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Rama v Rama [2023] FJHC 636; HBC56.2017 (15 August 2023)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO.: HBC 56 of 2017


BETWEEN :


SHANTI HARILAL RAMA
PLAINTIFF


AND :


BHAGWAT HARILAL RAMA
FIRST DEFENDANT


: JOSHIKA SAMUJH
SECOND DEFENDANT


: RAMA & SONS LIMITED
THIRD DEFENDANT


APPEARANCES/REPRESENTATION
PLAINTIFF : Mr. N. Prasad [Mitchell Keil Lawyers]
FIRST & SECOND
DEFENDANTS : Mr. Naidu [Naidu Law] (Solicitors representing Defendants at time of the
hearing)
THIRD DEFENDANT : In Liquidation


RULING BY : Master Ms Vandhana Lal
DELIVERED ON : 15 August 2023


INTERLOCUTORY RULING


Applications for Determination

  1. There are two applications for determination before this court:
    1. The Plaintiff’s summon dated 10 August 2018 seeking orders as follows:
      • (a) The Plaintiff, Shanti Harilal Rama also known as Shanti Rama also known as Shanti Lal, be substituted with Kishore Lal Dahya also known as Kishor Lal and Arvind Kasabia both of Suva, Fiji, Company Directors, being the duly appointed executors and trustees of the Estate of Harilal Rama pursuant to Probate No. 43315;
      • (b) All documents filed in this action hereinbefore shall have effect in relation to the new Plaintiffs, Kishore Lal Dahya also known as Kishor Lal and Arvind Kasabia, as they had in relation to the existing Plaintiff, Shanti Harilal Rama also known as Shanti Rama also known as Shanti Lal;
      • (c) The new Plaintiffs, Kishore Lal Dahya also known as Kishor Lal and Arvind Kasabia, be given leave to amend the Statement of Claim dated 28 February 2017;
    2. The First and Second Defendants summons dated 17th December 2018 for striking out the claim pursuant to Order 18 Rule(1) (a) of the High Court Rules.

Plaintiff’s Claim

  1. The Plaintiff’s claim is summarized as follows:

The Plaintiff and First Defendant were named beneficiaries under the Will of Late Hari Rama.


The Plaintiff alleges that the First Defendant or someone nominated by him forged the Plaintiff’s signature to effect transfer of property on CL1994 (which was under the Plaintiff’s name) to the First Defendant.


Further allegation are regarding Estate properties that is:

- The First Defendant passed resolution removing Plaintiff as a shareholder (1%) and director. Her signatures were forged.

- The First and Second Defendants wrongfully converted Plaintiff’s entitlement in the Estate to their own gain.
  1. The Plaintiff claims she has suffered loss as a result of the First and Second Defendant’s action and the two Defendants have unjustly enriched themselves.

The Plaintiff’s application dated 10th August 2018

  1. The Plaintiff seeks orders that the current Plaintiff be substituted with Kishore Lal Dahya and Arvind Kasabia being the duly appointed executors and trustees of the Estate of Harilal Rama pursuant to Probate No. 43315.
  2. Since the First and Second Defendant have acted contrary to the provision of Succession Probate and Administration Act and acted as executors de son tort.
  3. Based on above and the judgment by Alfred J. dated 14th November 2017 the executors now have decided to be substituted as Plaintiffs.
  4. According to the Plaintiff, since the estate assets and property mentioned rested on the Executors and Trustees, the Executors and Trustees of the Estate are the proper persons to be named as Plaintiffs.
  5. Due to substitution of parties, amendment to the statement of claim is required to properly identify the issues for determination.

The First and Second Defendant’s summon dated 17th December 2018

  1. The First and Second Defendants seeks to have the statement of claim be struck out on the grounds that it discloses no reasonable cause of action.
  2. The First and Second Defendants are challenging the Plaintiff’s standing to bring the proceedings as she is only a beneficiary in the Estate of Hari Rama.
  3. The First and Second Defendants submit that the general position is that the trustee is entitled to commence action against a third party and not the beneficiaries of a trust or estate. The beneficiaries may institute proceedings where special or exceptional circumstances exists. The law permits a beneficiary who can establish exceptional circumstances to sue on a cause of action against a third party which belongs to a trustee; if the trustee fails to sue to protect the trust property.
  4. According to the First and Second Defendants that is not the situation in the current proceedings. There is no evidence that the executors and trustees had declined to be the Plaintiffs.

Determination

  1. The Singapore Court of Appeal in Wong Moy v Soo Ah Choy [1996] 3 SCR[R] 27 discusses a beneficiary’s standing to sue on behalf of an unadministered estate.

