In re the Estate of Adimullah [2000] FJHC 21; HPC3734j.1999s (2 February 2000)

Fiji Islands - In re the Estate of Adimullah - Pacific Law Materials

IN THE HIGH COURT OF FIJI AT SUVA

PROBATE JURISDICTION

NO: 37347 OF 1999

IN THE ESTATE of ADIMULLAH

also known as Adi Mullam Reddy

s/o Raman Reddy, late of Rarawai, Ba,

deceased intestate.

BETWEEN:

DHARAM LINGAM REDDY

1^st Caveator

AND:

KRISHNA REDDY

2^nd Caveator

AND:

GOVIND SAMI REDDY

3^rd Caveator

AND:

NITYA NAND REDDY

4^th Caveator

AND:

BIMLA WATI

Caveatee

COUNSEL: Mr R. Prakash for Applicant

Mr B. Solanki for the 2^nd Caveator

No appearance for the 1^st Caveator

Hearing: 21^st January 2000

Judgment: 2^nd February 2000

JUDGMENT

This is an application to strike out Appearances by Caveator by Dharam Lingam Reddy and Krishna Reddy respectively, to remove Caveat No. 37/1999 and 39/1999 in the estate of Adi Mullah also known as Adimulam and that Probate in that estate be granted to Bimla Wati, executrix and trustee named in the will of the testator dated 17^th August 1999.

On 29^th October 1999, Bimla Wati swore an affidavit that she was the executrix and trustee named in the will of Adimullah (the testator) dated 17^th August 1999. She was the wife of the testator. On 17^th September 1999 Caveat 36/1999 and 39/1999 were lodged, preventing the grant of probate.

Bimla Wati issued a warning to caveator to Dharam Lingam Reddy on 9^th November 1999 and to Krishna Reddy on 15^th December 1999. They were the testator’s sons.

Appearance was entered on 6^th January 2000 for Dharam Lingam Reddy and on 21^st December 1999 for Krishna Reddy. Summons to strike out and for removal of caveat were issued on 14^th January 1999. On 19^th January 1999, presumably in response to the summons, the affidavits of Krishna Reddy and Dharam Lingam Reddy were filed. These affidavits, (which were filed without leave) claim the existence of a later will dated 15^th September 1999, and request the Court to pronounce for this later will so that probate could be granted to Dharam Lingam Reddy.

At the hearing of the application for removal of caveat, Mr R. Prakash submitted that the Appearances should be struck for failure to show any interest in the testator’s estate, and that probate be granted to the Applicant.

Mr B. Solanki appeared for the 2^nd Caveator and submitted that the caveator had sufficient interest by virtue of an earlier will. He conceded that the court could not pronounce for a will that had not been properly put before the court in accordance with the proper procedures.

Section 47(1) of the Succession, Probate and Administration Act Cap. 6 provides:

“(1) In every case in which a caveat is lodged, the court may, upon application by the person applying for 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.”

The Non-Contentious Probate Rules 1987 (UK) (in force in Fiji by virtue of Order 1 Rule 11 of the High Court Rules 1988) provides for the lodging and removal of caveats in respect of grants of probate. Rule 44(5) provides:

“Any person claiming to have an interest in the estate may cause to be issued from the registry in which the caveat index is maintained a warning in Form 4 against the caveat, and the person warning shall state his interest in the estate of the deceased and shall require the caveator to give particulars of any contrary interest in the estate; and the warning or a copy thereof shall be served on the caveator forthwith.”

Rule 44(6) provides:

“A caveator who has no interest contrary to that of the person warning, but who wishes to show cause against the sealing of a grant to that person, may within eight days of service of the warning upon him (inclusive of the day of such service) or at any time thereafter if no affidavit has been filed under paragraph (12) below, issue and serve summons for directions.”

Rule 44(10) provides:

“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 date of service) or at any time thereafter if no affidavit has been filed under paragraph (12) below, enter an appearance in the Registry in which the caveat index is maintained by filing Form 5 and making an entry in the appropriate book; and he shall serve forthwith on the person warning a copy of Form 5 sealed with the seal of the court.”

Rule 44(12) provides that where no appearance has been entered and no summons issued, the person warning shall file an affidavit of service at the Registry and the caveat shall thereupon cease to have effect.

Form 5 in Schedule 1 to the Rules requires the caveator to “set out the interest of the caveator or person cited, stating the date of the will, (if any) under which such interest arises.”

The Applicant has complied with these procedures. The caveators, have entered appearances, but have failed to set out their interest in accordance with Form 5.

However this application is not made under the Non-Contentious Probate Rules. It is made under the Succession, Probate and Administration Act Cap. 60. As the Court of Appeal said in Rosy Reddy -v- Manchama Webb and Lawrence Webb Civil Appeal No. ABU0014 of 1994S, where the application for removal of caveat is under section 47 of the Act, the Rules do not apply. The Act allows the court to consider the application upon affidavit or oral evidence.

In Rosy Reddy -v- Webb (supra), the Court of Appeal said:

“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. The relevant rule for consideration in this regard is r.44(7). For the purposes of a warning, a caveator is required to give particulars of a contrary interest ..... in determining this issue, the Court may have regard to the nature of the contrary interest that is required to be particularised by the caveator under the Rules. Again the relevant rule in this regard is r.44(7) which specifies that nature of the interest is to be “any contrary interest in the estate”. We would adopt this and formulate that for the purpose of removing a caveat under s.47 of the Act, the caveator is required to establish a contrary interest in the estate of the deceased.”

In the light of this decision of the Court of Appeal, and because this application is not made under the Rules but is made under the Act, I find that the caveator’s failure to specify contrary interest in the appearances, does not prevent the court from considering the affidavit evidence filed by the caveators. Although they were filed without leave, I find that I have a discretion to consider their contents in making a decision under section 47(1). The technical breach of Rule 44 is not fatal to their case.

The caveators claim the existence of a later will. The will has not been annexed to their affidavits. However the Probate file enclosed with this court file shows that Dharam Lingam Reddy has made an application for the grant of probate, and has tendered to the Probate Registry, the purported original will of Adi Mullah dated 15^th September 1999. Under that will, Dharam Lingam Reddy is the sole executor and trustee. Bimla Wati is a beneficiary for life. Clearly therefore on the basis of the affidavit evidence and the will tendered to the Registry, Dharam Lingam Reddy has a contrary interest. I therefore decline to remove the caveat entered by him.

Krishna Reddy on the other hand has no interest at all under either will. He is neither executor, nor beneficiary. I order the removal of the caveat lodged by him.

He must pay the Applicant costs of this application which I set at $100.00.

The Applicant must pay the costs of the First Caveator which I set at $100.00.

Nazhat Shameem

JUDGE

At Suva

2^nd February 2000

HPC3734J.99S