IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Action No. HBC 441 of 1999

BETWEEN:

MAYA WATI, BIMLA WATI, SUBHAS CHAND RAMRAKHA, AMAR RAMRAKHA and HARISH CHAND RAMRAKHA of California, USA.
PLAINTIFFS

AND:

SARAS WATI
FIRST DEFENDANT

AND:

RADHE PRASAD
SECOND DEFENDANT

AND:

SUSHIL PRASAD SHARMA
THIRD DEFENDANT

AND:

REGISTRAR OF TITLES
FOURTH DEFENDANT

AND:

ATTORNEY GENERAL OF FIJI
FIFTH DEFENDANT

BEFORE : Master Deepthi Amaratunga
COUNSEL : Mr. V. Maharaj for the Plaintiffs
Mr. I. H. Q. Samad for the intended Plaintiff
Mr. Ronald Singh with Mr. E. Narayan for the 3rd Defendant

Date of Hearing : 11th May, 2012
Date of Ruling : 15th May, 2012.

RULING

A.	INTRODUCTION

1.	This action has proceeded to trial before a judge and the evidence of one witness was recorded and the further hearing will be continued on 21st May, 2012. At the hearing it was brought to the attention of the judge that certain parties to the action are dead and the substitution of the parties was referred to me by the judge. At the same time there is an application from a new party, whose rights have not been depicted by the Plaintiff in the devolvement of the rights of the parents’ estate, to be added as a plaintiff.

2.	The Plaintiff seeks to substitute Vimal Wati (alias Bimal Wati) be substituted as Plaintiff for Maya Wati and Tara Mati ( both deceased) and the 3rd Defendant be substituted for 1st and 2nd Defendants (both deceased). Though Tara Mati was a Plaintiff to this action she was excluded by an order of the court, and this was done in 2007 long after her demise in 2005. No personal representative is appointed on behalf of her and now Vimal Wati seeks to represent her in the action, though the application is for the ‘substitution’ it is evident that there cannot be a substitution for a dead person who is not a party to the action at this moment, but a any person can be appointed by the court on ad hoc basis to represent a deceased person in terms of Order 15 rule 17, provided that deceased has shown interest in the matter.

B.	FACTS

3.	On or about the 17th of September 1999 this action was instituted against the three Defendants and prior to this action (HBC 441 of 1999) another action was instituted and that was High Court Action No. 82 of 1996 and it had been struck off.

4.	According to the writ of summons the claim is based on alleged negligence (or mistake) and fraud and the particulars of the fraud are alleged in the statement of claim. The Plaintiffs are seeking certain declarations and injunctive reliefs that are more fully described in the statement of claim.

5.	Initially the persons named Tara Mati was named a Plaintiff however, she was removed as a party by an order of the court upon a request on 22nd November, 2007 without any substitution though she died in 2005. So, at the moment Tara Mati is not a party to this action though her estate derive the rights from this action. Since, there was no personal representative appointed the following parties are admittedly dead and they died after the institution of this action.

a.	Plaintiffs – Maya Wati and Subhas Chand Ramrakha, Tara Mati (who was excluded from plaintiff in 2007)

b.	Defendants – Saras Wati (1st Defendant) and Radhe Prasad (2nd Defendant)

6.	The Applications before the court

There are two main applications before the court and they are based on the amended notice of motion filed on 14th March, 2012 by the intended party and summons filed on 28th February, 2012 by the Plaintiffs

a.	Amended Notice of Motion dated 14th march 2012 together with an Affidavit in Support to “join Balram Singh who is now deceased as a Plaintiff in this Action and to substitute Jasodra, Chandar Bhan Singh, Vijay Singh as Plaintiff’s…”

b.	A Summons by the Plaintiff (Vimla Wati and Harish Chand Ramrakha) seeking the following orders;

i.	To strike Out the Names of Subhas Chand Ramrakha and Amar Ramrakha and that they cease to be a party to the proceedings;

ii.	That Vimla Wati be substitutes as the Plaintiff for Maya Wati and Tara Wati (both now deceased) and that the Writ of Summons be amended accordingly

iii.	That the Proceedings continue against the Third Defendant both in his personal capacity and as the representative of the First and Second Defendant. 

7.	The Third Defendant has filed and served his Response to both the Applications stated above and the Third Defendant objects to all of the reliefs sought through the Applications.

