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Sharma v Estate of Jasoda Devi Sharma - Ruling [2020] FJHC 162; HBC 138 of 2018 (28 February 2020)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

Civil Action No. HBC 138 of 2018

BETWEEN

SHASHI PRASAD SHARMA aka SASHI PRASAD ( f/n Ambika

Prasad Sharma aka Ambika Sharma) of Koronivia,

Nausori c/ Ministry of Education,

Quality House, Suva.

FIRST PLAINTIFF

AND

ESTATE OF ARUN PRASAD SHARMA aka ARUN SHARMA (deceased)

through its administrator / personal representative,

VINAY SHARMA of Lot 12 Amber Place,

Howell Road, Samabula, Suva.

SECOND PLAINTIFF

AND

ESTATE OF JASODA DEVI SHARMA aka JASODA (deceased) through its executrixes

and trustees (personal representatives RANJILA DEVI aka RANJILA DEVI KUMAR

aka ANJULA DEVI KUMAR (f/n Ambika Prasad aka Ambika Sharma) and RESHMI

DEVI SHARMA (f/n Ambika Prasad aka Ambika Sharma) whose designated address

of service is O’Driscol & Co., 22 Carnarvon Street, Suva.

DEFENDANTS

Counsel : Plaintiff in person

Mr O’Driscoll G. for the Defendants

Mr Maharaj V. for the intended Defendants

Date of Hearing : 11^th February, 2020

Date of Ruling : 28^th February 2020

RULING

[1] The plaintiff on 21^st June 2019 filed this notice of motion seeking the following orders:

1. That the Arya Pratinidhi Sabha of Fiji being the controlling authority of D.A.V. Girls’ College be joined to these proceedings as the Second Defendant.
2. That Neel Raj Sharma of 63 Brewster Street, Toorak, Suva be joined to these proceedings as the Third Defendant.

100. That the Arya Pratinidhi Sabha of Fiji being the controlling authority of D.A.V. Girls’ College be required to deposit the gift received by it from the 1^st Defendants under the last will and testament of the late Jasoda Devi Sharma aka Jasoda into an interest bearing account until the determination of these proceedings.

4. The 1^st Defendants be required to deposit into an interest bearing account all monies held by them on behalf of the Estate of the Jasoda Devi Sharma aka Jasoda irrespective of whether the moneys are awaiting distribution and/or are set aside for any purpose.
5. That leave be granted to amend the Writ of Summons and the Statement of Claim to give effect to the joinder of the Second and Third Defendants.
6. The 1^st defendant to provide the plaintiffs with all information and legal documentation regarding the sale of the commercial property described as Lot 3 on DP No. 5132, Allotment 45 registered in Certificate of Title No. 21979.
7. That the 1^st Defendants provide a breakdown of the proceeds of the sale of Lot 3 on DP No. 5132, Allotment 45 registered in Certificate of Title No. 21979 together with bank statements of the accounts in which the proceeds have been kept from the date of first deposit.
8. Costs of the application be costs in the cause.
9. Such further or other orders as the court deems just.

[2] The parties sought to be added by the plaintiffs are the beneficiaries of the last will of their mother. In the affidavit in support the 1^st plaintiff has not said why he seeks to add the other beneficiaries as parties to the action except, of course, that he wants preserve his interest in the estate.

[3] The 1^st defendants are the executors and trustees of the estate of Jasoda Devi Sharma and they are the only ones who have power and authority to administer the estate. The beneficiaries have no such power.

[4] Order 15 rule 4(1) provides:

Subject to rule 5(1), two or more persons may be joined together in one action as plaintiffs or as defendants with the leave of the Court or where-

(a) if separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions, and
(b) all rights to relief claimed in the action (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions.

