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Kumar v Lata [2010] FJHC 461; HPP49332 (14 October 2010)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
PROBATE JURISDICTION

ACTION NO: P 49332
CAVEAT NO: 34 of 2009

IN THE ESTATE of PRITAM KOUR aka SHANTI SHILA
father's name Amar Chand of Kavika Street, Tavua Town,
in the Republic of Fiji, Domestic Duties, Deceased, Testate

BETWEEN:

VINOD KUMAR
f/n Brija Nand aka Ram Prasad of Sydney, Australia.
C/- Chandra Singh & Associates, Barristers & Solicitors, Nasivi Street,
Tavua Town, Tavua.

AND:

SUMAN LATA
f/n Ram Prasad of Kavika Street, Tavua Town, Tavua.
C/- M/S Haroon Ali Shah Esquire, Barristers & Solicitors, Lautoka.

Counsel: Chandra Singh & Associates for the Plaintiff
Haroon Ali Shah Esquire for the Defendant

Date of Ruling: 14th October, 2010

RULING

This is a ruling on a point of law arising under Order 76 Rule 2 of the High Court Rules. The respondent has raised a preliminary objection in submitting that under Order 76 Rule 2 this being a Probate Action should have commenced by a writ of summons. Therefore, the respondent submitted that this action should be struck out for want of procedure.

When the case was taken up for hearing on 5.7.2010 the respondent raised the abovementioned preliminary objection.

The applicant submitted that the duty was on the respondent to file a writ of summons to proceed with the action.

Background of the case

The deceased executed two Wills dated 17th of May 2003 and 19th of March 2004 respectively. In the first Will the respondent was appointed as the sole executrix, trustee and beneficiary of her estate whereas in the second Will the applicant was appointed as the sole executrix, trustee and the beneficiary of the deceased's estate.

The deceased died on the 23.03.2004. A Caveat was lodged by the respondent on the estate of the deceased on 20.08.2009.The applicant also entered a Caveat on 13.10.2009.

Warning to Caveator dated 23.03.2010 was issued by the respondent through her lawyers addressed to the applicant.

The appearance to warning was filed by the applicant through his solicitors on 17.04 2010.

The respondent has filed an affidavit in response to the affidavit of the applicant.

Opposing the applicant's probate application the respondent stated that the Last Will dated 19.03.2004 was not fully executed according to the provisions of the Wills Act as the deceased was not of sound memory and was also under undue influence of the applicant.

The respondent further stated that he is the sole executrix and the Trustee of Last Will dated 17.05.2003 of his late mother Pitam Kuar, and therefore, probate be granted on the last will and testament dated 17.05.2003.

The issue to be determined here is whether the non compliance with Order76 Rule 2 is fatal to the action.

Order 76 Rule 2 provides:

(1) A probate action must be begun by writ, and the writ must be issued out of the registry.

(2) Before a writ beginning a probate action is issued it must be indorsed with;

• (a) A statement of the nature of the interest of the plaintiff and of the defendant in the estate of the deceased to which the action relates; and
  
• (b) A memorandum signed by the Registrar showing that the writ has been produced to him for examination.
  

Pursuant to the Order 76 Rule 2(1) this action should have been commenced by writ of summons.

However, in this case the originating summons was issued by the High Court Registry.

Nevertheless, Order 76 Rule 1(1) provides that the other provisions of the High Court Rules apply to probate actions subject to the provisions of Order 76.

Order 76 rule 1(1) provides:

This order applies to Probate causes and matters, and the other provisions of these rules apply to those causes and matters including application for the rectifications of a will subject to the provisions of this Order.

Therefore, Order2 Rule 1 of the High Court Rules can be applied to cure any procedural irregularity or non compliance with rules in a probate matter.

Order 2 Rule 1 reads;

Order 2 Rule 1 (1) – Where, in beginning or purporting to begin any proceedings, or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, Whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order made therein.

Order 2 Rule 1 (2)- subject to paragraph 3, the Court may, on the ground that there has been such a failure as is mentioned in paragraph (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein or exercises its powers under these Rules to allow such amendments( if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.

Order 2 Rule 1 (3)-The court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these Rules to be begun by an originating process other than the one employed.

In the present case the applicant commenced the proceedings by way of an originating summons instead of writ of summons. The High Court Registry has also released the summons. All the other requirements prescribed by the law have been complied with.

Therefore, pursuant to the provisions contained in Order 2 Rule 1, the use of any originating process for a probate action other than a writ of summons shall not render the proceedings null and void.

The application of Order 2 rule 1 to probate actions was considered in Brij Ram v. Michael Ban Deo Fiji Court of Appeal No ...... by Thompson J. as follows:

' Order 5 rule 2 contains mandatory provisions, similar to that in Order 76 rule 2, in respect of actions of the types specified there. The provisions in Order 76 Rule 1 that the rules apply to probate actions subject to the provisions of Order 76 does not, in my view prevent the application of Orde2 rule 1. Its ameliorating provisions are as much required in respect of probate actions that render the application of those provisions inappropriate or that is likely to lead to it impeding the proper adjudication of the claims in those actions.'

Therefore, I conclude that the applicant's action shall not be struck out merely because it has been commenced by the originating summons. The applicant must be given an opportunity to rectify the procedural error.

Therefore, the applicant is ordered to lodge a writ of summons and take such other steps thereafter, as were required of him by Order 76. Any costs incurred by the respondent as a result of the applicant's failure to commence the action by the proper originating process should be borne by the applicant.

Pradeep Hettiarachchi
JUDGE