RAMESH CHANDRA
(f/n Ram Dhani)
of Lot 3, Stage 3A, Kalabo, Nasinu, Fiji
Respondent
------------------------------
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
ACTION NO. HPP0023 OF 1997
BETW
RAMESH CHANDRA
(f/n Ram Dhani)
of Lot 3, Stage 3A, Kalabo, Nasinu, Fiji, Market Vendor
Plaintiff
AND:
ANJILA DEVI
(f/n Vijay Kumar)
of Busa Busa, Ba, Domestic Duties
Defendant
A.K. Narayan for Applicant/Defendant
M.V. Bhai for Respondent/Plff
Dates of Hearings: 1st, 9th December 1997
Date of Judgment: 18th March 1998
JUDGMENT
On the 16th of May 1997 the Respondent/Plaintiff lodged a Caveat in this Court against the grant of Probate in the estate of Vijay
Kumar the deceased.
On the 27th of May 1997 the Applicant/Defendant Anjila Devi applied to the Court for the grant of Letters of Administration of the
deceased's estate and the proceeds thereof.
On the 16th of July 1997 at the instance of Anjila Devi this Court issued a Warning To Caveat to Ramesh Chandra.
On the 7th of August 1997 Ramesh Chandra as the Plaintiff issued a Writ No. HPP 23 of 1997 against Anjila Devi seeking the following
orders:
(a) To join the Plaintiff as a Co-administrator.
(b) That when a Grant was issued, the land comprising the estate was to be transferred to Ramesh Chandra upon payment of $1020.00
the alleged balance owing to him under an agreement date of which is not clear but which appears to be about the 30th of January
1992.
(c) To appoint Ramesh Chandra as Administrator only.
In the alternative orders are sought that:
(a) the Administratrix Anjila Devi pay to Ramesh Chandra the sum of $47,780.00 being the value of a house said to be erected on the
land and the land; or
(b) Anjila Devi to transfer the land to Ramesh Chandra;
(c) the land to be excluded from the Estate of the Deceased and a declaration that Ramesh Chandra is the owner of the land.
In her affidavit in support of the grant of Letters of Administration Anjila Devi deposes that she is the daughter of the late Vijay
Kumar who died on the 12th of April 1997 at Nasinu intestate and while domiciled in Fiji.
That on the 10th of May 1997 the Applicant placed an advertisement in The Fiji Times calling upon creditors to lodge any claims within
21 days.
She then deposes that she is the lawful daughter of the deceased and the only person entitled to apply for Letters of Administration
of the deceased's estate.
At the time of his death the deceased was a divorcee having been divorced from the Applicant's mother Savitri Devi.
The only other person entitled to share in the deceased's estate was her sister Premila Devi who died as a result of drowning on the
29th of August 1987 at Sigatoka.
Finally Anjila Devi deposes that the whole of the deceased's estate amounts to the sum of $35,000.00 gross and $34,750.00 nett the
difference being the amount of the funeral expenses.
In a second affidavit sworn by the Applicant on the 19th of August 1997 in support of a Summons for an Order that the Caveat lodged
by the Respondent be struck out the Applicant states that on the 24th of July 1997 the Respondent filed a Memorandum of Appearance
the relevant part of which reads thus:
"Enter an Appearance for Ramesh Chandra (F/N Ram Dhani) of Lot 3, Stage 3A, Kalabo, Nasinu, Fiji the Caveator in this action."
The Appearance is signed by the Respondent's solicitors.
On the 4th of September 1997 the Defendant/Applicant issued a Summons seeking orders that the whole of the Plaintiff's Writ and Statement
of Claim in Civil Action HPP 23 of 1997 be struck out and dismissed with costs on the following grounds:
(i) That the Writ and Statement of Claim discloses no reasonable cause of action.
(ii) That the Plaintiff's claim is frivolous and vexatious.
(iii) That the Plaintiff's claim is embarrassing and will prejudice and delay the grant of Letters of Administration to the Defendant.
(iv) The action is an abuse of process.