C.	THE ANALYSIS 

a.	Amended Notice of Motion filed on 14th March, 2012

8.	The amended Notice of Motion intends to join Balram Singh (Deceased) whose interest is born by virtue of being the son of Suruj Ram who died intestate on 16th September 1961 and where the Letters of Administration was granted to his wife Suraj Kuar on 10th July 1970 and she has died before the institution of this action on 16th January, 1982, without entirely administering the estate of her late husband, leaving six children of the late S. Ram as the sole heirs of the remaining estate. The Plaintiff has named five children in this statement of claim, but has failed to mention the name of late Balram Singh as a child.

9.	Now there is an application to join late Balram Singh to this action. The intended Plaintiff is wrongly named as he is now deceased and it is understood that court cannot add a dead person so the summons to add the dead person should be amended accordingly, and at the oral hearing the counsel for the intended party consented to the said amendment to delete the request for addition of late Balram Singh to this action, instead to consider it as an application to join the executors of the late Balram Singh’s estate to this action. The only objection to that was the contention of the 3rd Defendant that the action is time barred under the statute of Limitation. The Plaintiff associated with the application to join the executors of the estate of the late Balram Singh. The action is based on an alleged fraud of the Defendants and for an action based on fraud there is an exception to the rule of limitation.

10.	Pursuant to Paragraph 4 of the Affidavit in Support of Maheshwar Singh it is expressly admitted that the purported interest derived is from the Estate of Suruj Ram. 

11.	Sections 9 and 10 of the Limitation Act (Cap 35) states that;

Limitation of actions in respect of trust property

9.-(1) No period of limitation prescribed by the provisions of this Act shall apply to an action by a beneficiary under a trust, being an action-

(a) 	In respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or

(b)	To recover from the trustee, trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to his use.

(2) 	Subject as aforesaid and to the provisions of the Trustee Act, an action by a beneficiary to recover trust property or in respect of any breach of trust, not being an action for which a period of limitation is prescribed by any other provision of this Act, shall not be brought after the expiration of six years from the date on which the right of action accrued:

(Cap. 65)

Provided that the right of action shall not be deemed to have accrued to any beneficiary entitled to a future interest in the trust property, until the interest fell into possession.

(3) 	No beneficiary as against whom there would be a good defence under the provisions of this Act shall derive any greater or other benefit from a judgment or order obtained by any other beneficiary than he could have obtained if he had brought the action and this Act had been pleaded in defence.

Limitation of actions claiming personal estate of a deceased person

10. Subject to the provisions of subsection (1) of section 9, no action in respect of any claim to the personal estate of a deceased person or to any share or interest in such estate, whether under a will or on intestacy, shall be brought after the expiration of twelve years from the date when the right to receive the share or interest accrued, and no action to recover arrears of interest in respect of any legacy, or damages in respect of such arrears, shall be brought after the expiration of six years from the date on which the interest became due.” 

12.	The claim of the intended Plaintiff and for that matter that of the Plaintiffs’ are with regards to a claim of interest in the Estate of Suruj Ram who was the father of Maya Wati, Tara Mati Subhadra, Bimla Wati, Balram Singh and Saras Wati (First named Defendant). 

13.	The intended Plaintiff relies on the provisions of the High Court Rules 1988, however, in the case of Fiji Development Bank v New India Assurance Company Ltd [2011] FJHC 428, it was held 

“16. It is to be noted that if the claim is already statute barred in terms of the  Limitation Act  as against the party who is intending to be added or substituted, the provisions contained in the Order 15 rule 6(5) and 6(6) applies and discretion granted in the Order 15 rule 6(2) is curtailed. The provision that has to be fulfilled in those circumstances are different from a person who intends to be added when the application is made with in the limitation period".

14.	This cannot be confused with an action based on fraud where there is clearly and exception contained in the Section 15 of the Limitation Act. So, the provisions contained in Order 15 rule 6(5) and rule 6(6) has no application to this action.

Part C of the Limitation Act deals with this and states as follows;

C-FRAUD AND MISTAKE

Postponement of limitation period in case of fraud or mistake

15. Where, in the case of any action for which a period of limitation is prescribed by this Act, either-

(a) 	the action is based upon the fraud of the defendant or his agent or of any person through whom he claims or his agent; or

(b) 	the right of action is concealed by the fraud of any such person; or

(c) 	the action is for relief from the consequences of a mistake,

the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it:

Provided that nothing in this section shall enable any action to be brought to recover, or enforce any charge against or set aside any transaction affecting, any property which-

(i) 	in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud had been committed; or.

