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Lal v Lal [2004] FJHC 13; HPP0023.2002 (19 March 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

PROBATE ACTION NO.: HPP 23 OF 2002

BETWEEN:

NIRMALA LAL
PLAINTIFF

AND:

NITYA LAL
DEFENDANT

Mr. V. Maharaj for the Plaintiff
Mr. J. Savou for the Defendant

JUDGMENT

Umrai lived at 307 Fletcher Road. She owned a house at this address. She died on 20th September 1980. She had made a will on 19th January 1966. She appointed her sons Hira Lal and Nitya Lal as executors and trustees. Hira Lal is also known as Mohan Lal.

The issue in the case is the interpretation and intention of the testatrix as expressed in Clause 3(b) of the will. It reads :

“3. I GIVE DEVISE AND BEQUEATH to my trustees my freehold residential property now owned by me and occupied used and enjoyed by me and my family and comprised in Certificate of Title No. 10825 or any such property subsequently purchased in substitution therefor UPON TRUST:

(a) ........... .......... ......... ...... .....

(b) To use keep and maintain the same as a family home for my said sons and their respective wives and unmarried children during the several lives of the respective parents and so long as each of the said parents makes the said property his or her principal place of residence in Suva my trustees paying all rates and taxes and other like out-goings and keeping the premises insured against fire and windstorm and in a good and habitable state of repair.”

Nitya Lal migrated to Canada with his family about 20 years ago and on evidence he returned only once for a short while to the property. Prior to his departure he lived at 307 Fletcher Road with his family as did Mohan Lal with his family.

It appears from the evidence that the testatrix lived with the two sons and their family in an Indian joint family system. The house was to remain a family home for the two sons and their wives, children and grandchildren. Additionally a son could only make it his family home if he made it the principal place of residence. In other words he could not rent out his share and himself go out and rent somewhere else in Suva. The other obligation on the sons was to pay all rates and keeping the property insured and in good state of repair.

Security of shelter for the family is the prime aim for this clause. From the evidence adduced it is obvious that neither the defendant nor any member of his family has lived in Fiji for the last 20 years. Their intention clearly is to make Canada their home. I do not know if they have taken Canadian citizenship. The applicant did not want to swear that he had taken Canadian citizenship but she believed he did. He has clearly surrendered his rights to occupy the house for the present at least.

Further while the defendant has benefited from the property by collecting rent through his power of attorney holders, he has abandoned his duty to maintain the property. Since he lives in Canada, he would have no interest or enthusiasm to keep the property in good condition.

Under Section 35 of Subsection Probate and Administration Act, Cap 60 this court has the necessary powers to remove an executor and trustee.

“The real object which the court must always keep in view is the due and proper administration of the estate and the interests of the parties beneficially entitled thereto; and I can see no good reason why the court should not take fresh action in regard to an estate where it is made clear that the previous grant has turned out abortive or inefficient” – per Juene P in In the goods of William Loveday [1900] UKLawRpPro 13; [1900] P. 154 at 156.

I find there are sufficient good reasons to remove the defendant as an executor and trustee in the estate of Umrai. He does not live on the property; he has failed to maintain it; he is only using the property for rental income. There has been non compliance with the terms of the trust. With his removal certain consequential orders would also need to be made.

Therefore I revoke the grant earlier made in favour of Mohan Lal alias Hira Lal who is now deceased and Nitya Lal the defendant herein. I direct a fresh grant be made in the name of Nirmala Lal f/n Kanchan Lal of 307 Fletcher Road, Vatuwaqa, Suva as Administratrix with will annexed in the estate of Umrai son of Bissessar. It is also ordered that grant made in probate action 18040 be produced and delivered to the court for it to be cancelled. It is also ordered that the name of the plaintiff as administratrix be entered on CT 21816. Since the Registrar of Titles is not a party to the action, the practice at Titles Office I believe is that a transmission by death pursuant to the court order would still need to be done.

Mr. Maharaj also submitted that the court should forfeit the defendant’s proprietary and other interest. He relied on Dunne v. Dunne 52 LJ Ch 51 (a copy of which was helpfully provided to the court). This case can be distinguished from the one before me. In Dunne v. Dunne the testator had provided that if the beneficiary defaulted in using the home as principal residence, the devises to him should cease. In the present case the testatrix has not said what is to happen should a beneficiary fail to reside on the property. I see that this right to reside in the property has been extended to the grandchildren. It would not be proper to disinherit the grandchildren of their right to reside in the property should one of them intends to return from Canada and make Fletcher Road his principal place of residence. Obviously intention to make Fletcher Road ones home would need very clear expression of such interest. A short visit is not sufficient. It would require evidence of length of visa to stay in Fiji, and host of other factors like employment, residential properties held elsewhere. The possibility of that happening is remote but in the absence of a more clear language, any further interference would amount to me rewriting the will. Until Nitya Lal or one of his issues re-establishes his intention to make 307 Fletcher Road his home, I order that the plaintiff and her children shall remain in occupation of the property without interference by the defendant or his servants or agents.

[ Jiten Singh ]
JUDGE

At Suva
19th March 2004