In re Roshni Lata [2012] FJHC 1403; HBP71.2011 (31 October 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action: HBP 71 OF 2011

IN THE MATTER of the Deceased
ROSHNI LATA, late of Lot 14, Sivi Prasad Road, Caubati, Nasinu, Fiji. Registered Nurse, Deceased, Interstate.

AND

IN THE MATTER of Section 35 of
FIJI NATIONAL PROVIDENT FUND ACT (CAP 219).

COUNSELS : Mr Prakash R of MISHRA PRAKASH & ASSOCIATES for the Applicant

DATE OF ORDER: 31st October, 2012

ORDER

1. Fiji National Provident Fund had remitted FJ$41, 539.76 to the High Court of Fiji by Cheque No. 788418 dated 14/3/2011 for disposal which belonged to Roshni Lata (deceased).
   

It was stated in the letter addressed to the Chief Registrar of the High Court there was no nomination made by the deceased Roshni Lata during her lifetime and she was a divorcee.

2. Notice of Originating motion was filed on 7th August 2012 by the Applicant supported by his affidavit dated 3rd August 2012.
   
3. By the Notice of Originating Motion, the applicant Anil Kumar sought the following orders:
   
   • (i) THAT there the amount standing to the credit of Roshni Lata, Lot 14 Sivi Road, Caubati, Nasinu, Fiji, Registered Nurse, Deceased, Intestate, as her Fiji National Provident Funds Contributions under FNPF Membership Card Number 1408651 be paid out to the Applicant Anil Kumar of Lot 14 Sivi Road, Caubati, Nasinu, Fiji, Taxi Driver; or;
     
   • (ii) ALTERNATIVELY, that the amount standing to the credit of Roshni Lata, Lot 14, Sivi Road, Caubati, Nasinu, Fiji, Registered Nurse, Deceased, Intestate, as her Fiji National Provident Funds Contributions under FNPF Membership Card Number 1408651 be distributed as this Honorable Court deems fit.
     
4. The said orders were sought in pursuant to Section 35 of Fiji National Provident Fund Act (Cap 219) which states:
   

"35. – (1) If, at the time of the death of any member of the Fund, there is no person nominated under the provisions of section 34, the amount standing to the member's credit in the Fund shall be paid into Court for disposal in accordance with the law for the time being in force.

(2) If any person nominated, other than a widow, shall be under the age of 18 years at the time of payment of the amount payable out of the Fund, his portion of the amount payable shall be paid to the Public Trustee for the benefit of such nominated person.

5. As stated in the affidavit of Mr Anil Kumar, deceased's marriage with Susil Chandra Lal was dissolved in the Case No. 7 of 1997 filed in the Magistrate Court of Rakiraki. Decree Nisi was made absolute on 16th of March 1997 (Annexure "C1" to the affidavit).
   
6. Further pleaded in the affidavit of Anil Kumar the following:
   
   • (a) No children from the marriage and the deceased did not have any other children;
     
   • (b) Copy of the Deceased's Certificate of Birth was annexed to the affidavit marked "D" and in proof of the death of the father and mother of the deceased, Sugrim and Vidya Wati copies of Certificates of Death were annexed to the affidavit marked "E" and "F";
     
   • (c) Mr Anil Kumar had pleaded in the affidavit the only beneficiaries living were beneficially entitled to a share in the state of the deceased are:
     
     • (i) Rajendra Kumar Prasad;
     • (ii) Rajesh Kumar;
     • (iii) Ravindra Kumar;
     • (iv) Sunil Kumar;
     • (v) Anil Kumar – (the applicant);
       
   • (d) The applicant's brothers namely Rajendra Prasad, Rajesh Kumar and Sunil Kumar had renounced any shares and interest in the National Provident Fund benefits of the deceased in favour of the applicant by Deeds of Renunciation annexed to the affidavit marked I-1 and I-2 dated 11th April 2011 and 11th September 2011 respectively;
     
   • (e) It was pleaded in the affidavit of the Applicant, that Ravindra Kumar had migrated to the United States of America and his present whereabouts were unknown to the applicant;
     
   • (f) Further it was also pleaded in the affidavit that the dceased had a sister named Suruj Kumari who died on 20th of July 2002, a copy of the Death Certificate was annexed to the affidavit marked "G".
     

