Sahim v Gounder [2008] FJHC 357; HBC61.2006 (5 May 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 61 OF 2006

BETWEEN:

PARVATI SAHIM
Plaintiff

AND:

SHIU PRAKASH GOUNDER
SHIU PRAKASH GOUNDER as an intended administrator of the Estate of Uma
Defendant

Before: Master Udit

Counsel: Mr. S. Chandra for the Plaintiffs
Mr. R. Prakash for the Defendant

Date of Decision: 5th May, 2008

DECISION

Introduction

[1] On 16th February 2006 the plaintiff filed an indorsed writ of summons inter-alia seeking the following reliefs:

(a) an extension of caveat No. 562938 lodged against State Lease No. 12802 beyond 21 days until further order of this Honourable Court,

(b) an order that the defendant do acknowledge the contribution of the plaintiff and convey the property to the plaintiff;

(c) costs;

(d) such other relief as the court deems just and equitable under the circumstances.

[2] Further to the writ, the plaintiff filed an ex-parte Notice of Motion inter alia seeking an order that caveat number 562938 be extended beyond 21 days until further order of this Honourable Court. It is supported by an affidavit of the plaintiff which is deposed on the 16th and filed on 17th February, 2006. In the first instance, the Motion was listed before His Lordship Mr Justice Coventry, who granted an order in terms thereof. Thereafter, the application was adjourned before me by His Lordship.

[3] In the intervening period, (ie is in between but before the matter was called before me,) the solicitor’s for the defendant filed a summons seeking the following orders:

(a) the interim injunction order made by this Honourable Court on the 17th day of the February 2006 on the application of the above named plaintiff be struck out with costs.

(b) the indorsed writ of summons be struck out with costs to the defendants on the following grounds:

(i) it discloses no reasonable cause of action

(ii) it is scandalous, frivolous or vexatious

(iii) it may prejudice, embarrass or delay the proper conduct of proceedings

(iv) it is otherwise is an abuse of the processes of the court

[4] I heard the counsels in respect of this summons in particular para (b) thereof. For avoidance of any doubt, let me record that the reference to interim injunction in para (a) of the Summons is referred to the order extending caveat, which is well within my jurisdiction; O. 59, rule 2(c).

[5] Before I consider the application, let me describe the defendants. The first and the second defendants by name is the same person. However, he is sued in different capacities. The second defendant is sued as an intended administrator of the Estate of Uma, his late mother. On the other hand, in his capacity as the first defendant he is sued personally, although it is pleaded in the writ of summon with great imprecision and vagueness.

Brief background

[6] Briefly, the plaintiff is related to late Uma. They are biological sisters. Shiu Prakash Gounder, is the only son of the deceased. That being the case, the plaintiff is the defendant’s maternal aunt. She is a retired nurse. For most part of her working career she lived and worked as a nurse in England. From the earnings in England she remitted funds to Fiji. The recipient of the remitted funds was the deceased. From the various affidavits filed, it is transparent that there was some mutual understanding or arrangement between the sisters that the subject money was to be utilised for the purposes of investment in real property(ies).

[7] There is no controversy that the funds were utilised for the desired purpose. More than one real property was purchased by the deceased around that time. But the dispute emanates from the fact that the deceased allegedly also contributed her own funds for the acquisition of one of the properties. Essentially, the central is whether or not the property which is subject of this action was purchased by the remitted funds of the plaintiff. Just to clarify, there are other actions pending in this Honourable Court relating to other properties. For the purposes of the present action the subject property is comprised in State Lease Number 12802, being Lot 5 on Plan No. SO 1860, Muasara situated at 20 Korotogo, Sigatoka.

[8] On behalf of the plaintiff, it was contended by Mr Chandra that the said property was purchased by the deceased for and on behalf of the plaintiff. The deceased held the property on trust for her. However, he submitted that during her lifetime the deceased transferred the property under the name of the defendant in breach of the trust reposed in her. Factually this assertion is not wholly accurate. The property was from the outset purchased in the name of Shiu Prakash Gounder but since he was a minor the deceased held it on trust for him. In other words, the deceased in her own right was never the registered proprietor of the land. On behalf of the defendant, it was submitted that the subject property was purchased by the deceased from her own funds for her son.

