Naicker v Wati [1993] FJHC 57; Hbc0055j.92s (30 June 1993)

IN THE HIGH COURT OF FIJI
(AT SUVA)

PROBATE ACTION NO. 55 OF 1992

BETWEEN:

SUBAMMA NAICKER
as Executrix and Trustee of the Will of ANGAMMA
f/n Appaswami-Gounder
of Malolo, Nadi, Domestic Duties
Plaintiff

AND

BHAGYA WATI
f/n Krishna Sami of Malolo, -
Nadi, Domestic Duties
Defendant

Mr. J. Singh and Miss Asha S. Maharaj: For the Plaintiff
Mr. H.A. Shah and Miss F. Munam: For the Defendant

Date of Hearing: 1st June 1993
Date of Interlocutory Judgment: 30th June 1993

INTERLOCUTORY JUDGMENT

At the outset of this Probate Action, a point of procedure has arisen which requires me to give a brief judgment.

By the action which was commenced on the 22nd of November 1992 the Plaintiff seeks to establish a Will of the deceased husband of her late mother Angamma which was dated the 30th day of March 1976. The present Plaintiff was substituted for her mother who in turn was the sole Executrix of the Will of Krishna Sami Naicker following the death of Angamma on the 15th of December 1992. The Originating Summons discloses an alleged Will of a later date namely 10th of August 1992 of which it is claimed Angamma was unaware until notified of the fact by the Probate Registry of this Court.

Angamma, and now the present Plaintiff, allege that the purported Will of the 10th of August 1992 is false because the signature of the Testator on the Will is a forgery and that the Defendant conspired with other persons who acted as witnesses to forge the signature of the deceased Krishna Sami on the Pretended Will. These allegations are denied by the Defendant.

The circumstances leading up to the issue by Angamma of the present Originating Summons are somewhat curious and arose in this way:

Two Probate applications were lodged in the Registry of this Court Nos. P.28616 and P.28643. P.28616 was lodged by the present Defendant as Executrix and Trustee of the Will dated 10th August 1992.

A search was conducted on the same day at the Registrar of Titles Office which revealed that there was no registered Will of the deceased Krishna Sami Naicker father's name Kuppa Sami in the custody of the Registrar.

A search for Caveat and prior grant revealed that no Caveat restraining a grant of Probate on the estate was lodged and accordingly an application for Probate was granted by Ashton-Lewis J. on 2nd of October 1992.

P.28643. An application for Probate in this matter was lodged by the solicitors for the present Plaintiff on 5th of October 1992 with a Will dated 30th of March 1976 annexed thereto in which the Executrix and Trustee was the former Plaintiff Angamma. It will be noted that an application was lodged three days after Probate P.28616 was granted to Bhagya Wati the present Defendant.

A search was conducted at the office of the Registrar of Titles which revealed there was no Will belonging to Krishna Swami f/n Kuppsami in his custody. There was no prior grant in the name of KRISHNASWAMI f/n KUPPSAMI. There was no Caveat lodged to restrain a grant and so an application for Probate was granted in this case by myself on 28th of October 1992.

Just before the Probate Registry released the grant to the solicitors for Angamma it was realised that the deceased was the same person in both the applications. The only difference was the spelling in his name and his father's name. The grant was not released and still remains in the application file.

When the hearing began before me on the 1st of June counsel for the Plaintiff raised a preliminary point as to who should begin and submitted on the facts of this case the Defendant should begin.

In Tristram and Coote's Probate Practice, 27th Edition at p.5 the authors state that any person whose interest is adversely affected by a grant of Probate in common form may proceed by a revocation action to put the grantee to proof of the Will in solemn form. A Will is proved "in common form" where its validity is not contested or questioned. The Executor brings the Will into the Probate Registry and obtains the grant notwithstanding the absence of other parties interested, upon his own oath and any further affidavits which may be required.

A Will is proved "in solemn form" by the Executor propounding it in an action to which the persons prejudiced by it have been made parties, and by the Court, upon hearing evidence, pronouncing for the validity of the Will and ordering the issue of a grant.

