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Sokiveta v Sokiveta [2004] FJHC 306; HBC0306j.2003s (31 August 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0306 OF 2003

IN THE MATTER of the Succession, Probate and
Administration Act Cap. 60

Between:

MUSUDROKA DREKE SOKIVETA
Plaintiff

and

SAILOSI RAKANACE SOKIVETA
VIRISILA RAKANACE
VILIAME MAQORA SOKIVETA
ATTORNEY-GENERAL OF FIJI
REGISTRAR OF TITLES
Defendants

Mr. R. Matebalavu for the Plaintiff
Mr. R. Naidu for 1st, 2nd and 3rd Defendants
Ms. N. Karan for 4th & 5th Defendants

JUDGMENT

By originating summons dated 24 July 2003 the plaintiff seeks a declaration, an order and an injunction as follows (as stated in the summons):

1. Declaration
   

An Order that the Plaintiff Musudroka Dreke Sokiveta is the lawful successor in title to the property comprised in Registered Lease 242035 Lot 14 Deposited Plan 4294.

2. Order
   

An Order that the First Defendant Sailosi Rakanace Sokiveta as Administrator of the Estate of Saiasi Colauto Sokiveta forthwith transfer Registered Lease 242035 and all estate and interest therein to the plaintiff Musudroka Dreke Sokiveta absolutely.

On 29 July 2003 an injunction was granted as prayed in items 3 and 4 of the summons.

The summons was supported by the affidavit of the plaintiff. It was opposed by the second defendant.

Background facts

The background history of the case is as set out in Mr. Matebalavu’s written submission at p2 as follows:

1. Saiasi Sokiveta (“the deceased’) died intestate in 2001, leaving as part of his estate the residential property comprised in Lease 242035 Lot 13, Vesivesi Road, Kinoya. (Exhibit “MDS 5”).
   
2. the deceased also left an issue, the plaintiff, as the only child of his marriage to one Arieta Sokiveta the latter having predeceased him in 1998 . (See Exhibit “MDS 1”).
   
3. the 1st, 2nd and 3rd defendants are children of the deceased from a prior marriage.
   
4. the deceased and the mother of the 1st, 2nd and 3rd defendants were divorced 28 years prior to his death, in June 1973. (Exhibit “MDS 7”)
   
5. The plaintiff’s mother and father (the deceased) married in November 1973. (Exhibit “MDS 4”)
   
6. None of the 1st, 2nd or 3rd defendants ever lived on the subject property, which was acquired/registered in 1986, while the plaintiff has resided in its since such acquisition.
   
7. In 2001 the 1st, and 2nd defendants sought to persuade the plaintiff to purchase the “shares” of the 1st, 2nd and 3rd defendants in the property and as a condition for his continuing occupation. However, simultaneous with such attempt, the 1st defendant took out Letters of Administrator to the deceased’s estate. It resulted in registration on the lease title of transmission in favour of the 1st defendant (See Exhibit “MDS 8” and MDS 3”)
   
8. the deceased settled on the subject residential property in or about 1981. (See Exhibit “MDS 3”).
   

The issues

The issues for Court’s determination are:

Is the Plaintiff a sole successor in title to registered lease No. 242035 or whether the Plaintiff and the 1st, 2nd and 3rd Defendants all are entitled to an equal share (¼ share) in lease No. 242035 or of the deceased’s property.

Is the 1st Defendant by law required to convey lease no. 242035 to the Plaintiff?

Consideration of the issues

The Court has before it for its consideration for determining the issues the affidavits of the 1st, 2nd and 3rd defendants and the plaintiff and also the written submissions from both counsel as ordered. The 4th and 5th defendants are nominal defendants hence counsel did not file any submission.

In a nutshell the issue is whether the first three defendants as children of the deceased through his wife before divorcing her are along with the plaintiff (a son through the deceased’s widow who predeceased the deceased in 1998) entitled to a share in the estate and the estate property, namely Lease No. 242035 Lot 3 Vesivesi Road, Kinoya.

It is the plaintiff’s counsel’s submission in law that the said defendants are not entitled to a share in the lease particularly because any interest that they “might have had upon intestacy was lost when the marriage nexus was broken upon their mother’s divorce”.