[9] It is an accepted fact that the plaintiff did remit funds from United Kingdom. On behalf of the defendant, it is submitted that the money remitted was utilised for the specific purpose of purchasing another real property but not the one subject of this action, presently registered in the plaintiff's name.

Consideration

[10] I do not need to delve any further into the details of the transaction between the two sisters as the current interlocutory application is to strike-out the action against both the defendants. Let me now consider the application. For convenience and clarity I will deal with the different capacities in which the defendant is sued separately

Second defendant

[11] The second defendant is sued as an intended administrator of the Estate of Uma. Mr Prakash primarily submitted that the action against the defendant is bad in law and wholly unsustainable. A fortiori it ought to be summarily dismissed.

[12] Mr Prakash firstly argued that the second defendant is not an administrator of the Estate of Uma at the time of commencement of this action. In that regard the second defendant should not have been joined as a party to these proceedings. At the time of the commencement of this action, indeed the second defendant was not an administrator of the estate. Mr Chandra, conceded to this fact and rightly so. Thus, Mr Prakash’s submission must be upheld, which I do so.

[13] Secondly, it was submitted that that the substantive action relates to the arrangement between the two sisters. The registered proprietor of the subject propriety is the defendant, and the deceased was merely holding the same as a trustee for him. That being the case, the action in so far as the property is concerned has no relationship to the Estate of late Uma. Mr Prakash submitted, rightfully the property belongs to the second defendant and the death of the trustee does not alter the position of the proprietorship. Therefore, no action is maintainable against the personal representatives of the estate of the deceased which does not own the subject property. I agree with that submission when taken in the context that the whole purpose of this action was to extend the caveat lodged by the plaintiff.

Certainly, a careful examination of the documents ought to have alerted the plaintiff’s counsel, that Shiu Prakash Gounder was the registered proprietor. The complex question as to who should have been sued upon the death of late Uma, could easily have been avoided.

[14] Thirdly, and more fundamentally the submission relates to the regularity of the proceedings. Indubitably, no action can be filed or continued against a deceased person, save for the procedure prescribed by Order 15 Rule 7 and further in accordance with the well established common law principles. In common law the general rule is that where a party dies intestate an administrator can only institute or continue with an action after the grant of the letters of administration. Likewise where a deceased dies intestate no action can be commenced for or against by an ‘intended’ administrator of the estate. On the other hand, in case of testacy, the named executor in the testamentary instrument may institute or continue with a proceeding as an executor named in the testamentary instrument. But for that too, an application for substitution must be made before a decree or order is pronounced. This application does not concern the latter rule. Late Uma died intestate. To date, however, these near centaury old principles remain extant.

[15] Tracing the history of the aforesaid mentioned principles, the Privy Council in Mayappa Chetty -v- Subarmani Chetty (Supra) [1916] 1 AC 603 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. An administrator, on the other hand, derives title solely under his grant, and cannot, therefore, institute an action as administrator before he gets his grant. The law on the point is well settled: see Comyn's Digest, "Administration," B. 9 and 10; Thompson v. Reynolds [1827] EngR 676; 3 C. & P. 123; Woolley v. Clark 5 B. & Ald. 744.

(emphasis added)

[16] In so far as it relates to the source of the powers of an administrator, Lord Justice Scott in Ingall v Moran [1944] 1 KB 160 at 164 and 165 (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 then have issued a new writ, but that was all. An application by him to treat the original writ of September 17 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 Acts. The old writ was, in truth, incurably a nullity. It was born dead and could not be revived.

[17] Lord Justice Scott in Ingall v Moran (supra) continuing on page 165 appositely discussed the consequences of any such action so instituted by a person not clothed with the requirements of the grant of letters of administration as follows:-

"If that conclusion is right it follows equally that the statement of claim was not delivered in any action recognized by the Rules of the Supreme Court, and all subsequent proceedings in the supposed action, including the judgment of the learned county court judge, were likewise nugatory, for, if the action and the pleadings were bad, there was no valid action before the learned judge to try and it is our duty to say so".

