Application for Distribution of Money of Deceased FNPF Member Jai Ritnesh Chandra [2022] FJHC 44; HBP172.2019 (11 February 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Action No. HBP 172 of 2019

In Re Application for Distribution of Money of Deceased FNPF Member: Jai Ritnesh Chandra.

Counsel : Applicant: Mr. Shelvin Singh
Date of Hearing : 10.02.2022
Date of Judgment : 11.02.2022

JUDGMENT

INTRODUCTION

1. This is an application made by two applicants for distribution of money remitted to court in terms of Section 57 of Fiji National Provident Fund Act 2011 (FNPF Act). Application was made by way of originating summons, by two aunts of the deceased member claiming that they were the only surviving beneficiaries of the deceased. The application was made in terms of Section 6(1)(j) of Succession Probate and Administration Act 1970.

FACTS

2. The two applicants were making this application for distribution of money remitted to court by FNPF to be distributed in accordance with the law.
   
3. There were two affidavits filed in support of this application for distribution of money held in High Court for the beneficiaries of deceased.
   
4. Affidavit in support of originating summons states,
   
   1. Deceased was never married and had no children.
   2. Two applicants were the only surviving aunts of Jai Ritnesh Chandra deceased on 28.2.2016. (death certificate is annexed RK2)
   100. Late Jai Ritnesh Chandra who died on 28.2.2018 was a nephew of Applicants.
   4. Parents of Late Jai Ritnesh Chandra preceded him( Death certificates annexed R3)
   5. Late Jai Ritnesh’s father late Rajendra Nath died on 23.8.1983 and his wife died on 15.10.2008.
   6. Late Rajendra Nath was a brother of both Applicants.
   7. Late Rajendra Nath had three children and they were
      1. Late Anjain Mala (died 7.11.2015)
      2. Late Jai Rjnesh Chandra (died 1..8.2006)
      3. Deceased
   8. Out of the above three only Late Anjani Mala had a child late Edwin Alvin Prasad, who preceded her on29.11.2006.(RK 6)
   9. Deceased and Jai Rajnesh Chandra did not get married.
   10. Grandparents Janith and Ram Raji deceased.
   11. Late Jai Ritnesh Chandra’s uncles and aunts were all deceased and they were
       1. Bismal Kumari
       2. Suraj Kumari
       3. Satendra Nath.
       4. Munendra Nath.
       5. Narendra Nath.
       6. Hari Nath.
       7. Mahendra Nath.
          

(Death certificates of above were annexed)

5. There was a supplementary affidavit filed on the direction of court by applicant stating that deceased had no de facto relationships.

ANALYSIS

6. Upon a death of a member of FNPF if there was no nomination or in case of nominee was a minor , such funds of deceased members were remitted to High Court for disposition , in terms of Section 57 (3) of FNPF Act, 2011.
   
7. Predecessor to FNPF Act, 2011 was FNPF Act 1966 as amended from time to time in Section 35 contained a provision that dealt with deceased members funds when there was no nomination. In term of the said provision money needs to be distributed in terms of law.
   
8. In the Matter of Mohammed Hassan [1989] 35 FLR 107, where Fatiaki J (as he then was) held that a sum standing to the credit of a deceased member of the FNPF does not form part of his estate. This is the current position, too. It needs to be distributed as provided by the Succession, Probate and Administration Act, 1970.
   
9. So, money remitted to High Court for disposition does not form part of estate, but it is distributed in terms of Section 6 and 6 A of Succession Probate and Administration Act 1970.
   
10. Section 57 of FNPF Act, 2011 states as follows:

“(1) In paying an FNPF member’s preserved and general entitlements on his or her death, the Board must comply with any current nomination by the member.

(2) If a nominee of an FNPF member (not the surviving spouse of the member) is under 18 on the date of determination of the application for withdrawal, the Board must pay the amount for that nominee to the High Court.

(3) If—(a) a nomination by an FNPF member does not cover all of the amount payable in respect of the member on his or her death; or

(b) because of subsection (1), the Board cannot pay some or all of the amount payable in respect of an FNPF member on his or her death;

(the amount not covered, or that cannot be paid, is the “unallocated amount”), the Board must pay the unallocated amount into the High Court for disposition according to law.

(4) The High Court may, on application, make such orders as are just for the disposition of an amount paid in under subsection (1) or (2).

(5) If—(a) the High Court makes an order in favor of a person under subsection (4); and

(b) the person is under 18;

then, the High Court shall hold the amount to be paid in trust for the benefit of the person.

(6) Subsection (5) shall not apply to a person if, at the time of the death of the deceased FNPF member, the person was the spouse of the deceased FNPF member. [subs (6) subst Decree 77 of 2012 s 15, effective 1 March 2012.

(7) Where no application is made in respect of an amount paid into the High Court under subsection (1) or (2) within one year after it is so paid, the amount is to be repaid to the Board, and credited to the FNPF.

