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In re the Estate of Shiu Shankar; Nand v Ram [1995] FJHC 22; HPP0015d.1994s (26 January 1995)

IN THE HIGH COURT OF FIJI
AT SUVA
PROBATE JURISDICTION

ACTION NO. HPP0015 OF 1994

IN THE ESTATE of SHIU SHANKAR
also known as SHIU SHANKAR MAHARAJ
son of Ram Nandan Late of Fiji, Curio Vendor, Deceased.

AND

IN THE MATTER of Distribution of the property under section
38, 39 and 40 of the Succession, Probate and Administration Act, Cap. 60

Between:

PARMA NAND
s/o Shiu Shankar
Plaintiff

- and -

SHIU RAM
s/o Shiu Shankar
Defendant

Mr. H. M. Patel for Plaintiff
Mr. M. V. Bhai for Defendant

DECISION

By Motion dated 21 November 1994 the defendant is seeking an order to strike out this action or to dismiss the action with costs on the grounds that (a) it contravenes the provisions of Land Transfer Act Cap. 131 and (b) "the whole procedural matter embarked upon by the Plaintiff is wrong and any Order made even for open Court will be irregular" as "the wrong process has been issued".

The defendant deposes in his Affidavit in Reply that the reasons for striking out the application is "ill-conceived and wrong in law".

In this action by Notice of Motion dated 10 March 1994 the Plaintiff has prayed for the following orders:

"(1) The Defendant who is the sole executor and Trustee of the Estate of Shiu Shankar do execute a transfer of half share in Certificate of Title No. 6722 and as required under section 38 and 41 of the Succession Probate and Administration Act, Cap. 60.

(2) The Defendant do file within 28 days an inventory and accounts in Estate of Shiu Shankar f/n Ram Nandan as required under section 39 of the said Act."

After several appearances in chambers by both counsel, the defendant's counsel sought time to prepare the accounts herein; the matter was then set down for argument on 14 September 1994. Both counsel agreed to have the accounts sorted out with the assistance of their respective accountants. Some accounts were filed but the Plaintiff was not happy with it and the matter was adjourned to 16 November 1994 when Mr. Bhai said that he wants to apply to strike out the action. Hence the present application.

Mr. Bhai's argument is that the procedure of proceeding by way of Motion for the reliefs sought in this action is irregular as it contravenes the provisions of Orders 5 and 85 of the High Court Rules. He says that Mr. Patel should have begun by either a Writ of Summons or Originating Summons. He argues that even the provision of Order 28 r 9 cannot be invoked as the Motion cannot be changed to Writ but the Originating Summons can. He cited no authority for this proposition. Mr.Bhai abandoned his ground that the procedure contravened the provisions of the Land Transfer Act.

Mr. Patel submits that 38 of the SUCCESSION, PROBATE AND ADMINISTRATION ACT Cap 60 allows the "devisee or legatee" to apply to court in certain cases for an order to "execute a transfer of land devised to a devisee" etc. He says that even under s40 if accounts are not filed the Registrar can give notice; and in s41 the court may settle all questions arising in administration . He says that Order 85 does not apply as this is not a 'Probate Action' and under the said section 38 the Plaintiff can apply for an order by 'motion' or 'Summons' and there is no need to commence by 'Originating Summons'. Mr. Patel says that it is under Order 5 Rule 5 set out below that he has applied:

"5. Proceedings may be begun by originating motion or petition if, but only if, by these rules or by or under any Act the proceedings in question are required or authorised to be so begun".

In this case Probate No.23564 of the Will dated 31 January 1981 of SHIU SHANKAR s/o Ram Nandan the deceased (the father of the parties to this action) was granted to the defendant who is the sole executor and trustee named in the Will.

The action was commenced by Mr.Patel by way of Motion seeking an order for transfer of half share to Plaintiff in CT.6722 and an account taken of the administration of the estate.

From the Affidavits filed in the hearing of the Motion it is clear that there are major disputes as to accounts and this cannot be resolved on this Motion and without a hearing in open court. I also observe by reading item 5 of the Will that facts will have to be traversed and evidence adduced to ascertain whether the administration of the estate has reached the stage to enable the property in question to be transferred to the Plaintiff.

Mr. Patel seeks to invoke the provisions of s.38 of Cap 60 and seeks the court's order for transfer of the Plaintiff's share of the said property to him. It is doubtful whether the Plaintiff is a "devisee" or a "legatee" to enable him to invoke this section. Even s.39 to which he referred does not assist him in regard to "inventory and accounts" for that section talks about the Registrar's powers. It is my view that it is section 41 which is relevant here which states: -

"41 - (i) The court may make such order with reference to any question arising in respect of any will or administration, or with reference to the instructions or application of any real or personal estate which an executor or administrator may have in hand, or as to the residue of the estate, as the circumstances of the case may require ..................".

The question in this case therefore is what is the proper procedure which should be adopted in this case.

