IN THE HIGH COURT OF FIJI
AT SUVA
(PROBATE JURISDICTION)

Action No. 15 of 2007

IN THE MATTER OF INDAR DEO aka INDAR DEO SHARMA
(f/n Ram Chandar Sharma of Nasau, Sigatoka, Businessman Deceased, Testate.

BETWEEN

PREM LATA (d/o Kuar Singh)
Nasau Valley Road, Sigatoka the Administratix of Will annexed and one of the beneficiaries of the Estate of Indar Deo aka Indar Deo Sharma (f/n Ram Chandar Sharma).
PLAINTIFF

AND:

JAI SAN aka JAISON SHARMA
(f/n Indar Deo aka Indar Deo Sharma of Nasau Valley Road Sigatoka,
Businessman, as Administrator
under grant of Letters of Administration No. 46252.
1ST DEFENDANT

AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED
having its registered office at 25 Victoria Parade Suva.
2nd DEFENDANT

NATIONAL BANK OF FIJI TRADING AS
COLONIAL NATIONAL BANK
having its registered office at 3 Central Street, Suva.
3rd DEFENDANT

BANK OF BARODA
incorporated in New Delhi, having its registered office at Mark Street, Suva.
4th DEFENDANT

BEFORE : Master Deepthi Amaratunga

COUNSEL: Mr. Singh S. for the Plaintiff
Mr. Odriscoll G for the 1st Defendant. 

Date of Hearing: 19th August, 2011
Date of Ruling: 7th October, 2011

RULINGS

A.	INTRODUCTION

1.	The 1st Defendant filed the summons for strike out the action and state that Plaintiff has not shown any cause of action against the 1st Defendant and also failed to prove that the alleged Will of the Deceased in favour of the Plaintiff as genuine. The 1st Defendant has obtained the Letters of Administration for the estate of the Deceased stating that there was no Will. The Plaintiff in the statement of claim seeks to prove the purported Will which she discovered after the death and before she could make an application the 1st Defendant had obtained the Letters of Administration. The main contention is the irregularity of the making of the Will, based on an affidavit of one of the witnesses.

B.	FACTS

2.	The defendant institutes the striking out application pursuant to Order 18 rule 18(1) (a), (b) and (d). He relies on his own affidavit and the affidavit of Ram Rati, a witness to the purported will. 

3.	The 1st Defendant's father INDAR DEO also known as INDAR DEO SHARMA Nasau, Nadroga, Shop Keeper died at Sigatoka Hospital on 20th March 2007. The Letters of Administration was issued by the Suva High Court of Fiji to the 1st Defendant on the 10th day of May 2007. The Notification of Death pursuant to Section 59 of the Trustee's Act was advertised in the Fiji Sun of 13th April, 2007.

4.	That the Plaintiff did not take any action after the advertisement of the 1st Defendant's intention to make application for Letters of Administration in the estate of the deceased.

5.	That the Plaintiff in her Affidavit dated the 15th day of March 2011 and filed on the 21st day of March 2011annexed the proposed Will of the Deceased, which shows that one of the witness on the Will is RAM RATI a Market Vendor in Sigatoka.

6.	The statement of claim filed by the plaintiff alleges that she was in a de facto relationship with the first defendant's father (the late Indar Deo) since 1991.

7.	Secondly, there is an existence of a Will of the late Indar Deo giving the plaintiff one third of the property owned by the testator.

8.	In the Affidavit of said Ram Rati one of the witnesses of the purported Will dated the 20th day of January 2011 and filed in this application, denied ever placing her thumb on the said Will. The Plaintiff has to prove that the deceased's Will in her possession is a genuine Will.

9.	The Plaintiff alleges that the alleged Will of the Deceased is not a proper Will, no executor and trustee appointed in the Will and it is a forged Will.

C.	THE LAW

10.	The law relating to Wills are contained in the Wiils Act and Section 6 in Part iii under the heading The Execution and Making of Wills and deals with the requirements of execution a Will and it states as follows

"PART III-THE EXECUTION AND MAKING OF WILLS

Execution generally

6. 	Subject to the provisions of Part V, a will is not valid unless it is in writing and executed in the following manner:-

(a) 	it is signed by the testator or by some person in his presence and by his direction in such place on the document as to be apparent on the face of the will that the testator intended by such signature to give effect to the writing as his will;

(b) Such signature is made or acknowledged by the testator in the presence of at least two witnesses present at the same time; and

(c) The witnesses attest and subscribe the will in the presence of the testator, but no form of attestation is necessary."

11. 	The said provision in the Wills Act was amended in 2004 by insertion of 6A to the said provision and the said intention is that the intention of the testator is paramount as opposed to the formalities of the making of the Will. The said insertion 6A is quoted below.

"6A(1) A document purporting to embody the testamentary intention of a deceased person, even though it has not been executed in accordance with the formal requirements under section 6, constitutes a will of the deceased person if the Court is satisfied that the deceased person intended the document to constitute his or her will.

