Devi v Prasad [2015] FJHC 141; HPP19.2014 (2 March 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HPP 19 of 2014

IN THE MATTER of RAM KISSUN late of 29 Namuka Street, Samabula, Suva, Fiji, Deceased, Intestate.

AND

IN THE MATTER of an application SANITA DEVI of 29 Namuka Street, Samabula, Suva, Fiji, Domestic Duties.

BETWEEN:

SANITA DEVI of 29 Namuka Street, Samabula, Suva, Fiji, Domestic Duties.
PLAINTIFF

AND:

SAMBHU PRASAD, of exact location unknown.
1ST DEFENDANT

AND:

SHANTI DEVI, of exact location unknown.
2ND DEFENDANT

AND:

SURUJMATI, of exact location unknown.
3RD DEFENDANT

AND:

SURUJ MATI, of exact location unknown.
4TH DEFENDANT

COUNSEL: Ms. Prena Preetika for the Plaintiff (Applicant) - Present
No Appearance for the Defendants (1-4)

BEFORE: Master Vishwa Datt Sharma

Date of Hearing: 30th January, 2015
Date of Ruling: 2nd March, 2015

RULING

1. APPLICATION
   

1. The Plaintiff's Counsel instituted this action by way of an Originating Summons coupled with an affidavit in support of the Plaintiff seeking grant of the following orders in the deceased's Estate of Ram Kissun-
   
2. • (i) That the Defendant's be removed or excluded from their entitlement to apply for Letters of Administration Grant in the Estate of Ram Kissun;
     
   • (ii) That the Plaintiff be appointed as the Administratrix of the Estate of Ram Kissun;
     
   • (iii) That leave be granted to the Plaintiff to take out Letters of Administration in the Estate of Ram Kissun in her personal name;
     
   • (iv) That the costs of this action be in cause;
     
   • (v) That any other such relief as this Honourable court deems just;
     
   • (vi) That the said Grant and records be noted to this effect; and
     
   • (vii) That the affidavit of Sanita Devi filed herein will be read in support of this application.
     
3. The application is made pursuant to sections 6 and 7 of the Succession, Probate and Administration Act Cap 60 and Order 85 of the High Court Rules 1988 within the inherent Jurisdiction of this court.
   
4. The Originating Summons together with the Affidavit in Support could not be personally served onto each of the four (4) Defendants because the affidavit deposes that their addresses of abode are not known and difficult to ascertain from the family members.
   
5. However, the Plaintiff's Counsel filed an Ex-Parte Summons with an affidavit in Support and obtained an order from this court to effect service by way of a substitute service by advertising the application in one of the local dailies.
   
6. An affidavit of service with a copy of the advertisement was furnished to court to prove service on the Defendants.
   
7. None of the Defendants filed any acknowledgment of service, affidavit in opposition and or made any appearance in court to counter the application in terms of the set down laws.
   
8. The application was scheduled for hearing on the 30th January, 2015 and proceeded for hearing on an undefended basis.
   
9. The Plaintiff's counsel filed in a written submissions in support of their application accordingly.
   

2. THE LAW
   

10. The application is made in terms of Section 6 and 7 of the Succession Probate and Administration Act Cap 60 and Order 85 of the High Court Rules 1988 which is stipulates hereunder.
    
11. I must bring it to the attention of the Plaintiff's Counsel that the application before this court does not specifically state under which particular provision of the law are they making this application in order to ensure that this court will grant the various orders sought in the application. The Counsel has just stated that the application is made under the "general'' sections 6 and 7 of the Succession Probate and Administration Act and Order 85 of the High Court Rules. This is the reason why I thought fit to highlight the necessary applicable sub-sections of sections 6 and 7 and Order 85 to this application only.
    