This certainly is not a case which falls within the definition of "probate action" which is defined in Or.76 r.1(2) as meaning:

" ............... an action for the grant of probate of the Will, or letters of administration of the estate, of a deceased person or for the revocation of such a grant or for a decree pronouncing for or against the validity of an alleged Will, not being an action which is non-contentious or common from probate business".

Under Order 76 r.2(1) a probate action must be begun by writ.

I hold that Order 76 is not applicable to the issues in the present proceedings.

It is my view that issues which fall to be decided under the Plaintiff's said Notice of Motion seem to me to come within the purview of Order 85 which deals, inter alia, with the determination of any question arising in the course of administration.

Under Order 85 r2(2) an action may be brought for the determination of, inter alia, any of the following questions:-

"2 (a) any question arising in the administration of the estate of a deceased person or in the execution of a trust;"

"3 (a) an order requiring an executor, administrator or trustee to furnish and, if necessary verify accounts;"

"3 (c) an order directing a person to do or abstain from doing a particular act in his capacity as executor, administrator or trustee".

These are matters which in this case require the court's determination. So, for the procedure to be adopted in instituting proceedings in this regard it is pertinent to refer to the following passage from the notes to order 85 in THE SUPREME COURT PRACTICE 1979 Vol. 1 P. 1304 which states that an originating summons will normally be the correct document:-

"Unless the plaintiff's claim is based on an allegation of fraud an originating summons will normally be the correct document for initiating proceedings with regard to the domestic affairs of an estate or trust (O. 85, r. 4). If, however, the proceedings relate to a breach of trust or wilful default on the part of a trustee which can be specified with some precision and there is likely to be substantial dispute of fact, the proceedings should be commenced by writ so that the trustee shall have available to him full machinery for discovering precisely the charges against him (Re Sir Lindsay Parkinson & Co., Ltd. Settlement Trusts, [1965] 1 W.L.R 372). (underlining mine for emphasis).

The notes further state that:

"Should evidence of fraud by a defendant emerge in the course of proceedings commenced by originating summons or for some other reason it becomes apparent that the proceedings ought to continue as though commenced by writ, it will not be necessary to start fresh proceedings; the existing proceedings can be continued, as if begun by writ, pursuant to an order under O.28, r. 8 (Re Deadman [1971] 1 W.L.R. 426; [1971] 2 All E. R. 101)". (underlining mine for emphasis).

Under Order 85 r. 4 which provides as follows, the court has the power to make an order under Order 28 rule 9 (providing for continuation of proceedings as if cause or matter begun by Writ) in relation to the action:

"Order 85 r.4 - In an administration action or such an action as is referred to in rule 2, the Court may make any certificate or order and grant any relief to which the plaintiff may be entitled by reason of any breach of trust, wilful default or other misconduct of the defendant notwithstanding that the action was begun by originating summons, but the foregoing provision is without prejudice to the power of the Court to make an order under Order 28, rule 9, in relation to the action".

On the authorities and the Rules it is clear that an application of the nature before me is to be made by originating summons; and when the facts are in dispute, and the procedure of originating summons and affidavit evidence turn out not to be suitable (Order 5 r 2 and 4) a direction may be given to direct the originating summons to be as a Writ and give directions for pleadings (by statement of claim and defence) and consequential direction (PROBATE AND THE ADMINISTRATION OF ESTATES - A PRACTICAL GUIDE BY ROSSDALE P.265; Order 28 r 9). I think, it is convenient that I should at once state what Order 28 rule 9 reads. It provides:

"Order 28 r.9 (1) Where, in the case of a cause or matter begun by originating summons, it appears to the Court at any stage of the proceedings that the proceedings should for any reason by continued as if the cause or matter had been begun by writ, it may order the proceedings to continue as if the cause or matter had been so begun and may, in particular, order that any affidavits shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof".

Mr. Bhai says that the procedure adopted by Patel is wrong and any orders made hereunder will be irregular.

Evidently Mr. Bhai has overlooked the provisions of Order 2 r 2 which provides:

"Or.2 r.2(1) An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity". (underlining mine for emphasis)

In this regard Mr. Bhai did not point a finger at the alleged irregularity at any time and instead assured the Plaintiff that the defendant is willing to transfer to him his share in the said property and had also agreed to accounts being taken and which in fact had taken place at no doubt considerable expense to both parties. Now when Mr. Patel wants certain items in the accounts resolved in open court Mr. Bhai changes his attitude towards the matters in issue and raises this rather technical point as to the form of the action. I cannot allow this to happen.