(2) The Court may, in forming its view have regard, in addition to the document, to any other evidence relating to the manner for execution or testamentary intentions of the deceased person, including evidence, whether admissible before or after the commencement of this section, of statement made by the deceased person.

(3)A party that seeks a declaration under this section has the onus of proof."
So, from this insertion of section 6A, it is clear that from 2004 the law relating to Wills have changed significantly and what is paramount is not the formalities that are contained in the Section 6 of the Wills Act, but the intention of the deceased.

12.	In the case of CHOTTABHAI PATEL v BA TOWN COUNCIL HC (Suva) Action No. 164 of 1991 where Justice Byrne stated as follows on pages 3 and 4:-

 "It has been said that the Court will not permit a Plaintiff to be "driven from the judgment seat" except where the cause of action is obviously bad and almost incontestably bad (per Fletcher Moultton LJ in DYSON v ATT. GEN. 1 KB. 410 p. 419. On the other hand, a stay or even dismissal of proceedings may "often be required by the very essence of justice to be done" (per Lord Blackburn in METROPOLITAN BANK v POOLEY [1885] 10 App. Case. 210. P. 22) so as to prevent parties being harassed and put to expense by Frivolous, vexatious or hopeless litigation (cited with approval by Lawton LJ in RICHES v DIRECTROR OF PUBLIC PROSECUTIONS [1973] 1 WLR 1019 p. 1027; [1973] 2 All ER 935.

13.	Thus the Court has a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances known relating to the offending plea: CARL ZEISS STIFTUNG v RAYNER & KEELER LTD (n. 3) [1970] Ch. 506....

......On page 91 mentioned the decision of CHASTEY v AUCKLAND [1895] 2 Ch. 389 where the Court held that there cannot be an easement of the passage of air other than through a defined channel. Thus in my view the Plaintiff's claim in paragraph 18 of the Statement of Claim to be entitled to free and natural air and fights to their shops cannot be sustained."?

14.	In the case of Megarry VC in Gleeson V J Wippell & Co. [1977] 1 WLR 510 at 518 apt:

"First, there is the well-settled requirement that the jurisdiction to strike out an endorsement or pleading, whether under the rules or under the inherent jurisdiction, should be exercised with great caution, only in plain and obvious cases that are clear beyond doubt.

15.	So, it is clear that striking out of a claim is done only in circumstances where in obvious cases and not where there is any doubt.

16.	In this case the 1st Defendant submit, the claim against the 1st Defendant cannot be sustained. The 1st Defendant also state that the claim against her is unsustainably bad and amounts to harassment by hopeless litigation. But, the said allegations are based on affidavit evidence and specially the evidence of one of the witnesses to the will. It is clear based on Section 6A of Wills Act, that there is no mandatory requirement of witnesses and what is important is the intention of the deceased and the burden of proof is shifted to the proponent of the Will, and the Plaintiff must prove it. In the affidavit in opposition the Plaintiff alleges conspiracy against the 1st Defendant and her ex-boyfriend, to disown her share of the estate in terms of the will.

17. 	The applicants' main ground for striking out is that there is no "reasonable cause of action" against them. The following notes to Order 17 r19 of the Supreme Court Practice (UK) 1979 Vol. 1 or 18/19/11 on what is meant by the term 'a reasonable cause of action' sufficiently provide the answer to the applications.

"......A reasonable cause of action means a cause with some chance of success when only the allegations in the pleadings are considered (per Lord Pearson in Drummond Jackson v British Medical Association [1970] 1 WLR, 688; [1970] 1 All ER 1094 CA). So long as the statement of claim or the particulars (Davey v Bentinck [1893] 1 QB 185) disclose some cause of action, or raise some question fit to be decided by a Judge or a jury, the mere fact that the case is weak, and not likely to succeed is no ground for striking out (Moore v Lawson (1915) 31 TLR 418, CA.; Wenlock v Moloney [1965] 1 WLR 1238 1 W.L.R. 1238 [1965] 2 All ER 871, CA)...."

18. Similarly, Lindley M.R. in Hubbuck & Sons, Ltd v Wilkinson, Heywood & Clark Limited [1899] 1QB 86 at page 91 said:

".....summary procedure is only appropriate to cases which are plain and obvious, so that any master or judge can say at once that the statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to what he asks. The use of the expression "reasonable cause of action" in rule 4 shows that the summary procedure there introduced is only intended to be had recourse to in plain and obvious cases".

19. In Attorney General v Shiu Prasad Halka (1972) 18 FLR 210 Marsack JA said of the predecessor to order 18, r. 18 of High Court Rules at page 215:

".....I think it is definitely established that the jurisdiction to strike out proceedings under Order 18 rule 19 should be very sparingly exercised where legal questions of importance and difficulty are raised".

