Singh v Kumar [2006] FJHC 115; HBC329.1994 (12 December 2006)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 329 of 1994

Between:

VIJAY SINGH AND BRIJ MATI
Plaintiffs

And:

VIJENDRA KUMAR as Executor and Trustee of the
Estate of Ben Mati
Defendant

Before : Master Udit

Counsel: Ms A. Maharaj for the Plaintiffs
Mr R. P Singh for the Defendant

Date of Hearing: 21st July, 2006
Date of Decision: 12th December, 2006

DECISION

Introduction

[1] This is an application by one of the plaintiffs, namely, Vijay Singh (surviving plaintiff) to continue this action in his own right and on behalf of the second named plaintiff, late Brij Mati, (deceased plaintiff, without being duly appointed as the personal representative of her estate.

Background

[2] This action was instituted by a writ of summons on 4th November 1994. A statement of claim was indorsed on the writ. For the purposes of the present application, the alleged cause of action is that the plaintiffs, at all material times, were and still are the current lessees and occupiers of a piece of land owned by the estate of late Ben Mati. The subject land is comprised in certificate of title No: 13879, more particularly described as Lot 2 on DP 3441 known as Davuilevu (part of). Upon the registered proprietor’s death, the property was transmitted to the defendant in his representative capacity. Initially this action was instituted by Ben Mati. After her demise, Vijendra Kumar, the duly appointed legal representative of the estate was substituted as the defendant as the executor and trustee.

[3] The plaintiffs’ claim that they were given a lease over the said piece of land for an indefinite period. No written agreement evidencing any such lease was entered between the parties. Nothing was reduced in to writing. The plaintiffs primarily rely upon an alleged verbal promise. In reliance upon the promise, the plaintiffs constructed a house now approximately valued at $16,500.00. As lessees they were paying a rent of $100.00 per year. A receipt for payment of one such rent dated the 20th of February 1994, for year 1993 issued by late Ben Mati (registered proprietor) is annexed to the affidavit of Vijay Singh and Brij Mati filed on 7th November 1994.

[4] It appears from the pleadings that a dispute or misunderstanding arose between the parties. The defendant allegedly refused to accept the rent. In retaliation the plaintiffs registered a caveat, being registration number 362900. This was similarly reciprocated by a tit for tat application under the Land Transfer Act (Cap 131) for its removal by Registrar of Titles, which culminated into this suit. On 11th November 1994, Justice Byrne on an Ex-parte Notice of Motion extended the caveat pending the determination of the ‘interlocutory’ application, which regrettably 12 years later still remains pending. No application was thereafter ever made to vary or discharge this order for extension of the caveat beyond the statutory period of 21 days.

[5] Due to prolonged delays in finalisation of civil cases in the High Court, a court controlled case management system was introduced late last year. For that, High Court Rules 1988 was respectively amended to pave the way for expeditious disposal of civil suits. One such amendment was the incorporation of Order 25 rule 9. This rule prescribes the ground for listing of cases before a judge or the Master, which remain dormant for a continuous period of six months for a plaintiff to ‘show cause’. Issuing of summons by the court was recently upheld by the court of appeal in ..........................A uniform listing of such cases for parties to ‘show cause’ as to why cases caught by this rule ought not be struck out for ‘want of prosecution’ or ‘abuse of process’ was undertaken by the registry. During this listing the court is vested with a wide discretion to either strikeout a claim and/or to give directions for its expeditious disposal. Constant listing of this category of suits generated a speedy response from those litigants and their counsel, who had a genuine desire to achieve a result through the judicial process. I would place the current action within this ambit. After it’s listing, the parties proceeded swiftly to finalise all pre-trial issues. Order 34 rule 1 Summons to Enter Action for Trial was filed on 8th March 2006. Unfortunately, it had to be abruptly stalled due to the death of one of the plaintiffs. Hence the present application was filed.

Application and submissions

[6] The application is made pursuant to O 15, r. 8 of the High Court Rules 1988. This particular rule regulates the procedure on the continuation of pending proceedings, where a party needs to be substituted ‘by reason of death’, bankruptcy etc.

