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In re Estate of Gopal Reddy [2011] FJHC 478; HPP21.2010 (26 August 2011)

IN THE HIGH COURT OF FIJI AT SUVA
PROBATE JURISDICTION


CASE NUMBER: HPP 21 of 2010


IN THE ESTATE OF GOPAL REDDY aka PATRICK GOPAL REDDY


AND


IN THE MATTER OF CAVEAT NUMBER 11 OF 2009 BY ROSHNI DEVI


Appearances: Mr. Degei for the Caveatee.
Mr. Qoro for the Caveator, Ms Roshni Devi.
Mr. V. Mishra for the Interested Party (Creditor)
Date/Place of Hearing: Wednesday, 17th August, 2011 at Suva.
Date/Place of Judgment: Friday, 26th August, 2011, at Lautoka.
Judgment of: The Hon. Madam Justice Anjala Wati.


JUDGMENT


APPLICATION FOR LETTERS OF ADMINISTRATION – application made by widow for letters of administration in her favour in the estate of her husband – caveat lodged by former wife who states that her interest arises by virtue of her claim for monies which the deceased borrowed to repair his house - procedure for removal of caveat identified – monetary claim against estate does not entitle the claimant for a grant in the estate – no basis for caveat to be lodged and maintained – application for removal of caveat granted with an order for costs against the caveator.


Legislations
Succession, Probate and Administration Act, Cap. 60.
The Non-Contentious Probate Rules 1987


The Cause


  1. There are two applications before the Court.
  2. The first is by the caveatee for an order to have the caveat lodged by the caveator against the sealing of the grant in favour of the caveatee removed.
  3. The second application is by the interested creditor for the following orders:-
  4. On the date of hearing, the creditor did not press for orders in his application except for an order that he be joined and allowed to be heard in the proceedings. The creditor supported the application by the caveatee and stated that if the letters of administration is not granted to the caveatee, then he intended to file a writ of summons seeking for other orders in the application.
  5. In essence, now, the court is left only to hear the application by the caveatee for removal of the caveat. The creditor has been permitted to be heard in the case as an interested party as no one had objected to the creditor being heard by the Court. No affidavits were filed in opposition to the application for the creditor to be joined and heard.

The Opposition


  1. The caveator is opposing the application for removal of the caveat. The application is opposed on the basis that between July, 2008 and November, 2008. The caveator gave the deceased loan of more than AUD45, 000 which the deceased used to renovate his house.

The Case Background

  1. The caveator, Roshni Devi married the deceased Gopal Reddy on the 19th day of October, 1993. The marriage was dissolved on the 18th day of August, 1995.
  2. The caveatee married the deceased on the 04th day of August, 1997.
  3. The deceased died on the 29th day of December, 2008.
  4. The caveatee made an application for letters of administration which was not processed because of the caveator's caveat.
  5. On the 04th day of August, 2009, the caveatee filed a warning to the caveator to show cause against the sealing of the grant. The warning was served on the caveator's solicitors on the 07th day of August, 2009.
  6. The caveator took no action and the caveatee then had to file a summons on the 01st day of February, 2010 to have the caveat removed.

The Submissions


  1. The caveatee's counsel submitted that the caveator has no locus standi to lodge a caveat against the sealing of the grant in the estate. It was further submitted that a monetary claim against an estate cannot be equated with or elevated to a claim for grant of letters of administration. The caveator has no connection with the deceased which will entitle her to the grant.
  2. The creditor's counsel submitted that the creditor is supporting the application by the caveatee. Mr. Mishra further stated that the caveator has failed to file an appearance to the warning against the caveat which was served on the caveator. The caveat should thus be removed as of right and a grant issued in favour of the widow.
  3. Mr. Qoro submitted that although the caveator has not entered an appearance to the warning, she has by filing an affidavit, shown her interest in the estate and thus that interest should be taken into account in dealing with the application fro removal of the caveat.

