCE COPY
Privy Council Appeal No. 27 of 2002
Mukta Gokaldas Hindocha (widow of C.S. Gheewala) and
Others Appellants
v.
Mahesh Shamjibhai Juthabhai Gheewala and Others Respondents
FROM
THE COURT OF APPEAL OF JERSEY
---------------
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 20th November 2003
------------------
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Hope of Craighead
Lord Walker of Gestingthorpe
Sir William Aldous
[Delivered by Lord Walker of Gestingthorpe]
------------------
"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 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.
(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 to issues in the probate action, and could not be expanded so as to extend to disputes as to the joint family property. Mahesh gave notice of appeal, but later abandoned his appeal.
The proceedings in the Royal Court
"that the Plaintiff and the other Defendants be ordered to effect to the extent that is within their power, the release of Bhupendra's Guernsey funds ..."
Aruna and Mahesh subsequently reached agreement embodied in an order of the Royal Court dated 31 July 1998. It is in 'Tomlin' form and so the substance of the terms of compromise have not been disclosed.
"(1) Is Kenya clearly a more appropriate forum than Jersey in which to try the action between the parties? Counsel on all sides accepted that in relation to this issue the burden lay on the applicants ie [Mukta and Elesh].
(2) If Kenya is clearly the more appropriate forum, are there circumstances, namely uncertainty as to the independence of the judiciary, which suggest that the plaintiff may not obtain justice in that country? Counsel again agreed that in relation to this issue the burden lay upon [Mahesh]."
This formulation echoes paragraphs (a) and (f) of Lord Goff's classic summary in Spiliada at pages 476-8.
"We have given careful consideration to all these submissions. We have no doubt that the substance of the action is more closely connected with Kenya than with any other jurisdiction. It seems to us that the substantive issues, ie were the Gheewalas a Hindu joint family, and, if so, how were the assets of the family held, are far better determined in the Kenyan courts. Kenya recognises the applicability of Hindu law in certain circumstances, and even if cases involving issues of Hindu law are not frequent, there will at least be a general understanding of the Hindu community and their customs within the court. A Jersey court would require expert evidence as to the laws and customs of the Hindu community and would lack that inherent knowledge as to the ways of that community which will exist in Kenya. Furthermore, it seems to us likely that factual issues involving the early history of the Gheewala family, will be easier to resolve in the country or area where the family fortune was substantially made. All the parties to the action except the first defendant are Hindu by birth. On balance we think that the arguments as to convenience and expense also point towards Kenya. We agree with counsel for the applicant that the connection with Jersey is tenuous. The narrow issue involving the first defendant [Compendium] can quite easily be disposed of in Jersey once the substantial issues have been resolved in Kenya."
The Judgment of the Court of Appeal
"(1) Compendium is a Jersey company. Mahesh, Aruna, Madhu, Kirti and Bharat live in England. Mukta and her children, Elesh, Srikesh and Mamta, and Rajani live in Kenya. Mukta and her children have a home in England, to which Mukta and Elesh appear to come not infrequently. All the parties except Compendium are domiciled in Kenya.
(2) The assets in dispute are, as already stated, primarily in countries in East Africa, Europe and North America. The parties to the appeal were not able to give us any breakdown by value showing the value of assets in each area. But it is clear that there are substantial assets in each area, and that in Europe there are substantial assets in the Channel Islands, including the Slamat Corporation already referred to.
(3) From the evidence before this Court it appears that the documents relating to such assets are primarily to be found in or near the places where such assets are.
(4) In so far as connections exist with London or England, it appears to be common ground that these connections are to be weighed in favour of Jersey rather than Kenya.
(5) When the family wished to resolve their disputes with Bhupendra, they arranged for the Tandon process to take place in London, not in Kenya or elsewhere in East Africa. The proceedings brought by Bhupendra in connection with the Tandon process were brought in London.
(6) After Chandrakant's death, though he lived, was domiciled and died in Kenya, Mukta sought to administer his estate in Jersey, not in Kenya. That led to the proceedings brought by Mahesh in Jersey to restrain issue of the letters of administration. It can be said with some force that Mukta, having come to the jurisdiction of Jersey to establish the right to administer Chandrakant's estate, is not in a strong position to complain of this action having been brought by Mahesh in Jersey.
(7) On the other hand Mahesh chose to lodge a citation in the Kenya High Court in respect of his intention to prove the will of 28 August 1974, and when Mukta sought a grant of probate of the will of 4 May 1976 in Kenya, Mahesh chose to attempt to raise questions of joint family assets in the Kenya proceedings, and when Pall J had rejected that attempt, sought to appeal until the inconsistency of his stance was relied on by Mukta and Elesh in relation to the present action.
(8) Compendium was duly served in Jersey. The other defendants were served out of the jurisdiction, but have accepted the jurisdiction of Jersey and have not applied to set aside the service out.
(9) In the absence of suitable undertakings which have not been offered, there must be doubt as to whether Mahesh could successfully serve Kenyan proceedings out of the Kenyan jurisdiction on those defendants not in Kenya.
(10) We refer to, but do not repeat, what has been said above concerning the position of each of the defendants, and especially Aruna.
(11) No question of Kenyan law arises. Hindu law is a system of religious law not tied to any particular forum. Given the limited extent to which questions of the Hindu law are likely to arise, it is plain that the Jersey Royal Court will be as well placed as a judge in Kenya to decide such questions of Hindu law as do arise.
(12) Though general reference was made by Advocate Thompson to the need for evidence of persons other than the parties to the action from Kenya, this was not founded on any specific evidence as to the identity of any such persons. We consider that the principal witnesses will be the surviving sons of the Grandfather, together with Muktu, Aruna, Elesh and Rajani.
(13) If the issues concerning the joint Hindu family and its assets are decided in Jersey, there will be no question of the same issues being tried again in Kenya, as Advocate Thompson attempted to suggest."
Kenya as an available forum
"In the light of these authorities I would have regarded the undertakings which were offered by the defendant in this case as sufficient to satisfy the requirement that the alternative forum in South Africa was available because it had undertaken to submit to the jurisdiction of the courts of that country. Nothing turns on the time when the undertakings were given. It is sufficient that they were before the judge when he was considering the question of forum non conveniens. As for the suggestion that the defendant was choosing its jurisdiction and thus indulging in a kind of forum shopping, this overlooks the fact that the issue as to forum non conveniens is for the court itself to resolve. It is not a matter that is left to the choice of the defender. Furthermore, the court resolves the issue by looking to the interests of all parties and the ends of justice."
Lord Bingham of Cornhill expressly agreed (at page 1556) and the other members of the House agreed with both Lord Bingham and Lord Hope.
Burden of Proof
"... if, in any case, the connection of the defendant with the English forum is a fragile one (for example, if he is served with proceedings during a short visit to this country), it should be all the easier for him to prove that there is another clearly more appropriate forum for the trial overseas."
That observation seems to apply with at least equal force to a defendant who has not been served as of right.
Conclusion