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Kuari v Narayan [2010] FJHC 571; Probate Action 27.2008 (30 November 2010)

IN THE HIGH COURT OF FIJI AT SUVA
PROBATE JURISDICTION

PROBATE ACTION NO: No. 27 of 2008

IN THE MATTER of the Trustee Act, Cap 65 AND

IN THE MATTER of RAM DEI f/n Ramautar of Rampurwa Street, Narere 8 Miles, Nasinu, Fiji Islands, Domestic Duties, Deceased, Intestate.

BETWEEN:

SHIU KUARI of Wainibokasi, and MALTI DEVI of Narere, both Daughters of Shankar and both Domestic Duties.
PLAINTIFFS

AND:

KAMAL NARAYAN f/n Shankar of Lot 6 Sawau Road, Nadawa, Fiji Islands, Contractor as the ADMINISTRATOR in the ESTATE OF RAM DEI
FIRST DEFENDANTS

AND:

KRISHAN DEEPAK PRASAD f/n Shiu Prasad of 10 Sawau Street, Bayview Heights, Suva and NAVIN PAL f/n Ram Pal of 14 Paul Sloan Street, Bayview Heights, Suva as the SURETIES in the ESTATE OF RAM DEI
SECOND DEFENDANT

Appearances: Mr P. Nayare for the Plaintiff
Miss A.Latha for the Defendant
Date and Place of Hearing: Written Submissions of the Defendant filed on 19 January, 2009
Written Submissions in Reply of the Plaintiff filed on 2 April 2009
Date and Place of Judgment: 30 November 2010
Judgment of: Justice A.L.B.Brito-Mutunayagam

JUDGMENT OF THE COURT

1. The Plaintiffs [two of the beneficiaries of the "Estate of the deceased Ram Dei"(hereinafter referred to as "the Estate")] have filed Originating Summons and sought inter alia Orders that the First Defendant (the Administrator of the Estate of the late Ram Dei )
   

a) deliver accounts of the Estate to show the income received and expenses incurred,

b) distribute shares of Estate of Ram Dei to all beneficiaries according to law.

2. One of the Plaintiffs Malti Devi filed Affidavit dated 29th July, 2008, in Support of the Originating Summons; the First Defendant filed Affidavit in Response dated 8 October,2008; and the aforesaid Plaintiff filed an Affidavit (dated 27 October, 2008) in Reply to Affidavit in Response. Samaru Prasad, the brother of the First Defendant has filed Affidavit dated 19 September, 2008, in support of the First Defendant. Written Submissions have been filed by the First Defendant and the Plaintiffs have filed Written Submissions in Reply.
   
3. The Plaintiff in her Affidavit dated 29th July, 2008 and Affidavit in Response dated 27 October 2008,states inter alia that;
   
   1. the late Ram Dei (who died on 20th March,1992)was the registered proprietor of one undivided half share in Native Lease No. 20565 and the other one undivided half share was registered to the First Defendant.
      
   2. that Letters of Administration grant was granted to the First Defendant on the 22nd December,2006, by the High Court.
      
   100. the rental incomes derived from the Estate Property have not been accounted for or distributed from 2001.
        
   4. On the 31st day of August, 2007, the First Defendant in his capacity as Administrator sold the whole of the property comprised in the Native Lease for a consideration of $65,000.00.
      
   5. The Plaintiffs became aware of the sale after the new owners took over the said property.
      
   6. The Estate of Ram Dei is entitled to half of the sale proceeds which amounts to $32,500.00.
      
   7. The Second Defendant have failed in their claims as sureties to ensure the lawful administration of the estate.
      
   8. The First Defendant has wrongfully and unlawfully enriched himself by defeating the interest of the beneficiaries.
      
4. The First Defendant in his Affidavit dated 8th October,2008, states inter alia that;.
   

i. "the reason for the Letters of Administration" to be issued to him "was because he invested in the property and purchased Housing Authority Lease No. 20565 (land) for $3,000.00 ".He (the First Defendant) added the name of the deceased in order to acquire the property as Housing Authority's procedure was such that single (unmarried) person's were not entitled to acquire Housing Authority lease (land).

ii. That his son, Yogesh Chand, built a wooden 3 bedroom house on the property which he financed himself

iii. There was no contribution from his mother nor any of the children of mother (deceased).

iv. That the property was sold for $65,000.00 and he received $48,000.00 after deductions were made to the Housing Authority, NLTB, Real Estate agent and also the funeral expenses for the deceased and that he gave $28,000.00 to his son, Yogesh Chand, after the sale of the property since he also had interest in the property.

5. The following matters are not in dispute between the parties;
   
   • that the Plaintiffs Shiu Kuari and Malti Devi are daughters of the late Ram Dei who died on the 20th March,1992, and two of the beneficiaries of the Estate of the deceased Ram Dei,
     
   • that the other beneficiaries of the Estate are Kamal Narayan(the First Defendant) and Samaru Prasad
     
   • that Letters of Administration was granted to the First Defendant on 22nd December, 2006 by the High Court.
     
   • that Khrishan Deepak Prasad and Navin Paul provided sureties on behalf of the First Defendant for his faithful administration and distribution of the Estate.
     
