Devi v Sahadei [2015] FJHC 525; HPP44.2013 (17 July 2015)

IN THE HIGH COURT of FIJI
AT LABASA
PROBATE JURISDICTION

Probate Action HPP No. 44 of 2013

BETWEEN:

SHAKUNTALA DEVI
of Savusavu, Domestic Duties
PLAINTIFF

AND:

SAHADEI
of Savusavu, Domestic Duties
DEFENDANT

Counsel: Mr. M Sadiq of Sadiq Esq. for the Plaintiff
Mr. A Sen of Maqbool & Co for the Defendant

RULING

Introduction

1. The plaintiff by a writ action filed in the probate registry in Suva on the 19 August 2013 sought an order from the Court for the removal of a caveat filed by the defendant which prevented the grant of probate to the plaintiff. The matter was transferred to Labasa on the 19 December 2013. It appeared that the matter was ready for trial when an application for specific discovery was filed by the Defendant.

Background

2. The plaintiff claims that she is the appointed executrix and trustee of the last will and testament of a Mr. Bal Ram, late of Savusavu. The defendant on the other hand claims that she is the lawful wife of the late Mr. Bal Ram and that the validity of the will which appointed the plaintiff as executrix and trustee is challenged.

3. It appears that Mr. Bal Ram was married to the defendant on the 9 May 1965 and that there are five children of the marriage. The said Mr. Bal Ram left his wife and then lived in a de-facto relationship with the plaintiff from 1996 until his death on the 10 February 2013.

4. The dispute between the parties is in relation to the distribution of the assets of the deceased, these assets are classified as either matrimonial in nature or those accumulated during the period in which the deceased cohabited with the parties in dispute.

The Application

5. What is before the Court however, is an application by the defendant for specific discovery from the plaintiff for the following documents pursuant to Order 24 rule 7:-

(1) An inventory of assets of the deceased Bal Ram;
(2) Application for probate;
(3) Valuation of Lot 12 Nacekoro owned by the deceased, Mr. Bal Ram;
(4) Birth Certificate of Ragni Radhika;
(5) Residence and Marital status of Ragni Radhika.

6. The affidavit in support of the application states that the documents are in the possession and custody of the plaintiff and that most importantly it will help in the proper determination of the matter. The applicant further states in her affidavit that she requires the plaintiff to provide her with a copy of the valuation of a property known as Lot 12 Nacekoro owned by the late Bal Ram.

7. Lastly the applicant states that unless this enquiry is made, that is the valuation of the property, the Court would not be able to calculate her entitlement under the "Inheritance (Family Provisions) Act of 2004".

8. The application is opposed by the defendant and in her affidavit in opposition states where relevant the following:-

(1) That an inventory of the assets of the deceased has already been given to the defendant;

(2) That the plaintiff has no valuation of Lot 12 at Nacekoro at any time;

(3) That the plaintiff does have a copy of Ragni Radhika and would be able to supply it but sees no relevance in doing so;

(4) That the said Ragni Radhika is married and is living in Suva but this information is irrelevant to the case; and

(5) That the defendant has the documents necessary and the application is misconceived and should be struck out.

9. In reply to the affidavit in opposition the defendant states so far as is relevant that it is important that an inventory of the deceased's estate be shown and known. This is particularly important for her in that her claim is based on paragraph (sic) 3 and 4 of the Inheritance (Family Provisions) Act of 2004. As for the person Ragni Radhika the defendant is interested to know who she is as the late Bal Ram made provisions for her and it is important that her statusbe known to the Court.

Determination

10. The application was made pursuant to Order 24 rule 7 of the High Court Rules and is supported by an affidavit as is required under sub- rule 3. Order 24 rule 7 states:-

7.-(1) Subject to rule 8, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described is, or has at any time been, in his possession, custody or power ad if not than in his possession, custody or power, when he parted with it and what has become of it.

(2) An order may be made against a party under this rule notwithstanding that he may already have made or been required to make a list of documents or affidavit under rule 2 or rule 3.

(3) An application for an order under this rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power the document, or class of document, specified or described in the application and that it relates to one or more of the matters in question in the cause or matter.

Discovery to be ordered only if necessary (O.24, r.8)

8. On the hearing of an application for an order under rule 3 or 7, the Court, if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, may dismiss or, as the case may be, adjourn the application and shall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.