Succession to property on intestacy

6.-(1) Subject to the provisions of Part II, the administrator on intestacy or, in the case of partial intestacy, the executor or administrator with the will annexed, shall hold the property as to which a person dies intestate on or after the date of commencement of this Act on trust to distribute the same as follows:

(a) if the intestate leaves a wife, or husband, with or without issue, the surviving wife or husband shall take the personal chattels absolutely, and-

(i) if the net value of the residuary estate of the intestate, other than the personal chattels, does not exceed $2,000, the residuary estate absolutely; or

(ii) if the net value of the residuary estate exceeds $2,000, the sum of $2,000 absolutely;

(b) if the intestate leaves no issue, the surviving wife or husband shall, in addition to the interests taken under paragraph (a), take one-half of the residuary estate absolutely;

(c) if the intestate leaves issue, the surviving wife or husband shall, in addition to the interests taken under paragraph (a), take one-third only of the residuary estate absolutely, and the issue shall take per stirpes and not per capita the remaining two-thirds of the residuary estate absolutely;

(d) 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;

(e) if the intestate leaves no issue but both parents, then, subject to the interests of a surviving wife or husband, the father and mother of the intestate shall take the residuary estate of the intestate absolutely in equal shares;

(f) if the intestate leaves no issue, but one parent only then, subject to the interests of a surviving wife or husband, the surviving father or mother shall take the residuary estate of the intestate absolutely;

(g) if the intestate leaves no issue or parent, the surviving husband or wife shall take the residuary estate of the intestate absolutely;

(h) if the intestate leaves no husband or wife and no issue or parents, then the brothers and sisters of the whole blood, and the children of deceased brothers and sisters of the whole blood of the intestate shall take the whole estate of the intestate absolutely in equal shares, such children taking per stirpes and not per capita; (underline is mine for emphasis)

(i) if the intestate leaves no husband or wife, and no: issue or parents or brothers or sisters of the whole blood or children of deceased brothers or sisters of the whole blood then the brothers and sisters of the half blood and children of deceased brothers and sisters of the half blood shall take the whole estate of the intestate absolutely in equal shares, such children taking per stirpes and not per capita; (underline is mine for emphasis)

(j) if the intestate leaves no husband or wife and no issue or parents or brothers or sisters of the whole blood or of the half blood, or children of deceased brothers or sisters of the whole blood or of the half blood, then the grandparents of the intestate shall take the whole estate of the intestate absolutely, and if more than one survives the intestate they shall take absolutely in equal shares, but if there is no grandparent, then the uncles and aunts of the whole blood, and children of deceased uncles and aunts of the whole blood, of the intestate, being brothers and sisters of the whole blood of children of deceased brothers and sisters of the whole blood, of a parent of the intestate, shall take the whole estate of the intestate absolutely in equal shares, such children taking per stirpes and not per capita;

(k) if the intestate leaves no husband or wife and no issue or parents or brothers or sisters of the whole blood or of the half blood or children of deceased brothers or sisters of the whole blood or of the half blood and no grandparents or uncles or aunts of the whole blood or children of deceased uncles or aunts of the whole blood of the intestate being brothers and sisters of the whole blood of children of deceased brothers and sisters of the whole blood, of a parent of the intestate, then the uncles and aunts of the half blood and children of deceased uncles and aunts of the half blood of the intestate shall take the whole estate of the intestate absolutely in equal shares, such children taking per stirpes and not per capita;

(l) in default of any person taking an absolute interest under any of the foregoing provisions of this section the residuary estate of the intestate shall belong to the Crown as bona vacantia, and in lieu of any right to escheat, and the Crown may, out of the whole or any part of the property devolving on it, provide for dependants, whether kindred or not, of the intestate, and other persons for whom the intestate might reasonably have been expected to make provision.

(2) For the purposes of subsection (1)-

(a) the net value of the property of a deceased person is the net value of that property at the date of the death of that person as finally assessed by the Commissioner of Estate and Gift Duties for the purpose of the Estate and Gift Duties Act; (Cap. 203.)

(b) any income derived from the property of a deceased person shall be distributed among the persons entitled in distribution to that property in the same respective proportions to which they are entitled to share in the distribution of that property.

(3) In this section-

"child"-

(a) in relation to an intestate, means any child, whether legitimate or illegitimate of the intestate;

(b) in relation to any person entitled under the provisions of this Act to share in the property of an intestate, means any child legitimate or illegitimate of that person;

"issue" includes a child or any other issue whether legitimate or illegitimate, in any generation, of an intestate.

