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Mati v Devi [2002] FJHC 78; HBC0242R.2002S (1 November 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ACTION NO. HBC0242R OF 2002S

BETWEEN:

INDAR MATI
(f/n Shiri Govind) of Bhindi Road, Samabula, 3 miles, Suva,
Domestic Duties as the Administrator in
The Estate of SHIRI CHAND (Nohar Jagroop).
PLAINTIFF

AND:

SAVITA DEVI
(f/n Shiri Chand) of Wailoku,
Tamavua, Supervisor.
DEFENDANT

For the Plaintiff: Ms R. Shoma Singh Devan, Patel Sharma & Associates
For the Defendant: N/A

Date of Ruling: 1st November, 2002
Time of Ruling: 9.30 a.m.

RULING

The plaintiff is the administrator of her late husband Shiri Chand's (f/n Nohar Jagroop) estate by a Grant dated 11 April, 1988. The estate of the deceased consists of a residential property on Bhindi Road, Samabula, Suva on land comprised in CT 13382, Lot 3 DP 3453. The said property was transferred (Transmission by Death No. 259491) to the plaintiff on 10 May 1988.

The defendant, the daughter of the deceased from his earlier marriage, is one of the 6 children of the deceased and beneficiaries under the estate, apart from the plaintiff.

An ex-parte motion with supporting affidavits was filed on 11 June 2002 by the plaintiff seeking various reliefs against the defendant for actions set out below. It was made inter partes by the Court with an Order that all documents be served on the defendant and adjourned for hearing on 26 August, 2002.

In the meantime affidavits in reply was filed by the defendant on 5 August and the plaintiff's affidavit in response duly filed on 13 August 2002.

Neither the defendant nor her Counsel appeared at the hearing on 26 August notwithstanding service of notice of hearing by the plaintiff.

In her indorsement of claim, the plaintiff states that the defendant had unlawfully evicted her and her 2 daughters from the residential premises forcing her to live in an adjoining shelter, while renting out the property to tenant and retaining the income. In addition, the defendant has removed items and materials (wooden doors and iron grills) from the house and threatens to remove all corrugated irons and wooden partitions from the property.

The plaintiff argues, that unless the defendant is restrained, the latter will continue to dismantle the building and while preventing the proper administration of the property.

The plaintiff seeks the intervention of the Court in the following manner:

"1. AN ORDER that the defendant whether by herself or by her servants, agents or associates or any power of attorney holder be restrained until further Order of the Court from in any manner interfering, dismantling, destructing (sic: destroying) or otherwise from selling, transferring, letting out or in any other manner using or dealing with the residential premises situated at Bhindi Road, Samabula, in Certificate of Title No. 13382, being Lot 3 on DP 3453.

2. AN ORDER that the defendant give immediate vacant possession of the residential premises being comprised in Certificate of Title No. 13382 being Lot 3 on DP 3453 situated at Bhindi Road, Samabula to the Plaintiff for purposes of administration.
   
3. AN ORDER for the preservation of the property being the residential premises situated at Bhindi Road, Samabula in Certificate of Title No. 13382, being Lot 3 DP 3453, until the further Order of this Honourable Court."
   

In her affidavit in reply, the defendant states that she is a beneficiary of the estate of her late father, in addition to her 5 brothers and sisters as well as the plaintiff. Further, the defendant has tendered documents which shows that 3 of the beneficiaries have renounced their interests in the estate in favour of the defendant.

According to the defendant, she has carried out substantial developments to the property in 1997 when she built a 2-flat extension which are currently rented out. The value of the property in her estimation is approximately $70,000.00. To protect her interest in the property, she had lodged a Caveat against any dealing in the land in question, but had failed to extend the life of the Caveat, after having received the Registrar of Titles notice under s.110(1) of the Lands Transfer Act (Cap. 131).

The defendant further argues that the plaintiff, who, as the administrator of her father's estate, has not always acted in the interest of the beneficiaries. She points to the fact that nothing has been done, since the grant in 1988 to transfer the shares in the property to the beneficiaries. They have all come of age and their shares are as set out in accordance with section 6(i)(c) of the Succession, Probate and Administration Act (Cap 60). She further alleges that the plaintiff had forcefully evicted her from the property.

This sadly is a family squabble that with proper and timely counsel should not have found its way to the Courts. The issues are straight-forward. First involves the duties and powers of the administrator, the plaintiff. Second concerns the rights of the beneficiaries.

Duties and Powers of Administrator

The Administrator is the trustee for all the beneficiaries, including herself, of the estate. Generally speaking, a trustee's duties and powers are imposed by the terms of the instrument of trust. In addition, or in absence of such an instrument, there are general duties and powers which are implied by law and manifest themselves in case law. There are also statute laws and the inherent jurisdiction of the Court.