[7] Mr. R. P. Singh of Counsel for the defendant, submitted that due to the demise of the second named plaintiff the action is abated or at best defective unless rectified. In support of the submission, he cited paragraph 15/7/3 of Supreme Court Practice 1999. His short and succinct submission was that until such time a personal representative is duly appointed, the action could not be pursued any further on behalf of the plaintiff.

[8] On the other hand, counsel for the Plaintiffs, Ms. Maharaj submitted that the action in its current form is not abated. She forcefully argued that it must continue without the appointment or substitution of a personal representative. In elaborating the submission, she firstly relied on O. 15, r. 8 (3) (b). Secondly, she submitted that the residual effect of S 6 (1) (c) of the Succession Probate and Administration Act (Cap 60) as amended in 2004 negates the requirement of a formal grant to administer a estate the value of which is equal to or less than $20,000.00. It by operation of law automatically devolves to surviving spouse. Thirdly she submitted that in an action where there are several plaintiffs, who all have a joint cause of action, the death of one or more plaintiffs does not bar the surviving plaintiffs to continue with the action, even on behalf of the deceased co-plaintiff(s). In other words the action is to continue non adfici. Any decision will be binding on all the parties either dead or alive. That is, the participation of all the litigants is not necessary.

[9] From these submissions, in short the following distinct issues do give rise for my deliberation: -

(a) Effect of the death of a party

(b) Application of O. 15 rule 8

(c) Application of S. 6(1) (L) of the Succession Probate and Administration (Amendment) Act 2004.

(d) Effect of death of one of the co-plaintiffs.

Effect of death on court proceedings

[10] Perhaps the starting point is to refer to Common Law procedure Act 1852. Under the Act there was no provision for substituting a deceased party by another personal in representative capacity. In Clayton –v- Oxford (1886) LRZ Ex. Ch. 54, it was held that where an action had commenced in the name of a dead person, there was no power under the Act to substitute his personal representatives. Therefore any such action, pending or otherwise is so abated; Bowker v. Evans [1885] 15QBD 565. Prior to coming into effect of the Judicature Act 1875 and the Rules of the Court (Order L) made pursuant thereto, this was the position in England; Jackson v. North Eastern Railway Company [1877] UKLawRpCh 133; [1877] 5 Ch. D. 844 at 846. The rationale is straightforward. After the death of a party, an action can not be instituted nor even continued as "in law no such person" exists; Lazard Bros & Co. v. Midland Bank Ltd. [1933] AC 289 at 297. As a result any such proceeding would then inevitably have to be issued without any obligatory authority; Tetlow -v- Orela Limited [1920] 2ChD 24. A dead person can neither authorise the institution nor continuation of an action. For an action to continue, there must indeed be a person before the court; Eldridge v. Burgess [1878] UKLawRpCh 12; [1878] 7 Ch. D 411. Fry LJ in delivering his judgment held:-

"I think that rule 1 of Order l applies to a case where the cause of action survives or continues" in some person who is before the court. In the absence of a trustee, I can only order that the action to be struck-out of the list".

(emphasis added)

[11] Emanating from the above, evolved the principle that upon death of a person a cause of action survives and continues only for the benefit of the heir and devisee. So far as the deceased is concerned, the destiny of the action coincides with the death. In Re Sheppard; Atkins v. Sheppard [1889] Ch. 131, Cotton LJ in deliberating upon the regularity of a proceeding after the death of a party, at page 131 aptly stated:-

"The rule in my opinion keeps the action as against the son living but not against the deceased father. In the case of devolution by death the action is kept alive by the rule with respect to the property only, where it devolves upon a person who is before the Court".(emphasis added)

[12] The issue pertaining to revivor actions and the devolution of causes of an action upon death of a party was finally settled in England upon coming into effect of S 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934. Sir Thomas Bingham MR in Fielding v Rigby [1993] 4 ALLER 294 at 297 held;

"The effect of that subsection, plainly was to abrogate save in the case of defamation, the old rule that a personal cause of action dies on the death of a person on whom the cause of action is vested".