By consent both the application for removal of Caveat and the Summons for removal of Caveat and the Summons to strike out the Statement
of Claim were consolidated and I heard arguments on them on the 1st and 9th of December 1997.
The Applicant bases her application for Letters of Administration on Sections 6 and 7 of the Succession, Probate and Administration Act Cap. 60. Section 6(1) reads, so far as relevant:
"Subject to the provisions of Part II, the Administrator on intestacy .... shall hold the property as to which a person dies intestate .... to distribute the same as follows:
(a)......
(b)......
(c)......
(d) if the intestate leaves issue, but no wife or husband, the issue of the intestate shall take per stirpes and not per capita the whole estate of the intestate absolutely."
Section 7 deals with Letters of Administration and states as far as relevant: "The Court may grant administration of the estate
of a person dying intestate to the following persons (separately or conjointly) being not less than 21 years of age -
(a) the husband or wife of the deceased; or
(b) if there is no husband or wife, to one or more of the next of kin in order of priority of entitlement under this Act in the distribution
of the estate of the deceased."
Sub-paragraph (c) does not apply here.
The Applicant submits that as there is no surviving wife or husband she is entitled to take the whole of the estate absolutely i.e.
per stirpes as the only legal representative.
It is then submitted that the Memorandum of Appearance filed by the Respondent does not comply with Form 6 of the Non-Contentious
Probate Rules 1954 which are set out in what has become the Bible of Probate Practice, Tristram and Coote's Probate Practice. The
Twenty-Second Edition held in the High Court Library was published in 1964 and bears all the signs of frequent but respectful use
by members of the judiciary, practitioners and staff of this Court.
Rule 44(9) of the Non-Contentious Probate Rules (NCPR) states so far as relevant here:
"A caveator having an interest contrary to that of the person warning may, within eight days of service of the warning upon him
inclusive of the day of such service ........ enter an appearance in the principal registry by filing form 6 and making an entry
in the appropriate book, and shall forthwith thereafter serve on the person warning a copy of form 6 sealed with the seal of the
registry.
I shall not set out form 6 here but it requires any appearance to a warning to state the Caveat number and date, the full name and
address of the deceased, the full name and address of the person warning, and the full name and address of the Caveator.
In the margin between these latter 2 requirements there is a note which reads:
"Here set out the interest of the person warning, or citor, as shown in warning or citation."
It is then submitted by the Applicant that the Memorandum of Appearance filed by the Respondent does not comply with Form 6.
As no other form of appearance is given in Tristram and Coote I am prepared to accept that failure to comply with the form as set
out in the book vitiates any appearance not entered in accordance with that form. This makes common sense as the person filing a
Warning to Caveat must be entitled to know the interest in the estate claimed by the Caveator. I therefore accept the submissions
of the Applicant in Action No. HPC 21 of 1997.
I now turn to Action No. HPP23 of 1997 which the Applicant submits is wrongly constituted. The Statement of Claim is, if I may say
so with respect, somewhat curiously drawn. Instead of saying immediately who the Plaintiff is and the nature of his claim against
the Defendant, the first six paragraphs could be mistaken for paragraphs in an affidavit in that they give a history of the events
leading up to this litigation including, I should mention, an allegation in paragraph 6 that because the deceased was depressed,
"He adopted (not legally though) the Plaintiff's son Ravinesh Chand aged about 2 years in 1983".
Paragraphs 7 and 8 allege that the deceased discussed with the Housing Authority and obtained a piece of land which appears to be
the subject of these proceedings in the names of the Plaintiff and the deceased. Paragraph 7 then alleges that "Later it was
recorded in the name of the deceased as he had a permanent job whereas the Plaintiff was a casual worker".
Mr. Narayan in his submissions apparently thought it not worth mentioning that the latter phrase breaks the basic rule of pleading
in that it contains evidence and not facts.
Paragraph 8 alleges that it was mutually agreed between the deceased and the Plaintiff that after all moneys owing to the Housing
Authority for the purchase of the land were paid to the Authority the deceased was to transfer the land to the Plaintiff. It is then
alleged that the Plaintiff has been occupying the land since 1977.
