Kandasami, In re Estate of [2015] FJHC 985; HBC22.2015 (27 November 2015)

IN THE HIGH COURT OF FIJI AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 22 of 2015

IN THE MATTER of the Trustees Act

IN THE MATTER of the ESTATE OF KANDSAMI aka KANSAMI late of Soasoa, Labasa, Fiji, Cultivator, Deceased, intestate

AND

IN THE MATTER
of an application by SOHAN SINGH of Nasea, Labasa, Fiji, Businessman as the administrator in the estate of Kandsami aka Kan Sami deceased.

IN THE MATTER
of an Application made pursuant to Order 31 of the High Court Rules.

IN THE MATTER
of an Application pertaining to the sale of Agreement for Lease TLTB Reference No. 4/98539

COUNSEL : Mr. S. Sharma for the Plaintiff

Date of Hearing : 14th October 2015

Date of Judgment : 27th November 2015

JUDGMENT

[1] The plaintiff by instituted these proceedings by way of originating summons seeking the following reliefs;

1. An order that the property comprised in agreement of lease No. 4/9/8539 Qawa Subdivision Section 3 Lot 67 be sold in such manner as the Court may direct for the best price could be obtained to the applicant Sohan Singh, the administrator of the estate of Kandasami also known as Kan Sami deceased.
   
2. An order on the Deputy Registrar of the High Court directing him to advertise for the sale of the property.
   

100. An order that the proceeds of the sale be deposited in the Judicial Department Trust Account.
     

4. An order that the plaintiff be paid $ 28,551 out of proceeds of the sale.
   

[2] The plaintiff is the administrator of the estate of Kandasamy also known as Kan Sami who died intestate on 30th January 2003.

[3] The plaintiff filed action against the former administrator of the estate of Kandasamy and secured a judgment for $ 13,850.00. It is his position that he is entitled to recover the said sum with interest, amount paid for the preparation of the valuation report, Lawyers' fees, a payment made to one Sheik H. Shah (the purpose of this payment is not stated) and the rentals paid to the iTaukei Land Trust Board. The plaintiff also prayed that he is entitled to have this property transferred in his name.

[4] The plaintiff, before the institution of this action file a similar action seeking an order to have the property in question transferred in his name which was dismissed. In striking out the summons of the plaintiff the Court made the following observations;

"After inquiry from the Court the counsel stated that the deceased had no children and the widow of the deceased had also died, and the applicant was appointed as the administrator of the estate. After further inquiry from the Court as to the existence of siblings the counsel stated that the deceased had a brother who was alive at the time of the hearing, hence there is at least one beneficiary, whether there were any other siblings was not clear. These facts are not averred in the affidavit."

[5] In this case too, the plaintiff has not stated in the affidavit whether there are beneficiaries to the estate of the deceased nor has he averred in the affidavit that there are no beneficiaries alive.

[6] If there are beneficiaries the Court cannot make the orders sought by the plaintiff without them being heard in opposition. Every beneficiary of the estate of the deceased has a right to be heard on any matter concerning their rights in the estate.

[7] The plaintiff has failed to reveal the names of the beneficiaries and to make them parties to these proceedings which in my view have the effect of vitiating the entire proceedings. If he was not aware of any beneficiaries or according to his knowledge there were no beneficiaries the plaintiff should have stated so in his affidavit.

[8] For the reasons aforementioned I make the following orders.

ORDERS

[9] The originating summons of the plaintiff is struck out.

..............................
Lyone Seneviratne
JUDGE