   • that the late Ram Dei was the registered proprietor of one undivided half share in Native Lease No. 20565 and that the other one undivided half share was registered to the First Defendant.
     
   • on 31st, August, 2007, the First Defendant in his capacity as the Administrator sold one undivided half share in the Estate Property of the late Ram Dei( and the other one undivided half share registered to the First Defendant) .
     
6. The gravamen of the case of the Plaintiffs is that the 1st Defendant, as Administrator of the Estate, breached his fiduciary duties and deprived the beneficiaries of their lawful entitlements in the Estate of Ram Dei by the sale of a property of the Estate. This is the issue before Court .The First Defendant's defence is that the reason for the Letters of Administration to be issued to him was because he invested in the property and that the Plaintiffs do not have an equitable interest, since the Plaintiffs nor the deceased (though part owner of the property) made any monetary contribution to the property.
   
7. I have considered the contents of the Affidavits filed in these proceedings and the matters stated in the Written Submissions of the parties.
   
8. The Law Applicable

Section 6(1) of the Succession, Probate and Administration Act(Cap 60) directs the "administrator on intestacy" to hold the property as to which a person dies intestate "on trust to distribute the same as follows"(so far as relevant for the present purposes):

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

9. On a construction of Section 6(1)(d) above, it is clear that the duties of an Administrator on intestacy are twofold viz;
   
   • to hold the property of the deceased on trust, and
     
   • if the intestate leaves issue, but no wife or husband, the issue of the estate shall take per stirpes and not per capita the whole of the estate absolutely.
     
10. The First Defendant as Administrator was statutorily required to distribute the Estate of his late mother to her issue per stirpes. The First Defendant has however, sold the Estate Property and kept the sale proceeds for himself. The act of sale of the property of the deceased, taking the sale proceeds and keeping it for himself constitutes a breach of First Defendant's duties as Administrator and trustee of the Estate.
    
11. The First Defendant's contentions as set out in his Affidavit dated 8th October, 2008, that the reason for the Letters of Administration to be issued to him was because he invested in the property and that the Plaintiffs do not "have an equitable interest since the Plaintiffs nor my mother (Ram Dei) though was part owner of the property made any monetary contribution" are without merit. The First Defendant's contention that he added the name of Ram Dei into the housing authority lease in order to acquire the property as single (unmarried) person's were not entitled to acquire Housing Authority lease is irrelevant.
    
12. The First Defendant has in his written submissions cited the case of Strong v Bird(1874)LR [1874] UKLawRpEq 112; 18 Eq 315 for the proposition that if the testator tried to give a gift in terms of the property to the executor but this could not take place during his life, when he appointed the same person as executor the gift is deemed complete. In Strong v Bird the testatrix had given a loan to the Defendant and after two payments of the debt by the Defendant( from the rent paid by the testatrix to the Defendant), the testatrix refused to accept any payments from the Defendant. The Court held that the debt was extinguished and there was continuing evidence of an intention on the part of the testatrix to gift the balance.
    

The First Defendant has also cited the case of Nair v Nair (1994) FJHC 127,in which case the deceased had signed two Transfer Agreements to her son, subject to the bequeathing of $3000 by the defendant to her older son, who sought to set aside the said Agreements.

13. The above cited cases have no bearing in the matter before me .The deceased(Ram Dei) did not gift or transfer her half share of the property to the First Defendant.
    
14. In his written submissions, the First Defendant has raised the matter of laches and acquiescence and submitted that the Plaintiffs have brought this action after the property was sold and many years since the mother's death .The Plaintiffs cause of action accrued on the sale of the estate of the deceased by the First Defendant as Administrator in breach of his statutory duties as trustee of the Estate,which sale was admittedly made on the 31st August,2007.The Plaintiffs filed Originating Summons on 6th August,2008,within the period of limitation of six years as set out in Section 9(2) of the Limitation Act(Cap 35). Accordingly, there is no merit in the First Defendants' submission with respect to laches.
    
15. The First Defendant also submitted that the Plaintiffs acquiesced in the conduct of the First Defendant and did nothing to show their interest in the property when their mother (the deceased) was alive. The Plaintiffs' cause of action is based on the sale of the estate of the deceased by the First Defendant as Administrator on 31st August, 2007.Accordingly the First Defendants' submission is misconceived and the cases cited by the First Defendant on laches and acquiescence have no application.
    
16. For the reasons stated above, I hold that the First Defendant breached his duties as Administrator of the Estate of the deceased by selling the property of the deceased, taking the sale proceeds and keeping it for himself. I make Order that:
    
    • (a) the First Defendant deliver accounts of the Estate to show the income received and expenses incurred,
      
    • (b) the First Defendant distribute shares of Estate of Ram Dei to all beneficiaries in accordance with Section 6(1) (d)of the Succession, Probate and Administration Act(Cap 60).
      
    • (c) Costs are awarded to the Plaintiff against the First Defendant on a party to party basis to be agreed upon, and if there is no agreement the costs to be taxed.
      

A.L.B.Brito-Mutunayagam
JUDGE

30 November 2010