Sharma v Kumar [2013] FJHC 68; HPP25.2010 (15 February 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
PROBATE JURISDICTION
Action No. HPP 25 of 2010

Between :

Devendra Prasad Sharma
as father and next friend for Niraj Sharma
Applicant

And:

Ranjula Devi Kumar and Reshmi D Sharma,
Executrixes and Trustees of the Estate of Jasoda Devi Sharma
Respondents

Appearances: The plaintiff in person
Mr Udit for the defendants

Date of hearing: 1st May,2012

JUDGMENT

1. This originating summons seeks a construction of two clauses of a will. The will is dated 19th December, 2008. The testatrix died on 2nd March,2010. Devendra Prasad Sharma, a son of the testatrix is the father and next friend of Niraj Sharma, a beneficiary under the will. Ranjula Devi Kumar and Reshmi D Sharma, the first and second respondents are daughters and executors and trustees named in the will.
   

The applicant is seeking the following declarations:

Clause 7 of the will bears the meaning that any repairs, upkeep and maintenance in respect of estate property, including that comprised in Certificate of Title No. 21878, should be paid from rental proceeds of the estate property.

Clause 6 of the will cannot be interpreted to allow the beneficiaries named therein to retain rental proceeds from the estate property after the date of demise of the deceased for their own benefit.

The application is supported by an affidavit. The affidavit has attached the correspondence between the solicitors for the parties, as setting out the scene in which this dispute arose.

The first is a long letter dated 18 May, 2010, written by Howards, solicitors for the estate of the testatrix to the beneficiaries of the will. It states that by clause 7 of the will, the testatrix had directed the executors and trustees to pay her debts, funeral and testamentary expenses including all estate successions, other duties payable and debts relating to property, from rental income. It goes on to state that since the estate has debts in the sum of $ 22,000, the appointed Executors and Trustees propose to utilise the funds held in late the bank accounts of the testatrix to make immediate payments of such debts and then replenish the monies utilised from the bank accounts with the monies earned from rental income .

The letter proceeds to say that upon making deductions from the rental income of the estate, in respect of any lawful testamentary expenses, the appointed executors and trustees would give the beneficiaries, accounts of such expenses.

To that letter, O' Driscoll & Co, the solicitor for Devendra Prasad Sharma replied on 31 May, 2010, stating inter alia:

The will does not appear to have any provision for any estate funds, other than existing funds to be distributed to those beneficiaries named in clause 6, hence your suggestion that any rental proceeds should be held in trust and distributed to them in misguided. This is particularly in light of clause 7, which specifically directs for certain expenses to be paid from rental income.

Any income from the flats on Certificate of Title No. 21978 should be only used towards estate expenses as per clause 7 or towards the upkeep and maintenance of the property situated on the said CT.

Nine days later, Howards, solicitors replied in these terms:

"We refer you to clause 3 paragraph 2 of the Will herein late Jasoda Devi Sharma directs that "all proceeds to be held in estate late account" and we refer you to clause 6 paragraph 1 of the last Will wherein late Jasoda Devi Sharma directs the distribution of " monies that are held in my account after my death". Subsequently we are of the view that contemplation and direction in respect of the account in clause 6 by late Jasoda Devi Sharma is reference to the late estate account that is to be created pursuant to clause 3 of the last Will."

The correspondence is continued by a letter from O' Driscoll & Co, stating that the respondents are interpreting the will to their advantage, since they are beneficiaries under clause 6.

Howards, solicitors replied, in a sense, which was the final communication of the respondents on this matter, stating that ".we are instructed that the appointed Executors and Trustees will resolutely partake in any application that your client intends to file to seek declarations in respect of the provisions of the last Will."

An affidavit in reply was filed by the first respondent, stating in detail the acrimony between the siblings. The affidavit sets out the following preliminary objections, namely, that a) until the issue of the grant of probate is determined in Probate action No. 24/2010, this action is premature and ought to be dismissed; b) they cannot act, until the grant of the probate; c) in terms of the will, the distribution of the estate is to take effect after a period of twelve months, of the death of the testatrix,.

The second respondent filed affidavit in reply, stating that she had authorised the first respondent, to depose to the affidavit in reply, on her behalf. The applicant filed his affidavit in reply.

The respondents thereafter, filed an interlocutory summons with an affidavit in support, seeking a dismissal of the originating summons and/or that the action be stayed pending the outcome of action no 24 of 2010. The first respondent, in her affidavit in support of the summons states that two other beneficiaries of the will, her brothers, had lodged caveats against the grant of probate.

On 6 December, 2011, a copy of the judgment in HBP 24 of 2010 was handed over to me, by counsel for the respondents on that day. Justice Calanchini(as he then was) had granted the application of the plaintiffs, (the respondents in the present case) for removal of the two caveats filed against the grant of probate.

2. The determination
   

I will first deal with the subsidiary objections made to the plaintiff's summons.
At the hearing, Mr Udit, counsel for the respondents, contended that the applicant has not complied with the procedure for filing action on behalf of a minor in Or 80 r 2(1) of the High Court Rules, 1988, read with section 25 of the High Court Act. The attack was three pronged.

