Mahmud Kassam and Another v Murtazaali Kassam (Civil Suit No. 85 of 2011)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that the suit disclosed no cause of action against the defendant and abated upon the death of Ebrahim Alarakhia Kassam, the last surviving executor of the estate of the late Alarakhia Kassam. The defendant, as executor of Ebrahim Kassam's estate, owed no duties in respect of the estate of Alarakhia Kassam. The office of executor is personal and terminates upon death without automatic devolution to the executor of a different estate. The plaintiffs' claims for revocation of probate, accounts, and damages were incompetent and the suit was dismissed.

Outcome

Suit dismissed for failure to disclose a cause of action and abatement by operation of law

Facts

The late Alarakhia Kassam died testate in 1959, appointing his widow Kulusum Binte Dahyabhai and his son Ebrahim Alarakhia Kassam as executors. Probate was granted in 1959. The widow died in 1986, leaving her estate to her two sons. Aunali Alarakhia Kassam, the other son, died in 2006, leaving his estate to his widow Khatun Kassam and appointing his daughter Akila Kassam as executrix. The plaintiffs, as beneficiaries of Aunali's estate, claimed beneficial interest in the estate of Alarakhia Kassam. They alleged that Ebrahim Kassam, as sole surviving executor, failed to render accounts, mismanaged estate property, and failed to distribute the estate. Ebrahim Kassam died on 31 December 2020. The plaintiffs substituted Murtazaali Kassam, executor of Ebrahim's estate, as defendant. The defendant was never appointed executor of the estate of Alarakhia Kassam.

Issues

1. Whether the plaintiffs' suit discloses a cause of action against the defendant.
2. Whether the plaintiffs' suit abated upon the death of Ebrahim Alarakhia Kassam, the last sole surviving executor of the estate of the late Alarakhia Kassam.
3. Whether the defendant neglected or failed to discharge his duties as the sole surviving executor to the estate of the late Alarakhia Kassam.
4. Whether the defendant neglected or mismanaged the estate of the late Alarakhia Kassam.
5. Whether the defendant acted in fraudulent breach of trust as sole surviving executor to the estate of the late Alarakhia Kassam.
6. Whether the defendant willfully and or without reasonable cause, failed to distribute the estate of the Late Alarakhia Kassam to its beneficiaries.
7. Whether there is just cause for the revocation of the grant of probate held by the defendant.
8. Whether the defendant should render a full and true inventory and account for all the income or proceeds received from the estate of the Late Alarakhia Kassam.
9. Whether the plaintiffs are entitled to payments of the proceeds of any disposition of estate properties by the defendant.
10. Whether the plaintiffs should be granted power to administer and distribute the estate of the late Alarakhia Kassam.
11. What remedies are available to the parties?

Orders

• The suit is dismissed.
• The plaintiffs have failed to disclose a cause of action against the defendant.
• All claims against the defendant arising from the estate of the late Alarakhia Kassam are declared incompetent and abate by operation of law.
• Let each party bear its own costs.

Rules and key headnotes

Legislation cited (19)

• Succession Act Cap. 268 s.102(1)
• Succession Act s.176
• Succession Act s.183
• Succession Act s.218
• Succession Act s.230
• Succession Act s.273
• Succession Act s.327
• Succession Act s.327(2)
• Evidence Act Cap. 8 s.101(1)
• Evidence Act s.101(2)
• Evidence Act s.102
• Evidence Act s.103
• Civil Procedure Rules S.I. 71-1 Order 6 rule 28
• Civil Procedure Rules Order 6 rule 29
• Civil Procedure Rules Order 6 rule 30
• Civil Procedure Rules Order 7 rule 1(e)
• Civil Procedure Rules Order 7 rule 11(a)
• Civil Procedure Rules Order 24 rule 1
• Law Reform (Miscellaneous Provisions) Act s.11(1)

Cases cited (10)

• Auto Garage & Others v Motokov (No. 3) [1971] EA 514
• Jonah Senteza Kanyerezi & Another v Chief Registrar of Titles & Others (High Court Misc. Cause No. 919 of 1997)
• Tororo Cement Co. Ltd v Frokina International Ltd (Supreme Court Civil Appeal No. 2 of 2001)
• Isreal Kaggwa v Martin Banoba (Supreme Court Civil Appeal No. 52 of 1995)
• Katende, Ssempebwa & Co. Advocates & Another v Nabacwa Barbara & Others
• Saul Kisiribombo v Tumwine & Others (Civil Appeal No. 19 of 2018)
• Jovelyn Barugahare v Attorney General (Supreme Court Civil Appeal No. 28 of 1993)
• Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696
• Pulling v Great Eastern Railway Company (1882) QBD
• D. Kayanja v Yekka John (High Court Civil Suit No. 263 of 2003)

The original judgment as reported. Read the original PDF before relying on any passage.