Chand v Anganu [2011] FJHC 74; HPP2.2005 (17 February 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Probate Jurisdiction HPP No. 2 of 2005

IN THE MATTER of Estate of
DAYA WATI ANGANU
aka DAYAWATI ANGANU
aka DAYA WATI ANGANU
father's name Panchu Albert Ramritu) late of
Lot 118 Milverton Road, Suva in the Republic of Fiji Islands, Domestic Duties, Deceased.

BETWEEN:

MADHU LATA CHAND and SHAMMI LATA PRASAD
both daughters of Parshiu Ram Anganu of 5 Tussock Avenue, Mangere, Auckland, New Zealand and 70 Fenton Cres, Minto, Sydney MSW 2566. Australia, respectively
Plaintiffs

AND:

ROBIN RAVINDRA VIJAY ANGANU aka ROBIN ANGANU
(f/n Parshiu Ram Anganu) of Lot 118 Milverton Road, Suva, School Teacher
Defendants

Before: Master Anare Tuilevuka
Counsel: Sherani & Co for the Plaintiff
Mishra Prakash & Associates for the Defendants
Date of Ruling: 17th February 2011

RULING

[1]. Before me is an application by the defendant to amend its statement of defence and counter-claim. The application was filed on 9th September 2008 pursuant to Order 20 Rule 5 of the High Court Rules 1988.

[2]. Order 20 Rule 5 states as follows:

"The Court may, at any stage of this proceedings allow the Plaintiff to amend his writ, or any party to amend his pleading on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct"

[3]. Generally, Courts have allowed parties to amend pleadings for the purpose of determining the real question in controversy between them or to correct any defect or error in any proceedings (as per Jenkins LJ in G.L. Baker Ltd –v- Medway & Supplies Ltd [1958] 1.W.L.R. 1216 p. 1231; [1958] 3 All E.R. 540, p 546).

[4]. In accordance with the above principle, pleadings may be amended at any stage of the Court proceedings (see Order 20 Rule 5(1) of the High Court Rules 1988).

[5]. By way of background, the plaintiff and the defendant are siblings. Their late mother had according to a Will dated 11th October 2002 appointed them both as trustee/executor of her estate. That will also bequeathed the residue of her property to them both in equal shares after payout of a specific bequest to the plaintiff in sum of $10,000-00 (ten thousand dollars).

[6]. Their mother passed away on 14th September 2004. Barely a week later, the plaintiff lodged a caveat in respect of her estate. The defendant - meanwhile – started to take steps to remove the caveat and to have probate granted in his favour. He relies on a purported Will executed on 11th September 2004.

[7]. The plaintiff claims that the purported Will dated 11th September 2004 is a fraud as the deceased was in a coma and unstable mind at the time. She alleges also that the said Will was not executed in accordance with the Wills Act.

[8]. The plaintiff's claim seeks amongst other things a judicial pronouncement against the 2004 Will and that probate be granted to her in accordance with the 2002 Will.

[9]. The original statement of defence was filed by Mehboob Raza & Associates on 23rd February 2005. It denies the existence of the 2002 Will and alternatively, states that in any event, the 2002 Will was revoked by the 2004 Will. It also seeks a grant of probate in accordance with Will dated 11th September 2004.

[10]. Since the filing of defence in 2005, the case has progressed considerably. Minutes of PTC have been filed and Copy Pleadings filed in January 2008. An Order 34 Summons was filed on 31 January 2008 as well on August Bundle on 1 May 2008.

[11]. On 18th June 2008, Mishra Prakash & Associates were appointed Solicitors for the defendant in place of Mehboob Raza & Associates. Immediately upon coming on board, they filed an application to amend statement of defence on 8th December 2008 and to file Counter-Claim.

[12]. I have traversed the proposed amended statement of defence. In a nutshell, the proposed amended defence pleads that other Wills existed before and after the 2002 Will but the 2004 Will was the last true Will of the deceased which effectively revokes all other Wills. The counter-claim pleads that the defendant is the sole executor-trustee and beneficiary of the deceased's estate by virtue of the 2004 Will. Without further ado, I am convinced that the proposed counter-claim amended defence will go a long way in assisting the Court in determining the real issues between the parties.

[13]. Any prejudice to the plaintiff can be compensated in costs.

[14]. Because the amendment was sought very late in the proceeding, I will award costs appropriately in the sum of $350-00 (three hundred and fifty dollars) in favour of the plaintiff to be paid in 14 days.

[15]. Further directions on completion/review of all pre-trial processes to be made by Master Amaratunga.

Anare Tuilevuka
Master

At Suva
17th February 2011.