Sujendra Raj Halka v. Rajpati

• Jurisdiction: Fiji
• Judgment Date: 08 November 2018
• Date: 08 November 2018
• Docket Number: HPP Action No. 66 of 2017
• Counsel: Mr. A. Singh for the Plaintiff,Mr. M. Yong for the Defendant
• Court: High Court (Fiji)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

HPP Action No. 66 of 2017

Between:

Sujendra Raj Halka of Auckland New Zealand, Contractor, Beneficiary

Plaintiff

v.

Raj Pati of Laqere Tabia Labasa, Widow, Domestic Duties as the executrix in the Estate of Chandrika Prasad, Deceased

Defendant

Date of Hearing: 31^st October, 2018

Date of Decision: 8^th November, 2018

Counsel:

Mr. A. Singh for the Plaintiff

Mr. M. Yong for the Defendant

DECISION

INTRODUCTION

1. The Plaintiff filed this action against the Defendant seeking orders for a declaration regarding construction of a last will. He also sought an order of the court for the transfer of a property in terms of the last will. The above two orders are interrelated hence interpretation of last will is paramount consideration. At the conclusion of the hearing an issue was raised as to the correct mode of application. The Plaintiff filed this action by way of Originating Summons. Both parties requested to file submissions on this issue as a preliminary issue. This decision will relate only as to whether correct procedure is adopted.

ANALYSIS

2. The Plaintiff had sought interpretation of (construction of) last will of the deceased. The Defendant had obtained probate upon the proof the said last will.

3. Order 76 of the High Court Rules of 1988 deals with ‘Probate Proceedings’ and order 76 rule 1 deals with the application for interpretation of a last will.

4. From the order 1 sought in the Originating Summons, the Plaintiff is seeking construction of last will, and Order 76 of the High Court Rules of 1988 applies to probate causes and matters.

5. Order 76 rule 1 and Order 76 rule 2, of the High Court Rules of 1988 states

“Application and interpretation (O 76, R 1)

1. (1) This Order applies to probate causes and matters, and the other provisions of these Rules apply to those causes and matters including applications for the rectification of a will subject to the provisions of this Order.

2) In these Rules “probate action” means an action for the grant of probate of the will, or letters of administration of the estate, of a deceased person or for the revocation of such a grant or for a decree pronouncing for or against the validity of an alleged will, not being an action which is non-contentious or common from probate business.

(3) In this Order, “will” includes a codicil.

Requirements in connection with issue of writ (O 76, R 2)

2. (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 or her for examination.”

6. Order 76 rule 2(1) of the High Court Rules of 1988 makes it mandatory for all ‘Probate Actions’ to begin by way of writ of summons.

7. The word ‘probate Actions’ is defined exclusively in Order 76 rule 1(2) and accordingly it confines to grants, revocation or validity of last will.

8. The Supreme Court Practice (White Book) 1988 at p1167 (76/1/2/) states Action for probate or for a decree pronouncing for or against the validity of a will- Any person whose interest in the estate of a deceased person is prejudiced by a testamentary document may compel the executor or other person seeking to propound it to do so...