Ishwar Prasad, In re Estate of [2015] FJHC 138; Probate Action 53299 (27 February 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBA 11 of 2013
Probate Application No. 53299

IN THE ESTATE OF ISHWAR PRASAD a.k.a. SHIRI PRASAD
of Vugele, Tavua, Fiji, Cultivator, Deceased, Testate

Appearance : S NANDAN of REDDY and NANDAN, Solicitors for the APPELLANT
Date of Judgment : 27 February 2015

JUDGMENT ON APPEAL

[1] On 3 December 1995 Probate No. 31691 was granted to Kamal Prasad Sharma pursuant to Last Will dated 8 March 1994 in the Estate of Iswar Prasad a.k.a. Shiri Prasad deceased on 6 February 1995, (Death Certificate of the Testator annexed marked 'B' to the affidavit sworn by Shavnesh Sharma on 2 February 2013).

[2] The Appellants Savesh Sharma and Raj Mati Sharma are the son-in-law and the daughter of the deceased Ishwar Prasad, (annexure 'A' to the affidavit).

[3] The Probate No. 31691 granted to Kamal Prasad Sharma is annexed to the affidavit dated 2 February 2013 marked as 'C'.

[4] Bit Mati wife of the deceased died on 14 July 1996 who was a beneficiary for life as per the Last Will dated 8 March 1994 (annexure 'D').

[5] Kamal Prasad Sharma died on 3 October 2010 leaving part of the estate un-administered under the Probate No. 31691 (annexed marked 'C' to the affidavit and Certificate of Death annexed marked as 'E').

[6] The estate owned the Crown Lease being No. 58613 and Certificate of Farm Registration No. 3723 is annexed to the affidavit marked as 'F' and 'G'.

[7] The Estate held a Registered Primary Mortgage No. 520924 Registered Crop Lien Book 1300 Folio 99 in favour of National Bank of Fiji in the sum of $17,500.00 (Mortgage and Crop Lien annexed marked as 'H' and 'I').

[8] The Trustee of the Estate requested the Appellants to advance monies to settle the National Bank of Fiji and to upgrade the farm. The letter dated 24/12/2004 sent by the Bank informing the estate to pay $5,482 to withdraw the Mortgage Sale (annexure 'J').

[9] The Appellants advanced a sum of $30,000 to the Trustee (Kamal Prasad Sharma) to pay the debt incurred by the estate and development of the farm. To secure the said sum late Kamal Prasad signed a Mortgage and Application for Consent to Mortgage in favour of the Appellants (annexures 'K' and 'L').

[10] The Appellants claimed, it is unlikely the administrators of Kamal Prasad Sharma will make arrangements to settle the monies advanced by the Appellants.

[11] The Notice of Motion dated 8 March 2013 was filed in the High Court on 27 March 2013 pursuant to Order 85 Rule 2 (2) of the High Court Rules and the application was struck out by the Learned Master on 27 March 2013 stating that the Motion dated 8 March 2013 is struck out as there is no proof of a Debt, (evidence of Debt by the deceased). The document annexed marked 'K' which was relied on by the Appellants was not registered, not dated and the reason given is not acceptable, Learned Master stated.

[12] Thereafter, the Appellants attempted to file Notice and Grounds of Appeal before the Court of Appeal which were annexed to the Affidavit in Support, marked 'E' sworn by Savesh Sharma dated 15 June 2013. The Notice of Appeal and Grounds of Appeal attempted to file in the Court of Appeal is dated 9 April 2013 and the Court of Appeal Registry had informed the Solicitor for the Appellants the Master's Order should be appealed to the single Judge of the High Court. Accordingly, the Notice of Appeal and the Grounds of Appeal filed before this court on 10 September 2013, subsequent to Grant of Leave by this court for the extension of time to file the Notice of Appeal and the Grounds of Appeal. Leave was granted on 6 September 2013.

[13] The appeal was taken up for hearing on 21 January 2014 and the counsel for the Appellants made submissions. The following affidavits were taken into consideration by this court.

13.1 The Affidavit in Support dated 15 June 2013 sworn by one of the Appellants Savesh Sharma.

13.2 The Affidavit in Support filed before the Master dated 2 February 2013 (marked as 'A' to the affidavit dated 15 June 2013), sworn by Savesh Sharma and its annexures marked 'A' to 'Q'.

13.3 Annexures marked 'A', 'C', 'D' and 'E' to the affidavit dated 15 June 2013.

13.4 The affidavit dated 19 October 2012 filed at the Probate Office applying for Letters of Administration De Boni's Non (with a WILL) sworn by the Appellants, Savesh Sharma and Raj Mati Sharma and its annexures marked 'A' to 'O'.