[18] Whilst, there is no dispute the authorities cited above relate to a plaintiff as an intended administrator, however, the rationale in my view extends equally to a defendant sued in that artificial capacity. The reasons are two folds. Firstly, O. 15 Rule 7 does not allow an action to be instituted in that form. Secondly, if a plaintiff has no locus to sue as an "intended" administrator, it equally follows that a plaintiff cannot confer locus to a defendant in the capacity as "intended" administrator. The residual fate of any such action in my view has the same consequence to that of a plaintiff. It was appositely stated by Lord Macnaghten in Mohamidu Mohideen Hadjiar v Pitchey [1984] AC 437 at 443 as follows:-

"...... it would certainly be a most dangerous doctrine to hold that creditors could tear an estate into pieces on going to rule the form of an action against a person who has neither intermeddled of with assets nor duly clothed himself with a representative character, so as to become responsible for his acts and defaults to the beneficiaries under the will."

(emphasis added)

[19] Time and again the aforesaid principle has been applied on all fours in this country of which some are: 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. And more recently, I have discussed the principle in Subash Chandra v Bansraji Labasa High Court Civil Action No. HBC 504 of 2003 Vijay Singh and Brij Mati V Vijendra Kumar as Executor and Trustee of the Estate of Ben Mati, Suva High Court Civil Action No. HBC 329 of 1994

[20] Mr Chandra in advancing the submissions next stated that a strict approach propagated in Ingall -v- Moran (supra) will leave a plaintiff with no other means to commence an action against the estate of a deceased person, irrespective of the merits of the claim. I beg to differ with that view. There are rules, prescribed specially to cater for such an eventuality. Order 15 rule 7(1)-(3) prescribes three different methods of instituting an action against a deceased person. They are:

(1) Where any person against whom an action would have lain has died but the cause of action survives, the action may, if no grant of probate or administration has been made, be brought against the estate of the deceased.

(2) Without prejudice to the generality of paragraph (1), an action brought against "the personal representatives of A.B. deceased" shall be treated, for the purposes of that paragraph, as having been brought against his estate.

(3) An action purporting to have been commenced against a person shall be treated, if he was dead at its commencement, as having been commenced against his estate in accordance with paragraph (1), whether or not a grant of probate or administration was made before its commencement.

(emphasis added)

[21] There is a history to the aforementioned rule. Its incorporation the English Rules in 1970 was seen as a matter of necessity . Our O. 15, r. 7 is identical to O.15 Rule 6A of the Supreme Court Rules. The purpose and objective of the amendment is comprehensively explained by the authors of the White Book as follows:-

".......That Act and this rule had been brought into force on January 1, 1971 (S.I. 1970 No.1870).

Section 2 of the 1970 Act was designed to overcome the difficulties of bringing proceedings where the person against whom the action would be brought has died without a grant of probate or administration being made to his estate or where an action has been brought against a person who is already dead. In pursuance of the provisions of s.2, this rule provides the machinery for overcoming these difficulties, first by enabling an action to be brought against the estate of the deceased, where the cause of action survives, even though no grant of probate or administration has been made (para. (1)); and secondly by requiring that an action which has been brought against a defendant who has died where the cause of action survives to be treated as having been brought against his estate, even though no grant of probate or administration has been made (para. (3)).

(Emphasis added)

[22] Without any doubt the aforesaid sums up the purpose of Order 15 Rule 7. In any event, I do not intend to engage in to any indepth discussion of this rule because I have already considered it at length in Subhash Chandra –v- Bansraji Labasa High Court Civil Action No. HBC 504/2003. I refer and rely on the same.

[23] In addition, an action may possibly have been commenced under Order 76 rule 14 of the High Court Rules 1988. It was upto to the plaintiff to make an application for the grant of Letters of Administration pendente lite before instituting the action.

[24] Leaving all matters aside, on this basis alone the plaintiff’s action against the second defendant is irregular to the extent that it cannot be cured. In fact it is a nullity. Accordingly, I have no option but to strike-out the action against the second defendant, which I do so.

