Pande v Kumar [2022] FJHC 49; HPP79.2021 (10 February 2022)

IN THE HIGH COURT OF FIJI AT SUVA

PROBATE JURISDICTION

Probate Action No. HPP 79 of 2021

IN THE MATTER OF THE ESTATE OF BHARTI KUMARI of Lot 2 Nadawa

Dakudakulaci road, Nadawa, Nasinu, Deceased, Intestate.

BETWEEN

SURYA NARAYAN PANDE of Valelevu, Nasinu, Businessman.

FIRST PLAINTIFF

AND

LINA LIANSHIKA NARAYAN of Valelevu, Nasinu, Minor, represented by

her father, SURYA NARAYAN PANDE of Valelvu, Nasinu,

Businessman as her next friend and Guardian Ad Litem

for the purpose of conducting the cause herein.

SECOND PLAINTIFF

AND

ROPAL RASKHA KUMAR of Lot 2 Dakudakulaci, Nadawa, Nasinu,

Businesswoman, as the ADMINISTRATOR OF

THE ESTATE OF BHARTI KUMARI

FIRST DEFENDANT

AND

RAVINDRA NARAYAN of Laucala Beach Estate, Nasinu, Police Officer and

ASHWIN SINGH of Lot 76 Daniva Road, Valelevu, Nasinu, Self Employed.

SECOND DEFENDANTS

AND

MOHAMMED ZAMIR KHAN of Lot 2 Dakudakulaci, Nadawa, Nasinu,

Businessman.

THIRD DEFENDANT

Counsel : Mr. Pal A. for the Plaintiffs

Young M. with Ms. Dugan K. for the defendants

Date of Hearing : 20^th January 2022

Date of Order : 10^th February 2022

RULING

[1] The plaintiffs instituted these proceedings against the defendants seeking the following orders:

1. An order for the accounts of the estate as at 5^th May 2021.
2. An order that the 1^st defendant pay to the plaintiffs their entitlement from the net value of the estate pursuant to section 6 of the Succession, Probate and Administration Act.

100. An order that the 2^nd defendants pay to the plaintiffs any entitlements from the estate not paid to the plaintiffs within 30 days of judgment.

4. Exemplary damages.
5. Punitive damages.
6. Pre and post judgment interest at 8% per annum. Pre-judgment interest to be to be calculated from 5^th May 2021.
7. Legal costs on a full Solicitor-Client indemnity basis.
8. Such other and further relief as the court may deem just and reasonable.

[2] On 15^th November 2021 the plaintiffs flied summons pursuant to Order 29 rule 2(2,3,4,and 5) of the High Court Rules and section 6 of the Succession, Probate and Administration Act, seeking the following orders:

1. The time for service of this summons be abridged and this summons be returnable instanter.
2. An order that the 1^st defendant deposit into court the sum of FJD 61,667.67 (Sixty-one thousand six hundred sixty-seven dollars and sixty seven cents) pending the determination of this action.
3. The cost of this application be cost in the cause.
4. Any other order that this Honourable Court deems fair and just.

[3] The plaintiffs instituted these proceedings on the basis that the 1^st plaintiff was in a de facto relationship with the testator until her demise and the second plaintiff is a child born as a result of the said relationship.

[4] The testator died intestate 16^th September 2013 and the 1^st defendant was appointed as the administratrix of the deceased’s estate on 06^th July 2016.

[6] There is no dispute that the 2^nd plaintiff is a daughter of the testator. However, the defendants deny that the 1^st plaintiff was in a de facto relationship with the testator. It is the position of the defendants that the 1^st plaintiff was in a de facto relationship only from 2007 to 2008. The 1^st plaintiff had left the country in 2008 and he was living in New Zealand until he was deported in 2016. Whether the relationship between the 1^st plaintiff and the testator has to be determined on the evidence of the parties at the hearing of the substantive matter.

[7] Order 29 rule 2 of the High Court Rules 1988 provides:

(1) On the application of any party to a cause or matter the Court may make an order for the detention, custody or preservation of any property which is the subject matter of the cause or matter, or as to which any question may arise therein, or for the inspection of any such property in the possession of a party to the cause or matter.
(2) For the purpose of enabling any order under paragraph (1) to be carried out the Court may by the order authorise any person to enter upon any land or building in the possession of any party to the cause or matter.
(3) Where the right of any party to a specific fund is in dispute in a cause or matter, the Court may, on the application of a party to the cause or matter, order the fund to be paid into court or otherwise secured.
(4) An order under this rule may be made on such terms, if any, as the Court thinks just.
(5) An application for an order under this rule must be made by summons or by notice under Order 25, rule 7.
(6) Unless the Court otherwise directs, an application by a defendant for such an order may not be made before he acknowledges service of the writ or originating summons by which the cause or matter was begun.

[8] In paragraph 11 of the affidavit in response of the 1^st defendant it is stated that from the time second plaintiff was born she has been supporting the testator (mother) to look after the 2^nd plaintiff since the mother was unemployed and had no means to look after the 2^nd plaintiff. Looking after the 2^nd plaintiff by the 1^st defendant will not deprive her from the entitlement of the deceased’s estate.

[9] The 1^st defendant admits that she sold the estate property for $190,000.00 to Navneet Nitesh Kumar and Rajeshni Mala Prasad on 11^th February 2021 and this fact is borne out by the Transfer of Lease No. 902968.

[10] Since the de facto relationship between the 1^st plaintiff and deceased has not been established the court is unable to decide whether the 1^st plaintiff entitled to a share of the state at this stage of the matter. However, there is enough and more material showing that the 2^nd plaintiff is a daughter of the deceased and she is entitled to her share of the estate which the 1^st defendant has failed to take into consideration in administering the estate.

ORDERS

(1) The 1^st defendant is ordered to deposit FJD 61,667.67 (Sixty-one thousand six hundred sixty-seven dollars and sixty seven cents) into court pending the determination of this action.
(2) Costs of this application will be in the cause.

Lyone Seneviratne

JUDGE

10^th February 2022