The Law and the Determination

  1. There are two provisions which allow a caveat to be filed prior to the sealing of a grant. The provisions are contained in s. 46 of the Succession, Probate and Administration Act, Cap. 60 and Rule 44 (1) of the Non- Contentious Probate Rules 1987.
  2. The procedure for removing a caveat filed under s. 46 of the Succession, Probate and Administration Act, Cap. 60 is provided for by s. 47 of the Act.
  3. The procedure for removing a caveat lodged under Rule 44(1) of the Non-Contentious Probate Rules 1987 is provided for in other parts of the same rule.
  4. In this case, I do not have the advantage the copy of the caveat that was lodged and there is no indication as to which provision was used to file the caveat.
  5. If the caveat was lodged under Rule 44 (1) of the Non- Contentious Probate Rules 1987, then the caveatee was correct in sending a warning against the caveat under Rule 44 (5) of the said Rules to deal with the issue of removal.
  6. It is not disputed that the warning was served on the caveator.
  7. If the caveator, Roshni Devi had no interest contrary to that of the caveatee, then she should have within 8 clear days from the date of service of the warning (including the date of such service), or at any time thereafter if no affidavit of service of the warning was filed in the registry, file a summons for directions: Rule 44(6).
  8. If the caveator, Roshni Devi had interest contrary to that of the caveatee, she should then have within 8 clear days from the date of service of the warning (including the date of such service), or at any time thereafter if no affidavit of service of the warning was filed in the registry, entered an appearance in the registry by filing form 5: Rule 44(10)
  9. There is no indication that an affidavit of service of warning was filed in the registry and there is none in the probate file. The caveator, therefore, had or has time to file a summons for directions or to enter an appearance until an affidavit of service was or is filed.
  10. Irrespective of whether or not the caveatee filed an affidavit of service in respect of service of the warning to the caveator, the caveator has never filed any summons for directions or entered any appearance to the warning until date and so the caveatee filed the next process in Court for removal of the caveat under s.47 of Succession, Probate and Administration Act, Cap. 60.
  11. s. 47 also provides for the removal of caveat:-

" 47 (1) in every case in which a caveat is lodged, the court may, upon application by the person applying for probate or administration, or of the sealing of any 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 as entered in his caveat.


(3) Such application may be heard and order made upon affidavit or oral evidence, or as the court may direct".


  1. If the caveatee had filed an affidavit of service in the registry then there was no need to resort to court proceedings to have the caveat removed if it was lodged under s. 44(1) of the Non-contentious Probate Rules 1987 as the caveat would cease to have effect and the caveatee was then entitled to be issued the grant.
  2. I cannot say with any conviction as to what should have happened as one can note that many processes are not clear from the records and neither party has made any submissions on the same. However what I can safely rule on is whether or not this caveat should be removed on the current application made by the caveatee.
  3. I am now bound to consider the interest of the caveator which she has stated via her affidavit.
  4. I agree with Mr. Degei and Mr. Mishra both, that this is a plain and simple case which does not require ingenuity. The caveator, Roshni Devi's claim against the seal of the grant is that the deceased owes her a sum of money which was given to him in the form of loan. This is a monetary claim against the estate and is not sufficient to stop the grant to be issued. A claim of this nature is not a probate action. A monetary claim does not entitle the claimant to obtain a grant in his or her favour. The law is crystal clear and I believe that the caveator was ill advised on the law. She has managed to successfully hold the grant for so long and the estate is left unmanaged. Further, without assessing the validity of her claim she has objected to the application for removal of the caveat. This opposition exercise has been costly for the caveatee since she had to file legal papers in court, hire counsel, and make appearances in court to finally be told that the caveator's choice of process to register her claim is erroneous.
  5. The caveatee is entitled to costs of this action but not the creditor as this action could have been heard and determined without the creditor intervening. The caveatee is entitled for costs of this action and I intend to assess the costs summarily.

Final Orders


  1. The Caveat lodged by Roshni Devi be removed forthwith.
  2. The registry to issue a grant in favour of the widow of the deceased on the pending application.
  3. The caveatee is entitled to costs against the caveator in the sum of $1, 500, summarily assessed.
  4. Orders Accordingly.

Anjala Wati
Judge


26.08.2011


To:


  1. Mr. Degei for the Caveatee.
  2. Mr. Qoro for the Caveator.
  3. Mr. V. Mishra for the Interested Creditor.

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