"The law with regard to striking out pleadings is not in dispute. Apart from truly exceptional cases the approach to such applications is to assume that the factual basis on which the allegations contained in the pleadings are raised will be proved. 

If a legal issue can be raised on the facts as pleaded then the courts will not strike out a pleading and will certainly not to do so on a contention that the facts cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of a factual contention...."

20. 	The power to strike out pleadings as disclosing no reasonable cause of action is so well established that detailed analysis is unnecessary. Suffice is to say that it is a power to be exercised cautiously and sparingly and only where the pleadings are ex facie so defective and untenable as to be incapable of succeeding.

 21. What's more the function of pleadings is to give fair notice of the case which has to be met and to define the issues on which the court will have to adjudicate in order to determine the matters in dispute between the parties': Halsbury's Laws of England Vol 36 para 4.

22. Moreover, it is not the function of 'particulars' to take the place of necessary averments in the pleadings, nor 'to state the material facts omitted .... in order by filling the gaps to make good an inherently bad pleading': per Scott LJ. In Pinson v Lloyds Bank [1941] 2 K. B 72

D.	ANALYSIS OF EVIDENCE

23. 	This is the summons filed by the 1st Defendant to strike out the claim of the Plaintiff against him and first he states that the Plaintiff did not object to the Letters of Administration being issued to him, but it is clear that the purported Will was not found at that time and there was no merits in that objection of the 1st Defendant.

24. 	Secondly, the Defendant relies on an affidavit by one of the attesting witnesses to the purported Will, who denied attesting it. In accordance with the law relating to Wills,there is no mandatory requirement for attesting witnesses and one attesting witness or even without any attesting witnesses the Will can be admitted as what is paramount is the intention of the testator. So, even is the affidavit of the said attesting witness is admitted in toto, still the Plaintiff's claim can be maintained provided that Plaintiff proves the intention of the testator. There are conflicting evidence and there are allegations of coercion by the 1st Defendant to attesting witnesses of the Will to deny its attestation and all this can be tested in oral evidence where, through cross examination and credibility of witnesses would be vital in the analysis of evidence on the principles of evaluation of evidence . This cannot be done by affidavits and strike out application should be rejected.

25. The Plaintiff in her affidavit in opposition stated as follows

"a. Janend was my boyfriend recently and until last year when we broke up. I was assaulted by him. I reported the matter to the Police. He sent me text messages through his mobile phone asking for forgiveness. I did not reply to his text messages. He text that he would do things, relating to the case, against me. He colluded with Jaison to ensure that I do not get anything. I annexed herein copies of text messages I copied it from my phone marked as annexure PL1. 

b. 	I refused to continue friendship with Janend. I verily believe that Janend and Jaison influenced Ms. Ram Rati and or colluded with each other to have Ms Ram Rati deny that her thumb print is on the will.

c. 	I reproduce/ reiterate the contents of my affidavit in reply to the affidavit of Ram Rati as follows:

i) 	On the 20th January 2010 I received a phone call from Johnny, the grandson of Ms. Ram Rati, and he enquired to me why Janend and Jaison took Ms. Ram Rati to Lautoka to see a lawyer. I replied that I did not know anything about their trip.

ii) On 24th January I met Ms. Ram Rati at her stall in Sigatoka market. I asked her why Janend and Jaison took her to Lautoka. I was informed by Ms. Ram Rati and very believed that the 1st defendant paid her money to go to the lawyer's office in Lautoka to change her story that she never witnessed and placed her thumb print on to the "Will" of Indar Deo.

iii) On 5th February 2011, I met Ram Rati at Sigatoka market. I was informed by her and verily believed that the 1st defendant paid her $1,000.00 at the solicitors office to make a statement to deny that the thumb print placed on the Will of Indar Deo is not her own."

26. So, the allegations of the Plaintiff are serious and she has mentioned the names of the informants as well, so these has to be tested in a hearing and cannot be decided in a summary judgment. The 1st Defendant should be bold enough to encounter these serious allegations, if proven would amount to interference with the witnesses of a pending action. These are all yet to be decided, as affidavit evidence needs to be tested by cross examination of the deponents and informants to ascertain the truth of their statements.

E.	CONCLUSION

27. The application to strike out the claim against the 1st Defendant is rejected as it is based on an affidavit of a witness to the said Will, which can be admitted even without a single witness if the proponent of the Will was able to establish the intention of the testator. This can be done in the trial and not by affidavit evidence where the credibility of the evidence will be tested properly, in the cross examination. The evidence before me is conflicting and that needs to be tested in the trial to arrive at a final decision. The summons for strike out should be struck out and the cost of this application will be cost in the cause.

F.	THE FINAL ORDERS

a.	The summons for the 1st Defendant filed on 21st March, 2011 is struck out.
b.	Cost of this application will be cost in the cause.

Dated at Suva this 7th day of October, 2011. 

………………………………………….
Mr. Deepthi Amaratunga
Master of the High Court
Suva