Lal v Lal [2024] FJHC 506; HPP36.2023 (13 August 2024)

IN THE HIGH COURT OF FIJI
AT SUVA
PROBATE JURISDICTION

HPP Action No. 36 of 2023

IN THE MATTER of the ESTATE OF MOTI LAL AKA MOTILAL late of 89 Nailuva Road, Suva, Retired Company Director, Deceased, Testate.

AND

IN THE MATTER of Succession, Probate and Administration Act application by SHAILENDRA LAL of 35 Affleck Gardens, Middleton, Grange, 2171 NSW Australia, Mail Officer.

SHAILENDRA LAL of 35 Affleck Gardens,
Middleton Grange, 2171 NSW Australia, Mail Officer.
PLAINTIFF

AND

HANUMANLAL aka HANUMAN LAL
of 85 Nailuva Road, Raiwai, Suva, Businessman.
DEFENDANT

Before: Mr. Justice Deepthi Amaratunga

Counsel: Mr. Nandan S. for the Plaintiff
Mr. Pal A. for the Defendant

Date of Hearing: 13^th June 2024
Date of Judgment: 13^th August 2024

JUDGMENT

INTRODUCTION

[1] Plaintiff through originating summons filed on 27.4.2023 sought to remove the Defendant as administrator de bonis non for the estate of Moti Lal (The Estate), with a will attached .Defendant obtained the letters of administration on 10.2.2023 after the demise of executor of the Estate appointed by last will.

[2] Plaintiff will become the owner of both certificates of title, of the Estate subject to life interests in terms of the last will. Plaintiff states that he had carried out some improvements to the structures of the Estate, without appointment of an administrator upon death of executor, appointed in the last will of late Moti Lal. (the Will)

[3] According to Plaintiff he and his power of attorney holder had carried out essential improvements to the structures on the two titles and this was done with the concurrence of Defendant, though there was no administrator appointment after death of executor of the Will from 2021 to 2023. Plaintiff states that all the income from the Estate since the death of the executor of the Will till the appointment Defendant in 2023 were also used for the said improvements and additional funds were also utilize by Plaintiff and or his agent for this purpose.

[4] Defendant’s position is that the Estate is not liable for said expenses as no administrator was appointed at that time. Defendant is not entitled for income of the Estate, and as Life interest holder cannot object to such essential investment. Defendant’s life interest in one flat and his appointment as trustee of the Estate cannot deny Plaintiff’s interest derived from the Will.

[5] Plaintiff had failed to establish grounds for removal of Defendant as administrator of the Estate, and the application for removal on a ground of Section 73(2) of Trustee Act 1969 read with succession Probate and Administration Act 1970 is premature.

[6] Plaintiff is seeking alternate remedy for appointment of himself as additional administrator of the Estate. Plaintiff is the sole beneficiary of all the properties belonging to the Estate and Defendant is only a beneficiary to one flat as life interest holder. In that context any improvements to the Estate by Plaintiff, though he was not appointed as administrator cannot be considered unlawful. As the ultimate owner of all the properties of the Estate, Plaintiff can be appointed as additional administrator.

[7] Considering the circumstances of the case Plaintiff is appointed as additional administrator of the Estate as he is willing to accept the responsibility and also alleged to have invested in the Estate for essential repair of the properties of the Estate. In order to enjoy life interest of the flat by Defendant there is a requirement for maintenance of the structures of the Estate. These are essential for the administration of the Estate for Defendant to enjoy his life interest in one flat.

[8] Plaintiff is appointed as additional administrator of the Estate, in terms of Section 73(1) of Trustee Act 1966, subject to compliance of the requirements for such appointment.

Can Defendant be removed as administrator of the Estate?

[9] Defendant was appointed administrator de bonis non for the Estate with the last will attached on 10.2.2023. (Paragraph 17 of the affidavit in opposition), and this admitted fat.

[10] Originating summons filed on 27.4.2023, and there was less than three months from the said grant and there was no sign of mismanagement of the Estate alleged. So no evidence of violation of section 73(2) (1) of Trustee Act 1966.

[11] So the application for removal of Defendant is not only premature but also lacks merits and is refused in limine.

Alternate Remedy as to appointment of additional administrator

[12] Defendant is having only life interest for one flat on one certificate of title. So Defendant has no interest in the other certificate of title which is the adjoining land. Plaintiff is entitled for a transfer of the title of it free of any life interest to him.

[13] In terms of the last will Defendant was granted life interest in one flat to occupy one flat at No 85 Nailuva Road, Suva, during his life.

[14] Similarly, life interest of another flat in the same flat was given to another bother of the parties. So both of the life interest holders are unlikely to invest in the property for necessary repairs, and it is illogical to deny Plaintiff’s application to appoint him as additional Administrator of the Estate. Defendant had not stated that he had undertaken any essential repairs of the properties of the Estate.