Paragraphs 10 and 11 allege that the Plaintiff has built a substantial residential structure on the land with a present value of $48,000.00
and that although the land was in the deceased's name, it had from the beginning been occupied by the Plaintiff and all payments
for it were made by the Plaintiff.
Counsel for the Applicant submits that HPP No. 23 of 1997 as constituted is not a probate action under Order 76(1) of the High Court
Rules. Sub-rule 2 of Order 76 defines "Probate Action" as an action for the grant of Probate of the Will or Letters of
Administration of the estate of a deceased person.
Rule 9(1) states:
"Where the plaintiff in a probate action disputes the interest of a defendant he must allege in his statement of claim that he denies
the interest of that defendant."
Sub-rule 2 states:
"In a probate action in which the interest by virtue of which a party claims to be entitled to a grant of letters of administration
is disputed, the party disputing that interest must show in his pleading that if the allegations made therein are proved he would
be entitled to an interest in the estate."
The Applicant submits, and I agree, that the Statement of Claim as drawn does not comply with Order 76.
I take the Statement of Claim to allege that because of some verbal agreement between the Plaintiff and the deceased, pursuant to
which the Plaintiff paid money on account of the purchase price, he now has a beneficial interest in the land and is entitled to
have it transferred to him upon payment to him of $1020.00 the balance allegedly owing.
In my judgment the Plaintiff's present Statement of Claim is misconceived in that no where in it does the Plaintiff deny in terms
the interest of the Defendant in the estate.
Order 76(9)(1) is mandatory and in my judgment cannot be complied with by any pleading giving rise at best to an implication of the
interest claimed. I accept the submission of the Applicant that if the Plaintiff has any cause of action it must be against the estate
and not the Defendant as intended administratrix.
As such I am of the opinion that this does not give the Plaintiff the right to oppose probate or, in this case, Letters of Administration
being granted to the Applicant.
In my judgment the Statement of Claim as drawn discloses no reasonable cause of action and if allowed to stand will only unfairly
delay the grant of Letters of Administration to the Defendant.
For these reasons I uphold the Defendant's Summons of the 19th of September 1997 and order that the Plaintiff's Writ and Statement
of Claim be struck out and dismissed with costs.
The Plaintiff relied among other cases on Dawson (Bradford) Ltd v. Dove (1971) 1 Q.B. 330 and Wenlock v. Moloney (1965) 2 ALL E.R. 871. I have considered these cases and hold them irrelevant to the present applications. They are different in their facts and in my view
also the law applicable to the two instant cases. In my judgment the only Order of this Court applicable here is Order 76. There
is no reason why if he is so advised the Plaintiff should not issue another Writ but this time against the estate if Letters of Administration
have been granted to the Applicant.
The orders therefore I make in Action No. HPC 21 of 1997 are that Caveat No. HPC 21 of 1997 lodged by the Respondent restraining the
grant of Letters of Administration be struck out and that Letters of Administration be granted to Anjila Devi daughter of Vijay Kumar
of Busa Busa, Ba, Domestic Duties.
In Action HPP 23 of 1997 I order that the Statement of Claim be struck out. The Respondent/Plaintiff must pay the costs of these proceedings
as to which I make one final comment: At the close of oral argument on the 9th of December, in view of the smallness of the estate
concerned here I earnestly encouraged the parties to endeavour to settle their differences lest should this litigation proceed any
further this small estate must very likely be dissipated in legal costs, something which I hope the parties do not wish.
JOHN E. BYRNE
JUDGE
Legislation and authorities referred to in judgment:
Succession, Probate and Administration Act Cap. 60.
High Court Rules 1988.
Dawson (Bradford) Ltd v. Dove (1971) 1 Q.B. 330.
Wenlock v. Moloney (1965) 2 ALL E.R. 871.
The following additional cases were referred to in argument:
Dyson v. Attorney-General [1910] UKLawRpKQB 203; (1911) 1 K.B. 410.
In the High Court of Fiji, Probate Jurisdiction, Caveat Nos. 19 and 34 - Janardhan Gounder v. Janna Bai Vyas - unreported judgment of Fatiaki J. dated 7th September 1994.
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