In the Estate of Vishnu Prasad [2021] FJHC 424; HPP69.2019 (21 October 2021)

IN THE HIGH COURT OF FIJI
AT SUVA
PROBATE JURISDICTION

PROBATE ACTION NO. HPP 69 OF 2019

IN THE MATTER of IN THE ESTATE OF VISHNU PRASAD late of Sawani, Nausori, Retired Businessman, Testate;

AND

IN THE MATTER OF AN APPLICATION under section 35 of the Succession, Probate and Administration Act.

APPEARANCES/REPRESENTATION
APPLICANT : Mr A Chand [Amrit Chand Lawyers]

RESPONDENT : Ex-parte

JUDGMENT BY : Acting Master Ms Vandhana Lal

DELIVERED ON : 21 October 2021

JUDGMENT
[Removal Of Executor & Trustee/Revocation Of Grant]

1. On 01^st February 1991 a grant of Probate No 26216 was issued naming Arun Prasad & Ramendra Prasad as executors and trustees for the Estate of Vishnu Prasad.
   
2. The Applicants now seeks orders that they be appointed as Administrators and Executors of the Estate.
   
3. The solicitor for Applicants relied on Order 8 Rule 3 and Order 85 of High Court Rules; Section 73 of the Trustees Act & Section 35 of the Succession, Probate and Administration Act.
   
4. Order 8 Rule 3 of the High Court Rules deals with forms and issuance of Notice of Motion.
   
5. Whilst Order 85 deals with administration actions with Rule 2 highlighting what questions are determined under administration action.
   
6. Section 73 of the Trustees Act gives court power to appoint new Trustees.
   
7. I do not find the Applicant’s application qualifies under Order 85 of the High Court Rules and Section 73 of the Trustees Act.
   
8. Section 35 of the Succession, Probate and Administration Act gives powers to court to remove executors which I find is the appropriate provision of the law in respect to the application by the Applicants.
   
9. The relevant section reads:

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 or her;
(b) By the same or any subsequent order appoint an administrator with the Will annexed of such estate;
(c) Make such other orders as it thinks fit for vesting the real and personal property of such estate in the administration 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 circumstances.

10. In any application for a letters of administration [with Will], there should be evidence to show how the executors are cleared off – Garrad v Garrad (1871) LR 2 P & D 238.
    
11. After the executors are cleared off letters of administration [with Will annexed] is granted to person[s] interested in the residing Estate in priority by any other person – Non-Contentious Probate Rules [NCPR], Rule 20 classes (b) and (c).
    
12. All persons having a prior right to a grant under NCPR 20 must be cleared off before a grant can be made to a person with a lower title; and the oath must show in what manner the persons with a prior right are cleared off – NCPR 8(4).
    
13. From the Affidavit in Support filed its not clear if any part of the Estate has been administered.
    
14. From the wording in paragraph 14 and 15 of the Affidavit it seems that any land the deceased would have received from the Estate of Latcham would go to Vishnu Prasad’s other children rather than the Applicants.
    
15. The Applicants were to receive residual part of land after distribution was done as per clause 4 a-e of the Will of Vishnu Prasad.
    
16. Even for the rest and residue of the Estate the Applicants along with Arun and Ramendra are equally entitled to shares and share alike.
    
17. I find that Shree Lata, Soni Lata, Sneh Lata, Sumla Devi along with now the Estate of Arun Prasad and Ramendra Prasad should be cleared off first before the previous grant is revoked and a new is issued.
    
18. However, the Applicants have not made the abovenamed persons a party to this proceeding nor is there any renunciation statement from anyone of the abovenamed individuals.
    
19. As such I find is not proper to make orders on the application and will dismiss the same for now.
    

Final Order

20. The Application dated 27^th August, 2019 is dismissed.
    

.........................
Vandhana Lal [Ms]
Acting Master
At Suva.

21 October 2021

TO:

1. Suva High Court Civil File No. HPP 69 of 2019;
2. Amrit Chand Lawyers, Solicitors for the Applicants.