Counsel for the Plaintiff relies on the statement in paragraph 363 of Halsbury's Laws of England, 3rd Edition, Volume 16 that the burden of proving due execution, whether by presumption or by positive evidence, rests on the person setting up the Will. It is submitted that the person propounding the Will must begin and reliance is placed on the case of Hutley v. Grimstone (1879) 5 P.D.24 to which I shall refer again shortly. The Plaintiff also relies on a decision of the Court of Appeal of Fiji confirming a decision of Kearsley J. in Civil Appeal No. 26 of 1969 Ram Sharan s/o Raghunath v. Kanyawati d/o Ram Kissun delivered on the 7th of November 1969 and invites me to follow that decision.

The facts of that case are similar in many respects to those of the instant. The Court had before it two Wills of the deceased, the first dated 30th of September 1964 and the second dated 23rd of June 1965. The Plaintiff alleged that the latter Will was not signed or acknowledged by the deceased and that at the time he was not of sound mind, memory or understanding. These allegations were denied by the Defendant who counter-claimed asking the Court to pronounce against the first Will and to decree Probate in solemn form of the latter Will already probated in common form.

At the hearing the judge was asked to rule who should begin and he ruled that the Defendant should begin. The Court of Appeal upheld this ruling and held that the burden of proving that the Testator was of sound mind, memory and understanding at the time he signed his Will lay on the Defendant.

The Court relied on certain parts of Order 35, Rule 7 of the rules of this Court which are identical with those of the Rule of the English High Court set out in the Supreme Court Practice at pp. 563 - 564 of the 1988 Edition.

In reply to these submissions counsel for the Defendant first argues that the Defendant is not propounding any Will because the Defendant is already the recipient of Probate Grant No.28616. With respect, this submission shows a misunderstanding of the verb "to propound" used in its legal sense. In this sense the verb means to put forward or propose as genuine a Will annexed to the required affidavit. Any grant of Probate made by the Court Registry must be conditional on that grant being set aside by this Court or the Court of Appeal as here when application is made to have the Probate set aside. Counsel then quotes from Tristram and Coote's Probate Practice at p.703 of the Twenty-Seventh Edition where the authors state that the burden of proving affirmative allegations impeaching the will where the fault does not lie with the testator (e.g. undue influence or fraud) is upon the party making them who should begin.

In reply counsel for the Plaintiff agreed that if the Plaintiff was not alleging fraud then she should begin but here she is alleging fraud.

One of the cases mentioned in Tristram and Coote on the question before me is Re Parry's Estate v. Parry (1977) 1 All E.R. 309, a decision which I have found helpful in deciding this preliminary point. Parry was a decision of a single judge, Goulding J. who like myself had to decide which side should begin in a Probate action where there were two Wills. The first Will which the Plaintiff sought to establish was made in April 1971 and the second Will made in June 1974. The Plaintiff asserted that the last Will was not executed in accordance with the provisions of the Wills Act. The Defence was that the Will of 1971 was revoked by the Will of 1974 which the Defendants alleged had been duly executed. His Lordship remarked at p.310 of the report that both sides claimed the right to begin and that the Plaintiff did not allege forgery or fraud but did allege an unusual series of events involving, apparently, some failure of professional duty on the part of a solicitor.

The Defendants rely on Hutley v. Grimstone (supra) but Goulding J. declined to follow that case on the ground that it was decided before the present Order 35 came into force. Here I must quote part of Order 35, Rule 5 so far as relevant:

Sub-rule (1) of Rule 5 states that the judge before whom an action is tried may give directions as to the party to begin.

Sub-rule (2) which is subject to paragraph 6 states that the Plaintiff shall begin by opening his case.

Sub-rule (6) states that where the burden of proof of all the issues in the action lies on the Defendant, the Defendant shall be entitled to begin. This last sub-rule is of course subject to any direction under paragraph 1 of Rule 5, as Goulding J. so held in Parry.

At p.311 letter (g) His Lordship said:

"Now although I can see that it may very often be desirable for the defendant to begin when he is setting up the latest will in point of time in the present case I think there is good reason to let Ord 35 have its normal operation - the reason being that the later will is apparently good on its face and, subject to formal proof of signatures and attestation, can only be attacked by going into some affirmative history of the manner in which it came into being."

I find this passage very helpful and since the facts of this case appear to be distinguishable from those in Ram Sharan s/o Raghunath v. Kanyawati d/o Ram Kissun (supra) exercising my discretion under Order 35, Rule 5(1) I consider it would be more appropriate in this case to order the Plaintiff to begin, which I now do.

JOHN E. BYRNE
J U D G E

HBC0055J.92S