(emphasis added)

[13] This provision was adopted in Fiji, when the Law Reform (Miscellaneous Provisions) (Death and Interest) Ordinance was brought in to force as Ordinance No. 7 of 1935 on 28th May, 1935. That Ordinance is now cited as "Law Reform (Miscellaneous Provisions) (Death and Interest) Act (Cap 27). S 2 (1) which is identical to its English counterpart, prescribes:-

"Subject to the provision of the section, on the death of any person after the commencement of this Act, all (sic) causes of action subsisting against or vested in him shall survive against or, as the case may be, for the benefit of, his estate: provided.....".

For the purpose of this application, the "proviso" is not applicable.

[14] In light of the well-settled common law, which is firmly fortified by an Act of the Parliament, I am left with no option but to hold that upon death of a party an action cannot be continued in the name of the deceased person. Any such action survives "against or as the case may be, for the benefit" of the estate save for the causes of action expressly excluded. As such, the deceased’s plaintiff’s action only survives for the benefit of her estate. Accordingly, it cannot be permitted or allowed to be continued in the manner and form as submitted by Ms. Maharaj. What then needs to be done?

Relationship between O.15, r, 8 and S 2(1) of Law Reform (Miscellaneous Provisions) (Death and Interest) Act (Cap 27).

[15] S 2(1) on its own only reflects the law. O.15 rule 8 compliments it by prescribing the procedure for the commuting of a cause of action to the estate by appointing a person who has the locus to pursue the action on the estate’s behalf. Even though this Act was fundamental to the determination of this application, it was not referred to the Court by the counsel in their written and oral submissions. Much of their argument was centred on the application of O. 15 r. 8 (1), which states: -

"Where a party to an action dies or becomes bankrupt but the cause of action survives, the action shall not abate by reason of the death or bankruptcy".

[16] To begin with, it was a common ground that the alleged cause of action survived. It survived by virtue of S2 (1) of the Act. Therefore a personal representative of the deceased may continue with the proceeding. An authority on point is Re Atkins Estate [1875] Ch D 82. A sum of money was deposited in court. Subsequently a petition was filed for payment out, but before an order was made the sole petitioner died. The executor had to be substituted as a party to continue with the proceeding including for the simplest order for a payment out.

[17] Fielding v. Rigby (Supra) illustrates the application of O. 15 rule 7(2) (equivalent to our O. 15 rule 8 (1)). Feilding instituted an action for recovery of damages as a consequence of an accident. After the Writ was issued, but before served, the plaintiff died. On an ex-parte application, the wife was substituted in place of the plaintiff under O 15 rule 7. Subsequently the defendant’s solicitors took objection to the substitution and applied to strike-out the action on the ground that it was a nullity. That is, the writ could not have been served after the death of plaintiff prior to the substitution of the personal representative.

[18] At page 297 of the report, the Master of Rolls succinctly summarised the substantive and procedural law as follows:-

"The starting point for considering this problem is, I think, S 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934, which provides:

‘subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate. Provided that this subsection shall not apply to causes of action for defamation....’

The effect of that subsection, plainly, was to abrogate, save in the case of defamation, the old rule that a personal cause of action dies on the death of the person in whom the cause of action is -vested. The provisions of that section are reflected in RSC Ord -15, r 7(1), which provides:

‘Where a party to an action dies or becomes bankrupt but he cause of action survives, the action shall not abate by reason of the death or bankruptcy’.

Accordingly, the situation in the present case is as follows. A cause of action was vested in the deceased at the date when the writ in these proceedings was issued. On his death, the cause of action survived for the benefit of his estate and the action which had been initiated on his behalf did not abate. Plainly, as it seems to me, the correct step at that stage was for the solicitors for the widow and personal representative to make application to the court under Ord 15, r7 (2) for the substitution of the widow and personal representative as the plaintiff in the action. That is a step which should, in my judgment, be taken before any other step is taken and certainly before service".

