IN THE HIGH COURT OF FIJI
AT SUVA
PROBATE JURISDICTION

PROBATE ACTION NO. 75 OF 1994

Between:

BIMAL DEO
s/o Dharam Deo
Plaintiff

- and -

SURESH PRATAP
s/o Ram Pratap
Defendant

Mr. D.S. Naidu for the Plaintiff 
Mr. A. Khan for the Defendant

JUDGMENT

By Originating Summons dated 4 October 1994 the Plaintiff (P) is seeking an order that the Defendant (D) be removed and discharged as sole executor and trustee of the Estate of his father Dharam Deo son of Mahabir late of Namaka, Nadi, labourer.

The Plaintiff states that he is making this application under section 4(1) of the Trustee Act Cap. 65 and under the inherent jurisdiction of this Court. The said section provides inter alia for appointment of new trustee in cases where he refuses to act and is unfit to act therein. However, the issues for the court's determination are as set out in the minutes of Pre-trial Conference held on 28 April 1995 which are as follows:

The Agreed facts

1.	THAT the Defendant is the sole Executor and Trustee of the Estate of Dharam Deo.

2.	THAT the Plaintiff is the sole beneficiary of the Estate of Dharam Deo.

3.	THAT pursuant to the Will of Dharam Deo, the Defendant was to transfer all real property and the remainder and residue of the personal property belonging to Dharam Deo to Bimal Deo upon Bimal Deo attaining the age of 21 years.

4.	THAT the Estate comprises of CT 12967 situated at Namaka, Nadi.

The Issues

The issues which are in dispute and are to be determined are:-

1.	WHETHER the Defendant is entitled to be reimbursed for personal moneys alleged to have been spent on the Estate and the Plaintiff by him as Executor and Trustee.

2.	WHETHER the Defendant was authorised or under a legal duty to expend personal moneys on the Estate of Dharam Deo or on Bimal Deo.

3.	WHETHER the Defendant has failed to carry out his duties as Executor and Trustee in the management of the Estate of Dharam Deo.

The Plaintiff's case

The Plaintiff gave evidence in support of his claim.

Under the Will of late Dharam Deo, (hereafter referred to as the "deceased") who died on 26 May 1984, D was appointed the sole executor and trustee of his estate.

Probate of the Will (No.20292) was granted on 14 September 1984 and the Plaintiff is the sole beneficiary in the estate; the only property is land comprised and described in Certificate of Title No. 12967 (hereafter referred to as the "said property"). Under the Will D was to transfer the residue of the real and personal property to P when he attains the age of 21 years. The Plaintiff was born on 15 January 1969 and was 15 years 4 months old at the time of the death of the deceased.

The Plaintiff states that since his father's death, D had been administering the estate and had been letting out the said property on rent.

The Plaintiff's complaint is that the Defendant has neither transferred the said property to him in terms of the Will nor has he given an account of the estate.

The Plaintiff states that D has not properly accounted for the rent received by him for the residential property rented out before it was demolished. He denies that the estate is indebted to the defendant. He says that since he was educated under the AIDAB Scholarship in Australia, D has not spent any monies on him. The Plaintiff claims to have worked for D in Australia over a certain period and he claims that he should have been paid $57,232.00 and he has given details of how it is made up. He denies that D spent his personal funds on him. The Plaintiff says that the said property has been left vacant since 1993 and no income is derived therefrom.

The Plaintiff is therefore asking for the transfer of the said property to him and that D should provide a detailed account of the "affairs in the Estate".

The Defendant's case.

Evidence was given on behalf of the Defendant by SATYAWAN (DW2) and LAL DEO (DW3).

In response to the Plaintiff, the Defendant testified, inter alia, that he supported the Plaintiff in Fiji and Australia out of his own personal funds as the estate did not have sufficient funds. He says that not until his personal account is settled will he transfer the said property to the Plaintiff. He says that the estate is indebted to him in the balance sum of $48,400 made up as follows:

Monies spent by S. Pratap from 
26/5/84 to 1986 in respect of
above estate.					$3,000.00

Paid Solicitors fee on Probate		500.00

" Airline Ticket to Australia
for Vimal					2,000.00

Accident in Australia by Vimal - paid		4,900.00

From 1986 to 1992 (Paid education and
living expenses in Australia for Vimal)
at $8000.00 pa				48,000.00

Total						$58,400.00

Less received rental for Mini Market
at Namaka, Nadi				10,000.00

Total balance					$48,400.00

The witness SATYAWAN (DW2) testified that he was asked by the defendant to be caretaker of the deceased's said property. The DW2 showed to Court photographs of the dwelling which comprised of two bedrooms and a kitchen by measurement 17 feet wide by 22 feet long approximately. He said that he repaired the said building with his own funds costing $40 to $50 after it was damaged in hurricane in 1986. He left in 1987; but because the defendant was going to utilise the property for letting out on rent he was asked to demolish the building which he did. He said that the value of the material would be $200 and the defendant gave the material to him.

The DW3, a brother of the deceased says that he has land next door to the property in question. The deceased's house was built in 1945 at a cost of thirty pounds (sixty dollars) in his opinion. It was damaged in hurricane. The DW3 values his own vacant land at $15000.

The determination of the issues

Despite an order to file written submissions after the hearing the learned counsel for the Plaintiff did not file one; Mr. Khan did not file one either. Both counsel should explain their disobedience to the said order.

It would be convenient to deal with all the issues together.