Order 15 rule 5(1) provides:

If claims in respect of two or more causes of action are included by a plaintiff in the same action or by a defendant in a counterclaim, or if two or more plaintiffs or defendants are parties to the same action, and it appears to the Court that the joinder of causes of action or of parties, as the case may be, may embarrass or delay the trial or is otherwise inconvenient, the Court may order separate trials or make such other order as may be expedient.

[5] The plaintiffs do not disclose a cause of action against the beneficiaries sought to be added as parties. They are only some of the beneficiaries named in the will of the testator, Jasoda Devi Sharma and they have no control over the administration of the estate. Hence, there is no purpose in adding these beneficiaries as parties to these proceedings.

[6] The orders D, F and G sought in the notice of motion are pursuant to Order 24 rule 3 and Order 29 rule 2(3) of the High Court Rules 1988.

[7] Order 24 rule 3 provides:

(1) Subject to the provisions of this rule and of rules 4 and 8, the Court may order any party to a cause or matter (whether begun by writ, originating summons or otherwise) to make and serve on any other party a list of the documents which are or have been in his possession, custody or power relating to any matter in question in the cause or matter, and may at the same time or subsequently also order him to make and file an affidavit verifying such a list and to serve a copy thereof on the other party.
(2) Where a party who is required by rule 2 to make discovery of documents fails to comply with any provision of that rule, the Court, on the application of any party to whom the discovery was required to be made, may make an order against the first-mentioned party under paragraph (1) of this rule or, as the case may be, may order him to make and file an affidavit verifying the list of documents he is required to make under rule 2 and to serve a copy thereof on the applicant.
(3) An order under this rule may be limited to such documents or classes of document only, or to such only of the matters in question in the cause or matter, as may be specified in the order.

Order 29 rule 3(2) provides;

(1) On the application of any party to a cause or matter the Court may make an order for the detention, custody or preservation of any property which is the subject matter of the cause or matter, or as to which any question may arise therein, or for the inspection of any such property in the possession of a party to the cause or matter.
(2) For the purpose of enabling any order under paragraph (1) to be carried out the Court may by the order authorise any person to enter upon any land or building in the possession of any party to the cause or matter.
(3) Where the right of any party to a specific fund is in dispute in a cause or matter, the Court may, on the application of a party to the cause or matter, order the fund to be paid into court or otherwise secured.
(4) An order under this rule may be made on such terms, if any, as the Court thinks just.
(5) An application for an order under this rule must be made by summons or by notice under Order 25, rule 7.
(6) Unless the Court otherwise directs, an application by a defendant for such an order may not be made before he acknowledges service of the writ or originating summons by which the cause or matter was begun.

[8] The plaintiffs to obtain the orders D, F and G they must show a good cause. The plaintiffs’ claim is against the estate of their father who died in 1992. The plaintiffs claim the property in question in this matter on the basis that they helped the father in the development of the property and the father promised to give this property to them. However, there is no evidence showing that the father had such an intention. The defendants’ position is that not only the plaintiffs but all the other siblings helped the father in developing the property. The 2^nd named plaintiff has in fact challenged the last will of his father before the High Court in case of Arun Prasad Sharma v Deven Prasad Sharma & two others HBC 218 of 2001. In that action the court held that under the terms of the 1991 will the plaintiff (plaintiff in that action) did not become entitled to be paid a share in his father’s estate until his mother’s death. After their mother passed away the executors and the trustees have administered her estate and given plaintiffs’ entitlement to them.

[9] The 1^st named plaintiff lodged a caveat No. 31/95 prohibiting the grant of probate and the executors and trustees of the estate of Ambika Prasad Sharma (their father) filed action No. 24 of 1993 to have the said caveat removed and the court made order removing the caveat forthwith. The Court of Appeal affirmed the decision of the High Court and the Supreme Court affirmed the decision of the Court of Appeal.

[10] One of the children of Jasoda Devi Sharma, in the capacity of next friend of Niraj Sharma, a beneficiary who was not given a share of the mother’s estate, challenged her last will in court which went up to the Court of Appeal. [Sharma v Kumar [2016] FJCA 8; ABU13.2013 (26 February 2016)].