(emphasis added)

[19] On an application for amendment and substitution of the executrix, the court held that the "under the new practice there is no abatement". Although, leave to amend the petition was disallowed, the executrix was allowed to continue with the proceeding by substitution in her representative capacity. The court rectified the defect. In the absence of an application for substitution as discussed above, it is open to the Court to order rectification or even to strike-out; Eldridge –v- Burgess (Supra).

When and who should be substituted?

[20] The law governing as to the time and the stage of a proceeding for substitution of a personal representative is well settled since the decision of the Privy Council in Meyappa Chetty v. Subarmani Chetty [1916] 1 AC 603. In essence the general rule is that where a party dies intestate, a administrator can only institute or continue with an action after the grant of the letters of administration. On the other hand in case of a party dying testate, the named executors and trustees in the testamentary instrument may institute or continue with the proceeding as intended executor(s) and trustee(s). But for that too, an application for substitution must be made before a decree or order is pronounced.

[21] The differences as to a party dying testate or intestate is best demonstrated in Meyappa Chetty v. Subarmani Chetty (Supra) and Ingall -v- Moran [1944] l ALLER 97.

[22] As to the origin of the powers of the executor, the Privy Council in Mayappa Chetty -v- Subarmani Chetty (Supra) at 608 and 609 said;

"It is quite clear that an executor derives his title and authority from the will of his testator and not from any grant of probate. The personal property of the testator, including all rights of action, vests in him upon the testator’s death, and the consequence is that he can institute an action in the character of executor before he proves the will. He cannot, it is true, obtain a decree before probate, but this is not because his title depends on probate, but because the production of probate is the only way in which, by the rules of the Court, he is allowed to prove his title.....The law on the point is well settled."

(emphasis added)

[23] But in so far as it relates to source of the powers of an administrator, Lord Justice Scott in Ingall v. Moran(Supra) stated;

"It is true that, when he got his title by the grant of administration, he prima facie became entitled to sue, and could have then issued a new writ, but that was all. An application by him to treat the original writ............ as retrospectively valid from that date would have been refused by the court, not only because it might prejudice existing rights of defence, but because it would not be permissible under the Rules of the Supreme Court or the Judicature Act. The old writ was in truth incurably a nullity".

(emphasis added)

[24] The aforementioned principles have widely been adopted, applied and is at the present the law in this jurisdiction. Our courts have unreservedly applied this in numerous cases; Prakash Singh -v- Gurmej Kuar Singh -v- ANZ Banking Group Limited Suva High Court Civil Action number HBC 12/91S, Esala Tanuku -v- Attorney General Suva Court Civil Action HBC No. 13/95, Josaia Nanoka -v- The Ba and Tavua Drainage Boad, Lautoka High Court Civil Action No. 2371/1978.

[25] Therefore, this action cannot continue in the name of the deceased plaintiff or on her behalf by the surviving plaintiff without the mandatory legal authority. If there is a will, the named executor (trix) can be substituted in an intended capacity. However, the grant will be mandatory before "obtaining a decree" which in this case is not far a head. To the contrary if the second named defendant died intestate, unless an administrator is duly appointed in accordance with the law, the action on her behalf cannot proceed any further or the court can strike it out. I reject Ms Maharaj’s submissions on this point.

Joint Cause of Action

[26] Ms. Maharaj’s, third submissions was that since the cause of action is a joint one, the surviving plaintiff in law must be allowed to continue with the action on behalf of both the plaintiffs irrespective of the death of the second plaintiff. O.15, r.8 (3) permits such an approach. She cited para 15/7/9 of the Supreme Court Practice 1999. To the contrary, Mr. Singh submitted that substitution is indispensable. Failing which at least the deceased’s plaintiff action is irregular and defective. Consequently, the court can not grant any relief to her. If the action is to be continued in its current form, incongruously the court will be strained to exercise its discretion to strikeout the claim on the basis of the regularity.

[27] It is settled law that where there is a sole plaintiff the action cannot be continued without the substitution of the personal representatives; In Re: Atkins Estate [1875] Ch 82. I also refer to is Re: Dynevor v Duffryn Colierses [1878] Weekly notes 199, where a sole petitioner filed an application to wind-up a company, but he died before the petition was heard. Upon an application, the Vice Chancellor granted leave to the representative (sic) to continue with the proceedings, as the action could not have proceeded further in the absence of a representative.

