Sharma v Sharma [2002] FJHC 26; Hbc0218j.2001s (5 September 2002)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 218 OF 2001S

Between:

ARUN PRASAD SHARMA
Plaintiff

And

DEVEN PRASAD SHARMA
RANJULA DEVI SHARMA
JASODA DEVI SHARMA
Defendants

Plaintiff in person
G. O’Driscoll for the Defendants

JUDGMENT

These proceedings were commenced by the Plaintiff in person who filed an Originating Summons and supporting affidavit in May 2001.

The Plaintiff and the first named Defendant are sons of the late Ambika Prasad Sharma who died on 8 February 1992.

The second named Defendant is Ambika Prasad Sharma’s daughter while the third named Defendant (Jasoda) is his widow, the Plaintiff’s mother.

According to the supporting affidavit the Plaintiff went to India to pursue further studies in 1982. When he returned to Fiji in 1990 he found his father’s condition much reduced. The Plaintiff says that his father was in poor health, and was being kept a virtual prisoner at home where “unhealthy attitudes, wicked behaviour and evil climactic circumstances” prevailed. The Plaintiff’s two most serious allegations are that the death of his father was not an accident and that a will said to have been executed by his father on 16 November 1991 was forged. In the present proceedings he seeks to propound an earlier will dated 10 September 1985 and seeks an order that he be paid his entitlements under that will.

When Ambika Prasad Sharma died it was reported that he had fallen at home but the Plaintiff claimed that he had been murdered. The police investigated and in due course an inquest was held. A copy of the inquest is Exhibit B to the answering affidavit filed by Jasoda. In his ruling delivered in March 1995 the Resident Magistrate wrote:

“On the evidence and facts before me I conclude that there is no evidence whatsoever of foul play.”

The 1991 will ( a copy of which is Exhibit A to Jasoda’s affidavit) appointed the first and second named Defendants as the executors. In Civil Action 24 of 1993 the executors sought to remove a caveat lodged against the will by another son Sashi Prasad Sharma. On 30 August 1996 Pathik J ordered the removal of this caveat. A copy of his Decision is exhibit E to Jasoda’s affidavit. On 30 August 1996 probate of the 1991 will was granted to the executors (Exhibit F). Sashi Prasad Sharma appealed to the Fiji Court of Appeal. On 27 February 1998 the Court of Appeal dismissed the appeal. As appears from the copy Judgment (Exhibit C) Sashi Prasad Sharma had argued that administration of the estate should be stayed pending the reopening of the 1993 inquest. Rejecting this submission the Court of Appeal said:

“... the trial Judge was correct in concluding that to allow the appellant further time to await the decision of the Attorney-General [ under Section 20 of the Inquests Act – Cap 46] in the circumstances of the present case was not a good ground to allow the caveat to remain. It is now two years since the matter was referred to the Attorney General and six years since the deceased died. It is in the interest of all parties that this matter should come to some finality.”

Mr. O’Driscoll advised me that an appeal to the Supreme Court against the 1998 decision of the Court of Appeal is one of the twelve appeals now pending in the Supreme Court. It is not known when the appeal will be heard.

Although the present Plaintiff was not a party to the proceedings commenced by his brother they are in my view determinative of the status of the 1991 will and the 1993 inquest. I therefore advised the Plaintiff and Mr. O’Driscoll during the hearing that I was not prepared to go behind the grant of probate or the findings of the inquest.

In a final affidavit the Plaintiff explained that his father’s estate was valuable. On the other hand he himself is an unemployed acupuncturist and part time taxi driver with four children to support. He does not own his own house. The Plaintiff asked me to order that he paid his one ninth entitlement provided by clause 5 of the will.

As long ago as April 1994 Jasoda’s then solicitors wrote to the Plaintiff solicitors (Exhibit B to the supporting affidavit) advising:

“(Jasoda) will assist in the settlement forthwith after she will discharge her life interest in the said property as per clause 5 [of the will]”.

In paragraph 27 of her affidavit in reply herein Jasoda stated:

“... the Plaintiff does have an entitlement under the 16^th November 1991 will and that entitlement will be satisfied”.

In paragraph 29 she stated:

“... I say the trustees have always been prepared to pay the entitlement to the Plaintiff and all other beneficiaries but they have not done so because of the many court actions the Plaintiff and others have taken against them contesting the estate and also because there is a pending Supreme Court case by another of my sons Sashi Prasad Sharma against the estate, the outcome of which will finalise this affair and the estate can be executed thereafter.”

As will be seen from clauses 4 and 5 of the 1991 will Jasoda was given a life interest in the whole of Ambika Prasad Sharma’s estate including the moneys standing to his credit in various banks at his death. It is only upon the death of Jasoda that these moneys are to be distributed equally to the testators 9 children (one of whom died in 1985).

These clauses seem to me to be badly drafted since it is not at all clear what a life interest in moneys, without further directions, amounts to.

I have some sympathy with the Plaintiff and have little doubt that he truly believes that the inquest reached the wrong conclusion and that the 1991 will is a forgery. For reasons already given however I regard those matters as closed. Under the terms of the 1991 will the Plaintiff does not become entitled to be paid a share in his father’s estate until his mother’s death. Accordingly these proceedings must fail.

M.D. Scott
Judge

5 September 2002