[11] In the said case the High Court held that Clause 6 read with Clause 3 of the will entitles the beneficiaries named therein to retain rental proceeds from the estate property, after the date of death of the testatrix which was set aside by the Court of Appeal.

[12] The 2^nd named plaintiff had filed another action (HPP 29 of 2011) against the executors and trustees of the estate of Jasoda Devi Sharma seeking the following reliefs:

1. A declaration that the Plaintiff has interest in the Estate..for his personal contribution from on or about 1960 to on or about 1982.
2. A declaration that the Plaintiff has interest in the bottom one bedroom flat adjoined to the building on Lot 2 on DP No. 5132, CT 21978 and that the Plaintiff be registered as Tenants in Common on the title of the property.
3. A declaration that the Plaintiff has interest the Estate.. For loss of enjoyment of the bottom one bedroom flat adjoined to the building on Lot 2 on DP No. 5132, CT 21978 from 1991 until judgment at $300 per month plus interest of 13.5% per annum on the total sum from 1991.
4. A declaration that the Plaintiff has interest in the Estate.. for the sum of $38,500.00 plus interest of 13.5% per annum from the date when Demand for the monies were made.
5. An order that the Defendants account for all monies that are part of the Estate ...
6. An order revoking gift to DAV Girls College under the ..will.
7. An order revoking gift made to Devendra Prasad Sharma's son under the .. will.
8. An order revoking the will .. due to undue influence and/or fraud and/or due to the testatrix being of unsound mind memory and understanding.
9. A declaration that transfer of CT 21980, CT 21979, CT 21978 and Lot 1 on DP No. 5132 to (the deceased) was done fraudulently.
10. An order for the removal of the Defendants as Executors and Trustees of the Estate ...
11. An order appointing new Executors and Trustees or Administrators of the Estate ..
12. .An order restraining Executors and Trustees or Administrators appointed to administer the Estate ..from dealing with the properties contained in the Estate until the determination of the High Court Civil Action No. 165 of 2011.

[13] The High Court only granted the order (v) sought above and declined the other reliefs prayed in the statement of claim. Order (v) sought in that action is similar to the order G sought in the present action.

[14] There had been certain other actions instituted by the parties in respect of the same estate. It is therefore clear that this issue has been dealt with by various courts and the plaintiffs have not been successful in any of those litigations.

[15] It is also important to note that before the property in question was sold by the executors and trustees the plaintiffs, on 20^th June 2018 made an application seeking the following reliefs:

1. That there be an abridgment of time and the matter be heard ex-parte.
2. That the defendants and / or their servants and / or their agents refrain from selling, transferring and / or adversely dealing with any properties forming part of the estate of Jasoda Devi Sharma aka Jasoda until the determination of the plaintiff’s claims in this action.

Alternatively, if any of the properties have been sold, then the proceeds of the sale to be kept in an interesting bearing account until the determination of the plaintiff’s claim in this action.

100. That the defendant and / or their servants and / or their agents be injunct and / or restraint from transferring and / or completing the transfer of the property situated on Lot 3 on DP No. 5132, allotment 45 registered in Certificate of Title No. 21979 until the final determination of this matter.

[16] This court on 26^th September 2018 declined all the order sought in that application. The 1^st named plaintiff submitted at the hearing that the previous ruling could have any bearing on the present application which may be correct. However, the factual background and the basis of both these applications are the same.

[17] For the reasons set out above this court is of the opinion that the plaintiffs’ application is without merit and liable to be struck out.

ORDERS

1. The Notice of Motion of the plaintiffs, filed on 21^st June 2019 is struck out.
2. The plaintiffs are ordered to pay $750.00 to the defendant and $750.00 to each of the parties sought to be added.
   

Lyone Seneviratne

JUDGE

28^th February, 2020