First defendant

[25] The application on behalf on the first defendant is based on the ground that there is no reasonable cause of action against him. It is made under Order 18 (1) (a). What I have before me is an indorsement of a writ. For the sake of completeness I have reproduced below the said indorsed claim:-

"Indorsement of Claim

The plaintiff claims as follows:-

(1) The plaintiff has substantially contributed towards the development and purchasing of the property comprised in Crown lease number 12802 being Lot 5 on plan SO 1860 Muasra situated at Lot 20 Korotongo, Sigatoka (hereinafter referred to as the said property)

(2) The second defendant is the intended administrator of the estate of Uma Devi (f/n GovindNair)

(3) The defendants are refusing to recognise the contributions made by the plaintiff.

Wherefore the plaintiff claims from the defendants the following relief:-it is already a view

(a) extension of caveat number 562938 beyond 21 days and until further order of this Honourable Court;

(b) an order that the defendant to acknowledge the contribution of the plaintiff and convey the property to the plaintiff.

[26] Mr Prakash on behalf of the first defendant submitted that the indorsement of claim discloses no cause of action against the first defendant. He is merely joined as a party. Order 6, rule 2 which deals with indorsement of claim provides the following:-

Endorsement of claim

"(O.6, r. 2) 2 – Before a writ is issued, it must be endorsed (a) with a statement of claim or, if the statement of claim is not endorsed on the writ, with a concise statement of the nature of the claim made or the relief or remedy required in the action begun thereby".

(emphasis added)

[27] What I gather from Mr Prakash’s submissions is that even though the rule allows for filing an indorsement of a claim it must be done with requisite clarity depicting the cause of action against the parties jointly or severally. In so far as the first defendant is concerned, there is nothing pleaded against him. There is merely a reference in the prayer for the conveyance of the said property and acknowledgment of the contribution. The subject matter in this action is a real property which is currently owned by the first defendant. Therefore no issue arises as to whether the plaintiff contributed or not, towards the purchase of the property There was no contract between the plaintiff and first defendant. In essence, Mr Prakash submitted that if there was any allegation of fraud or any other matters, it should have been clearly pleaded in the indorsement of a claim so that the defendant was informatively put on notice.

[28] Furthermore, Mr Prakash submitted that since the subject property belongs to the first defendant, the death of the deceased, Uma Devi does not matter. The property has no nexus to late Uma, irrespective of whether she was alive or dead. If there was any cause of action it could have been sustained against late Uma prior to her demise or post facto against her estate. Certainly not against the 1st Defendant in person. Accordingly, Mr Prakash submitted that no action can be sustained in the present form against the first defendant in the capacity in which he is sued..

[29] I remind myself of the general rule that a reasonable cause of action is one which has some chance of success when only the allegations on the pleadings are considered; Drummond Jackson -v- British Medical Association [1970] WLR 688. Further, a court ordinarily should be reluctant to summarily strike-out an action unless the pleadings depict an unarguable cause of action. The power to strike-out an action should sparingly be exercised but the discretion to do so remain extant.

[30] I have considered the submissions of both the parties on the issue. I cannot see any arguable cause of action pleaded in indorsement of the claim against the first defendant. The plaintiff has not filed a statement of claim. Once the defendant’s acknowledged service of the writ by virtue of Order 19, Rule 1, a statement of claim should have been filed by the plaintiff. It was more so incumbent upon the plaintiff to do so, in view of interlocutory order obtained ex-parte. Thereafter, there were adjournments given but the plaintiff chose not to do so, to her own detriment. In view of the deficiencies in the pleadings, I have no option but to make a finding that there is no reasonable cause of action pleaded against the first defendant. It follows, the action against the first defendant ought to be dismissed, which I so order.

Caveat

[31] This is an action for an extension of a caveat. The caveat was extended by His Lordship Mr Justice Coventry. The defendants have succeeded in their application to strike out the action. It follows that the action in its entirety against both the defendants, including all interlocutory orders follow suit; Registrar of Titles –v- Sharda Prasad Court of Appeal Civil Appeal No: ABU 0031/01. Accordingly any orders made in the interim are also discharged and vacated. For this reasons, I do not find it necessary to consider the submissions relating to the extension of caveat.

Conclusion

[32] The action against both the defendant is dismissed with costs summarily assessed at $500-00. Furthermore, the interim order granted by His Lordship Mr Justice Coventry, consequently is also vacated.

Accordingly, ordered.

J. J. Udit
Master