Narayan v Nokaiya [2012] FJHC 1205; HPP11.2011 (22 June 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No: HPP 11 of 2011

BETWEEN:

DENNIS NARAYAN and NATHAN RAMA NAIDU
[Plaintiffs]

AND:

NOKAIYA and JAGAN NATH
[Defendants]

Counsel: O'Driscoll & Co. for the Plaintiffs
HA Shah Esq. for the Defendants

Date of Judgment: 22nd June 2012

JUDGMENT

1. The applicants filed an originating summons for an order that the applicants be granted a declaratory order that they are entitled beneficiaries in the estate of late Ramaiya and also for an order that the respondents provide a full account of the estate property.
   
2. In support of the summons, an affidavit was filed by the 1st named applicant. According to the affidavit, the applicants Denis Narayan and Nathan Rama Naidu are children of late Ramaiya who died intestate on 07.04.2008. The respondents are the administrators of the estate of late Ramaiya.
   
3. The applicants'solicitors had written to the respondent's solicitors seeking an account of the estate on 06.10.2010. The solicitors for the respondents requested that birth certificates of the applicants be supplied. Accordingly, the birth certificates of the applicants were sent to the respondents. However, the respondents have failed to respond to the applicants.
   
4. The 2nd named respondent filed his affidavit in response and stated that when the letter of administration was granted, there was only one beneficiary named Sargent Sami Naidu. It is further stated that the respondents have had no notification by either of the applicants that they had any interest in the deceased's estate.
   
5. The said Sargent Sami Naidu has also filed an affidavit in support of the orders sought by the applicants. He is also a son of late Ramaiya Sami Naidu. He annexed a copy of his birth certificate marked as 'SSN1'to the affidavit.
   
6. It is further stated that the 2nd named respondent purchased the certificate of title number 18644 being lot 43 on deposited plan number 3751 from the estate funds in his de facto partner's name, Reena Devi. Copies of CT No 18644 and the Transfer marked as 'SSN7' and 'SSN8' are also annexed to the affidavit. He also confirmed the fact that the respondents have failed to provide any account of the estate properties to the beneficiaries.
   
7. In their affidavit in reply, the applicants stated that since they are lawful sons of the deceased, they are entitled as beneficiaries and that they had no reason to believe any claim would be necessary as the administrators of the estate.
   
8. In view of the above facts, the main issue to be determined here is whether Denis Narayan, Nathan Rama Naidu and Sargent Sami Naidu are the beneficiaries of the estate of late Ramaiya Naidu.
   
9. When the birth certificates annexed to the affidavit of the applicant marked as 'A1' and 'A2' are perused, they clearly show that the applicants are the children of late Ramaiya Naidu. The document 'SSN1' confirms that said Sargent Sami Naidu is also a lawful son of the deceased Ramaiya Naidu.
   
10. Further, the affidavit evidence before me establishes that the current applicants are Sargent Naidu's step brothers. The respondents never challenged the genuineness of the birth certificates. Further, the respondents have not tendered any evidence contrary to the applicants' evidence. Although the respondents stated that they were trying to trace if the deceased had drawn upon a will, it is not an excuse to refrain from disclosing the accounts of the estate.
    
11. The distribution of real and personal estate of intestacy is governed by section 6 of Succession Probate and Administration Act.
    
12. Under section 6(1) (d) of the Succession Probate and Administration Act the lawful issues of a deceased who died intestate would become beneficiaries to have a share in the estate of the deceased.
    

Section 6(1) (d) reads:

If the intestate leaves issue, but no wife or husband, the issue of the intestate shall take per stirpes and not per capita the whole estate of the intestate absolutely.

13. Upon consideration of the above factual and legal grounds, I conclude that the applicants namely, Denis Narayan, Nathan Rama Naidu and Sargent Sami Naidu being the lawful children of late Ramaiya Naiduare the beneficiaries of the estate. Hence, they are entitled to have shares in the estate of late Ramaiya Naidu.
    
14. Further, section 39 (2)(b)(ii) of the Succession Probate and Administration Act reads:
    

A personal representative shall be under the duty to disclose to the court an account of the administration of that estate within such time to time, and in such manner as may be prescribed or as the court may order.

15. Pursuant to the above section, the respondents as administrators are bound to disclose an account of the administration of that estate. The evidence before me clearly shows that the respondents as the administrators of the estate have failed to disclose accounts of the estate as required by law.
    
16. Therefore, I order that the respondents shall forthwith provide a full account of the estate of late Ramaiya Naidu both real and personal to the solicitors of the beneficiaries and also a copy to be filed in this action.
    
17. On the above premise, I grant order in terms of the originating summons.
    
18. Cost is summarily assessed in the sum of $ 750.00
    

Pradeep Hettiarachchi
Judge