(4) For the purposes of this section, an illegitimate relationship between a father and his child shall not be recognised unless there is proof that the paternity of the father has been admitted by or established against the father while both the father and the child were living.

PART IV-GRANTS OF LETTERS OF ADMINISTRATION

Persons entitled to grant

7. The court may grant administration of the estate of a person dying intestate to the following persons (separately or conjointly) being not less than 21 years of age-

(a) the husband or wife of the deceased; or

(b) if there is no husband or wife, to one or more of the next of kin in order of priority of entitlement under this Act in the distribution of the estate of the deceased; or

(c) any other person, whether a creditor or not, if there is no person entitled to a grant under paragraphs (a) and (b) resident within the jurisdiction and fit to be so entrusted, or if the person entitled as aforesaid fails, when duly cited, to appear and apply for administration.

(Underline is mine for emphasis)

ORDER 85 of the High Court Rules 1988

ADMINISTRATION AND SIMILAR ACTIONS

Interpretation (O.85, r.1)

1. In this Order "administration action" means an action for the administration under the direction of the Court of the estate of a deceased person or for the execution under the direction of the Court of a trust.

Determination of questions, etc., without administration (O.85, r.2)

2.- (1) An action may be brought for the determination of any question or for any relief which could be determined or granted, as the case may be, in an administration action and a claim need not be made in the action for the administration or execution under the direction of the Court of the estate or trust in connection with which the question arises or the relief is sought.

(2) Without prejudice to the generality of paragraph (1), an action may be brought for the determination of any of the following questions:-

(a) any question arising in the administration of the estate of a deceased person or in the execution of a trust;

(b) any question as to the composition of any class of persons having a claim against the estate of a deceased person or a beneficial interest in the estate of such a person or in any property subject to a trust;

(c) any question as to the rights or interests of a person claiming to be a creditor of the estate of a deceased person or to be entitled under a will or on the intestacy of a deceased person or to be beneficially entitled under a trust.

(3) Without prejudice to the generality of paragraph (1), an action may be brought for any of the following reliefs:-

(a) an order requiring an executor, administrator or trustee to furnish and, if necessary, verify accounts;

(b) an order requiring the payment into court of money held by a person in his capacity as executor, administrator or trustee;

(c) an order directing a person to do or abstain from doing a particular act in his capacity as an executor, administrator or trustee;

(d) an order approving any sale, purchase, compromise or other transaction by a person in his capacity as executor, administrator or trustee;

(e) an order directing any act to be done in the administration of the estate of a deceased person or in the execution of a trust which the Court could order to be done if the estate or trust were being administered or executed, as the case may be, under the direction of the Court.

Parties (O.85, r.3)............

Grant of relief in action begun by originating summons (O.85, r.4)........

12. It is necessary and appropriate to also look at s 31 of the Succession Probate and Administration Act Cap 60 which states as follows-
    

Probate or administration if executor, etc., absent or neglects to obtain probate, etc.

31. Where an executor neglects to apply for or to renounce probate within 6 months from the death of the testator or from the time of such executor attaining the age of 21 years, or where an executor is unknown or cannot be found, the court may, upon the application of any person interested in the estate, or of any creditor of the testator, grant administration with the will annexed to the applicant, and such administration may be limited as the court thinks fit.

100. ANALYSIS and DETERMINATION OF THE ISSUES
     

13. This application seeks grant of various orders as enumerated at paragraph 2 hereinabove.
    
14. The deceased's Estate was advertised by the Applicant's Counsel on 03rd April, 2012 in terms of the procedure and the law set out in Succession Probate and Administration Act Cap 60.
    
15. It stated that the deceased died Testate, meaning that he left behind a Will.
    
16. According to the Counsel in her written submissions at paragraph 12 stated 'that the plaintiff had filed the Letters of Administration for vetting, however, the registry refused to have the same filed as she was not a direct beneficiary under the Estate in question'.
    
17. Then, the question which comes to mind is why an application was filed seeking a grant of Letters of Administration if he died Testate as per the advertisement?
    