(8) If a person is found to be entitled to some or all of an amount credited to the FNPF under subsection (7), the Board must pay the person the amount to which he or she is entitled, together with an amount equal to the amount that would have been credited under section 48 if the amount credited to the FNPF under subsection (7) had been credited to an account in the FNPF for the person paid”. (emphasis added)

11. Deceased members funds were received by this court to be distributed according to law and the relevant law is found in Section 6 of Succession Probate and Administration Act 1970 and it reads,

“(1) Subject to the provisions of Part 2, 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 or de facto partner but not both a wife or husband and a de facto partner, without issue, the surviving wife or husband or de facto partner shall take the whole of the estate absolutely;

(b) if the intestate leaves both a wife or husband and a de facto partner, without issue, the surviving wife or husband and the de facto partner shall take the whole of the estate in accordance with subsection (1A) absolutely;

(c) if the intestate leaves issue and-

(i) a wife or husband or de facto partner but not both a wife or husband and a de facto partner, the surviving wife or husband or de facto partner shall take the prescribed amount and the personal chattels and one-third only of the residuary estate absolutely; or

(ii) both a wife or husband and a de facto partner, the surviving wife or husband and the de facto partner shall take the prescribed amount and the personal chattels and one-third only of the residuary estate in accordance with subsection (1A) 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 or de facto partner, 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 or de facto partner, 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 or de facto partner, the surviving father or mother shall take the residuary estate of the intestate absolutely;

(g) [Repealed]

(h) if the intestate leaves no wife or husband or de facto partner 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;

(i) if the intestate leaves no wife or husband or de facto partner 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;

(j) if the intestate leaves no wife or husband or de facto partner 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 wife or husband or de facto partner 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 State as bona vacantia, and in lieu of any right to escheat, and the State 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 “.(emphasis added)

[subs (1) am Act 12 of 1985 s 4, effective 1 February 1987; Act 11 of 2004 s 3, effective 1 September 2004; Act 6 of 2018 s 3, effective 21 March 2018]

12. In this instance Applicants were seeking distribution of money claiming they were the only surviving aunts of deceased. In order to establish Applicants as only beneficiaries of deceased, the burden of proof was with them.
    
13. Has the Applicants proved that they were the only surviving aunts? In order to prove that they were the only two surviving beneficiaries they have to prove that beneficiaries who obtained priority over them had died.
    
14. Applicant had not done this. At the hearing, oral submissions of the counsel made. Counsel relied on Section 57 of FNPF Act and Section 6(1)(j) of Succession Probate and Administration Act 1970.
    
15. Accordingly Applicants were required to prove

a. ‘no wife or husband or de facto partner and no issue’ and,

2. no ‘parents or brothers or sisters of the whole blood or of the half-blood’, and,

100. no ‘children of deceased brothers or sisters of the whole blood or of the half-blood’, and,
     

16. When above a, b, and c were proved, in order for Applicants to become sole beneficiaries, further proof was required as,
    
    4. ‘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, ‘
    5. but if there is no grandparent, then
    6. the uncles and aunts of the whole blood, and children of deceased uncles and aunts of the whole blood.’
       
17. Applicant had not proved (d), (e) and (f) in order to become entitled to the funds of deceased as sole beneficiaries.
    
18. For the following reasons Applicants have failed to prove that they were the only surviving beneficiaries of deceased.
    
    1. Deceased had four grandparents two each from each of the parent, but applicant had stated only two of them had deceased in the affidavit in support. So what happened to other two grandparents not stated.
    2. Even if one grandparent survived that person become sole beneficiary.
    100. This application was deficient on issue of aunts and uncles on maternal side too.
    4. Applicant had not filed death certificates of grandparents, which will not only prove that they were dead, but more importantly the issues of such grandparents.
    5. Looking at death certificate of deceased aunts and uncles also show only his paternal uncles and aunts only. What had happened to maternal aunts and uncles?
    6. How many aunts and uncles were can be determined by death certificates of maternal grandparents. So death certificates of grandparents will prove not only they were dead but how many issues were there.

CONCLUSION

19. According to the affidavit in support filled by Applicant. Deceased member of FNPF whose funds remitted to court to be distributed in terms of law was never married and had no children. On the direction of court Applicant filed supplementary affidavit as to deceased had no de facto relationships. Applicants are represented by lawyers. Applicants were aunts of the deceased. So their claim for money as only surviving beneficiaries needs to be established through evidence. Applicants’ are making a claim under Section 6(1)(j) of Succession Probate and Administration Act 1970. This application is deficient in several aspects as stated previously. Application is struck off. No order as to cost for obvious reasons.

FINAL ORDER

1. Originating summons stuck off.
2. No order as to costs.
   

Dated at Suva this 11^th day of February, 2022.

......................................

Justice Deepthi Amaratunga

High Court, Suva