In the Estate of Narend Chand [2011] FJHC 424; Caveat 36.2009 (8 August 2011)

IN THE HIGH COURT OF FIJI
PROBATE JURISDICTION

NO. 36 OF 2009

IN THE ESTATE OF NAREND CHAND ALSO KNOWN AS NAREND CHANDRA father's name Enkanna of Balram Dass Street, Tavakubu, Lautoka, in the Republic of Fiji Islands, School Teacher, Deceased, Testate.

AND

IN THE MATTER of CAVEAT NO. 36 OF 2009 – RAMA DEVI father's name Lal Kissun of Natabua, Lautoka or PO Box 5107, Lautoka

BEFORE: MASTER DEEPTHI AMARATUNGA
COUNSELS: Mr O'Driscoll - Appearing for Iqbal Khan & Associates (Caveator)

Mr Shelvin Singh - Appearing for Chaudhry & Associates (Caveatee)

Date of Hearing: 1st July 2011
Date of Ruling: 8th August, 2011

RULING

1. INTRODUCTION
   

1. In terms of the Non Contentious Probate Rules 1987 Rule 44(12) 'If no appearance has been entered by the caveator or no summons has been issued by him under paragraph(6) of this rule, the person warning may at any time after eight days of service of the warning upon the caveator (inclusive of the day of such service) file an affidavit in the registry in which the caveat index is maintained as to such service and the caveat shall thereupon cease to have effect provided that there is no pending summons under paragraph(6) of this rule.' No action was taken by the cavetor and the 'appearance to warning' is not in compliance with the requirements of the Rules and caveatee is making an application for removal of the caveat.
   

2. FACTS
   

2. Rama Devi filed a caveat against the grant of Probate in the estate ofNarend Chand also known as Narend Chandra on 27th October, 2009 in terms of the Section 46 of Succession Probate and Administration Act (Chapter60).
   
3. The Warning to the said Caveat date 27th October, 2009 was filed on 22nd June 2010 and it was served on the Caveator Rama Devi on 9th July, 2010. There is no dispute as to the service and the date of service. It is further evidenced from the 'Appearance to Warning' being filed on 16th July, 2010.
   
4. Apart from filing the said 'Appearance to Warning' within the stipulated time in Non Contentious Probate Rules, the Cavetor did not take any step for more than 9 months.
   
5. In terms of the Non Contentious Probate Rules 1987 Rule 44(12) 'If no appearance has been entered by the caveator or no summons has been issued by him under paragraph(6) of this rule, the person warning may at any time after eight days of service of the warning upon the caveator (inclusive of the day of such service) file an affidavit in the registry in which the caveat index is maintained as to such service and the caveat shall thereupon cease to have effect provided that there is no pending summons under paragraph(6) of this rule.'
   
6. In this case the Cavetor has filed an 'Appearance of Warning ' within the stipulated time, but failed to take any further steps and the caveatee also states that the said 'appearance to warning' is contrary to the Form 5 of the Non Contentention Probate Rules.
   
7. The Non Contentious Probate Rules 1987 set out the Form 5 in the Rule 12 as the correct format under which an appearance to warning should be made. This form 5 contained in the Non Contentious Probate Rules 1987 is identical to the form 6 contained in the Non Contentious Probate Rules of 1954.
   
8. Non Contentious Probate Rules 1987, Rule 44(12) refer to form 5, but what the caveator has to do after the filing of the acknowledgement to warning is laid down in Rule 44(6) which reads as follows:
   

'(6) 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 a summons for directions.

9. Section 44(13) of the Non Contentious Probate Rules 1987 states as follows:
   

'Unless a registrar of the Principal Registry by order made on summons otherwise directs, any caveat in respect of which an appearance to a warning has been entered shall remain in force until the commencement of the probate action.'

10. In re the Estate of Cinnaiya Gounder [1994]FJHC 112; HPC 0019d.1993s (7 September 1994) Justice D.V. Fatiaki held:
    

'I agree with the submission of learned counsel for the applicant that the present summons for the removal of a caveat is NOT A 'probate action' under the High Court Rules but the invocation of a specific statutory provision. Further the applicant has no cause whatsoever to dispute the testator's will and indeed has no intention of instituting any 'probate action' and ought not to be forced to do so by the mere lodgment of a caveat by a person who has neither entered an appearance to a warning or issued a 'summons for Directions' nor filed an affidavit disclosing the nature of any 'contrary interest she may have in the estate.

Whatsmore in seeking the grant the applicant is not instituting a 'probate action' under the Court's general or inherent jurisdiction. Instead the applicant is relying upon the exercise of a specific statutory jurisdiction vested in the Court in terms of Section 31 of the succession Probate and Administration Act (cap60).'

(emphasis is added)

11. The Cavetor has not taken any step other than filing an alleged 'appearance to the warning'. In terms of the Non Contentious Probate Rules 1987, Rule 44(10) '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 day of such service)or 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.'
    

13. The form 5 requires the party who is lodging the appearance to state the interest in the estate. It states inter alia that:

".......(Here set out the interest of the cavetor or person cited, stating the date of the will (if any) under which such interest arises.)"

14. So it is clear that a person who is lodging a caveat no longer can maintain it unless that person shows that person has an interest and that interest should be stated in the 'appearance to warning' in terms of the Non Contentious Probate Rules 1987. This was a requirement even in the previous Rules of 1954. The non compliance should be considered fatal; as such a person who lodges a caveat and who could not describe the interest, and waits for more than 8 months without any further action, in that estate should not be allowed to maintain the caveat. The very purpose of providing a form in the probate Rules, is to compel the caveator to comply with the requirements as the minimum requirements in the law and any one who does not comply with the said minimum requirements should not be considered as a proper 'appearnce to the waring'. In the circumstance there is no proper 'appearance to warning' as per Non Contentious Probate Rules 1987 and more specifically the essential requirement in the Form 5 of the Non Contentious Probate Rules 1987 has not been complied with by the caveator.
    
15. It is also noteworthy, that the caveator's main objection is regarding a property of the Housing Authority, where the Deceased and the Caveator were joint tenants and by transmission of death that property should devolve to the caveator in terms of the law. It is the interest that caveator is claiming according to the affidavits filed on behalf of the caveator and that is not affected by the grant of the probate to the caveatee.
    

100. CONCLUSION
     

16. The caveator has not taken any step for more than 8 months from the warning to the caveat issued on 22nd June, 2010 and even the alleged 'appearance to warning' does not comply with the Form 5 of the Non Contentious Probate Rules 1987. So the motion filed by the caveatee seeking the removal of the caveat and the grant of probate to the caveatee upon the last Will of the Deceased is granted.
    
17. No cost is awarded.
    

Dated at Suva this 8th day of August, 2011.

Mr D. Amaratunga
Acting Master of the High Court
Suva