18. In order to clarify this, I personally had to ask the Senior Court Officer Principle Probate Registry to carry out a search on the following-
    
    • (a) Whether there was a pending application seeking any grant in the deceased Estate?
    • (b) Whether a grant was already issued in the said Estate?
    • (c) Whether there was any will in the name of the deceased registered with the High Court?
    • (d) Whether there was any caveat filed restraining issuance of any grant?
      
19. The Senior Court Officer reported back to confirm that there was no record of this with the registry.
    
20. As to the affidavit in support filed herein, at paragraph 8 the plaintiff states that the deceased had ten (10) siblings and six (6) of them are now deceased leaving behind with only Four (4) surviving siblings. In fact there is no evidence of any death certificate filed in court for sibling Manjula Devi to confirm that she is also a deceased.
    
21. The affidavit further confirms that the deceased was never married.
    
22. I have noted that the deceased Ram Kissun died on 18th May, 1992 and that the deceased Estate is yet to be administered.
    
23. Section 6 (1) (h) of Succession Probate and Administration Act Cap 60 does not apply to this particular case since the deceased has left behind surviving four (4) siblings and therefore clearly spells out as to who should be given a Grant of Letters of Administration in terms of priority and entitlement in law.
    
24. However, Section 6 (1) (i) also do not apply to this case since the deceased has left behind surviving four (4) of his siblings. If there were no surviving siblings of the deceased Ram Kissun then, the Plaintiff would have qualified for a Grant of Letters of Administration in his Estate.
    
25. Section 35 of the Succession Probate and Administration Act Cap 60 as is outlined hereunder empowers the court to order the removal of an executor(ix) and appoint an administrator in his or her place with will annexed, for any reason which appears to [the court] to be sufficient. This means that the court is vested with a very wide discretion.
    

s. 35. The court may for any reason which appears to it to be sufficient, either upon the application of any person interested in the estate of any deceased person or of its motion on the report of the Registrar and either before or after a grant of probate has been made-

(a) make an order removing any executor of the will of such deceased person from office as, such executor and revoking any grant of probate already made to him; and

(b) by the same or any subsequent order appoint an administrator with the will annexed of such estate; and

(c) make such other orders as it thinks fit for vesting the real and personal property of such estate in the administrator and for enabling the administrator to obtain possession or control thereof; and

(d) make such further or consequential orders as it may consider necessary in the circumstance.

26. Further, section 73 of the Trustees Act Cap 65 as mentioned hereunder gives power to the court to appoint new trustee(s) 'whenever it is expedient.'
    
    19. 73.-(1) The Court may, whenever it is expedient to appoint a new trustee or new trustees, and it is inexpedient, difficult or impracticable so to do without the assistance of the Court, make an order for the appointment of a new trustee or new trustees, either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee.
        

(2) In particular, and without limiting the generality of the provisions of subsection (1), the Court may make an order appointing a new trustee in substitution for a trustee who-

(a) desires to be discharged;

(b) has been held by the Court to have misconducted himself in the administration of the trust;

c) is convicted of any misdemeanour involving dishonesty, or of any felony;

(d) is a person of unsound mind;

(e) is bankrupt; or

(f) is a corporation that has ceased to carry on business, or is in liquidation, or has been dissolved.

27. As to the evidence before this court, according to the Plaintiff, the deceased Ram Kissun was her paternal uncle and lived with her and father and that she was the only one who looked after and supported him until his demise on 18th May, 1992.
    
28. The deceased Estate has not been administered by anyone since his demise in 1992 and according to the plaintiff she is the one still there who is maintaining the deceased Estate.
    
29. The plaintiff further confirms through her affidavit in support that the surviving siblings have not made any effort to seek a grant in the deceased Estate until now and that their whereabouts or addresses of abode are not known, even advertising the Estate with the leave of this court has made no difference to the surviving siblings. Some 13 years has lapsed since the deceased's demise.
    
30. Section 31 of the Succession Probate and Administration Act Cap 60 is also relevant to consider in this very application which states that-
    

'Where an executor neglects to apply for or to renounce probate within 6 months from the death of the testator or from the time of such executor attaining the age of 21 years, or where an executor is unknown or cannot be found, the court may, upon the application of any person interested in the estate, or of any creditor of the testator, grant administration with the will annexed to the applicant, and such administration may be limited as the court thinks fit.'