Counsel further submits that the “circumstances behind the grant of Letters of Administration to the 1st defendant are unknown to the plaintiff” and appears to have been made in breach of section 7 of the Succession, Probate and Administration Act, Cap. 60 (hereafter referred to as the ‘Act’). However, he says that as administrator he is ‘trustee for the plaintiff and ‘may be directed forthwith to convey Lease No. 242035 to him’ in compliance with the provisions of section 6 of the Act.

It is the 1st, 2nd and 3rd defendant’s claim that all of the deceased’s children, namely, the plaintiff and the defendants are entitled to an equal share of the deceased’s property.

The law

This case involves the distribution of the property of the deceased on intestacy.

The law as to succession to property is contained in section 6(1) of the Succession, Probate and Administration Act, Cap. 60 of the Laws of Fiji Vol. IV, which in so far as is relevant provides:

s6. – (1) Subject to the provisions of Part II, the administrator on intestacy or, in the case of partial intestacy, the executor or administrator with the will annexed, shall hold the property as to which a person dies intestate on or after the date of commencement of this Act on trust to distribute the same as follows:

(a) .....
(b) .....
(c) .....

(d) if the intestate leaves issue, but no wife or husband, the issue of the intestate shall take per stirpes and not per capita the whole estate the intestate absolutely;

The meaning of ‘per stirpes’ referred to in the said section 6(1) is well described in the book Wills and Intestacy in Australia and New Zealand by I.V. Hardingham, Neave and Ford as follows which is quite pertinent to this case:

“This expression means “through the stocks or families of descent”. A division of assets is made per stirpes when it is envisaged that persons may succeed to them by representation. The issue of an intestate’s deceased children take by representation. Thus they take per stirpes. If a child predeceases his intestate father leaving issue who survive him, the issue represent the dead child; they stand in his shoes and take his share by representation (Each child who in fact survives the intestate takes his own share in his own right.) They do not necessarily receive shares equal in size to those of other successors; between them they take their family’s share; they take through their stock of descent.

Representation to any degree is permitted among issue. The representative issue may be grand-children or even more remote descendants.

Within each stock or family entitled to participate on intestacy, distribution is made in equal shares. Thus if several children are claiming their deceased parent’s share by representation then they take it equally as between them”.

Further, here the intestate left four issues, namely the plaintiff and the three defendants.

The word ‘issue’ is defined and ‘includes a child or any other issue whether legitimate or illegitimate, in any generation, of an intestate’ [s6(3)].

The ‘child’ ‘in relation to an intestate, means any child, whether legitimate or illegitimate, of the intestate;’ [s6(3)(a)].

Bearing in mind the law as stated above on the law as to intestacy and distribution of property on intestacy it is quite clear that the plaintiff is entitled to an equal share in the property of the deceased along with the other three children of the deceased who are the defendants in this action.

The plaintiff comes within the definition of ‘issue’ and ‘child’ although he is a child through a second marriage after divorce. Since an illegitimate child is included as one entitled to a share, I do not see how an issue of the marriage can be excluded albeit through a second marriage. I therefore see no merit in the plaintiff’s argument wanting to exclude the defendants from a share each in the estate.

Conclusion

In the outcome for the above reasons the plaintiff's argument that he is the sole successor in title to the deceased’s property being registered Lease No. 242035 fails.

The first defendant has been lawfully appointed as the administrator of the estate of the deceased and it is his duty to act in accordance with the law as to intestacy in conveying the plaintiff’s share in the estate to him as well as to himself and the other two defendants.

The administrator should first have the ‘transmission by death’ endorsed on the Lease and then transfer it to the beneficiaries, namely the plaintiff and the three defendants. Thereafter the transferees could then decide what they want to do with the property i.e. whether they want to keep it in their names or want to sell it and divide the proceeds. It is premature for me to make an order for its sale as suggested. A proper application for an order for sale could be made by the interested parties should they wish to do so.

For these reasons the plaintiff’s application fails and the originating summons is dismissed. The plaintiff is not the sole successor to the said lease but is entitled to a quarter share in the estate property which should be transferred to him.

Order

It is ordered that the administrator take immediate steps to register transmission by death registered against the title and to have the Lease transferred in the names of all the said four children of the deceased and upon transfer the interim injunction is ordered to be dissolved.

I make no order as to costs.

D. Pathik
Judge

At Suva
31 August 2004