As far as Fiji is concerned, statute law is to be found in the Succession, Probate and Administration Act (Cap 60) and the Trustee Act (Cap. 65). They provide direction and guidance for executors and administrators alike either of their own or acting in the capacity as trustees for beneficiaries, and how they should conduct themselves. For example, Part III of the Succession, Probate and Administration Act, lays down the rules governing distribution of real and personal estate of intestate as well as the Order of Succession. Again Part V of the Act deals with the general administration of the estate including the rights of the executor/administrator.

The provisions of the Trustees Act provides in great details the duties and powers that executors and administrators of estates possess in their capacity as trustees.

Rights of the Beneficiaries

While the executor/administrator owes a duty of care to the beneficiaries in carrying out her or his duties, the beneficiaries for their part are entitled to demand proper accounts and full information on the estate from the executor/administrator. Sections 39 and 40 of the Succession, Probate and Administration Act imposes a duty upon the person to whom probate or administration is granted to file an inventory of the estate with the Registrar. The Court may, in the exercise of its inherent jurisdiction, direct the trustee to furnish accounts of the estate to the beneficiaries. It is established law that a trustee must be ready to render accounts when required by the beneficiaries or even by persons authorised by the beneficiaries: Manning v Commissioner of Taxation [1928] ArgusLawRp 33; (1928) 40 CLR 506.

In the present case, the plaintiff is demanding that the defendant who is also one of the beneficiaries, desist from interfering with the performance of her duties as the administrator of the estate and trustee of the beneficiaries. In this respect, she is well within her rights under law to be permitted unimpeded from exercising her powers as well as her responsibilities.

On the other hand, the Court will only intervene should it be shown that in the exercise of her discretionary powers, the plaintiff is acting mala fide (see: Re Stead's will Trusts [1960] EWCA Civ 2; [1960] 1 ALL ER 487) or has misconceived the nature of her discretion and is acting on that misconception.

It is clear from the affidavit evidence filed by both parties that there is a very unhealthy relationship between the plaintiff and the defendant, her step-daughter. The plaintiff has not only got children of her own, but has sat on the grant of administration since May 1988, some 14 years ago. In the meantime, all the beneficiaries have reached 21 years, and some have migrated overseas.

The question is whether the plaintiff owes a duty to the beneficiaries to advise them of their rights under the law upon their attaining the age of twenty-one. This issue was fully explored in Hawksley v May and Others {1955} 3 ALL ER 353. After considering relevant English authorities on the issue the Court held that a trustee was under a duty, upon the beneficiary attaining the age of twenty-one, to not only inform the beneficiary of his benefits under the trust instrument, but also to disclose to beneficiary on demand details of the trust. The Court further held that the beneficiary had a right to receive income on attaining majority and that the trustee has a duty to pay income and capital without a formal demand by the beneficiary.

In the present case, the plaintiff as the administrator of the estate owes all the duties of a trustee as detailed in Hawksley vs May and Others (supra) to inform the beneficiaries of their entitlements, upon their attaining the age of twenty-one. And as the administrator she is bound by law to distribute the estate of the deceased upon demand by the beneficiaries. It is not, contrary to her belief as set out in her affidavits, something she can hold on to for the rest of her life. She owns only one-third of the share in the estate. The balance she holds as trustee for the children, who are entitled upon attaining majority to their share. Quite obviously, the plaintiff has misconceived the nature of her discretion and is acting on that misconception. It is under the circumstances, an appropriate case for the Court to intervene.

In respect of these proceedings therefore the Court makes the following orders:

1. That the Defendant be and is hereby restrained from interfering with the administration of the estate and more specifically, in respect of the residential property situated at Bhindi Road, Samabula on land comprised in CT 13382, Lot 3 DP 3453, until further Order of the Court.
   
2. That the defendant immediately vacate possession, excepting the 2 flats on rent, of the residence on land comprised in CT 13382, Lot 3 DP 3453 until further Order of the Court.
   
3. That proceeds from the rent of the 2 flats be paid into the Counsel for the plaintiff's (Patel Sharma & Associates) trust account and be kept there until further Order of the Court.
   
4. That the plaintiff, within 21 days obtain from a registered reputable valuer, a proper and full valuation of the property otherwise known as the land comprised in CT 13382, Lot 3 DP 3453, Bhindi Road Samabula, and such report to be filed in Court immediately.
   
5. That the plaintiff file her Statement of Claim and served on the defendant within 14 days.
   

The matter to take its normal course thereafter.

Costs in the cause.

F. Jitoko
Judge

At Suva
1^st November 2002