In re the Estate of Dwarka [1994] FJHC 164; Hbc0016j.92b (4 November 1994)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. 16 OF 1992

IN THE ESTATE of DWARKA
also known as DWARKA PRASAD
son of Mangal late of Batinikama, Labasa, Fiji,
Cultivator deceased intestate.

Between:

SASHI LATA d/o Din Dayal
as Administratix in the Estate of
KAMAL DIWAKAR PRASAD
Plaintiff

- and -

JAI WATI d/o Sukhram
as Administratix in the Estate of
DWARKA alias DWARKA PRASAD
Defendant

Mr. R. Singh for the Plaintiff
Mr. A. Sen for the Defendant

JUDGMENT

By Originating Summons filed 30 July 1992 SASHI LATA the Plaintiff as the administratrix in the estate of KAMAL DIWAKAR PRASAD son of Dwarka Prasad seeks against the defendant JAI WATI daughter of Sukhram as the administratrix in the estate of DWARKA alias DWARKA PRASAD the following orders (as stated in the Summons):

"(a) For full and proper account of the administration of the estate of the above-named deceased together with a STATEMENT of all moneys received and disbursed by the Defendant in or about the said estate.

(b) For the payment into Court of any moneys found to be in the hands of the Defendant belonging to the said deceased.

(c) For the distribution of the assets in the estate as required by the Plaintiff.

(d) For the payment of the costs of this action by the Defendant."

The Plaintiff filed an affidavit in support of the Summons and on 15 July 1993 the defendant filed a reply thereto.

On 9 February 1994 by consent His Lordship the Chief Justice ordered that written submissions be filed within 28 days by the plaintiff and 28 days thereafter by the defendant. The Plaintiff filed hers on 21 June 1994 but the defendant after reminders filed hers on 31 October 1994. It was rather dilatory of the counsel for the defendant not to comply with the order of the Court which leaves much to be desired. It is not for Court to be chasing after counsel to remind him of his duty to Court and to his client. It is about time this counsel pulls his socks up as this is not the first time he has failed to make written submission when ordered.

Now that written submissions are to hand it is for Court to decide on the summons on the material before it on affidavit evidence.

The Plaintiff has deposed that the said DWARKA (hereafter referred to as the 'deceased') died intestate on 30 July 1990 and Letters of Administration No. 26039 was granted to the defendant (the deceased's lawful widow).

The said KAMAL DIWAKAR PRASAD, the son of the deceased, died on 25 February 1991 and Letters of Administration No. 26656 was granted to his widow the Plaintiff.

The Plaintiff has deposed that as far as she is aware the assets in the estate of the deceased comprise of a Native Lease No. 17980 containing 53 acres 1 rood with a cane contract and a dwelling-house of concrete construction valued at $1500. She says that she had requested for an account and for distribution of the estate property but the defendant has failed to do so.

In her reply the defendant has stated, inter alia, that she does not know the value of the said dwelling-house but that the whole value of the estate at the time of the death of the deceased was $23,934.00. She says that "in or about the middle of 1987 Dwarka assisted his son KAMAL DIWAKAR PRASAD to acquire a shop in Bulileka, Labasa by raising a mortgage on the Native Lease No. 17980 which was to be his share of the estate. This indebtness was to be repaid from the cane proceeds from the said lease". She said that as at 30 June 1992 the estate was indebted to Fiji Development Bank the sum of $7429.52. The defendant further stated that prior to the deceased's death the Plaintiff's husband had very little to do with the deceased. She said the Plaintiff also "forcefully" took away certain items belonging to the estate and this included a Toyota van registered number BM055.

The defendant says that apart from the income from cane proceeds she has no other income and that she is heavily indebted to the Fiji Development Bank. She says that the Plaintiff and her deceased husband have been "well provided for" and therefore "they have no cause to complain".

Although the orders that the Plaintiff is seeking are as set out hereabove, I shall after considering the counsels' submissions make whatever Order I consider appropriate in this case.

There are hardly any dispute as to the main facts apart from, as stated hereabove, the defendant's allegation that certain personal property belonging to the estate of the deceased were forcefully taken away by the plaintiff.

As administratrix of the estate, the defendant is duty bound to give a full and proper account of the assets and liabilities of the estate. In a statement signed by her and filed in Court on 17 August 1992 she said the "full accounts of administration shall be made available to the plaintiff if she is entitled for any by end of 1992 when all the account of the said estate is ready". It appears that no such account has to date been furnished to the Plaintiff.

Counsel for Plaintiff submits that under SUCCESSION, PROBATE AND ADMINISTRATION ACT CAP 60, the Plaintiff's husband's estate is entitled to two-thirds of the residuary estate of the deceased and to two-thirds undivided share in the said land. Whereas defendant's counsel submits that there were two children of the deceased (one is SANDHYA DEVI and the other was the deceased KAMAL DIWAKAR PRASAD) and therefore the latter's estate is only entitled to one third share of the "estate in issue".

It is section 6 of the said Act which provides for succession to property on intestacy. According to the defendant's affidavit she has a daughter aged 9 years presumably the said SANDHYA DEVI and she would also be entitled to a share in the estate. There is no doubt and I do so find that the Plaintiff's husband's estate is entitled to its share in the estate of the deceased in accordance with the said section 6 of the Act.

On the facts of this case I am of the view that accounts should be given and that distribution take place. I therefore make the following orders:

(a) That within 28 days of the date hereof the defendant give a full and proper account of the administration of the estate of DWARKA PRASAD the deceased including in particular details of all moneys received and distributed by the defendant in or about the said estate.

(b) That immediately thereafter the defendant take steps to distribute the assets of the estate in accordance with the law with liberty to either party to apply to Court.

(c) The defendant is ordered to pay the costs of this action which are to be taxed unless agreed.

D. Pathik
Judge

Suva
4 November, 1994

HBC0016J.92B