31. It is important to note that the jurisdiction to appoint and remove trustees is both inherent and statutory, the legislative authority being section 51 (I) of the Trustees Act 1956 which provides as follows-
    

'The inherent jurisdiction is derived from the Court's general supervisory powers in equity relating to the supervision of trusts for the welfare of the beneficiaries. The relevance of that objective is recognized in well known cases such as Letterstedt v Broers (1884) 9 App Cas 371 and Hunter v Hunter 91938) NZLR 520.

32. Therefore, it is vital to note that the' general supervisory powers' that equity bestows upon this court also imposes upon this court a solemn duty to see that a Trust or an Estate is properly executed- Case reference- In the matter of Estate of Kamal Shah and In the Estate of Shahidan-HBC 47 of 2009L.
    
33. Bearing in mind the above rationale and discussion coupled with the case laws and authorities, I now move to deliberate on the orders sought by the Plaintiff in terms of her Originating Summons as follows-
    

(a) As for the first order sought that the Defendants be removed or excluded from their entitlement to apply for Letters of Administration in the Estate of Ram Kissun;

The defendant's 1-4 were never granted with any Grant of Letters of Administration to administer the deceased's Estate at anytime. Further each of the defendant's entitlement cannot be taken away since in terms of section 6(1) (h) of the Succession Probate And Administration Act Cap 60 the four defendants have the first priority to apply for a Grant and are as well beneficiaries in the deceased Estate. In future, there is a possibility that the Defendant(s) may make appropriate applications in terms of the law. In the circumstances this order is not acceded to and therefore not granted.

(b) As for the second order sought that the Plaintiff be appointed as the Administratrix of the Estate of Ram Kissun;

The four Defendants have failed to apply for any Grant in order to administer the Deceased's Estate and some 13 years has lapsed since the deceased's demise. The estate could not be left unadministered. The four Defendants' have not shown any keen interest in the administration of the Estate and in the circumstances in terms of section 6 (1) (i) of the Succession Probate and Administration Act Cap 60 she has an entitlement to apply now since the Deceased's surviving siblings have to apply for a Grant. Section 31 of the Act is also relevant as discussed earlier in my judgment. In the circumstances, I appoint the Plaintiff as the Administratrix in the deceased Estate of Ram Kissun.

© As for the Third order sought that leave be granted to the Plaintiff to take out Letters of Administration in the Estate of Ram Kissun in her personal name;

I adopt the same reasoning as per paragraph 33 (b) hereinabove but wish to add that she is not a beneficiary in the deceased Estate. I will grant leave to the Plaintiff to take out letters of Administration in the deceased Estate but the Grant will be a limited to administer and maintain the deceased Estate. Further, to carry out any maintenance work on the Estate and account for the same as and when required by law or otherwise. The Plaintiff is at liberty to apply for a Grant now in terms of the Succession Probate and Administration Act Cap 60.
(d) As for the Fourth Order sought that costs of this action be in the cause;

Costs have been incurred and future costs may be incurred. Therefore, I grant the order accordingly.

(e) There is no need for any further orders or relief.

34. FINAL ORDERS

(i) That Order seeking Defendants to be removed or excluded from their entitlement to apply for Letters of Administration Grant in the Estate of Ram Kissun is hereby refused.

(ii) That the Plaintiff is hereby appointed as the Administratrix of the Estate of Ram Kissun.

(iii) That leave is hereby granted and the Plaintiff is at liberty to take out a Grant of Letters of Administration but the Grant is limited to administer and maintain the Deceased Estate and account for the same only.

(iv) That the Grant of Letters of Administration and records be noted to this effect.

(v) That Costs to be in the cause.

(vi) That I make no orders for any further relief.

Dated at Suva this 2nd Day of March, 2015

VISHWA DATT SHARMA
Acting Master of the High Court
Suva

CC. Ms. Prena Preetika
Solicitor for the Plaintiff.