Prasad v Sharma [1996] FJHC 143; HPP0024d.1993s (30 August 1996)

IN THE HIGH COURT OF FIJI
AT SUVA
PROBATE JURISDICTION

ACTION NO. 24 OF 1993

Between:

1. DEVENDRA PRASAD
s/o Ambika Prasad Sharma

2. RANJULA DEVI SHARMA
d/o Ambika Prasad Sharma
Plaintiffs

and

SASHI PRASAD SHARMA
s/o Ambika Prasad Sharma
Defendant

Mr. Raza for the Plaintiffs
The Defendant in Person

DECISION

This is Plaintiffs' Summons dated 26 September, 1995 seeking the following orders:-

(a) That Caveat No. 31/95 lodged by a Defendant be removed and/or dissolved

(b) That no other Caveat be lodged by the Defendant on the estate of the deceased AMBIKA PRASAD SHARMA father's name Ganpat Maharaj

(c) That probate be granted in favour of the Plaintiffs in terms of the last Will and Testament of the deceased dated 16 November 1961.

The Plaintiffs filed an affidavit sworn 26 September 1995 in Support of the Summons. The Defendant filed an Affidavit in Reply sworn 9 April 1996 and also a further affidavit sworn 27 May 1996.

The defendant opposes the application stating that "there be no grant of probate .... until the inquest is re-opened, proper evidence collected and judgment made" (paragraph 10 of his Affidavit sworn 27.5.96).

The relevant facts are that the Plaintiffs who are the executors and trustees of the estate of the said deceased AMBIKA PRASAD SHARMA under his purported will dated 16 November 1991 applied for probate on 30 September 1992. The defendant lodged a caveat No. 33/92 prohibiting the grant of Probate on 3 November 1992. Warning to Caveat was lodged by the plaintiffs. Further to Summons of 26 June 1995 by the Plaintiffs to remove the said caveat and there being no appearance by the defendant at the hearing of the Summons on 7 July 1995 an order was made by Fatiaki J. removing the said Caveat. It was also ordered that Probate be granted to the Plaintiffs in terms of the said Will of 16 November 1991.

On the same date as the said Order, the defendant filed another caveat No. 31/95 stating that no grant be sealed in the Estate without notice to the defendant.

The previous Caveat No. 33/92 was removed after Warning to Caveat was given. The defendant makes an identical application by lodging Caveat No. 31/95 of 7 July 1995.

Now by the present Summons dated 26 September 1995 the Plaintiffs are seeking the orders referred to hereabove.

The Plaintiffs say that this caveat cannot be entertained because it is frivolous and vexatious. Because the defendant did not appear Caveat No. 33/92 was removed.

The Defendant alleges in his affidavits that he was not called when the hearing took place in Chambers and he wants the present caveat to remain until the Attorney-General reopens the Inquest surrounding the death of the deceased.

It ought to be noted that before Fatiaki J's, said Orders Probate Action No. 24/93 was pending. There the Plaintiffs seek an Order granting them Probate of the said alleged Will of 16 November 1991 and to pronounce on the "force and validity" of the said Will. The Statement of Defence filed on 26 April 1993 in Action No. 24/93 alleged that the said Will is invalid and that it was executed under undue pressure and duress.

The issue before me is whether I should grant the Plaintiffs an order to remove the defendant's Caveat No. 31/95 over the same matter and covering the same subject matter as in the first caveat No. 33/92, except that in the affidavit herein he states that no grant issue until the Inquest is re-opened and findings made therein.

When the application for removal of caveat No. 33/92 was heard by Fatiaki J. the defendant failed to appear despite papers having been served on him. Although he now states that he was present outside the Chamber but his name was not called. It was disclosed, inter alia, in the affidavit in support of removal of first Caveat that the inquest into the deceased's death was completed and in March 1995 the Findings stated, inter alia, that "there is no evidence whatsoever of any foul play" and concluded by stating that the "death was due to multiple injuries consistent with a fall".

The Plaintiffs are entitled to make the present application to remove caveat under s 47 of the Succession, Probate and Administration Act Cap. 60 which provides:

"47-(1) In every case in which a caveat is lodged, the Court may upon application by the person applying for probate on administration, Or for seal of any probate or letters of administration, as the case may be, remove the same.

(2) Every such application shall be served on the Caveator by delivering a copy of the same at the address mentioned in his caveat.

(3) Such application may be heard and order made upon affidavit or oral evidence, or as the Court may direct."

As has been stated by the Fiji Court of Appeal in ROSY REDDY f/n ARJUN PRASAD and MANCHAMA WEBB & LAWRENCE WEBB (Civ. App. 14/94) p4 cyclostyed judgment that:

"We note that the procedure for dealing with a caveat under the Rules is different from removal of a caveat provided under s47 of the Act. Under the Rules, a caveat shall remain in force for six months (O 44 (4)). A caveat may also cease to have any effect if the caveator does not file an appearance or take out a summons for directions (r 44 (11)). Under these Rules, a caveat may cease to have any effect in this way without there being any need for resort to court proceedings. However, under the Act, s47 provides that in every case where a caveat is lodged, an application may be made to the court to remove the caveat."

The application before the Court is brought pursuant to s47 of the Act. The non-contentious Probate Rules 1954 (U.K.) which apply in Fiji in accordance with s52(2) of the Act have no direct application and therefore it is not necessary for me to consider their effect.

Although the Defendant has lodged the present caveat and has given in his affidavits the reasons for opposing it, section 46(2) of the Act does not require reasons etc to be given. This is what the F.C.A. has said on the effect and meaning of the sections 46:

"Section 46 of the Act gives a right to any person to lodge a caveat with the Registrar at any time before probate or administration is granted or sealed. Section 46(2) requires that the caveat shall set out the name of the person lodging the caveat and an address in Suva. It does not require any other information or the nature of the interest or reason for lodging the caveat."

The provisions s 46(2) does give the Court a discretion as to the grounds which can be accepted for the purposes of removing a caveat. The F.C.A. said in ROSS REDDY (supra) that:

"In formulating the discretion of the court in such an application, we are of the opinion that the Court may have regard to the practice set out in the Rules as a guide. This is not the same as applying the Rules."

In the first caveat the defendant did show his 'contrary interest' as required under r 44(2) and as a result said Probate Action No. 24/93 commenced. But on 2 July 1995 Fatiaki J. ordered the caveat to be removed and an order was also made for the grant of Probate to the Plaintiffs. These Orders stood when the defendant lodged the second caveat.

I would like to observe at this stage that I fail to understand why the defendant was allowed to lodge the second caveat without the leave of the registrar for Rule 44(13) of the N.C. Probate Rules 1954 (U.K.) provides that:

"Except with the leave of the registrar ... no further caveat may be entered by or on behalf of any caveator whose caveat has ceased to have effect under paragraph (11) and (12) of this rule."

For the purposes of the issue before me, the only ground which the defendant gives for not ordering the caveat to be removed is that the Plaintiffs should wait "until the Inquest is re-opened, proper evidence collected and judgment made".

On the evidence before me, I do not consider this to be a good enough reason for grant of Probate purposes to let the caveat remain. There is also no indication when, if ever, the inquest will be re-opened. The inquest matter was also before his Lordship and he must have considered it before he made the said Orders.

In the outcome, for the above reasons I order the removal forthwith of Caveat No. 31/95 with costs to the Plaintiffs against the defendant to be taxed if not agreed.

D. Pathik
Judge

At Suva
30 August 1996

HPP0024D.93S