Chand v Mala [2014] FJHC 560; Probate 29.2013 (31 July 2014)

In the High Court Fiji at Suva
Probate Jurisdiction
Probate Action No. 29 of 2013

Between:

Moneel Mohitesh Chand
Plaintiff

And:

Vindulla Arti Mala
1st Defendant

And:

Vijay Chand
Nominal Defendant

Appearances: Mr A.Qoro for the plaintiff
Mr R.Singh for the first defendant

Dates of hearing: 24th February, 2013

JUDGMENT

1. The plaintiff is the son of M. Chand, (deceased). He seeks a declaration that the grant of probate to the first defendant, to administer the intestate estate of the deceased contravenes the deceased's Will of 27th May, 2010, and is null and void. The plaintiff seeks to revoke the grant of that probate and moves for the nominal defendant,(the brother of the deceased) to be appointed as the sole executor and trustee of the estate. Alternatively, that the nominal defendant be at liberty to apply for probate under the Will. The first defendant is the second wife of the deceased.
   
2. The first defendant, in her statement of defence, states that the caveat filed by the plaintiff opposing the grant of letters of administration to her, was removed and discharged by the High Court in HPP 16 of 2013.The plaintiff has no cause of action. The first defendant further states that the "purported" Will is null and void, as it was not witnessed by two witnesses. The first defendant moves that the plaintiff's action be struck out with indemnity costs. In her counter-claim, she moves for a declaration that the Will of 27th May, 2010, is invalid and of no legal effect.
   
3. By summons dated 9th July, 2013, the first defendant moves that the action against her be struck out, as it discloses no reasonable cause of action against her and is an abuse of court.
   
4. The determination

4.1. In these proceedings, the plaintiff has filed writ of summons seeking a declaration that the grant of probate to the first defendant,(to administer the intestate estate of the deceased) contravenes the deceased's Will of 27th May, 2010. The plaintiff moves that the grant of probate to the first defendant be revoked.

4.2. The first defendant has filed summons to strike out the action against her under Or 18,r 18, on the ground that it discloses no reasonable cause of action and is an abuse of process. It is contended that the plaintiff has to file an appeal from the Master's Order in HPP no. 16 of 2013, or apply to set aside the orders. The Master had discharged the application and caveat filed by the plaintiff against the grant of letters of administration to the first defendant. It was contended that the plaintiff cannot maintain this case, since the Orders in HPP no. 16 of 2013 had been perfected.

4.3. Counsel for the plaintiff, Mr Qoro quite correctly pointed out in reply, that the present case is an action for revocation of the probate under Or 76,r2. Mr Qoro submitted that the issues raised in this probate action are not the same, as arose in the application filed by the first defendant for the removal of the the caveat lodged by the plaintiff. In such applications, a caveator is required to establish a "contrary interest". The cases of Reddy v Webb, (1994) FJCA 36 and Re Estate of Narayan Reddy, (1994) FJCA 36 were cited in support.

4.4. Probate proceedings are clearly governed by Or 76. Or 76,r 2. provides that a "probate action" must be begun by writ. Or 76,r 1(2) states that a "probate action" means:

an action for the grant of probate of the will, or letters of administration of the estate of ta deceased person or for revocation of such grant or for a decree pronouncing for or against he validity of an alleged will, not being an action which is non-contentious or common form probate business.(emphasis added)

Or 76,r 4 requires the lodgement of the probate, in an action for revocation of the grant of probate of a will or letters of administration.

4.5. Mr Qoro has drawn my attention to a decision of the High Court in Goundar v Vyas, (1994) FJHC 209 where Fatiaki J(as he then was) cited the following penetrative analysis of Lindley LJ in Moran v Place,[1896] UKLawRpPro 24; (1896) P 214 at pg 216:

A caveat is not a notice to any opponent in particular. It is a notice to the registrar or officer of the Court not let anything be done by anybody in the matter of the will or the goods of the deceased, without notice to the person who lodges the caveat. It is impossible to look at it as commencing any litigation–it merely requests the registrar to tell the caveator if anybody stirs in this matter..When caveat has been entered the person who wishes to prove a will has to warn the person who entered the caveat and if such person ie the caveator, intends to make any real objection, he enters an appearance. Then, if the litigation goes on, the person who wants to prove the will issues a writ and serves it on the caveator. (emphasis added, underlining mine)

4.6. That passage provides a complete answer to the first defendant's contention. Fatiaki J concluded that "the removal of a caveat is not a probate action..but the invocation of a specific statutory provision".

4.7. The written submissions filed on behalf of the first defendant refer to several decisions dealing with applications for striking out, where there is no reasonable cause of action or the proceedings are an abuse of process. The cases are not relevant to this issue. It is unnecessary to rehearse the facts. The case of Janov v Morris, (1981) 3 All ER 780 cited is quite disparate. It was a case where an action had been struck out on the ground of the plaintiff's disobedience of a peremptory order of the court and the plaintiff commenced a second action within the limitation period raising the same cause of action.

4.8. I dismiss the straw in wind contention that the plaintiff should have moved to set aside or appeal the Orders made by the Master, granting the first defendant, letters of administration.

4.9. The application to strike out the plaintiff's action is declined.

5. Orders
   
   1. The summons to strike out the action of the plaintiff is dismissed.
      
   2. The first defendant shall pay the plaintiff costs summarily assessed in a sum of $ 2000 within 14 days of this judgment,
      

31st July, 2014

A.L.B.Brito-Mutunayagam
Judge