Kuar v Official Receiver [1967] FJLawRp 42; [1967] 13 FLR 5 (2 February 1967)

[1967] 13 FLR 5

IN THE SUPREME COURT OF FIJI

SURUJ KUAR

v.

OFFICIAL RECEIVER

[SUPREME COURT, 1967 (Hammett J. ), 2^nd February]

Civil Jurisdiction

Probate and administration – Letters of Administration – intestate survived by father and mother but no widow or descendants – father entitled to entire estate and to grant of administration – father’s bankruptcy no impediment – Supreme Court Ordinance (Cap. 4) ss. 32, 35 (1), 37 – Rules of the Supreme Court 1883, O.25 r.4 – Statute of Distributions 1670 (22 & 23 Car. 2, c.10) (Imperial).

Bankruptcy – Letters of Administration – person otherwise entitled to grant not precluded by fact that he is an undischarged bankrupt.

The deceased died intestate and bachelor on the 16^th October, 1965; he had been resident and domiciled in Fiji. He was survived by his mother Suruj Kuar, who commenced an action for a grant of Letters of Administration, and by his father Gangaram. The latter being at the time of the proceedings an undischarged bankrupt, the Official Receiver was named as defendant. On a summons by the defendant to strike out the Statement of Claim as showing no cause of action:

Held: 1. By virtue of section 32 and 35(1) of the Supreme Court Ordinance the law to be applied was the law in force in England on the 2nd January, 1875.

2. The deceased's father Gangaram was beneficially entitled to the entire estate of the deceased and to a grant of Letters of Administration.

3. Bankruptcy alone is no reason for refusing to issue Letters of Administration to a person otherwise entitled or to his trustee.

4. The plaintiff had no claim to a grant and the Statement of Claim would be struck out.

Cases referred to:

Blackborough v. Davis [1701] EngR 6; (1701) 24 E.R. 285; 1 P.WMS.41:
Jackson v. Proudehome (1716) 22 E.R. 374; 11 Vin. Abr. 196 Pl. l:
Elwes v. Elwes [1728] EngR 542; (1728) 161 E.R. 444; 2 Lee. 573:
Wilson v Wilson [1910] UKLawRpKQB 179; [1911] 1 K. B. 327; 104 L.T. 96.

Summons in Chambers to strike out the Statement of Claim in an action for a grant of Letters of Administration.

Reported by direction.

F. M. K. Sherani for the plaintiffs.
K. C. Ramrakha for the defendant.

HAMMETT J.: [2^nd February, 1967] -

This is a summons by the Defendant under the provisions of Order 25 Rule 4 of the Rules of the Supreme Court to strike out the Statement of Claim on the ground that it does not disclose any reasonable cause of action. Other reliefs are claimed in the alternative.

The Plaintiff is the mother of Rajendra Kumar a bachelor who died intestate on 16th October, 1965. At the time of his death the deceased was possessed of personal property stated to be some £2,758/7/9 in value.

The deceased's father, Gangaram, who is the husband of Suruj Kuar is still alive but he is an undischarged Bankrupt.

The Plaintiff's claim is that the Court pronounces that she is the only person entitled to the estate of the deceased and that she is entitled to a grant of Letters of Administration of the estate of the deceased and in the alternative that the estate be administered by her for the benefit of herself and her infant children.

The Defendant is the Official Receiver, who is presumably sued as the Trustee of the Estate in Bankruptcy of Gangaram although this is not in fact stated in the writ. It is his contention that Gangaram, the father ,of the deceased, is the only person entitled both to a grant of Letters of Administration and to the entire estate of the deceased and for this reason the Plaintiff's Statement of Claim discloses no cause of action.

The simple issue in this case upon which no authorities have been cited by either side, is whether the father or the mother of a deceased bachelor who dies intestate in Fiji is entitled to his personal estate. I would add that it has been accepted that at the time of his death the deceased was both resident and domiciled in Fiji.