In the said case the Plaintiff brought the action in her personal capacity as a beneficiary of the deceased’s estate as well as on behalf of her children (who were also beneficiaries). The High Court struck out the Plaintiff’s action on the ground that she had no standing to sue without the letters of administration. The matter went on appeal before the Court of Appeal. The key legal issue before the Court of Appeal was whether the Plaintiff qua beneficiary of her deceased husband’s estate was entitled to institute an action against the defendant to protect the assets of the estate.


The Court of Appeal allowed the appeal, and found that the plaintiff had the requisite standing to commence the action against the defendant. The court first clarified that ordinarily, beneficiaries have no equitable or beneficial interest in any particular asset comprised in an unadministered estate. The court further held that there are certain limited, special circumstances under which a beneficiary of an estate which is unadministered or under administration may institute an action to recover assets of the estate. These special circumstances are not confined solely to cases where the personal representative had defaulted in acting to recover the property. Instead, all the circumstances of the case should be considered and the court must ultimately decide whether it is “impossible or at least seriously inconvenient for the representative to take proceedings” such that the beneficiaries ought to be given the right to sue.


On the facts, the Court of Appeal found that the plaintiff had done all she could to obtain letters of administration. Her failure to extract the grant of letters of administration was due to her inability to obtain clearance from the Commissioner of Estate Duty. Overall, the Court of Appeal was satisfied that she did her best in the circumstances to comply with the requirements but was faced with obstacles beyond her control. Thus, special circumstances were shown and she was allowed to bring to action as a beneficiary.


  1. The High Court in Aamna Taseer v Shaan Taseer and others [2012] 2 SLR 348, held that a beneficiary of an unadministered estate did not have any direct, caveatable interest in the assets of the unadministered estate
  2. In Lee Han Tiong and Others –v- Tay Tok Swee [1996] 2 SLR ® 83], the High Court held “all executors are necessary and proper parties [to an action brought on behalf of the estate] and ought to be joined either as Plaintiffs or if they do not consent then as the defendants.”
  3. In the present case the Plaintiff has failed to highlight exceptional circumstances why the executors and trustees of the Estate of Hari Rama could not initiate proceedings.
  4. I find that the Plaintiff had no locus to institute proceeding in her personal capacity regarding claims concerning the Estate of Hari Rama.
  5. The Plaintiff seeks leave to be substituted by the executors and trustees of the Estate. Her application is made pursuant to Order 15 Rule 18 (2) and Order 15 Rule 9 (4) of High Court Rules.
  6. I agree with the First and Second Defendant’s Solicitors that there is no provision for Order 15 Rule 18 (2) in the High Court Rules.
  7. In the submission, the counsel for the Plaintiff has relied upon Order 15 Rule 8 which speaks about change of parties by reason of death etc.
  8. Here the Plaintiff is very much alive and even if the Plaintiff intends to rely on Order 15 Rule 8 (2), the executors and trustees obtained a grant of probate in 2005. The Plaintiff when commencing the proceedings regarding the Estate property had no locus to bring the action.
  9. Hence, I do not find Order 15 Rule 8 to be a relevant provision the Plaintiff can rely upon in the situation.
  10. Upon perusal of the claim, I take note of the following:
  11. These were properties/shares held personally by the Plaintiff and not part of the Estate.
  12. I do not find substituting parties is the solution but rather joiner of party under Order 15 Rule 4.
  13. The claim cannot be wholly struck out as the Plaintiff in her personally capacity has locus to bring proceeding for CL Number 1994 and shares in the company.
  14. There is a cause of action against the First and Second Defendants concerning the properties of Estate of Hari Rama.
  15. The proper Plaintiffs for the claim concerning the estate properties are the the executors and trustees of the Estate.
  16. Hence, I will allow the Executor and Trustees to be joined as party (the Plaintiffs) to the proceedings in addition to the existing Plaintiff to ensure a proper finding is made concerning the distribution of the estate property and beneficiaries to the estate get their fair share of distribution.
  17. The First and Second Defendants application dated 17 December 2018 is dismissed.
  18. Cost of all application to be in cause.
  19. An amended writ of summon and statement of claim to be filed and served by 12 noon on 25 August 2023.

.........................
Vandhana Lal [Ms]
Master of the High Court
At Suva.


15 August 2023


TO:

  1. Suva High Court Civil File No. HBC 56 of 2017;
  2. Mitchell Keil Lawyers, Solicitors for the Plaintiff;
  3. Haniff Tuitoga, Solicitors for the First & Second Defendants.

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