(ii) 	in the case of mistake, has been purchased for valuable consideration, subsequently to the transaction in which the mistake was made, by a person who did not know or have reason to believe that the mistake had been made.

15.	So, it is clear that Section 15 of the Limitation Act overrides all the provisions contained in the Limitation act as it expressly state 'Where, in the case of any action for which a period of limitation is prescribed by this Act, …' and there should not be any doubt that when the action is based on fraud only the provisions contained in Section 15 will apply. I cannot decide the time when the late Balram Singh or the executors came to know about the alleged claim of fraud and or negligence, but at the moment on the evidence they were unaware of even the current litigation and on the evidence available to me I will order to add the persons named in the probate of late Balram Singh namely Jasoda, Chandar Bhan Singh and Vijay Bhan Singh (as per the probate no 25927 of late Balram Singh) to be added as plaintiffs. In the absence of any particular date I have decided in favour of the applicant at this stage, since the addition will not prejudice any party.

The application filed on behalf of the Plaintiffs

16.	The relief (a) contained in the summons state as follows

'Pursuant to High Court Rules Order 15 rule 6(2) that Subhas Chand Ramrakha and Amar Ramrakha case to be a party in this action and that their names be struck out of the writ of summons'

17.	In the affidavit in support filed by an associate of the law firm of the Plaintiff has in paragraph 11 (b) states the reasons for such an application as follows

'(b) That the names of Subhas Chand Ramrakha (now deceased) and Amar Ramrakha both having contingent interests in the estate of Suruj Ram be removed as Plaintiffs from these proceedings.'

18.	The above mentioned two parties have been unnecessarily added as they all derive their rights from their mother late Subhadra who died 24.4.82 and the letters of administration has already been granted to the Public Trustee on 9.9.1982 and the Public Trustee should have been added as a party to this action, but this has not been done and no application for such addition is made. I have not been even informed of the reason for not doing. If the public trustee who was appointed to administer of the estate of Subhadra was added there was no need to add the children of the late Subhadra to this action, but this was not done and the action was instituted by the said two of her children along with the other Plaintiffs. Since the proper administrator, namely Public Trustee, has not been appointed I will not grant the said relief (a) contained in the summons dated 28th February, 2012. I have not been informed of the reason for doing so by the Plaintiff and the affidavit in support is silent on that, too. In the light of it I am not inclined to delete or exclude any party who is before the court, upon the request of another plaintiff. It should also be noted that Subhas Chand Ramrakha is dead and proper parties should be substituted and cannot be deleted for the convenience of the other Plaintiffs as it was done earlier to late Tara Mati in 2007 where upon her death in 2005 she was excluded as a plaintiff, but now the same law firm is seeking to 'substitute' (sic) Vimla Wati for the late Tara Mati. This shows the manner in which the applications are being made to court for convenience without understanding legal consequences that would not only further delay the proceedings but also make the matter more complex and time consuming.

19.	The relief (b) contained in the summons is as follows.

'(b) Pursuant to Order 15 rule 17 of the High Court Rules that Vimla Wati (alias Bimla Wati) of Koronivia, Nausori be substituted as Plaintiff herein for Maya Wati and Tara Mati (both now deceased) and the writ of summons and all subsequent proceedings therein be amended accordingly.'

20.	As I have mentioned earlier in this ruling the name of Tara Mati has been deleted 22nd November, 2007 and this was upon the request of the Plaintiffs. According to the affidavit in support Tara Mati had died on 18th August, 2005 intestate without leaving any issues and Maya Wati has died in 2009 and the date of expiry is not known and she has also not left any will or issues for inheritance of her estate. So, at the moment only late Maya Wati is a party to this action and Tara Mati has been expressly excluded in 2007. It seems that there was no substitution on behalf of late Tara Mati in 2007 but now Bimla Wati who is already a party to the proceedings have consented to be appointed on behalf of both Tara Mati and Maya Wati.

21.	A person can be substituted only if that person is a party to the action and clearly there is no substitution as regards to late Tara Mati who was excluded from being a plaintiff in 2007 after her death. It should also be noted that though the word 'substitution' was used in the summons the Order 15 rule 17 does not use the word 'substitution' and in order for a court to make an order in terms of the said provision what is needed is that 'deceased person was interested in the matter in question' and that there is no personal representative for the deceased. The court can make ad hoc appointment of a person to represent for the purposes of the proceedings even a party who is already not before the court, provided that the deceased was interested in the matter. Since late Tara Mati was an initial plaintiff, she has shown enough interest to be included in terms of Order 15 rule 17(1) and there is no requirement for her to be a party to the action when the appointment is made, as in this case. What is required under the provision is that Tara Mati should have been interested in the matter in question. This is evident as prior to death in 2005 she was a plaintiff to this action and remained so till her demise and she was removed only upon the request of the other Plaintiffs, who were represented by same law firm who now seeks to 'substitute'.