[15] Clause c of the said last will stated

‘To hold the remainder of my estate for the benefit of my son Surendra Lal for his life time and upon his death to my youngest son Shalendra lal for his own use and benefit absolutely.’

[16] It was not in dispute that Surendra Lal died 23.11.2021 and accordingly Plaintiff had become the sole beneficiary as regards to one certificate of title and Plaintiff’s life interest is only confined to one flat in the other certificate of title. On this fact alone it will be illogical to allow Defendant to be the sole administrator of a certificate of Title where he does not hold any interest. Both properties are in need of repair in order to generate income of the Estate through rentals.

[17] It is admitted fact that apart from the flat for which Defendant is holding life interest and also occupying, there are other flats for which Plaintiff is the sole beneficiary, of the said certificate of title.

[18] Defendant as the sole administrator is yet to transfer the tile to Plaintiff in terms of the Will. Plaintiff is entitled to obtain transfer of one certificate of title as the life interest were created at two flats in one certificate of title. Even in that certificate of title remainder was bequeathed to Plaintiff. Defendant had failed to explain why these transfers in terms of the Will to Plaintiff remains unattended. These transfers needs to be registered on titles without further delay.

[19] It admitted fact that the Estate comprised of CT 10148 and CT12211 and life interest of the Defendant as well as third party confined to one certificate of title. Defendant had registered transmission by death as trustee and administrator.

[20] Plaintiff is the ultimate beneficiary of both titles subject to life interests regarding two flats. So Plaintiff is naturally interested of maintenance of the properties of the Estate. Failure to transfer said interests from the last Will by Defendant cannot benefit Defendant.

[21] In the affidavit in support Plaintiff allege that he had met with Defendant and by mutual consent he had undertook improvements to the property of the Estate. Defendant’s position is that the Estate is not liable for such expenses as there was no trustee of the Estate at that time.

[22] According to Plaintiff he had entrusted a third party for the said maintenance of the properties of the Estate and income generated from the Estate from rental were also utilized for the said improvements. Life interest holders are not entitled to income generated by the Estate from other flats. The improvements or repairs to the Estate benefit Defendant.

[23] Plaintiff admits that he had no letters of administration, but state that improvements to the properties of the Estate were done with mutual consent, and by that time executor of the Will had died, but no appointment of administrator of the Estate.

[24] It is admitted fact that properties of the Estate are old and in need of repair. In paragraph 22 of the affidavit in opposition states

‘The properties had fall in to substantial neglect and hence (sic) the need to undertake renovations of most of the flats. Even the Plaintiff in his affidavit acknowledges the need for the renovation’

[25] While admitting that the properties needed renovation Defendant had not alleged that he had done any such renovation, neither had he rejected that Plaintiff had made movements, but states such improvements were done without lawful authority as administrator. It is admitted fact that structures on the two titles needed repair as they were allowed to be neglected. Plaintiff should be allowed to make improvements to the properties of the Estate as administrator and also ultimate beneficiary, considering admitted fact that those were neglected by previous executor who also had only a life interest.

[26] There is no proof what repair were done by Plaintiff. These are facts that cannot be decided in originating summons, but it is clear that both parties admit the properties are in need of repair, and Plaintiff wants to do it from the income generated from the Estate. Only Plaintiff is entitle to income of the Estate. So the objection of Defendant to appointment of Plaintiff as additional administrator is without merit, as properties were in need of substantial repair and maintenance.

[27] In the circumstances there is no basis for Defendant to object to Plaintiff as additional administrator. The fact that Plaintiff is a resident overseas cannot he held against him in this application, as long as he fulfills usual requirements for such a grant as required by Probate Registry. How Plaintiff is going to administer the estate from overseas is left to him as he will be the sole beneficiary of the Estate subject only to two flats that were subjected to life interest, under the Will. Plaintiff’s interests must be registered on the two certificates of title forthwith. This will leave only one certificate of title and property on it to be administered by trustees of the Estate.

CONCLUSION

[28] So Plaintiff is appointed additional administrator for the Estate of Moti Lal along with Defendant as it is ‘expedient to appoint an additional administrator (trustee) in terms of Section 73(1) of Trustee Act 1966 as Defendant’s interest in the Estate is confined to a Life interest in terms of the Will. The properties of the Estate needs repair and maintenance due to neglect by previous executor who also had only a life interest. Request to removal of Defendant is premature and refused. As both parties had succeeded partially no costs awarded.

FINAL ORDERS;

1. Application for removal of Defendant as administrator of the estate is refused.
   
2. Plaintiff is appointed as additional administrator for the estate of late Moti Lal upon fulfilment of requirements to be appointed by Probate registry.
   

100. No costs.
     

.................................
Deepthi Amaratunga
Judge

At Suva this 13^th August, 2024,

Solicitors
Reddy Nandan Lawyers
AP Legal