IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HPP0014 OF 2005

BETWEEN:

MOHAN LAL & NARENDRA REDDY
PLAINTIFFS

AND:

HAROON ALI SHAH
1ST DEFENDANT

SEEMA RAJ
2ND DEFENDANT

GYANESHWAR RAO
3RD DEFENDANT

Mr. R. Naidu for Plaintiffs
Mr. G.P. Shankar for Defendants

Date of Hearing: 21st September 2005
Date of Decision: 4th October 2005

DECISION

One Rambai Sadal, Retired Nurse, died on 14th March 2003 at CWM Hospital. On 16th May 2003, the Supreme Court of Victoria, Australia, issued a grant of probate to her husband Sarvada Nand Sadal, Judge Advocate. The grant was made pursuant to a Will dated 8th March 2003 in which Sarvada Nand Sadal is the named executor and trustee. In the affidavit of executor, it is stated that the deceased left real estate in Victoria worth $388,000.00 and personal estate in Victoria worth $73,270.15 and personal estate elsewhere worth $5,635.91.

The plaintiff’s are challenging the validity of the Will dated 8th March 2003 on the grounds that it is a forgery. They allege that the true Will of the deceased is dated 11th January 2001 under which the plaintiffs and one other are executors and trustees and the substantial beneficiary is a religious organization.

The orders the plaintiffs are seeking are to declare Will dated 8th March 2003 invalid, to declare the probate granted in Victoria Court a nullity and to pronounce in solemn form for the true last Will and testament dated 11th January 2001 and damages.

A grant of probate obtained in common form is accepted in all courts as evidence of executor’s title and of the formal validity of the Will and the contents of the Will. However such a Will is revocable at the instance of any person whose right is adversely affected by such grant.

The probate was granted in Victoria, Australia. Therefore it is a formal declaration of the validity of the Will by the Victorian Court. As such it is the proper forum to make contrary declaration of invalidity.

The present parties both the plaintiffs and the defendants are in Fiji so from their point of view Fiji may be the convenient forum but that is not the end of the matter.

Order 76 Rule 4 of the High Court Rules expects the lodging into court of the challenged grant which is normally in possession of the executor and trustee. In this case the executor and trustee is not even joined as a party to the proceedings. If the probate is not lodged, how can the court order a person not a party to the suit to comply with orders it makes.

Mr. Naidu emphasized that he is only seeking orders as to the validity of the Will. With that I cannot agree; one only has to look at the prayers in the statement of claim and consider their overall effect to see that plaintiff is really asking this court to revoke the grant.

To revoke the Victorian grant, the plaintiffs must file their action in Victorian Court. There is comity between courts in Australia especially superior courts and courts in Fiji. There is danger of having irreconcilable decisions over probate matters of the two courts if they reach different decisions on validity of the Will.

The key to the solution lies in my opinion is where may the case be suitably tried for the interest of the parties and for ends of justice. There is nothing to suggest that the plaintiffs will not get a fair trial in Victorian Courts. In fact I am of the view that they will. If the Victorian Court decides with all proper parties before it that the Will is invalid, it would entail only one action instead of the plaintiff’s getting a declaration here and then trying to use it against the executor in the Victorian Court. I also notice that the deceased was owner of real property in Australia. The transmission by death may have been done which may need to be looked into or set aside in consequential orders which can only be granted by court where the real property is.

I am of the view that the action is an attempt to get this court to dictate to another court what it should do with a grant it made. I consider I do not have the jurisdiction to do that. Accordingly I strike out the action with costs which I fix in the sum of $400.00 to be paid in fourteen (14) days.

[ Jiten Singh ]
JUDGE

At Suva
4th October 2005