The jurisdiction of the Supreme Court in Probate cases is set out in Section 32 of the Supreme Court Ordinance which reads as follows:-

"32. The jurisdiction hereby conferred upon the Court in Probate, divorce, and matrimonial causes and proceedings may, subject to the provisions of this or any other Ordinance and to rules of court, be exercised by the Court in conformity with the law and practice for the time being in force in England."

The material part of Section 35(1) of the Supreme Court Ordinance reads:-

"35 (1) The Common Law, the Rules of Equity and the Statutes of general application which were in force in England at the date when the Colony obtained a local Legislature, that is to say, on the second day of January, 1875, shall be in force within the Colony subject to the provisions of section 37 of this Ordinance."

The provisions of Section 37 do not affect the issue in this case in any material way.

The law to be applied in this case is therefore, the law in force in England on 2nd January, 1875.

In Halsbury's Laws of England 1st Edition, published in 1910, Vol. 11 at page 16, paragraph 32 reads as follows:-

^"32. After an executor or administrator has paid the debts and funeral and testamentary expenses of the deceased and all other lawful liabilities and charges, it is his duty to distribute the clear surplus of the undisposed of personal estate among the next of kin, who are ascertained in accordance with the following rules:-"

The authority cited for this statement is the Statute of Distribution (22 and 23 Car. 2, c.10.)

At page 22, Rule No. 5 of these rules reads:-

"If there are no descendants, then, subject to the rights of the widow, if any, the father takes the whole of the estate.” (See Blackborough v. Davis (1701) which is reported in Vol. 24 of the English Reports at page 285).

This case concerned the competing claims of a grandmother and an aunt to an intestate's personal estate. In the course of the hearing Holt C.J. said at page 288: -

"If a child had died intestate without wife, child, or father, leaving ,only the mother, the mother had the whole till 1 Jac. 2 (Keylway v. Keylway, Vol. II. 346), exclusive of the brothers and sisters; and this must be the same law now, as to the grandmother with relation to the aunts; the father surviving has the child's whole estate at this day."

Again Rule No. 6 is set out in Halsbury at page 22 and the opening words read: -

"If there are neither descendants, nor father, nor brothers, nor sisters, nor children of brothers or sisters of the intestate, then, subject to the rights of the widow, if any, the mother takes the whole of the estate; ........"

See Jackson v. Prudehome (1716) 22 E.R. 374.

It is clear, therefore, that the father is entitled to take the entire estate of his intestate bachelor son to the total exclusion of the surviving mother.

In deciding who is entitled to a grant of Letters of Administration, preference is given, inter alia, to the one who has the support of the greatest interest - see Elwes v. Elwes [1728] EngR 542; (1728) 161 E.R. 444.

In these circumstances the deceased's father who is beneficially entitled to the entire estate is also entitled to a grant of Letters of Administration and no question appears to arise of the Court exercising any discretion in favour of the mother.

One further point that was raised by Counsel for the Plaintiff concerned the Bankruptcy of the deceased's father Gangaram. It was suggested that since Gangaram was an undischarged bankrupt he was not entitled to a grant of Letters of Administration of his deceased son's estate. In the alternative it was submitted that in such circumstances the Court had a discretion in the matter which should be exercised in favour of the Plaintiff.

In my view there are no merits in these submissions. Since the Plaintiff is not in law entitled to any beneficial interest in the estate she is not entitled to a grant of Letters of Administration. Again, whilst I can find no statutory authority on the point, it is clear that bankruptcy alone is no reason for refusing to issue a grant of Letters of Administration to a person otherwise entitled, or to his Trustee as was done in the case of Wilson v. Wilson [1910] UKLawRpKQB 179; [1911] 1 K.B. 327.

For these reasons I am of the opinion that in this case the mother's claim both to a grant of Letters of Administration and to a beneficial interest in the estate has no foundation in law. The Statement of Claim does not therefore disclose any cause of action on her part and must therefore be struck out.

Order striking out Statement of Claims.