Findings

7. Under Section 57 of the Fiji National Provident Fund Decree No. 52 of 2011, new proviso had being introduced to distribute funds in absence of a nomination.
   
8. However, it is provided in the Section 3 of the Decree No. 52 of 2011 that Part 5 of the Decree shall come into effect on 1st January 2013 as such the provision of Section 57 of the said Decree cannot be applied to the present application.
   
9. In such circumstances, the provisions under Section 35 of the Fiji National Provident Fund Act should be applied, where disposal orders are to be made by the High Court.
   
10. It is my findings that in this instance Beneficiaries to the Deceased's monies in the Fiji National Provident Fund should be decided by using the inherent jurisdiction of this Court. I am satisfied that the applicant had proven his claim to 4/6th share of the deceased's monies in the Fiji National Provident Fund calculated on the following basis:
    
    • (i) No. of brothers and sisters – 6 (including the applicant) each will be entitled to 1/6th share of the monies. (It was established father and mother are deceased);
      
    • (ii) 3 brothers had renounced their entitlement in favour of the Applicant. Accordingly, applicant will be entitled to 4/6 = 2/3 share of the deceased FNPF funds; (including applicant's share)
      
    • (iii) There is no proof before Courts, the applicant is entitle to the 2/6 (1/3rd) share of late Suruj Kumari and Ravindra Kumar. Accordingly, I hold that presently there is no valid claim by any person for the entitlement of Suruj Kumari and Ravindra Kumar and I direct the Registry after 1st January 2013 in pursuant to Section 57(7) of the Decree No. 52 of 2011 to remit back the entitlement of Suruj Kumari and Ravindra Kumar to the Credit of Fiji National Provident Fund. Section 57(7) states:
      

"where no application is made in respect of an amount paid into the High Court under sub section (1) or (2) within one year after it is to be paid, the amount is to be repaid to the Board and credited to the FNPF".

(iv) As stated in para 8 of this Order, provisions of Section 57(7) shall come into effect on 1st January 2013 and already one year being lapsed after amount being paid to the High Court. But the provisions of the said Section shall be applied on 1st January 2013. Accordingly, I direct the High Court Registry to repay the entitlement of Suruj Kumari and Ravindra Kumar back to Fiji National Provident Fund on 1st January 2013. To avoid any doubts on the direction, I state that if any claim by heirs of Suruj Kumar (As stated in the Certificate of Death annexed to the Affidavit marked "G" deceased Suruj Kumari had heirs to her Estate) and Ravindra Kumar should be entertained by the Registry up to 31st December 2012;

(v) However, for the purpose of record I wish to state that the applicant had failed to bring to the notice of this court that the deceased Suruj Kumari had heirs, which was left for the Court's to find out from the annexure "G" to the affidavit. I state that the failure to bring this matter to the notice of this court was an attempt to mislead this court by the applicant and his solicitor;

(vi) In re: Mohammed Hussan [1989] 35 FLR 107 Justice Pathiyaki stated that the money that is standing to the credit of the deceased member of the FNPF does not form part of his estate and also stated that the said money has to be distributed in accordance with the Succession, Probate and Administration Act (Cap 60). I further wish to state the finding in the said case remain unchanged to date and no provisions being introduced by the FNPF New Decree. Accordingly, I have applied the Provisions of Succession, Probate, Administration Act and inherent Jurisdiction of this court to arrive at the above mentioned findings.

11. I now make the following Orders as per item 2 of the Notice of Originating Motion of the applicant:
    
    • (a) I hold that the applicant Anil Kumar is entitled to 2/3rd share of the FNPF funds lying to the credit of the deceased Roshni Lata and Order the Chief Registrar of this court to pay the said 2/3rd share to Anil Kumar;
      
    • (b) I further Order and direct the Chief Registrar of this Court to hold the balance of 1/3rd share of the FNPF funds of the deceased Roshni Lata and Anil Kumar to repay back to FNPF on 1st January 2013 in absence of any claim being made on or before 31st December 2012;
      
    • (c) No Order is made with regard to costs.
      

Delivered at Suva this 31st Day of October, 2012

[ C. Kotigalage ]
JUDGE