I find as fact and it is not in dispute that there was only the said property which was to have been transferred to the Plaintiff under the Will upon the Plaintiff attaining the age of 21 years and that would have been on 15 January 1990. In terms of the Will dated 6 July 1982 the defendant was also to "maintain, educate and look after" the Plaintiff. At the time of the death of the deceased the Plaintiff was 15 years of age and when he went to Australia in 1988 he was over 19 years old. The house on the said property was very old and it was demolished to enable the Defendant to let it out on rent to Nadi Town Council. There is some dispute as to the value of the house, but it is clear that it was a very old building and not of any great value and certainly not what the Plaintiff maintains it was worth.

The Defendant was appointed the executor by the testator by his said Will to administer the testator's property and to carry into effect the provisions of the Will. The fact that D obtained a grant of probate shows that he accepted the office of executor.

As far as the personal representative's liabilities are concerned he is liable to the beneficiary on a devastavit. The nature of devastavit is expressed in Hals. 4th Ed. Vol. 17 para 1542 thus:

"A personal representative in accepting the office accepts the duties of the office, and becomes a trustee in the sense that he is personally liable in equity for all breaches of the ordinary trusts which in courts of equity are considered to arise from his office. The violation of his duties of administration is termed a devastavit; this term is applicable not only to a misuse by the representative of the deceased's effects, as by spending or converting them to his own use, but also to acts of maladministration or negligence." (underlining mine for emphasis)

In this case I am concerned with D's administration of the estate and that also involves his duty to keep accounts. In HALSBURY (supra) at para 1351 it is stated that "it is the duty of personal representative to keep clear and accurate accounts, and always to be ready to render such accounts when called upon to do so."

As executor it was incumbent upon the Defendant to perform his duties under the terms of the Will which was particularly firstly, "to maintain, educate and look after" the Plaintiff and secondly, to transfer the said real property when the Plaintiff attained the age of 21 years.

On "firstly" above, I find as fact that the Plaintiff who was 15 years of age at the time of the death of the deceased was maintained and educated in Fiji by the defendant; thereafter he went to Australia for further education under AIDAB scholarship when he was just over 19 years of age. As far as "educating and maintaining" the plaintiff in Fiji is concerned the Defendant did fulfil his duties as executor. If the defendant sent him to Australia for higher education, which I find as fact that he did not, he was not required to do so on any interpretation of the terms of the Will when there was insufficient funds (which he admitted) in the estate. In any case, there was no need to send him to Australia as in 2 years' time the Plaintiff would have been 21 years of age and the defendant would have had to transfer the estate property to him under the terms of the Will. Hence there would have been no need to spend money on him. I am also of the view it was not the intention of the testator when he stated that the executor "educate" the Plaintiff that the executor spend thousands of dollars of his own funds to send the beneficiary to "Harvard" so to say when the estate could not afford to do so. I find that the defendant created the problem himself if he did spend his own money on the beneficiary but I find that he did not when he was overseas. What he should have done was to have kept the beneficiary in Fiji and waited until he was 21 years of age and then transfer the said property to him for those were the two things he was expected to do under the provisions in the Will.

The defendant claims the sum of $48000 from 1986 to 1992 for education and living expenses in Australia for the Plaintiff at $8000 per annum. There is no acceptable proof of this sum having been spent on the evidence before me. Similarly, I am not satisfied that the Plaintiff was to have been paid $57232.00 for wages which he now claims; I find that now that the defendant is claiming $48400 the Plaintiff decided to make up a claim. Why did he wait so long to claim? Did he ever raise this matter before? I do not think I will be wrong if I said that he did not expect to be paid as he also stayed at the Motel in which the defendant had a share free of charge and merely assisted during vacation from his studies. I therefore disallow the Plaintiff's said claim and also the defendant's said claim. 

On the evidence before me I will allow the following items of expenditure by the defendant which shows a balance of $3204.93 payable by the Plaintiff to the Defendant:

$
(a) 1984	Funeral expenses
& Maintenance	1000.00

Education in Fiji	1000.00

Rates NTC		123.25

Probate fee		  500.00	$2623.25

(b) 1985	Food & Education
in Fiji			1000.00

Rates NTC		123.25  	$1123.25

(c) 1986	Airline Tickets	500.00

Cash draft		2000.00

Rates NTC		123.25 	$2623.25

(d) 1987	Rates NTC		174.95 	$ 174.95

(e) 1990	Accident
Dr. Samy's car		4800.00	$4800.00

(f) 1991	Airline Ticket
paid for by defendant	845.00 	$ 845.00

(g) 1992	Airline Ticket
paid for by defendant	774.00 	$ 774.00

(h) 1993	Rates NTC		241.23 	$ 241.23

$13204.93

Less Received by defendant by way of Rent from
Nadi Town Council 1988 to 1992 at $2000 per year	$10000.00

Balance payable by Plaintiff				$3204.93

The nett result of the above accounts is that the Plaintiff owes the defendant the sum of $3204.93. Evidently the Nadi Town Council rates for 1993 to 1995 amounting to $752.46 is still owing. The Plaintiff will have to pay this or such other sum due for rates.

To conclude, for the reasons given above, the defendant I find ought to have transferred the said property after taking accounts when the Plaintiff attained the age of 21 years. This was not done and delay has therefore been caused in this regard. The defendant has therefore not complied with the terms of the Will of the deceased as far as the transfer of the said property is concerned.

I therefore order that the defendant as executor and trustee of the estate of the deceased immediately upon payment to him of the said sum of $3204.93 transfer to the Plaintiff as beneficiary under the Will the said property. In view of the nature of the order that I have made it is not necessary for me to remove the defendant as trustee as prayed for by the Plaintiff.

The Plaintiff therefore succeeds in his action. In view of the nature of the case each party is ordered to bear his own costs.

D. Pathik
Judge
At Suva
31 January 1996
HPP0075J.94S