Again Mr. Bhai has ignored Order 2 r.1(1) in regard to the effect of non-compliance with the requirements of the Rules as the to "form". The said Rule 1(1) reads:-

"Or.2 r.1 (1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings any step taken in the proceedings, or any document, judgment or order therein". (underlining mine for emphasis)

A matter similar to the one before me came to be dealt with by the Fiji Court of Appeal on 17 November 1994 in the case of BRIJ RAM v MICHAEL BAN DEO (F.C.A. No. 49/94) which was a probate action. There JUSTICE THOMPSON J.A. said that Order 76r1(1) "provides that the other provisions of the High Court Rules apply to probate actions subject to the provisions of Order 76". He also referred with approval to Order 2 r1(1) referred to hereabove.

Similarly, in this case the fact that the proceedings had not been begun by originating summons should not nullify the proceedings. Even Or. 2 r1(3) provides to this effect as follows: -

"Or.2 r 1 (3) The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these Rules to be begun by an originating process other than the one employed".

Just as in the case of the said probate action THOMPSON J.A. rejected the argument that Or.76 r.2 .overrides Or.2 r.1 rendering the proceedings null and void, similar considerations apply to the case before me. However, I must point out that His Honour did say that his Lordship in the lower court "should have required the Plaintiff (the respondent in these proceedings) to put his house in order by lodging a writ of summons and taking such other steps thereafter as were required of him by Order 76". He said that the "ameliorating" provisions of Or.2 r.1 "are as much required in respect of probate action as in respect of any other proceedings. There is nothing in the nature of probate actions that renders the application of these provisions inappropriate or that is likely to lead to it impeding the proper adjudication of the claims in these actions". His Honour said that "because of Or.2 r.1 the learned trial judge was correct not to strike out the claim because of the originating process by which it was commenced instead of by writ".

Therefore, bearing in mind what I have said hereabove, in my view, in this case, although the procedure by way of Motion is irregular it is not fatal particularly in view of said Order 2 r.1(3). And although Rule 85 favours proceedings to be begun by originating summons and allows for invoking Order 28 r.9, I consider that in the interest of justice and in the circumstances of this case, without in any way wanting to create a precedent, this irregularity can be cured by the exercise of court's discretion and its inherent powers by treating the Motion as Originating Summons and then giving directions under Order 28 r.9. In other words, it should not be necessary for the Plaintiff to start this action afresh for to order that to be done will serve no useful purpose and the issues will be the same. I am strongly inclined to this view because of such a long delay on Mr. Bhai's part in making this application which has not been made "within a reasonable time". I have already spoken on this hereabove. I do not consider that any injustice could possibly be done to the defendant by allowing the Plaintiff to continue with his action as commenced.

To conclude, I find that under the Rules and on the authorities, it is permissible for me to adopt the line I have indicated and which I intend to adopt. However, assuming I am held wrong in my approach to this matter and in the stand that I have decided to take on this application, I take comfort in and adopt the following passages from the case of GSA INDUSTRIES PTY LTD v NT GAS LTD (1990) 24 NSWLR p.710 (C.A.) here at p.714 KIRBY P said:

"I part with this case with an indication that the rules of the Construction List, as the rules governing this Court, as any Division of the Supreme Court (or, indeed, of any court or tribunal) are there to serve the interest of justice. They are not designed to lock judges or members of tribunals, referees, arbitrators or others into an inflexibility which prevents the consideration of the merits of the particular case and frustrates the achievements of substantial justice as the special circumstances of each case require.

It is essential in each case that the considerations of justice should be borne in mind. A degree of flexibility should be preserved to take account the human errors and mistakes which sometimes lie in the path of litigation. Even Homer nodded. In the event that, seeking to comply with his Honour's order to supply statements by 4 p.m. tomorrow, the claimant faces difficulty in achieving a full compliance, it would be open to the claimant to apply again to his Honour for further variation of that order. What his Honour would then do would be a matter for him. But he would doubtless bear in mind that was said long ago "the rules must be the servant not the master of the Court": Clune v Watson (1882) Tarl 75; cf Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 8 NSWLR 104 at 108". (underlining mine)

Also MASTER JACOB IN 23 CURRENT LAW PROBLEM 1973 at page 25 said:

"The inherent jurisdiction of the Court may be exercised in any given case, notwithstanding that there are Rules of Court governing the circumstances of such case. The powers conferred by Rules of Court are, generally speaking, additional to, and not in substitution of, powers arising out of the inherent jurisdiction of the Court. The two heads of powers are generally cumulative, and not mutually exclusive so that in any given case, the Court is able to proceed under either or both heads of jurisdiction".

(underlining mine).

For the reasons given hereabove, the defendant's application is dismissed. However, for failure of the plaintiff to commence his proceedings by the proper originating process, I order that each party bear his own costs of these proceedings and I so order.

I further order that the Plaintiff's Motion be treated as originating summons in conformity with Order 85 r.4 discussed hereabove and thereafter the court to give direction under Order 28 r.9 as to the future conduct of the action. For the purpose of giving direction I direct both counsel to appear before me on a date to be assigned.

D. PATHIK
JUDGE

At Suva
26 JANUARY 1995.

HPP0015D.94S