Firstly, it was submitted that in terms of paragraph 80/2/6 of the Supreme Court Practice, 1999, the title of the action should have read as "Niraj Sharma .., an infant by Davendra Prasad Sharma father and next friend" and not in the reverse order, as presently titled. Calanchini AP in an addendum to a recent judgment, Nasese Bus Company Ltd and Vijendra Nair,(ABU 40 of 2011) has held that in an action filed by a minor, the name of the infant should precede that of the next friend, since the infant is the plaintiff.

Secondly, it was submitted that it is a mandatory requirement under the Supreme Court Practice, 1999,that a statement of claim pleads that the plaintiff is an infant suing by his next friend. It was argued that this rule applies to an affidavit. In my view, it suffices that this matter is stated in the title.

The third objection raised is that the applicant has not complied with Or 80 r 3(6)(a) and (c) of the High Court Rules, 1988. This section requires to be filed, a written consent to be next friend and a certificate made by the solicitor for the minor, certifying that the applicant is an infant.

While I am in agreement with Mr Udit, as regards the first and third objections, the respondents have filed an unconditional appearance. The respondents did not file an application under Or 2, r.2. to set aside these proceedings for irregularity, nor even in their summons filed for dismissal of this action. In my judgment, the respondents have waived the irregularities, now complained of. In any event, the irregularities are curative.

Mr Udit had two other strings to his bow. It was argued that the respondents have been wrongly sued in their capacity as executrixes and trustees of the estate, when they are presently only named as executors and trustees in the will. I do not accede to this argument. Lord Parker of Waddington in Meyappa Chetty v Supramanian Chetty, (1916)1 AC 603 (PC), at pages 608-609 in the following passage, as cited in the written submissions of the respondents, categorically stated that:

"It is quite clear that an executor derives his title and authority from the will of his testator and not from any grant of probate. The personal property of the testator, including all rights of action, vests in him upon the testator's death, and the consequence is that he can institute an action in the character of executor before he proves the will. He cannot, it is true, obtain a decree before probate, but this is not because his title depends on probate, but because the production of probate is the only way in which, by the rules of the Court, he is allowed to prove his title. An administrator, on the other hand, derives title solely under his grant, and cannot, therefore, institute an action as administrator before he gets his grant. The law on the point is well settled:." (emphasis added)

At the core of the other contention advanced was that before a court is asked to interpret a will, it must first be proved by the grant of probate. In support of this contention, Mr Udit relied on the case of Pinney v Hunt[1877] UKLawRpCh 176; , (1877) 6 Ch D 98 where Jessel M. R. stated at page 100 :

"My view of the matter is this: I consider that in all branches of the Court the only evidence of a will of personal estate is the probate, and that before you can ask the Court to look at the will and to grant any relief upon it you must prove it."(emphasis added)

The force of counsel's argument is in my view, greatly weakened by the words I emphasize at the end of the passage of the judgment, that I have just read. In the present case, the applicant is seeking a construction of the will, not relief upon it.

As Templeman J trenchantly observed in Re Reynette-James(deceased), (1975) 3 All ER 1037 at page 1039 stated a " will is normally admitted to probate and subsequently construed. In the present peculiar circumstances the will of the testatrix as executed must first be construed before it becomes possible to consider whether the whole or part should be admitted to probate."

Having dealt with the several objections raised to the applicant's summons, my task is to interpret clauses 6 and 7 of the will.

The will appoints the first and second respondents as executors and trustees. There follows clause 3, which bequests CT No 21978 to Niraj Sharma, when he reaches the age of 30 years. Then by the 2nd paragraph of clause 3, the trustees are directed to distribute the contents of the will "one year after (her) death. Until that time all proceeds to be held in estate late account". (emphasis added).

Clause 3 states clearly that the distribution of the estate is to take effect, one year after her death. The second limb of that clause provides that until that time, all proceeds are to be held in an estate late account.

That brings me to clause 6, which is in these terms:

"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 D SHARMA ..ANJULA PRASAD..RANJULA DEVI KUMAR and MANJULA SINGH..MY SONS SASHI SHARMA and ARUN SHARMA.".(emphasis added)

The issue before me is whether monies that accumulate to the estate, after the death of the testatrix, accrue to the beneficiaries named above. In my judgment, on a construction of clause 6 read with clause 3, these beneficiaries are entitled to rental income accruing to the estate, after her death. The applicant's contention would hold force, if the bequest in clause 6 had read that the beneficiaries are entitled to monies held in the testatrix's account, at her death.

I turn to the second clause, in respect of which an interpretation has been sought. Clause 7 reads as follows:

"I DIRECT my Trustees " to pay all my just debts, funeral and testamentary expenses including all estate successions and other duties payable in respect of my estate also add debts relating to property should be paid by rental income."(emphasis added).

I find no difficulty with the language of clause 7 .The wording of clause 7 makes it perfectly clear, that all the debts of the testatrix, including "debts relating to property" are to be paid out of her rental income.

The solicitors for the respondents, in their final communication to the solicitors for the applicant, which I have referred to above, stated that they would "resolutely partake in any application..file(d) to seek declarations in respect of the provisions of the last Will." Accordingly, I make no order as to costs.

3. Orders
   

(a) Clause 6 read with Clause 3 of the will entitles the beneficiaries named therein to retain rental proceeds from the estate property, after the date of death of the testatrix.

(b) In terms of clause 7 of the will, all debts of the estate including debts relating to property should be paid from rental proceeds of the estate property.

A.L.B.Brito-Mutunayagam
Judge

15th February, 2013