Devi v Sharma [2011] FJHC 672; Action 24.2000 (28 October 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
PROBATE JURISDICTION

ACTION NO. 24 OF 2000

BETWEEN:

RANJILA DEVI aka RANJILA DEVI KUMA aka
RANJULA DEVI KUMA
and
RESHMI DEVI SHARMA
Plaintiffs

AND:

SASHI PRASAD SHARMA aka SASHI PRASAD
First Defendant

AND:

ARUN PRASAD SHARMA aka ARUN SHARMA
Second Defendant

Mr J Udit for the Plaintiffs
Defendants in Person

DECISION

By Originating Summons dated 17 August 2010 the Plaintiffs applied for the following orders:

"1. An Order that Caveat dated 23 March 2010 filed on 23 March 2010 at the High Court of Fiji Civil Registry Suva against the grant and sealing of Probate in the Estate of Jasoda Devi Sharma aka Jasoda late of 63 Brewster Street Toorak Suva Domestic Duties by the First Defendant herein be removed forthwith.

2. An Order that Caveat dated 29 March 2010 filed on 29 March 2010 at the High Court of Fiji Civil Registry Suva against the grant and sealing of Probate in the Estate of Jasoda Devi Sharma aka Jasoda late of 63 Brewster Street Toorak Suva Domestic Duties by the Second Defendant herein be removed forthwith."

The application was supported by an affidavit sworn by the Plaintiffs jointly on 17 August 2010. The First Defendant filed an answering affidavit sworn on 12 October 2010. A reply affidavit sworn by the First named Plaintiff on 18 October 2010 was filed on 19 October 2010.

The application was listed for mention on 10 December 2010. On that date directions were given for the filing of written submissions. The Plaintiffs filed written submissions on 24 January 2011. The First Defendant filed answering submissions on 31 January 2011. The Second Defendant filed answering submissions on 3 February 2011. The Plaintiffs filed reply submissions on 17 February 2011.

The application was listed for hearing on 4 April 2011. On that day the Defendants applied for the hearing date to be vacated on the grounds that they wanted to file further affidavit material. Although the application was opposed I granted leave to the parties to file further affidavit material. The Defendants were ordered to pay costs thrown away in the sum of $200.00.

The Defendants filed on 18 April 2011 a further affidavit sworn by the Second Defendant. The Plaintiffs filed a further affidavit sworn by the first named Plaintiff on 3 May 2011. The application eventually came on for hearing on 16 May 2011. Counsel for the Plaintiffs and the Defendants in person presented oral submissions by addressing the principal arguments in their already filed written submissions. I indicated that a decision would be handled down on notice.

Unfortunately the decision has been delayed by subsequent applications that have been filed by the Defendants. The applications relate to other proceedings commenced by the Defendants in relation to the same estate. For a number of reasons that are not directly relevant to this application, the Defendants have not been in a position to proceed with those applications.

This application seeks orders for the removal of two caveats. The application is made under section 47 of the Succession Probate and Administration Act Cap 60 (the Act) which states:

"(1) In every case in which a caveat is lodged, the court may, upon application by the person applying 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 mentioned in his caveat.

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

The Plaintiffs are the daughters of the late Josada Devi Sharma who passed away on 2 March 2010 (the deceased). By her will dated 19 December 2008 the deceased had appointed the Plaintiffs as Executors and Trustees of her estate.

On 19 March 2010 an application for the grant of probate was lodged with the High Court.

On 23 March 2010 a caveat was filed in the High Court by the First Defendant and on 29 March 2010 a caveat in similar terms was filed by the Second Defendant. The Defendants are the brothers of the Plaintiffs.

Although the application to remove the caveats was not made until August 2010, some seven months after the caveats were lodged, I accept that during that period the Plaintiffs had endeavoured, both personally and through their legal practitioners, to resolve the issues raised by the Defendants.