11. It is clear from the provisions of the order for discovery referred to and relied upon by the applicant/defendant that the Court has to look at the necessity of the application at the time or consider whether discovery is not necessary for the proper or fair disposal of the matter.

12. The background to the application is the distribution of the assets of the late Mr. Bal Ram between the two "women" in his life. During his life he married the defendant and had five children with her. He then lived with the plaintiff and may have had a child with her.

13. The deceased during the periods of cohabitation with these two women, had presumably looked after them well and accumulated assets that is now the subject of this dispute. The late Mr. Bal Ram remained married to the defendant during the period from 1996 to 2013 when he lived in a de-facto relationship with the plaintiff. It is certainly a relationship of a lengthy duration.

14. However before his death he wrote a will which named the plaintiff, his de-facto, as the executor and trustee of his estate. It is very clear that the conflicting rights between these two women, one arising from being the legal wife and the other from the de-facto wife are at the centre of this dispute.In his last will and testament the late Mr. Bal Ram not only appointed the plaintiff as the sole executrix and trustee of his will but he further devised bequeathed all his property both real and personal and in particular Lot 12 of the freehold land known as Nacekoro to her for life and upon her death to Ragni Radhika.

15. Although in its Counter-Claim the defendant states in paragraph 10 that the deceased lived with the defendant after their marriage till his death and had five children of the marriage. She however denied this in the reply to the defence tothe Counter-Claim by stating inparagraph 3(c) that she was compelled to live with her children when the deceased deserted her for a younger woman that is, the plaintiff. It is clear in my view that the deceased had indeed left his wife and lived with the plaintiff for a considerable number of years.

The Rights of the two Women

16. The defendant right arose from the fact that she remains the legal wife of the deceased. She makes the application for the distribution of the deceased's estate under sections 3 & 4 of the "Inheritance (Family Provisions) Act of 2004".

17. This Act allows the Courts to make provisions for the dependants of a deceased person who dies living a will in which the dependents have not been considered or maintained properly. In considering whether to make any provisions for the dependents separate from the will the Court has to take into account the interests not only of the dependents but also of the person who may be entitled to the property.Pursuant to section 4 any application to the Court under sections 3 &4 must be made within six months from the date on which representation in regard to the testator's estate for general purposes is first taken out. That is, six months from the date of application for probate.

18. The plaintiff or the de-facto wife of the deceased derives her right not only from the will but from the fact that for more than seventeen years she had lived as a wife with the deceased.

The Legal Framework

19. An application made under Order 24 rule 7 requires the Court to give directions to the party from which discovery is requested to answer in an affidavit form whether the specified documents has at any time been in their possession, custody or power and if not then when did they part with it and what has become of it.

20. An order under this rule can be made to a party even though it has already given or made an affidavit verifying list of documents, this is the specific discovery application of which this application is one. The applicant must have a belief that the party from whom the request was made had other documents beyond those disclosed.

21. The party making the application must provide an affidavit in support in which it must state the belief that the party from whom the discovery is sought has or has had those documents.

22. The important proviso in this application is that the order can only be made if the Court considers it necessary or not necessary at that stage of the cause or matter. The Court may, if it finds the application unnecessary, dismiss it, adjourn the application or refuse it if it finds it unnecessary.

23. The need to provide an affidavit of ones list of document as is requested in this application is due to the fact that an affidavit of list of documents is conclusive of the fact that one does or does not have those documents in his or her possession or control.

24. In Berkeley Administration-v- McClelland (1990) FSR 381 the Court restated the principles of discovery under Order 24 rule 7 as follows:-

(1) There is no jurisdiction to make an order under Order 24 rule 7 for the production of documents unless:-

(i) There is sufficient evidence that the document exists which the other party has not disclosed;

(ii) The documents relate to matters in issue;

(iii) There is sufficient evidence that the documents are in possession custody and power of the other party.

(2) When it is established that the above three prerequisites for jurisdiction exists then the Court can make an order.

(3) The order must identify with precision the documents or categories of documents to be disclosed so as to prevent the making of false affidavit from a respondent who deposes an affidavit in good faith based on the identity of the documents given for discovery.

