BETWEEN:
DHARAM LINGAM-REDDY
Plaintiff
AND:
ass=MsoNormal alal align=center style="text-align: center; text-indent: -108.0pt; margin-left: 108.0pt; margin-top: 1; margin-bottom:
1"> BIMLA WATI
Defendant
Counsel: Mr G.P. Shankar for Plaintiff
Mr R. Prakash for Defendant
Hearing: 8th May 2000
Judgment: 15th May 2000
JUDGMENT
This is an application for the Plaintiff to be appointed administrator pendente lite of the estate of Adi Mullah, under section 29
of the Succession Probate and Administration Act.
The Plaintiff was the deceased’s son. The Defendant was the deceased’s wife. The Plaintiff’s writ of summons, issued on 18th January 2000 claims that a will dated 17th August 1999 in which the Defendant was made executor, trustee, and the sole beneficiary, was invalid, and revoked by a will dated
15th September 1999. The purported will of the 15th of September 1999 appointed the Plaintiff as executor, trustee and beneficiary.
The Statement of Claim, Defence and Counter-claim contain allegations and counter-allegations of fraud, influence, forgery and non-compliance
with the Wills Act. No affidavits of testamentary script have been filed, and the matter is clearly not ready for trial.
This application is made seeking the following orders:
(1) &nnbsp;; &nsp; Tsp; That the Plaintiffppo appointeinistrator of the estate ofte of Adi Mullah pendente lite.
(2) &nbbsp; That the following directirections be made:
(i) That tai Plff tiouldhculticultivate and manage the deceased’s farm;
(ii) &nbssp;&nnsp;& Tsp; That taat taintiff attend Cane Harvesting Gang Meetings and authorise rise supply of manure and payment
by the Fiji Sugar corporation of harvestxpensspan>p class=MsoNormal style="margin-top: 1;p: 1; marg margin-boin-bottom: 1"> (iii) &nbbsp; that lae Piffntubmisubmit his account for expenses incs incurred to the Court or Registrar;
(iv) ; That thi Plaf tiff be perm permitted to perform his prayers in the deceased’s temple;
(v) p;&nbbsp; That the Plae Plaintiff be authorised to occupy part of the dwelling house which hich is not occupied by the
Defendant;
>
(vi) ;&nbssp; That alat all mone moneys be held by the Fiji Fiji Sugar Corporation and only such expenses as are claimed by the
Plaintiff be paid out of it;
(vii) &nbssp; Cspan>
lang=EN-GB>The application is supporteported by d by the athe affidavit of Dharam Lingam Reddy, sworn on 9th March 2000. at affidavit, the Plaintiffntiff says that the estate comprises of a sugar cane farm (Lease No. 6228), with cane contract
No. 1516, at Rarawai, Ba. He says that he cultivated the farm for some 10 years, before the deceased’s death, and that the farm has
not been cultivated since his death. He says that labourers and cane cutters need to be engaged to remove Mana cane, and to plant
another variety. He further says that Gang meetings need to be attended and the cane properly harvested.
His affidavit is confirmed by the affidavit of Bal Ram sworn on 20th March 2000, as to the Piff’s ability to run and cultivate the farm.
At the hearing of this application, counsel for the Defendant objected to the application, saying that the relationship between the
parties was bitter, that the Defendant had no faith in the Plaintiff’s honesty, and that some third party should be appointed. He
was unable to suggest the name of a third party, but stressed the need for an early hearing.
Section 29 of the Succession Probate and Administration Act provides:
“Where any legal proceedings touching the validity of the will of a deceased person, or for obtaining, recalling or revoking any grant,
are pending, the court may grant administration of the estate of the deceased to an administrator who shall have all the rights and
powers of a general administrator, other than the right of distributing the residue of the estate, and every such administrator shall
be subject to the immediate control of the court and act under its direction.
(2) The court may, out of the e of the deceased, assign to an administrator appointed undd under this section such reasonable remuneration
as the court thinks fit.”
An administrator pendente lite is therefore not allowed to distributeresidue of the estate, but otherwise has the rights and powers
of a general administrator. tor. An application under the Succession Probate and Administration Act is expected to be supported by affidavit, containing details of the property, and the reason for the order asked for. Preventing
waste, or preserving the property of the deceased are good reasons for the grant of the order. The court may refuse the application
if there is no evidence that the person in control of the assets, was wasting the estate.
In De Chatelain -v- Pontigny (1858) 1 Sw & Tr 34, it was helt a party unconnected with the substantive action is the mohe most proper person to be appointed.
Tristam and Coote’s “Probate Practice” at page 567 states:
“A party to the suit is not as a rule appointed unless all other parties consent, but where circumstances make it desirable, the court
may appoint a party in the absence of such consent.”
In this case, I am satisfied, that the Plaintiff has shown that there is a need to appoint an administrator to cultivate the cane
farm event waste and deterioratioration. Although it appears that cane proceeds are being automatically paid to the bank as loan
repayments, it is clear that the cane needs to be replanted, harvested and subjected to cane gang agreements.
It would have been preferable to make the grant to a third person. However the Defendant has not suggethe name of such a person, and
it is clear that the partiesrties are unlikely to come to an agreement on this issue. I note that the application is supported by
an affidavit as to the character and capacity of the Plaintiff.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> In all the circumstances I am satisfied that the application should be granted on strict terms, in respect of tltivation of the farm.
I am not satisfied that there is a need for the Plai to conduct prayers in the deceased’s house, nor am I convinced of the need for
the Plaintiaintiff to live in the deceased’s house while the trial is pending.
The Plaintiff, having cultivated the farm for the 10 years, is in my view, a suitable person to administer the cane farm until the
determinarmination of this action. However he must render quarterly accounts to the Deputy Registrar (Legal) of the High Court, commencing
from 31st July 2000. Any expenses claimed by the Plaintiff must be submitted to the Deputy Registrar for taxation every quarter, commencing
from 31st July 2000. The form of the claim and accounts must comply with Order 76 Rule 14(2) and (3) of the High Court Rules.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> I note that the parties have not complied with Order 76 Rule 5 of the High Court Run that no affidavits of testamentary scripts have
been file filed. There is clearly a need to expedite these proceedings. I order the Plaintiff and Defendant to file affidavits of
testamentary script within 14 days. The matter will be called before the Deputy Registrar on 7th June 2000 to ensure compliance.
Any cane proceeds not paid to the Bank, must be held by the Fiji Sugar Corporation pending the hearing of this case, allowing only
for the payment of expenses as approved by the Registrar. I make no order for remuneration under section 29(2) of the Act since the
Plaintiff made no application for any such remuneration over and above expenses related to the running of the farm.
I therefore order in terms of paragraphs 1, and 2(1), (2) and (3) and (6) of the Motion dated 16up> March 2000. I refuse 2(4) and (5) of the Motion.span>
Costs are in the cause.
Nazhat Shameem
JUDGE
At Suva
15 May 2000
HPP0002J.00S
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