Prakash v Prakash [2011] FJHC 779; HBC200.2010 (29 November 2011)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL ACTION NO. - HBC 200 of 2010

BETWEEN:

KAMAL PRAKASH son of Ram Niranjan of Auckland New Zealand, Accountant.
PLAINTIFF

AND:

DAVENDRA PRAKASH son of Ram Niranjan normally of Votualevu, Nadi but presently of 421 Memory Lane, Turlock CA 95382, United States of America, School Teacher.
FIRST DEFENDANT

THE FIJI SUGAR CORPORATION LIMITED
SECOND DEFENDANT

_____________________________________________________________

INTERLOCUTORY JUDGMENT

Judgment of: Ms Dias Wickramasinghe J.
Counsel: Mr. D.S. Naidu for the plaintiff
No appearance for the defendant.
Solicitors: Pillai Naidu and Associates for the plaintiff
Munro Leys for the second defendant
Date of Judgment: 29 November 2011

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Keywords: Probate jurisdiction; Practice Direction 2 of 1994;

INTRODUCTION

1. The plaintiff by its motion dated 2 October 2010 along with the writ of summons dated 7 September 2010, seeks the following orders against the first defendant:
   
   • (a) That the income derived from the said Certificate of Title No. 12145 on Lot 2 DP 3103 being sugar cane proceeds under sugar cane contract No. 12031 (Lega Lega Sector) to be paid into this Court by the second defendant.
     
   • (b) That all income derived from the rental of properties situated on Certificate of Title No. 12145 Lot 2 DP 3103 is paid into this Court by the second defendant.
     
   • (c) Declaration that Certificate of Title No. 12145 on Lot 2 DP 3103 is held by the first Defendant on trust for the plaintiff and Karun Prakash under the Family Deed.
     
   • (d) The first defendant provide accounts for management of the Estate of Ram Niranjan (deceased) and more particularly CT No. 12145 Lot 2 DP 3103 covered under sugar cane contract No. 12031 (Lega Lega Sector)
     
   • (e) Declaration that the transfer of CT No. 12145 Lot 2 DP 3103 by the first defendant to his name is fraudulent and therefore null and void and of no effect.
     
   • (f) Declaration that the Probate No. 27307 granted to the first defendant be revoked and returned to the Chief Registrar of the High Court of Fiji.
     
   • (g) General Damages.
     
   • (h) Interest on all income and money held by the first defendant for the benefit of the plaintiff and the other beneficiaries.
     
   • (i) Costs.
     
2. The second defendant is made as a nominal party as the recipient of sugarcane cultivated and grown on Certificate of Title No. 12145 Lot 2 DP No. 3103 and covered by Cane Contract No. 12031 in Lega Lega sector.
   

HEARING

3. The plaintiff filed an ex parte summons. Upon reading the claim, I converted it to be inter partes. Several attempts were made thereafter to serve the summons on the first defendant who lives in the USA. Finally, when the plaintiff served summons on the first defendant, he refused to accept summons. The plaintiff, thereafter, applied for substituted service of summons, which I granted. However, on a second attempt of service, the first defendant accepted summons but had refused to sign the counter copy. I am, however, convinced that the first defendant was served with the motion, writ and the other documents.
   
4. When the matter was mentioned before me on 15 April 2011, the fist defendant did not appear nor was he represented. I then fixed the matter for hearing and made orders under O. 38 r. 2 for the plaintiff to file his evidence-in-chief by affidavit. The second defendant in its statement of defence states that it will abide by the decision of the Court.
   
5. The case was then taken up for hearing on 30 May 2011 for formal proof, where the plaintiff tendered his evidence-in-chief by affidavit dated 27 May 2011.
   

BACKGROUND

6. This action is based on the Estate of Ram Niranjan who died on 25 of August 1991. The deceased Ram Niranjan was first married to Kala Wati and they had four children from this union, namely the plaintiff (Kamal Prakash), the first defendant (Davendra Prakash), Karun Prakash and a sister Saroj Lata. After the death of his first wife the deceased married Savitri Devi and there was one issue from this marriage namely, Sumant Prakash.
   
7. The plaintiff states he is an accountant living in New Zealand and after the demise of his father, the three brothers from the first marriage executed a Deed of Family Arrangement on 3 May 1996 and acted in accordance with the said deed. (Annexure KP5).
   
8. Thereafter the first defendant had migrated to the USA and after his migration, sugarcane proceeds and rental of the dwellings received by the plaintiff had stopped.
   
9. The plaintiff then says, upon enquiry he had later found out that contrary to the Family Deed of Arrangement, the first defendant had applied for a probate under a purported Last Will and Testament allegedly executed by the deceased-Ram Niranjan on 11 July 1991, some forty five (45) days prior to his death. (Annexure KP1). The plaintiff also alleges that the first defendant had transferred the estate property i.e, the freehold land on Certificate of Title No. 12145 Lot 2 on DP 3103 in his personal name and registered the transfer on 30 July 1993. The plaintiff's stepmother-Savitri Devi had contested the probate action and the first defendant had entered into an out of court settlement with the said Savitri Devi on 4 June 1992 before Justice Daniel Fatiaki. The said Order was sealed on 26 June 1992 whereby the first defendant had agreed by consent to pay the said Savitri Devi one third (1/3) value of the Estate of the deceased after proper valuation in cash and one fifth (1/5) cash from the balance of the estate to Sumant Prakash the issue from the said Savitri Devi. (Annexure KP2).
   
10. The plaintiff states that the first defendant continues to unjustly enrich himself and has deprived the plaintiff and the other beneficiaries of their rightful share in the estate of the deceased by his fraudulent actions, which required the plaintiff to have come before this Court and seek the reliefs sought.
    

LEGAL MATRIX

11. Practice Direction 44 of 1994 states that all probate matters should be considered only by the High Court in Suva exercising such jurisdictions. In view of the Practice Direction, I should have transferred this case to Suva exercising probate jurisdiction without hearing the case.
    
12. Having considered the plaintiff's undertaking given in paragraphs 13 and 14 of his affidavit sworn on 8 September 2010 as to damages, I made an order on 7 March 2011 directing the second defendant to deposit the sugarcane proceeds until the final determination of this action.
    
13. Since the allegation of the plaintiff is centered on fraud, I do not wish to vacate the order made by me on 7 March 2011 and subject to that order, I transfer this case to the Registry in Suva for appropriate action. Costs of this matter to be determined in the course.
    

ORDERS

(1) Transfer case to the Probate jurisdiction of the High Court of Suva.

D. Dias Wickramasinghe
Judge