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Nand v Devi [2011] FJHC 602; HBC61.1996 (17 August 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No HBC 61 of 1996

BETWEEN:

VIVEKA NAND father's name Ram Charan of
Balata, Tavua, Cultivator.
Plaintiff

AND:

KAVITA DEVI daughter of Daya Shankar of Ba,
Domestic Duties .
Defendant

Mr K. Saulo for the Plaintiff (On instruction of Haroon Ali Shah)
Mr D. Gordon for the Defendant (On instruction of SK Ram Law)

COURT ORDERS:

Mr. Gordon appearing for the defendant states that he is under instructions from Mr. Ram to move for a further date to lodge the probate.

Under Order 76, Rule 4 the defendant ought to have lodged the probate or probates issued within 14 days of acknowledgement of the writ. Therefore the defendant is in default since 1996. Mr Gordon states that Mr Ram is in possession of the probate and with him in his Ba office. Defendant seeks time to comply with Order 76, Rule 4 and orders of this court of 28 July 2010 within two hours, time now is 10.35am.

Mr. Gordon states that two hours is sufficient to comply with the orders.
Adjourned at 10.36 am. To resume at 12.45 pm today.

Sgd
Y I Fernando

RESUMED – 12.10 pm

Mr. A Sudhakar for the Plaintiff
Mr. Samuel Ram for the Defendant

Mr. Ram submits that he is cautioned not to file the probate No 25516 in Lautoka High Court Registry as there is no probate file No 25516 in which it could be lodged. On pointing out that under Order 76, Rule 4 it could be lodged in this case, Mr. Ram further states that such documents have gone missing in the Lautoka Registry in the past and he fears that it will happen again in this matter. He further states that so far Suva Probate Registry has not replied his query on probate file No 25516 up to date. (His query was on 27 July 2010). He also points out that the plaintiff too has not filed the Affidavit of Script, therefore it appeared to court that both parties have not complied with the rules. Defendant is not in compliance with Order 76, Rule 4 and plaintiff does not comply with Order 76, Rule 5. There appears to be two contesting wills in this matter.

I refer to my order made in HBC No 144 of 2007, this case too appears to be a matter that needs to go before the Suva Probate Registry as there appears to be no reference to a probate file No 25516 as submitted by Mr Ram, the reason why there has been no reply to Mr Ram's letter to the Suva Probate Registry.

In view of Practice Direction No 2 of 1994, and as this case is to revoke probate and to issue probate in respect of a previous will, it is a probate matter that ought to have commenced in Suva.

With the earlier case in Suva in case No 25 of 1992, of which some papers are available in this record, with the primary aim of securing the integrity of the probate proceedings, this case ought to be transferred to Suva Probate Registry and High Court, so that it can be amalgamated with Probate File No 25516, and the proceedings commenced there after.

As such, I order that:-

1. This action No 61 of 1996L along with the documents of Suva High Court No 25 of 1992 be transferred to the Suva Probate (Principal) Registry and Suva High Court and be amalgamated with probate proceedings 25516;
   
2. That the Suva Principal Probate Registry be hereby noticed that the plaintiff has not complied with Order 76, Rule 5 and the defendant has not complied with Order 76, Rule 4 and as such, seek compliance by bringing this matter to the attention of a Judge in Suva High Court immediately on being amalgamated as aforesaid;
   
3. Further, it is brought to the notice of the Suva Principal Probate Registry and Suva High Court that the date of death of the deceased testator is referred to as 13 February 1990 (13/2/90) in the probate and the PTC agreed facts set out the date of death to be 14 February 1990 (14/2/90). As such the documents, seeking probate in No 25516 needs to be verified.
   
4. Both parties read over the above and they agree for the transfer to the Suva Probate Registry and Suva High Court of their matter. Transfer case to Suva High Court.
   

Sgd
Y I Fernando
JUDGE

At Lautoka
17 August 2010