IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HP 0018 OF 1999

BETWEEN:

SARAS WATI & DEOKI
Plaintiff

AND:

PRADEEP KUMAR
Defendant

Counsel : Mr R Gordon for 1st and 2nd Plaintiffs
Mr T Bukarau for the Defendant

Hearing : 1st September 1999
Decision : 8th September 1999

DECISION

This is an application for an interlocutory injunction restraining the Defendant from interfering with the quiet enjoyment, occupation and use of the estate of Sharda Nand (the deceased) from using or holding farm implements on the estate, and from trespassing on the Plaintiff’s dwelling.

On 21st July 1999 the Plaintiffs applied for an ex parte injunction in terms of a Motion filled on 20th July 1999 and supported by the affidavit of Dipak Maharaj (the son-in-law of the deceased) and Deoki, the second plaintiff. In addition to the relief sought above, the Plaintiffs also asked for an order that the Police Department be ordered to pay regular visits to property in question in order to keep the peace. However, the Plaintiffs did not pursue the application for that order.

An interim injunction was granted on 21st July 1999, with an order that the matter should be heard inter parties on 3rd August 1999.

On that date, the Defendant, sought and was granted leave to file an affidavit in reply. The affidavit of Pradeep Kumar was filed on 13th August 1999.

The background to this case is that Sharda Nand died on 23rd March 1998. The First Plaintiff was his daughter. The second Plaintiff was his wife. The Defendant was his son. Sharda Nand’s estate comprise of a Native lease with a sugar contract, a motor vehicle, a tractor, a disc plough, a tiller, a tray, four hoes, a grease gun, spray pump and other farm implements. The lease on the farm is due to expire on 1st January 2001. The farm itself consists of a garage, five flats, two concrete buildings, one wooden building, one corrugated iron dwelling and one servant’s quarters. 

The Plaintiffs and the Defendant all reside in separate houses on the estate. There is a dispute as to the will of the deceased. Previously, the plaintiffs had filed a civil action in the Lautoka High Court in respect of the estate but later discontinued it.

There are two purported wills. Unfortunately, because the Defendant has not filed an affidavit of testamentary script, as required to by virtue of Order 76 of the High Court Rules 1988, only the will dated 20th March 1991, has been disclosed to the court. By virtue of that will (annexed to the Affidavit of Testamentary Script of Saras Wati dated 22nd June 1999) the second plaintiff is executrix and trustee of the will. The first plaintiff benefits by a gift of $6,000 and a life interest in one of the houses of the estate, and the second plaintiff has a life interest in the remaining estate which vests thereafter in her son Sanjay Kumar Nand absolutely.

By Defence and counter-claim filed on 15th July 1999 (filed out of time but in respect of which leave was granted on 1st September 1999 by consent) the defendant claims that there was a later will dated 13th February 1998 by virtue of which the defendant is the named Executor and Trustee.

No further term of the will was disclosed to the court by the defendant. However, Deoki in her affidavit of 20th July 1999 claims that she has a life interest under the 1998 will also. This has not been disputed by the defendant.

The affidavit of Deoki, and (Dipak Maharaj depose that the defendant) has been preventing the Plaintiff’s quiet enjoyment of the estate and from using the farm implements. The second plaintiff accuses the defendant of trespass and waste. The defendant in an affidavit sworn on 11th August 1999 denies trespass and waste. He deposes that the farm implements were being used by outsiders, that he was protecting the estate on behalf of the beneficiaries and that the same application for an injunction was made in the Lautoka High Court and was dismissed. Apart from accusations of waste and trespass there are allegations and counter-allegations of assault,,ill-treatment and dishonesty.

Clearly, in an application of this nature, what the court must consider is the balance of convenience. In his submission for the injunction to continuing pending trial, Mr R Gordon for the plaintiffs submitted that the second plaintiff is a beneficiary under both wills, and is executor and trustee of the only will that has been disclosed to the court. He submitted that the balance of convenience clearly favoured the Plaintiffs. Mr T Bukarau, who appeared on instructions from Mr H Shah, argued that if the Defendant is restrained from using the farm implements, the farm would go to waste. He further argued that the Plaintiff’s land failed to disclose an earlier application for an injunction in Lautoka and that the injunction in Lautoka and that the injunction should be disallowed because there had been a material non-disclosure.

Applying the test in American Cyanamid v Ethicon Ltd. (1975) AC 396, 407, 407, the court must first consider where there is a serious question to be tried. If there is, then the court must consider the balance of convenience.

In this case, there is clearly a serious question to be tried. On the balance of convenience test, it is clear that the second plaintiff who benefits under both wills has far more to lose if there is waste of the estate, then the defendant. It is unfortunate that the will preponded by the defendant is not before the court. However, the defendant does not claim that he benefits from the 1998 will; his interest under the 1998 will is as executor and trustee.

As such, the injunction must continue. I note that the defendant claims that the same application was made and dismissed in Lautoka. However, counsel has failed to place any evidence of such application before the court. This should have been an easy matter since all the court would require is a copy of the pleadings and order. I therefore accept that no such application was made, and that therefore there is no material non-disclosure on the part of the plaintiffs. 

I therefore order that the injunction continue on the terms of my order dated 23rd July 1999. However, because absolute restraint on the use of the farm implements and tools would lead to inability to run the farm, I vary the terms of order (iv) to allow the first and second plaintiff to use the chattels in order (ii) for the benefit of the estate alone until final determination of this action. I further order that the Defendant files affidavit of testamentary script within 7 days.

Costs of this application are to be costs in the cause.

(Nazhat Shameem)
JUDGE

At Suva
6 September 1999

C:My docs/HPP0018d.99s\Slal\wpd.