[28] Sellers -v- Goode [1892-93] 30 LR 298, deals with a circumstance where both the parties died. After accepting the service the defendant died. Three months later the plaintiff also died. Their personal representatives were duly appointed upon the grant of Letters of Administration with will annexed and probate respectively. Upon an application, the Queens Bench Division allowed the continuance of the action in the names of respective representatives.

[29] In Arnison -v- Smith [1889] Ch.D 567, a case relevant to the one for my deliberation, two of the fifty four plaintiffs died before the trial. The trial was not postponed as a consequence of the death. Following the trial a judgement was also delivered. The surviving plaintiffs’ who proceeded to trial had their action dismissed. Later a post judgment application was made by the personal representatives of the deceased plaintiffs to continue with the proceeding. In the first instance, the application was disallowed. Of importance on appeal, Cotton LJ at page 571 of the report said;

"We have no doubt that the plea of res judicata could not be set up against the appellants in a fresh action. The deceased plaintiff’s were not parties at the time of the trial, and there is no judgment against them".

(emphasis added)

[30] Of course this accords with the principle to which I have earlier alluded to in this decision. A fortiori, for an order to be effective a person recognised in law must be before it. Therefore, it follows that if the action is allowed to continue in its current form, any judgment or decree will only bind the surviving plaintiff, to the exclusion of the deceased plaintiff.

[31] In my view, where there is a joint cause of action and upon death of one party, the subject matter of a cause of action passes to the surviving co-plaintiff(s), than no substitution would be required. The reason is that in such a situation the subject property of the deceased does not fall to be part of the estate. Transfer of the property is instantaneous coinciding with the death. A common example which comes to my mind is of joint tenancy over a piece of land.

[32] An authority on the point is Smith -v- The London and North Western Sailway Company [1853] KB 694 where there was a prior assignment over a property or property rights. The facts of this case are rather complex. But for the purposes of the issue before me, it involved a tenancy in common of a patent. One of the patent holders died. The patent was infringed. Damages in the sum of ₤1250 were awarded against the infringing party. On appeal, it was submitted on behalf of the infringing party that the plaintiff is not entitled to the total damages. His damages should be limited to his part of invention. The rest should rightly belong to the other patentee. Since the other patentee was not a party to the proceedings, damages should appropriately be apportioned. It was held that "where A and B are tenants in common of patent assigned to them if B dies, actions for infringements committed in B’s Lifetime survive to A, who is entitled at law to recover the whole damages".

There was a prior assignment of the right to the claimant by the other patentee. Devolution by a grant of letter of administration or probate was unwarranted. Accordingly, the appeal was dismissed.

[33] The subject matter of this action is land. There is a general paucity of evidence as to the nature of tenancy or licence. Due to this, I find no merit in Ms Maharaja’s submission on this issue of joint cause of action. It is likewise also rejected.

Succession Probate and Administration (Amendment) Act 2004.

[32] Ms. Maharaj’s final submissions were in respect of S.6 (1) (c) of the Succession Probate and Administration (Amendment) Act 2004. She urged me to allow surviving plaintiff to continue with the proceedings in light of the value of the property approximately assessed at $16,500.00 which is less than $20.000.00. That being the case, coupled with no issues of the plaintiff, she submitted that S.6 (1) (c) of the Succession Probate and Administration (Amendment) Act 2004 will automatically vest the estate property to the surviving plaintiff. Does this provision vests the property as suggested by Ms. Maharaj?

[33] After amendment to the principal Act succession of property on intestacy is provided by S 6 (1). It sates:-

Subject of the provisions of Part II, the administrator on intestacy or, in the case of partial intestacy, the executor or administrator with the will annexed, shall hold the property as to which a person dies intestate on or after the date of commencement of this Act on trust to distribute the same as follows:-

(a) if the intestate leaves a wife or husband, without issue the surviving wife or husband shall take the whole of the estate absolutely and-

(b) if the intestate leaves no issue, the surviving wife or husband shall, in addition to the interests taken under paragraph (a), take one-half of the residuary estate absolutely;

(3) In this section

child..........

