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Kaur v Kaur [1995] FJHC 133; Hbc0098d.95s (3 August 1995)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 98 OF 1995

Between:

HARPREET KAUR
also known as PRATAP KAUR
d/o Ami Chand
Plaintiff

- and -

AZARD KAUR
d/o Ami Chand
Defendant

Mr. H.M. Patel for Govind & Company for the Plaintiff
Mr. P. Knight for Mr. Sadiq for the Defendant

DECISION

By Summons dated 27 March 1995 the Plaintiff is seeking an order that the defendant do lodge Probate No. 26023 granted in the Estate of Ami Chand in the Court Registry pursuant to Order 76 Rule 4(2) of the High Court Rules.

The said Order provides as follows:-

"4. - (1) Where, at the commencement of an action for the revocation of a grant of probate of the will or letters of administration of the estate of a deceased person, the probate or letters of administration as the case may be, have not been lodged in court, then -

(a) if the action is commenced by a person to whom the grant was made, he shall lodge the probate or letters of administration in the Registry within 7 days after the issue of the writ;

(b) if any defendant to the action has the probate or letters of administration in his possession or under his control, he shall lodge it or them in the Registry within 14 days after the service of the writ upon him.

(2) Any person who fails to comply with paragraph (1) may, on the application of any party to the action, be ordered by the Court to lodge the probate or letters of administration in the office of the Registrar within a specified time; and any person against whom such an order is made shall not be entitled to take any step in the action without the leave of the Court until he has complied with the order."

The facts briefly are that by Writ of Summons in this action dated 20 February 1995 the Plaintiff is seeking the revocation of the said grant of Probate and that the Court pronounce against the validity of the alleged Will dated 6 June 1990 on which the said Probate was granted on 17 December 1990. The nature of the case on which the Plaintiff intends to rely is as stated in the Statement of Claim.

The learned counsel for the Plaintiff argues that Or.76 r.4(1)(b) requires that the Probate "shall" be lodged within 14 days after service of the Writ. He says that it is mandatory that this be done. The defendant has failed to do so. He says that the "rationale behind the rule is to conserve estate property until such time as the action is decided upon".

The learned counsel for the defendant on the other hand submits, inter alia, that the defendant has been administering the estate in accordance with the terms of the Will. The Plaintiff has been given the sum of $10,000 and jewellery worth $890 and that the defendant has met and has been meeting other expenses for the Plaintiff and this is not denied by her. He says that the administration of the estate is "almost complete".

The defendant complains that now after 4 years and 7 months she issues the writ. He submits that under Or.76 r.4(2) the Court has a discretion whether to order that Probate be lodged or not after taking into account, "all the relevant facts, particularly the chance of success, delay, reason for delay" etc. Finally he submits that "the Defendant in her sworn Affidavit in Reply, dated 27th day of May, 1995 has given an undertaking to the Court that upon the determination of this action, she would hand the Probate to the Registry if the Court so finds. Therefore the Plaintiff should not worry but request the Court for an early date of hearing."

I have given careful consideration to the arguments put forward by both counsel.

The Plaintiff seeks revocation of the grant on the grounds stated in the Writ. Because this is a "probate action" as defined in Or.76 R.1(2) she requires the defendant to comply with Or.76(4)(1)(b) by lodging the Probate in the Registry.

The defendant's main complaint is why did she wait so long before making the application and whilst in the meantime reaped the benefits from the administration of the estate; and in the Statement of Defence that has been filed the defendant is saying that the Plaintiff's claim is "false, frivolous and vexatious".

The facts established by this application on affidavit evidence are that (a) Probate was granted to the defendant (respondent) about five years ago, (b) the administration is "almost complete" although it is not stated what is left to be done and (c) the plaintiff has received substantial sum of money and jewellery from the estate and is still being maintained by the estate and this she does not deny.

Now, after so long the Plaintiff makes the present application for revocation of the grant. She kept quiet all these years and let the estate be administered and also benefited from it, and now she comes forward with her present claim without explaining the reason for the delay in issuing the writ.

On this Summons I am merely concerned with whether to order the Probate to be lodged or not. No doubt there is discretion vested in the Court under Or.76 r.4(2) in this regard. Although the defendant in her Defence states, inter alia, that the claim is "false, frivolous and vexatious" she has made no application to Court to strike out the action for that reason, but she is agreeable to hand the Probate once the action is determined.

The doctrine of laches has been raised by the defendant, but the issue for determination cannot and is not based entirely on it. There is specific provision under Or 76 governing the matter and Or. 76 r.4(2) is a discretionary clause enabling the Court to consider the issue in the light of the facts in any particular case.

This is not an objection particularly based on laches. Even if it was I would refer to HALSBURY 4th Ed. Vol. 17 at para 1061 on what the Court would do on the existence of laches. It states:-

"An action for revocation which is groundless and vexatious may be stayed, but it seems doubtful if the Court would stay such an action in limine merely on the ground that the existence of laches would be likely to defeat subsequent proceedings to recover property."(Re COGHLAN, BRISCOE v BROUGHTON 1948 2 AER 68 C.A.) (underlining mine)

Also the following passage from the judgment of HODSON J in COGHLAN (supra) dealing with the effect of laches is worth bearing in mind while considering the issue in this application:

"it is, in my view, not established by authority that the mere existence of laches such as would bar a claim in subsequent proceedings would justify the court in taking the drastic step of dismissing the action in limine. A close examination of the authorities principally relied on by the defendants, viz., Mohan v. Broughton (1) and Willis v Earl Beauchamp (2), leads me to the same conclusion as TUCKER, L.J., on this aspect of the matter. Laches, like the Statute of Limitations, must normally be pleaded in order to defeat a claim, and there are grave difficulties in determining on affidavit evidence whether the facts proved against the plaintiff establish laches against him. In spite of the lapse of time and the admitted inactivity of the plaintiff and his predecessor, I express no opinion as to the prospects of a defence of laches succeeding in this or subsequent proceedings by the plaintiff."

For the purposes of determining the issue before me, bearing in mind the facts of this case, the fact that the administration is "almost complete" and the Plaintiff allowed the estate to be administered and took no steps to prevent it being administered some years back, the fact that defendant has no objection to lodging probate except that she wants to do it after the action is determined, and in the exercise of my discretion under Or. 76 r.4(2) I do not think that the Plaintiff has made out any sufficient ground for the Court's interference in granting the application.

For these reasons I refuse the application that defendant lodge probate in the Registry with costs against the Plaintiff. It is suggested that Plaintiff proceed with expedition to have the action set down for trial.

D. Pathik
Judge

At Suva
3 August 1995

HBC0098D.95S