Bi v Raza [2003] FJHC 60; HPC0032.1998 (20 June 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

PROBATE ACTION NO. 32 OF 1998
(Probate No. 35940)

Between:

SAHIDAN BI
f/n Mohammed Khan
Applicant

and

MOHAMMED RAZA
f/n Wali Mohammed
Respondent

Mr. M. Sadiq for the Applicant
Mr. A. Sen for the Respondent

JUDGMENT

This is Sahidan Bi’s (the “applicant”) motion for the removal of Caveat Number 32 of 1998 filed by Mohammed Raza (the “respondent”) pursuant to section 47 of Succession, Probate and Administration Act, Cap. 60 (the ‘Act’).

This matter relates to the Estate of Basiran daughter of Kallan (the ‘deceased’) who died on 22 August 1998. The respondent had lodged a caveat against the issue of a grant of Probate under the Will of the deceased dated 1 August 1989. However, Probate was inadvertently granted in the face of the Caveat and it has now been returned to the Probate Registry of the High Court.

Facts:

The facts of the case are as follows (as stated in Mr. Sadiq’s written submission):

“That the mother of the applicant namely BASIRAN daughter of Kallan of Valebasoga, Labasa deceased died on the 23/8/98 Testate (hereinafter called the “said deceased”).

That in that Will dated 1/8/1989 she did not give anything to the Respondent.

That upon the filing of the Caveat, the applicant issued the warning to Caveator and served on Messrs Maqbool & Company Solicitor for the Respondent who acknowledged it on the 18/8/99.

That no appearance was entered by the Respondent nor he showed any interest contrary to that of the applicant.

That due to the Coup no further action was taken.

Then again, another warning to Caveator was issued on the 12/3/2002 and served on the Respondent on the 15/3/2002 and the affidavit filed in Court.

Then again the Respondent did not enter any appearance nor showed any interest contrary to that of the applicant.”

Consideration of the issue:

As ordered, Mr. Sadiq for the applicant filed his written submission but Mr. Sen for the respondent did not.

The applicant applied for removal of the said caveat under section 47 of the Act which provides:

47. (1) In every case in which a caveat is lodged, the court may, upon application by the person apply for probate or administration, or for the sealing 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 as entered in his caveat.

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

An affidavit in support of the motion to withdraw was filed by the applicant on 25 April 2002 and a Reply thereto was filed on 23 May 2002 by Rafiqan Bi, a co-trustee under the said Will and also by the respondent Mohammed Raza. To the affidavit of the respondent the applicant replied on 18 June 2002.

In his said affidavit the respondent said, inter alia, that he admits that the deceased executed her said Will dated 1 August 1989 but that she “had executed another Will on a later date whereby she had made provision for me. My late mother had in fact shown me a copy of her later will and had advised me that I would be adequately provided for after her death.”

The respondent denies that he is the stepbrother of the applicant as alleged and that “in so far as I am aware Sahidan Bi’s father’s name was Walli Mohammed”.

Although the respondent states that his solicitors ‘had sent a copy of my appearance’ to the Probate Registry to be filed, the so called ‘appearance’ is not in the file and it has also not been produced or annexed to any affidavit filed by the respondent.

The only relevant portions which pertain to the respondent in Rafiqan Bi’s said affidavit read:

4. That I am aware that my late mother had executed the said Will. However I was also advised that she made adequate provisions for my brother Mohammed Raza.
   
5. That I was advised by my late mother that documents pertaining to the share of my brother, Mohammed Raza was forwarded to Sahidan Bi.
   

In reply to the abovementioned paragraph 4, the applicant replied that Rafiqan had renounced her right, claim and title to the grant of Probate and annexed a copy of the ‘renunciation’ in her said affidavit. The applicant further says that the respondent is not a beneficiary in the said Estate.

In the absence of any legal submissions from Mr. Sen despite an order to do so, the Court has no assistance in regard to the respondent’s interest in the estate contrary to that of the applicant. On the other hand Mr. Sadiq has quite clearly set out the legal aspect of the issue for my determination.

Further to ‘Warning to Caveator’ (the respondent) of 12 March 2002 and served on 15 March 2002 there was no response or ‘entry of appearance’ showing interest ‘the respondent has in the estate’. This he was required to do within eight (8) days after service. There was also a default clause in the ‘Warning’ that ‘in default of your so doing the Court may proceed to issue a grant of Probate or Letters of Administration in the said estate notwithstanding your Caveat’.

On the facts of this case it is quite obvious that the respondent has not complied with the requirements of 'Warning to Caveator' as he has failed to enter appearance at all or within the time allowed under the Probate Rules and to show the nature of his interest in the estate contrary to that of the applicant under the said Will of 1 August 1989.

The respondent’s subsequent assertion in his affidavit in reply to applicant’s affidavit on motion to remove caveat by stating that the deceased made a subsequent Will and made provision for him does not assist him at all in his endeavour to prevent the grant of Probate particularly because the respondent has failed to comply with the procedural requirements under the Rules to show a ‘contrary’ interest.

In the outcome, for the above reasons the application to remove Caveat No. 32 of 1998 is granted and it is ordered that it be removed forthwith paving the way for the grant of Probate in the Estate of Basiran d/o Kallan the deceased. I order costs against the respondent the sum of $200.00 to be paid to the solicitor for the applicant within 14 days from the date of this judgment.

D. Pathik
Judge

At Suva
20 June 2003