25. The denial of the existence of a document when it exists can be detrimental to a party's case in that he cannot rely on those documents if they are produced by his opponent (upon leave being granted) at the trial. There are times in which copies exist but originals are sought to be discovered and their existence are denied.

26. The Master upon the hearing of the application may make an order granting the application but the grant of the order does not prevent the responding party from deposing in its affidavit that he has no such documents or that they are irrelevant and unnecessary. This part of the procedure tests the honesty of the respondents.

Are the Documents necessary to be disclosed

27. The first document sought is "an inventory of the estate of the deceased". An inventory means a detailed descriptive list of the deceased's estate and its value. The plaintiff in opposing the request states that such an inventory has been provided to the defendant in the draft of the pre-trial conference. In other words the plaintiff does not oppose the application per se but only that it has already provided it. An inventory of the deceased's estate will in my view clarify the determination of the matter and is therefore necessary.

28. The second document sought is the "application for probate". The plaintiff's position is that the application is unnecessary. I agree with the plaintiff that this document is unnecessary to be disclosed as it does not help in the determination of the issue of the conflicting rights between the parties. It is clear from the claims by both parties that the defendant placed a caveat in the Suva High Court Probate Registry when it was brought to her notice that an application for probate was being lodged against the estate of the late Mr. Bal Ram. That information is now of no relevance in the determination of their rights, it is clear that such an application was made. No one is further enlightened by its production.

29. The third document which is requested to be discovered is the valuation of the property known as Lot 12 at Nacekoro. This is the property specifically devised in the will for the plaintiff's life interest. The deceased has considered the future interest of his de-facto wife in providing her with a life interest in this property. I am not certain of the necessity of the valuation of this property is to the determination of the matter. Perhaps the reason is to compare the value of this property to what the deceased has already given to the defendant and if so than the motive becomes questionable. I say that because the defendant has already benefited from the deceased's insurance policy which is understood from the information in the Court documents to amount to about seventy thousand dollars ($70,000). Therefore, I see no probative value in this information and therefore in my view should not be disclosed. The more important question is who has a right to it.

30. The defendant further mentions in her application that the enquiry about Lot 12 at Nacekoro is made under Order 43 rule 1. In her affidavit in support she states "I also require the plaintiff to produce to me a valuation of Lot 12 Nacekoro owned by the deceased Bal Ram and this enquiry has to be made pursuant to Order 43 Rule1. An application made under Order 43 rule 1 applies only to writs indorsed with a claim for an account or a claim which necessarily involves taking an account. In my view this matter is neither of them and is further refused on that ground.

31. The fourth document which is the subject of the discovery is the personal information of one Ragni Radhika, that is, her birth and her marriage certificate. The plaintiff opposes the disclosure of this information on the grounds that it is unnecessary or irrelevant to the determination of the matter. The reason this information is requested is that Ragni Radhika according to the will was bequeathed the property on Lot 12 Nacekoro on the death of the plaintiff. There are two possible answers, the first is whether Ragni Radhika is the daughter of the deceased and second is whether she is the daughter of the plaintiff. Irrespective of which of the above applies the most important consideration is whether she was dependent on the deceased. It is quite possible however that she is neither the daughter of either parties but was brought up or dependent on both of them. The marriage certificate however is not relevant to the proceedings simply because her marital status has nothing to do with it.

32. The Court in considering the question of the status of dependency of the defendant under the "Inheritance (Family Provisions) Act of 2004" under which she claims a right to the deceased's estate, will also consider other interests (including Ragni Radhika)under the above Act. For the above reasons I am of the view that this request be partly allowed.

Conclusion

33. From the above reasons I am of the view that the documents necessary for the determination of the matter are as follows:-

(1) The inventory of the estate of the deceased; and

(2) The birth certificate of Ragni Radhika.

34. I therefore make the following orders:-

(1) That the Plaintiff is given 14 days to file affidavit verifying that it has in its possession, custody and control the documents referred to above namely the inventory of the estate of Ram Bal and the birth certificate of Ragni Radhika;

(2) That the Plaintiff is further to make available to the Defendant for the purpose of discovery the said documents within the same period of 14 days; and

(3) The matter is adjourned to the 31 July to fix a hearing date.

Master H Robinson
High Court, LABASA

17 July 2015