13.5 The Learned Master Amaratunga's (as then he was) Order dated 27 March 2013, states that:

"IT IS HEREBY ORDERED THAT:

(1) That the Motion dated 8 March 2013 is struck out as there is no proof (evidence of a Debt by the Deceased). The Documents annexed 'K' which was relied on by the applicant was not registered nor dated and the reason given is not acceptable. Hence Motion was struck out".

13.6 The above Order striking out the motion is a final order by the Learned Master and the Probate Action filed by the applicant came to a standstill. As such the only remedy available for the Appellants was an appeal to this court pursuant to Order 59 Rule 8.

13.7 I state that there is no proper reasoning by the Learned Master when he struck out the application before him which amounts to miscarriage of justice.

13.8 Now I refer to the ground of appeal i.e.:

(1) The Honorable Master erred in law and in fact in finding that there was no evidence of a debt by the deceased".

13.9 I now analyze as to whether the Learned Master advert to the affidavit evidence placed before him. In his order he had referred to the document marked 'K'. The Learned Master's notes stated "the document marked 'K' which was relied by the Appellants is not dated and excuse given for not registering cannot be accepted, hence motion is struck off". I conclude there was no proper reasoning given by the Master for his decision and he had not analysed the documentary evidence before him as stated in this judgment hereinafter.

13.10 The question arises, to come to the conclusion why the Learned Master perused only document 'K'. There were several documents annexed to the Affidavit in Support, without analyzing all the documents how the Learned Master can come to the conclusion that there was no debt. I disagree.

13.11 The Appellants have filed the letter dated 24 December 2004 marked 'J' by the Bank addressed to the Trustee of the Estate of Shiri Prasad to pay cane farm loan amounting to $5482 to avoid Mortgage Sale. Although the Mortgage was not registered (annexure 'K'), it was attested by the solicitor Eroni Maopa. The Master's finding was since the Mortgage was not registered and dated the said Mortgage cannot be accepted. The Mortgage document is annexed to prove a debt, not for any other purpose. In such circumstance, the registration is not an issue. He would have considered the documents in its totality and should not have made the decision on one document and I conclude the Master erred in law and in fact.

13.12 The document marked 'L' is the Application for Consent to Mortgage which was perfected but not dated. In both annexures date and month are not perfected however, the year appears as 2005. Evidently, in document 'K', 2nd page just below the signature of the solicitor of the Mortgagee date was inserted in pen as 28/1 since the document is executed in 2005, I conclude the document 'L' is executed on 28/1/2005. This has to be compared with the letter by the Bank marked 'J' which is dated 24 December 2004 demanding the loan. In such event executing a Mortgage on 28/1/2005 and obtaining a loan from the Appellants is further established. The Learned Master Amaratunga (as then he was) has erred in law and fact on his failure to consider the evidence before him. Although the power to strike out any application is at the discretion of the court and if such discretion is not exercised in the proper way, such decisions cannot be considered as correct decisions made in law.

13.13 Now I draw my attention to affidavit dated 19/10/2012 filed in the High Court Probate jurisdiction which was completely ignored by the Learned Master when he made struck out order. Part of annexure 'N', the advertisement published in the Fiji Times on 11 December 2011 for Mortgagee Sale of the Crown Lease CL 8613 by Young Associates, Solicitors which is the identical land in Mortgage document marked 'K' annexed to the affidavit dated 2nd February 2013. Considering the said documents it proves balance of probabilities that the letter dated 24 December 2004 marked 'J' annexed to the affidavit dated 2nd February 2013 was written by the Bank after the said advertisement. Accordingly, to withdraw the Mortgage Sale, the Trustee Kamal Prasad Sharma was obliged to raise finances to pay the debt. I conclude considering the documentary evidence before the court that the Mortgage was executed in favour of the Appellants on 28/1/2005 as concluded was to pay off the loan obtained from the Bank. The Learned Master failed to consider this evidence before striking out the Notice of Motion filed by the Appellants and the Learned Master had erred in law and in fact and I conclude the debt obtained by the Trustee Kamal Prasad Sharma is proven on balance of probabilities and the order by the Master cannot stand.

[14] I further hold that being a Creditors Appellants are entitle to bring in this action under Order 85 Rule 2 (c) of the High Court Rules.

[15] I further determine the grant of Letter of Administration De Bonis Non (WILL) to the Appellants is justified as the creditors under Part IV of the Succession Probate and Administration Act (Cap 60):

Orders:

(a) The Order of the Learned Master dated 28 March 2013 is set aside.

(b) Ordered to grant the Probate to the Appellants.

Delivered at Suva this 27th Day of February 2015.

C. KOTIGALAGE
JUDGE