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Mahabir v Prakash [2015] FJHC 144; Civil Action 8.2005 (27 February 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. 8 of 2005
Probate No. 31050

IN THE ESTATE of MAHABIR late of Martintar, Nadi, Farmer, Deceased, Testate.

BETWEEN:

RENUKA MAHABIR also known as RENUKA DEVI of Wardell Drive South Penrith 2750, New South Wales, Australia, ROSHNI DEVI also known as ROSHNI DEVI KUMAR of Tyringham Close, Hoxton Park, New South Wales, 2171 Australia and SANILTA DEVI also known as SANEELTA DEVI of Togo Masi, Nadi in Fiji.
Plaintiffs

AND:

MAHENDRA PRAKASH of Martintar, Nadi in Fiji.
Defendant

Appearance : Mr Sharma D of R Patel Lawyers, Counsel for the Plaintiffs

Mr Naidu D S of Pillai, Naidu and Associates, Counsel for the Defendant

Judgment : 27 February 2015

JUDGMENT BY CONSENT

[1] The Notice of Motion of 2014 and the affidavit dated 31 October 2014 filed on 31 October 2014 by the Plaintiff sought the following orders:

(a) An interim and final order that the Executors of the Estate of the Defendant or it servants and/or its agents including Bimal Roshni and her family member be restrained from interfering with the survey works and sub-divisional works pertaining to Certificate of Title No. 32102;

(b) That the police from the nearest police station namely Namaka Police Station provide assistance to the first named plaintiff and her surveyors and agents in complying with this order;

(c) Directions for services and a return date;

(d) Costs and such other and further orders or directions as the court may deem just.

[2] Notice of Motion and the Affidavit of Response dated 27 November 2014 was filed by one Ronish Prakash the son of late Mahendra Prakash and Bimal Roshni on 27 November 2014. By the said Notice of Motion, the Estate of the Defendant sought the following orders:

(a) The 1st named Plaintiff be removed as the Executor and Trustee and that Rosish Prakash be appointed in her place or alternatively that he be appointed as the joint Trustee with the 1st named Plaintiff;

(b) That this case be transferred to the Lautoka High Court;

(c) That the costs of this application be costs in the cause.

[3] The Plaintiff responded to the affidavit of Ronish Kumar by her affidavit dated 19 December 2014 filed on 23 December 2014 and in response to this affidavit, Ronish Kumar filed affidavit dated 23 February 2015 and the late filing was consented by the Plaintiff.

[4] The matter was taken up for hearing on 27 February 2015 adjourned at 11.15am and when the hearing was resumed at 12 noon and the counsel Mr D Sharma and Mr D S Naisu appeared for the Plaintiff and the Defendant moved the court to enter orders by consent.

[5] Accordingly, it was ordered by consent:

1) The Plaintiff to execute the consent orders made on 18 January 2010 by this court and the Estate of the Defendant is ordered not to interfere with the Survey of CT 32102.

2) The Plaintiff is ordered to provide the Defendant's solicitors with the copies of all relevant documents pertaining to the survey and sub division of CT32102.

3) The Plaintiff is ordered and undertaken zoning of the land on Certificate of Title No. CT32102 remain as an agricultural land.

4) Ordered each party to bear their own costs.

5) Notices of Motion filed on 31 October 2014, and 27 November 2014 are withdrawn by the parties thus dismissed.

Delivered at Suva this 27th Day of February 2015

..........................
C. Kotigalage
JUDGE