Goundar v Goundar [2022] FJHC 155; HBC77.2021 (21 April 2022)

IN THE HIGH COURT OF FIJI

AT LAUTOKA

CIVIL JURISDICTION

HBC 77 of 2021

BETWEEN:

RAJESHWARI GOUNDAR formerly of Wairuku, Rakiraki but currently of 450 Reindollar Avenue, Marina, California 93933, United States of America, Production

Planning Coordinator.

PLAINTIFF

A N D:

VIJAY KRISHNA GOUNDAR of Wairuku, Rakiraki, Salesman and the Executor and Trustee of the Estate of Armogam Gounder of Wairuku, Rakiraki, Testate.

FIRST DEFENDANT

A N D:

PARSADI GOUNDAR also known as SARDAMANI GOUNDAR of Wairuku, Rakiraki.

SECOND DEFENDANT

A N D:

PUSHPA WATI of Wairuku, Rakiraki.

THIRD DEFENDANT

Appearances: Ms. Baleilevuka for the Plaintiff

Date of Hearing: 15 February 2022

Date of Ruling: 21 April 2022

R U L I N G

1. This is my decision following the formal proof of this claim. There is an affidavit of service of one Nilesh Shailend Singh, a registered bailiff, sworn on 14 May 2020 which confirms that he did serve the Writ of Summons and Statement of Claim to each defendant personally on 04 May 2020 at various locations. The defendants however have never turned up in Court nor have they filed any Acknowledgement of Service, let alone a Statement of Defence.
   
2. The plaintiff is a dual citizen and currently resides and works in the US. She gave sworn evidence vide zoom.
   
3. Rajeshwari Goundar (“Rajeshwari”) is the daughter of the late Armogam Goundar (“Armogam”) and the late Kistamma. Armogam died testate on 05 July 2001. Kistamma passed away on 13 January 2008.
   
4. Rajeshwari is a beneficiary in the estate of Armogam. She files these proceedings in order to recover her share in the estate as bequeathed to her in the Last Will and Testament of Armogam dated 06 January 1998 (“Will”).
   
5. Letters of Administration Number 40836 (with the Will annexed) over the Armogam-estate was granted to one Vijay Krishna Goundar (“Vijay”) on 09 May 2003. Vijay is a nephew of Rajeshwari and a surviving grandchild of Armogam and Kistamma.
   
6. The assets of the Armogam estate are as follows:
   

Lot 1 – DP No. 7592 Certificate of Title 32611 (freehold land)

Cane Farm No. 413/0516

Three dwelling houses (Flats 1,2 and 3) erected on the said land

7. The Will makes the following bequests at paragraphs 2 and 3:
   

2.

I NOMINATE, CONSTITUTE AND APPOINT my lawful wife KISTAMMA GOUNDAR daughter of Munsamy Goundar and MOHAMMED HAROON father’s name Badula both of Wairuku, Rakiraki in Fiji, Domestic Duties and Manager, respectively, to be the Executors and Trustees jointly or the survivor or survivors of them of this my last Will and Testament.

3.

I GIVE DEVISE AND BEQUEATH all and singular my real and personal property of whatsoever kind and nature and whatsoever situate of which I shall be possessed and to which I shall be entitled or over which I shall have a power of disposition at the time of my death to and unto my said trustee as follows. [a]. To pay therefrom all my just debts, legal, funeral and Testamentary expenses as soon as convenient after my demise. [b]. To give and vest one quarter acre out of my freehold land covered by Fiji Sugar Corporation Farm Number 516 Nanuku Sector presently occupied by my daughter PUSHPA WATI as a house-site together with the house thereon to my said daughter PUSHPA WATI absolutely, unless during my lifetime such area shall have been subdivided and transferred to her. [c]. To give and vest the house being Flat 1 presently occupied by me to my wife KISTAMMA GOUNDAR for her life and after her demise to my daughter RAJESHWAR GOUNDAR of Wairuku, Rakiraki, absolutely and the house being Flat 2 to my son PARSADI GOUNDAR also known as SARDAMANI GOUNDAR, absolutely. [d]. To give and vest the rest, remainder and residue of my aforesaid properties to and unto my lawful wife KISTAMMA GOUNDAR father’s name Munsamy Goundar for her life and after her demise to and unto my daughter RAJESHWARI GOUNDAR and my son PARSADI GOUNDAR also known as SARDAMANI GOUNDAR both of Wairuku, Rakiraki in equal share and share alike, absolutely.

8. In her evidence, Rajeshwari questions how Vijay was able to obtain letters of administration (with the will annexed) on 09 May 2003 when Kistamma was still alive.
   
9. The short answer to that is that section 30 of the Succession Probate and Administration Act which I set out below provides inter alia that Letters of Administration with the Will annexed may be granted by the Court to a person who is not named as executor/trustee of the Will if the person named in the Will as executor/trustee is not willing and competent to take probate.
   

Administration with the will annexed

30. Where a person dies leaving a will but without having appointed an executor, or leaving a will and having appointed an executor who is not willing and competent to take probate, the court may appoint an administrator of the estate of the deceased, or of any part thereof, upon his giving security as aforesaid, and such administration may be limited as the court thinks fit.

10. I suspect that Vijay took out letters of administration (with the Will annexed) after Kistamma and Haroon renounced their right to take out probate. I shall say no more on this.
    
11. To date, twenty-one years after Armogam’s death, and some nineteen or so years after Probate Number 40836 over the Armogam-estate was granted to Vijay on 09 May 2003, the estate remains undistributed.
    
12. Rajeshwari said as follows in Court:
    
    • (i) She has been requesting Vijay since he took Letters of Administration (with the Will annexed) to give her share of the estate over to her but to no avail
    • (ii) In the course of her pursuit, she has hired lawyers and incurred expenses
    • (iii) Vijay never made any effort to discuss things with her
    • (iv) Her sister in law tells her that Vijay has subdivided the land into ten lots and has started to sell off some plots
      
13. Rajeshwari says she requires the following of Vijay:
    
    • (i) to stop selling the land
    • (ii) compensate her for all the land that he has sold affecting her share of the estate
    • (iii) provide an audited statement of cane proceeds from the farm
    • (iv) Vijay to transfer to Rajeshwari her share of Flat 1 as bequeathed to her
    • (v) distribute her share of the residue of the estate
    • (vi) pay her general damages
    • (vii) costs (legal costs and travel costs)
      
14. I grant the following Orders:
    
    • (i) that Vijay is to henceforth desist from proceeding further with the sale of any plot in the subdivided estate land until further orders.
    • (ii) That Vijay is to provide an audited statement of cane proceeds from the farm from the point in time he took over as administrator of the estate of Armogam.
    • (iii) Vijay to transfer to Rajeshwari Flat 1
    • (iv) that Vijay is to pay all of Rajeshwari’s legal costs personally which I summarily assess at $10,000-00 (ten thousand dollars).
      
15. Parties at liberty to apply further.
    

Anare Tuilevuka

JUDGE

Lautoka

21 April 2022