DECISION
This is an application for the removal of a caveat (No. 42 of 1998) on the grant of letters of administration in respect of the estate
of one Phulla, and an application for the grant of letters of administration by Kuldip Kuar f/n Kabul Singh, daughter of the late
Phulla.
The application is made by summons, dated 22nd April 1999, supported by the affidavit of Sangeeta Shobna Rai dated 14th April 1999 and the affidavit of Kuldip Kuar sworn on 19th May 1999.
When this matter was first set before the High Court, both the caveator and the caveatee were represented by counsel. Mr Billamoria
for the caveator said he opposed the application and asked for a hearing date. The matter was adjourned to 2nd June 1999 before the Deputy Registrar.
There was no appearance by the caveator on that occasion. The matter was then set down before this court on 14th June 1999. There was again no appearance by the caveator. The caveatee was represented by Mr S. Ram of Mishra Prakash & Associates.
The court proceeded to hear the applications.
The facts of the matter are that the Applicant is the daughter of Phulla. The caveat in question was entered by one Satmen Singh,
the grandson of Phulla. It was lodged on 3rd December 1998 and it restrained the grant of letters of administration to the applicant. The application for letters of administration
was made by the applicant on 3rd February 1999.
On 19th March 1999, Satmen Singh was served a Warning to Caveator. On 8th May 1999 an affidavit sworn by one Jaswant Kaur f/n Nanta Singh was filed on behalf of the caveator. The affidavit deposes that Jaswant
Kaur was a daughter-in-law of Phulla, and that farmland in the estate of Phulla had been purchased by her late husband. It deposed
that the late Phulla had held the land on trust for her late husband and that she had entered into a Deed with Caveatee with Kuldip
Kuar which purported to agree to the grant of letter of administration to Jaswant Kaur, that the property vest in Jaswant Kaur and
that cane moneys should also belong to Jaswant Kaur.
Attached to the affidavit of Sangeeta Shobna Rai sworn on 14th April, is a letter from
G.P. Shankar & Company to Mishra Prakash & Associates dated 24th March. That letter stated that G.P. Shankar & Company acted for Satmen Singh and his mother Jaswant Kaur, and that the solicitors
did not propose to file appearance in the light of the provisions of the Succession, Probate and Administration Act, because Kuldip Kuar was the daughter of the late Phulla. Satmen Singh himself has not filed an affidavit.
Section 47(1) of the Succession, Probate and Administration Act Cap 60 provides as follows:
(1) "In every case in which a caveat is lodged, the court may, upon application by the person applying for probate or letters
of administration, as the case may be, remove the same.
(2) Every such application shall be served on the caveator by delivering a copy of the same at the address mentioned in his caveat.
(3) Such application may be heard and order made upon affidavit or oral evidence, or as the court may direct."
Section 7 of the Succession, Probate and Administration Act provides that:
"The court may grant administration of the estate of a person dying intestate to the following persons (separately or conjointly)
being not less than 21 years of age -
(a) the husband or wife of the deceased; or
(b) if there is no husband or wife, to one or more of the next of kin in order of priority of entitlement under this Act in the distribution
of the estate of the deceased; or
(c) any other person . . . . . if there is no person entitled to a grant under paragraphs (a) and (c) . . . . . . "
Section 6 of the Act provides that where the intestate leaves issue, but no wife or husband, the issue of the estate shall take the
estate absolutely.
It is clear, that the applicant was entitled to apply for letters of administration. It is also clear that the caveator has failed
to file an affidavit contesting the removal of the caveat. The affidavit that has been filed has been sworn by the caveator’s
mother. That affidavit purports to disclose the existence of a trust. However the provisions of section 6(d) of the Succession, Probate and Administration Act make it clear that the applicant’s interests take priority over the caveator’s, and that the caveator’s interests
can be taken into account when the estate is distributed.
In all the circumstances it is clear that the caveator has failed to show an interest contrary to that of the applicant’s. It
is therefore not necessary to consider the status of the Deed annexed to the affidavit of Jaswant Kaur.
I order that caveat No. 42 of 1998 be removed, and that letters of administration be granted to the applicant forthwith. The Caveator
is to pay the costs of this application to the applicant to be taxed if not agreed.
Nazhat Shameem, Ms
JUDGE
At Suva
16th June 1999
HPC36325D.99B
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