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Renu v Siwan [2016] FJHC 882; HBC108.2009 (30 September 2016)

R U L I N G

1. Nerula Rita Chandra (“Nerula”) and Kasi Jan Mala (“Mala”) are both deceased. During their lifetime, they would have been beneficiaries of the estate of the late Muthusamy Padiyachi aka Muthu Swammy.
2. At some point in time well after they had passed on, two Deeds of Renunciation would surface, one purportedly executed by Nerula and the other by Mala.
3. Sada Siwan is the administrator of the Padiyachi estate. He would appear to be inclined towards denying any entitlement to the late Nerula’s and the late Mala’s respective estates to the Padiyachi estate based on the said Deeds of Renunciation.
4. Before me is a Notice of Motion dated 29 April 2014 by the plaintiff, Pushpa Renu, seeking the following Orders:
   
   1. A Declaration that the renunciation of late Nerula Rita Chandra dated 3^rd January 2003 is null and void and it is unenforceable.
   2. A Declaration that the renunciation of Kasi Jaan Mala is null and void and it is unenforceable.
   3. Any further or other Orders of this Honourable Court;
   4. Costs of this application to be assessed in the favour of the Plaintiff.
      
5. The application is supported by an affidavit sworn by Punit Narayan on 28 April 2014. Narayan deposes as follows:
   

That I am advised and believe that the aforementioned two renunciations that the Defendant is relying on are invalid.

That the renunciation propounded by the Defendant of late Kasi Jan Mala:

1. is not dated.
2. is not properly executed.

100. is not completed, as the same is not executed by the witnessing officer. The documents have not been witnessed.

4. The words in handwriting, “Notary Public” under the “Solicitor, Nadi” appear which indicate that the document was executed outside Fiji.
5. The document does not refer to the last will testament or Probate issued in the Estate of Muthusamy Padiyachi aka Muthu Swammy.
   

That the renunciation propounded by the Defendant of late Nirula Rita;

1. Is not properly worded.
2. Is not executed properly.

100. The document does not refer to the last will testament or Probate issued in the Estate of Muthusami Padagchi.

4. Is executed before a Justice of Peace.
   

1. That by way of letter dated 5^th February 2014 we have raised the above issues with the Defendant’s counsel, however till to date we have not received any response to the same. (A copy of letter dated 5^th February 2014 is annexed hereto and marked as Exhibit D).
2. That I therefore pray the orders sought in the Notice of Motion filed herein.
   
6. Sada Siwan has sworn an affidavit on 08 July 2014 opposing the above application. He deposes as follows:
   
   8. That as to paragraph 9 of the Affidavit I state as follows:
      
      • 8.1 That the Deed of Renunciation by Kasi Jan Mala had been duly signed by the said Kasi Jan Mala and witnessed by one Sanjeev Naidu.
      • 8.2 That after signing the Deed of Renunciation Kasi Jan Mala communicated the same to me by sending the original to my postal address being P.O. Box 1331, /Nadi sometime in the year 2003.
      • 8.3 That during her lifetime Kasi Jan Mala had informed me that she did not want any interest in her late father’s Estate as she was no longer living in Fiji.
      • 8.4 That I am advised by my solicitors and verily believe that the said renunciation document of Kasi Jan Mala may have some missing information, however, these do not invalidate the Deed.
        
   9. That as to paragraph 10 of the Affidavit I state as follows:
      
      • 9.1 That the renunciation document of Nirula Rita has been properly witnessed.
      • 9.2 That the said document clearly expresses Nirula Rita’s intention to renounce her shares in her late father’s residential property in favour of her nephews, Dhinish Varan Naciker and Lalit Ross Naicker.
      • 9.3 That during her lifetime Nirula Rita had informed me and other family members of her intention to renounce her shares in her late father’s estate.
      • 9.4 That after signing the renunciation document Nirula Rita communicated the same to me by giving the original renunciation document to my wife who gave the same to me.
      • 9.5 That I am advised by my solicitors and verily believe that the form of the renunciation document of Nirula Rita does not invalidate it.
        
   10. That save as to admit that my solicitors had received a letter dated the 5^th day of February 2014 as stated in paragraph 11 of the Affidavit of I deny that my solicitors have not responded to the same. I am advised by my solicitors and verily believe that my solicitors had communicated my position on the renunciation issue by way of phone, by email dated the 4^th day of April 2014 and by letter dated the 23^rd day of April 2014 sent by facsimile to the Plaintiff’s solicitor and acknowledged by one Naaz. Annexed hereto and marked as “SS1” and “SS2” is a copy of email dated the 4^th day of April 2014 and letter dated the 23^rd day of April 2014.
       
7. I observe that, at least from the affidavits filed before me for the purpose of this particular application, there is no allegation that the Deeds in question might have been procured by fraud or forgery.
8. In Singh v Singh [2012] FJHC 957; HBC250.2007 (19 March 2012), Mr. Justice Nawana said:
   61. It is, therefore, quite clear that, inasmuch as there was no reference to the Last Will in the Deed of Renunciation itself, there was no evidence at the trial, too, to show that the plaintiff was renouncing '...[his] claims to shares or interests in the estate of the [late] Battan Singh...', under the Last Will. If the first defendant et al were not insidious in their actions and the Last Will was discussed quite openly at a family meeting, a question arises as to what prevented them from referring to the Last Will in the Deed of Renunciation. Failure to correlate the entitlements under the Last Will in the Deed of Renunciation and in evidence at the trial makes renunciation, if any, opaque; and, hence questionable as to its validity.
       
9. I am aware that Nawana J’s ruling was later overturned by the Fiji Court of Appeal in Singh v Singh [2015] FJCA 141; ABU26.2012 (2 October 2015). Notably however, the FCA did so on the issues raised concerning the plea of non-est factum and fraud, and whether the learned judge was correct in his findings in that regard. The issue of the validity or otherwise of the Deed of Renunciation on account of the fact (as found) that it made no reference to any Last Will, it appears, was not argued before the FCA.
10. Nawana J’s finding above that “there was no evidence at the trial, too, to show that the plaintiff was renouncing...” would appear to suggest that, despite the fact of there being no reference in the Deed before him to any Last Will and Testament, it was still a triable issue.
11. In the case before me now, I note that in the Deed of Nerula dated 03 January 2003, the said Nerula had renounced her “share of my father’s Muthu Samu Padayachi’s residential property at Koroivolu Avenue in Nadi Town”. That Deed was executed and witnessed by a Justice of the Peace.
12. In my view, and I only express this view for the purpose of this interlocutory application rather than as a substantive conclusive finding of fact, if there is no issue that Nerula did sign the Deed, then there is no issue that she did renounce her rights to the particular estate asset in question. It seems to me hard to find fault in a purported renunciation of a benefit (on which no allegation of duress, undue influence, mistake, fraud etc) is raised than it is to sustain an instrument that purports to confer a benefit and on which there is an allegation of duress, undue influence, mistake, fraud etc .

CONCLUSION

13. Application dismissed. Costs to the defendant which I summarily assess at $850-00 only. Case adjourned to Thursday 06 October 2016 for mention.
    

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Anare Tuilevuka
JUDGE
30 September 2016