Devi v Raji [2023] FJHC 390; HBC258.2020 (16 June 2023)

IN THE HIGH COURT OF FIJI

AT LAUTOKA

CIVIL JURISDICTION

HBC 258 of 2020

BETWEEN:

VINITA DEVI of Karavi, Ba, Domestic Duties as Sole Executri and Trustee of

the ESTATE OF CHANDRAKALI aka CHANDAR KALI aka CHANDRA KALI
PLAINTIFF

A N D:
DHARAM RAJI and RAM DEVI both of Veisaru, Ba, Domestic Duties as Administrators of the ESTATE OF RAM SUDH of Veisaru, Ba.
1^st DEFENDANT

A N D:
THE DIRECTOR OF LANDS
2^nd DEFENDANT

Appearances: Mr. Nand S. for the Plaintiff
Ms. Begum for the first Defendant
Mr. Mainavolau J. for the second Defendant
Date of Hearing: Ruling on Submissions
Date of Ruling: 16 June 2023

R U L I N G

1. On 22 October 2020, S. Nand Lawyers filed an Originating Summons seeking various declaratory and mandatory injunctive orders for the benefit of Vinita Devi (“Devi”).
   
2. In a nutshell, what Devi wants is for the first Defendant to act and distribute the assets of the estate of the late Ram Sudh.
   
3. Devi also seeks an order that the Director of Lands issues a lease to Devi pursuant to the Will of the late Ram Sudh.
   
4. Ram Sudh was the patriarch of the family. He died testate on 09 May 1995.
   
5. Probate No: 31911 was granted to Ram Sudh surviving wife, namely Chandra Kali.
   
6. The main asset of Ram Sudh’s estate is an eleven acre, 2 roods and 16 perches farmland comprised in Crown Lease No: 6121 (Lot 15 Plan 2338 Part of Vunisamaloa, Rarawai, Vunivesi in Ba formerly CT 7822 & CT X1/05/19.
   
7. Notably, in Ram Sudh’s last Will and Testament dated 11 October 1991, he bequeaths the residence of his estate, after payment of all debts, legal and funeral expenses to his wife Chandra Kali, absolutely.
   
8. Chandra Kali died on 15 June 2013. She left the estate of Ram Sudh unadministered.
   
9. Upon Chandra Kali passing, the Plaintiff took up Probate No: 62075 on 31 May 2018, pursuant to a Will dated 07 May 2013.
   
10. Meanwhile, on 05 September 2016, that is, some twenty (20) months or so before the Plaintiff took up probate over the estate of Chandra Kali, the first Defendants were granted Letters of Administration (with Will) No: 59091over the estate of Ram Sudh.
    
11. Logically, assuming all was in order, upon taking up LADB (with Will) No: 59091, the first Defendants would then have to transfer all residual properties especially CL No: 6121 to the estate of Chandra Kali.
    
12. Once transferred to the estate of Chandra Kali then it would then have to be distributed in accordance with the testament of bequeaths in the Will of Chandra Kali.
    
13. The purported Last Will and Testament of Chandra Kali appoints the Plaintiff as Sole Executrix and Trustee and also bequeaths all her real and personal property to her daughter Lila Devi for life and upon her death to her grandchildren Vinesh Nand and Vinita Devi and Vicky Vikash Nand.
    
14. Dharam Raji however, has sworn an affidavit on 02 December 2020, in which he, inter alia, casts some doubt on whether the late Chandar Kali really did execute the said Will or whether it was a forged document.
    
15. Notably, Raji deposes that Chandra Kali had, during her lifetime, executed all legal documents using her thumbprint. However, in her Last Will and Testament, a signature is affixed on the document.
    
16. The Director of Lands has already indicated by an affidavit of Alesi Cagilevu sworn on 06 September 2021 that the lease over the property in question, which expired several years ago, is being renewed in favour of the estate of Ram Sudh.
    
17. It would appear to me that how the estate of Ram Sudh is to be distributed depends ultimately on whether or not the Last Will and Testament of Chandra Kali should be upheld on impugned.
    
18. This is essentially a dispute between three sisters (or their estates) who are daughters of Ram Sudh. Ram Sudh died testate leaving all his properties to his wife, the late Chandra Kali who survived him for some years and was the sole executrix of his estate. Chandra Kali purportedly left a Will bequeathing all to one only of the three daughters, who is now also deceased and is the mother of the plaintiffs.
    
19. As I have said, there is an allegation by the defendants that Chandra Kali had executed all legal documents during her lifetime by impressing a thumbprint. However, on her Last Will and Testament – by which the plaintiffs stand to benefit solely to the exclusion of the defendants – there is a signature on the document purportedly of Chandra Kali.
    
20. If Chandra Kali’s Will is to be upheld now then everything goes to the plaintiff ultimately and her siblings.
    
21. If it is to be impugned now, then a hearing date to determine the allegation of fraud involved and if that allegation is established – then the land will have to be distributed in terms of the intestate provision of the Succession, Probate and Administration Act – that is – that the three sisters (or their estates) will have to get a third each.
    
22. I will err on the side of caution and adjourn the matter to a trial date to determine the question raised about the authenticity of the Will of Chandra Kali. Case adjourned to 03 July for directions. Meanwhile, the parties are encouraged to settle and attempt mediation.
    

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Anare Tuilevuka

JUDGE

Lautoka

16 June 2023