"prescribing amount" means $20,000.00 or any other prescribe amount.

[34] She urged me to allow surviving plaintiff to continue with the proceedings in light of the value of the property approximately assessed at $16,500.00 which is less than $20.000.00. That being the case, coupled with no issues of the plaintiff, she submitted that by operation of S.6 (1) (c) of the Succession Probate and Administration (Amendment) Act 2004 will automatically vest the estate property to the surviving plaintiff. Under the circumstances the surviving plaintiff would take the subject property absolutely. Her submission was that the combined effect of S6(1)(a),(c) and S6(3), is that no grant is necessary for the devolution or conveyance of the deceased spouse’s (plaintiff’s) estate. By operation of law the devolution or conveyance automatically takes place. That being the case, this action proceeds nunc pro tunc.

[35] In rebuttal Mr Singh submitted that this provision has no relevance.

[36] I have great difficulties in accepting Ms. Maharaj’s submission. Section 6 falls with Part III of the Act, which deals with "Distribution on intestacy". S6 is the sole section which provides the formula for distribution of property on intestacy. Of importance, S 6(1) vests all the property to "administrator on intestacy" or in the case of partial intestacy, executor or administrator with will annexed "on trust to be distributed in accordance with part III of the Act". What is beyond any doubt is that neither S6 nor Part III of the Act, obeviate the need for the grant to be issued before the administrator is able to exercise his powers. S2 defines an "administrator" as including ‘the Public Trustee and any other person to whom administration is "granted" (emphasis added). S8 stipulates that pending the grant of a Probate or Letters of Administration the estate of the deceased person vest upon the Public Trustee for the purposes of ‘accepting services of notices and proceedings and acting as nominal defendant’. Once the applicable grant is issued, the estate of deceased becomes vested in the executor or administrator respectively in accordance with S9.

[37] Only of the limited circumstances under the Act in which the estate property can be distributed without a prior grant is provided for in S49. This relates to monies held in bank. It states:-

"On the death of a person leaving a sum of money not exceeding $1200 standing to his credit in his bank, if no probate or administration is produced to such bank within four months of the death of such person, and no notice in writing of any will, or an intention to apply for administration, is given to the bank within the same period, the bank may, after 14 days notice in writing to the Public Trustee, pay such sum of money to any person who appears to the satisfaction of the manager of the bank to be the person who would be beneficially entitled to such sum of money as if a grant of probate or administration had been obtained, and payment of such sum of money accordingly shall be a valid discharge to the bank against the claims any other person whomsoever".

Of course, this provision is irrelevant for the purposes of not this application by the entire action.

[38] Clearly, the effect of the statutory provisions discussed above, negates any such presumption that the surviving spouse can take the value of the estate of the deceased spouse, without a grant. As such, I hold that S6 (1) (b) & (c) and S6 (3) only provides for distribution of the property of a deceased estate, for which purpose an administrator must first be appointed. It follows that, in the present care, the first defendant must obtain a grant of letter of administration, than apply to be substitute as a party in a representative capacity under O. 15, r. 8 of the High Court Rules 1988.

Conclusion

[39] Therefore to conclude, I hold that, the surviving plaintiff can not continue the action on behalf of the deceased spouse either in common law or by virtue of Law Reform (Miscellaneous Provisions) (Death and Interest) Act (Cap 27) nor Succession Probate and Administration (Amendment) Act 2004, without having obtained a grant of letters of administration, if the said plaintiff died intestate. However, as discussed above, this does not prohibit the surviving plaintiff to continue with the action solely on his own behalf. If the surviving plaintiff opts to continue with his action the deceased plaintiff’s action will be left in abeyance. I leave the choice to the plaintiff and his counsel.

Therefore, this application is dismissed with costs summarily assess at $300-00 to be paid by the surviving plaintiff to the defendant by 31st December, 2006.

Accordingly so ordered.

J. J. Udit
Master