22.	The application is made for 'substitution' (sic) in pursuant to Order 15 rule 17 which reads as follows

'17(1) Where in any proceedings it appears to the Court that a deceased person was interested in the matter in question in the proceedings and that he has no personal representative, the Court may, on the application of any party to the proceeding, proceed in the absence of a person representing the estate of the deceased person or may by order appoint a person to represent that estate for the purposes of the proceedings and any such order, and any judgment or order subsequently given or made in the proceedings, shall bind the estate of the deceased person to the same extent as it would have been bound had a personal representative of that person been a party to the proceedings.'

23.	In The Supreme Court Practice (White Book)1988 at page 223 15/15/3 it was stated under the heading "Or may by order appoint some person"

'The consent of the person to be appointed must be obtained, but subject to such consent the Court can appoint any person of its own selection (Lean v Alston [1947] K.B. 467. C.A.)'

24.	Subhash Chandra V Bansraj Civil Action No HBC 504 of 2003 decided on 8th March, 2007 is not relevant as it has not discussed the provisions contained in Order 15 rule 17 which is clearly a provision to eliminate any undue delay due to death of parties, as in this instance where the action was filed as far back in 1999 and already one witness has given evidence before a judge in 2012 and the trial need not be unnecessarily encumbered due to the death of parties and their failure to appoint personal representatives. The court is empowered in terms of the provisions contained in Order 15 rule 17, for specific purpose of continuation of proceeding without delay.

25.	When the application to exclude the name of Tara Mati was made in 2007 she was already dead and there was no one appointed to administer her estate. There was no application for substitution, but excluding her does not mean her inheritance can be excluded from her estate that remains unadministered state. At the moment there is a party who is willing to be appointed in place of the estate of late Tara Mati. So, the said request to appoint Vimla Wati to represent the estate of late Tara Mati and late Maya Wati (not to substitute as stated in summons) can be granted. The solicitor who makes the affidavit in support appears on instructions of Vimla Wati and considering the facts of the case that is sufficient for me to consider that there was consent from Vimla Wati for the said appointment as a letter of consent is attached to the said affidavit in support marked as 'A' consenting to the said 'appointment to represent the interest of the late Maya Wati and Tara Mati.'. The word 'substitute' is not included in the said letter of consent and the consent given is correctly stated in the said letter.

26.	Relief (c) is to appoint the 3rd Defendant who is the administrator of 1stDefendant's estate and the executor of 2nd Defendant's estate, who were the parents of the 3rd Defendant, be appointed as a representative of 1st and 2nd Defendants in addition to his status as the 3rd Defendant, in his personal capacity. It is admitted fact that 3rd Defendant is the executor is the administrator of 1st Defendant's estate and also the executor of the 2nd Defendant's, estate, hence, he should be appointed on behalf of the said 1st and 2nd Defendants for the reasons given in this ruling earlier applying the principles enumerated in the case of Subhash Chandra V Bansraj Civil Action No HBC 504 of 2003 decided on 8th March, 2007. The 3d Defendant admits the said appointments but state in the affidavit in reply that as so far as the estates of his parents were concerned he deposed that there were no assets to administer pursuant to the grant of probate and all that needed to be done has been done. This is clearly not correct as this case was pending at the time of the said deaths occurred and as the person appointed by court he should be the person that should be appointed on behalf of the deceased 1st and 2nd Defendants.

D.	FINAL ORDERS

a.	The application to join the executors of the late Balram Singh is granted and Jasoda, Chandar Bhan Singh and Vijay Bhan Singh is added as plaintiffs to this action.

b.	The relief contained in summons are decided as follows :

i.	Relief (a) in summons refused.
ii.	Vimla Wati is appointed on behalf of late Maya Wati and late Tara Mati to represent those estates for the purposes of the proceedings
iii.	Relief (c) Granted as prayed in summons 

c.	The cost of this application is cost in the cause for the 3rd Defendant.

Dated at Suva this 15th day of May, 2012.

………………………………………….
Master Deepthi Amaratunga
High Court, Suva