Section 47 of the Act bestows upon the Court a discretion to remove the caveats. The section does not provide any guidance as to what matters the court should consider in deciding whether to order the removal of a caveat. In Rosy Reddy –v- Manchama Webb and Lawrence Webb (unreported civil appeal No.14 of 1994 delivered on 11 November 1994) the Court of Appeal stated:

"In formulating the discretion of the court in such an application, we are of the opinion that the Court may have regard to the practice set out in the Rules (i.e. the Non-Contentious Probate Rules) as a guide. This is not the same as applying the Rules. The relevant rule for consideration in this regard is rule 44 (7). For the purposes of a warning, a caveator is required to give particulars of a contrary interest. We would adopt this and formulate that a caveator should establish a contrary interest to the person applying for the removal of a caveat."

In determining the nature of the contrary interest, the Court of Appeal in the same decision went on to say that:

"Again, in determining this issue, the Court may have regard to the nature of the contrary interest that is required to be particularised by the caveator under the Rules. Again the relevant rule in this regard is rule 44 (7) which specifies that the nature of the interest is to be "any contrary interest in the estate". We would adopt this and formulate that for the purposes of removing a caveat under section 47 of the Act, the caveator is required to establish a contrary interest in the estate of the deceased."

Therefore the caveators (in this application the Defendants) must establish a contrary interest (in the estate of the deceased) to the persons applying for the removal of the caveat. In an application under section 47 of the Act the Court is not concerned with any interest the caveator may claim in respect of the granting or sealing of probate or administration.

The issue before the Court is whether on the material set out in the affidavits, the Defendants as caveators have established a contrary interest in the estate of their deceased mother to the Plaintiffs who have made an application for the removal of the caveats.

The Plaintiffs and the Defendants are beneficiaries under clause 6 of the deceased's Will which provides:

"6. The following persons whose names are given below shall be entitled to the equal divided monies that are held in my account after my death: Reshmi Devi Sharma of Australia Anjula Prasad of Jalim Avenue, Nausori, Ranjula Devi Sharma of Auckland New Zealand and Manjula Singh of Nasinu all children of Ambika Prasad Sharma and my sons Sashi Sharma and Arun Sharma (father's name Ambika Prasad Sharma)"

There were other testamentary dispositions of real property and proceeds of property to be sold to children and grand children. There was no other bequest in the Will to either the Plaintiffs or the Defendants.

The matters raised by the First Defendant Sashi Prasad Sharma in his affidavit in opposition sworn on 12 October 2010 do not reveal a contrary interest in the estate to that of the Plaintiffs. The issues raised in the affidavit were essentially the same as those raised by him in earlier proceedings that related to his father's estate. In Shasi Prasad Sharma –v- Davendra Prasad Sharma and Ranjula Devi Sharma (unreported civil appeal No.52 of 1996 delivered on 27 February 1998) the Fiji Court of Appeal held that the request for a second Inquest into the circumstances of the death of the caveator's father was not a good ground to allow the caveat to remain.

In his answering affidavit filed on 18 April 2011 the Second Defendant deals with a multiplicity of issues.

The affidavit material reflects a long history of disputes amongst the siblings. A great deal of the affidavit material relates to the circumstances of the deceased's husband's earlier death and the subsequent legal proceedings concerning his Will and the grant of probate in respect of that Will. There were also allegations in the Second Defendant's affidavit relating to the circumstances of the deceased's death. Issues of undue influence and testamentary capacity were raised by the Second Defendant. There was, however, no independent evidence to support any of those allegations.

The Defendants, in particular the Second Defendant, are clearly unhappy with the various bequests and dispositions made by the deceased in her Will.

However none of that material relates to the narrow test that is to be applied by the court to determine whether the caveats lodged by the Defendants should be removed on the application of the Plaintiffs. In my judgment the affidavits do not disclose that the caveators have a contrary interest to the applicants in the estate of the deceased.

The interest of the applicants in the estate is set out in clause 6 of the Will. The caveators have not established an interest to that part of the estate that is the subject of the bequest in clause 6 that is contrary to the applicants' interest.

As a result the application for the removal of the two caveats being the caveats filed on 23 March 2010 and 29 March 2010 respectively is granted. The Defendants are ordered to pay the costs of the application which are summarily fixed in the sum of $800.00.

W D Calanchini
JUDGE

28 October 2011
At Suva