Singh v Singh [1999] FJHC 165; HPP0040J.1997 (5 October 1999)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL CASE ACTION NO: HPP 0040 OF 1997

BETWEEN:

SATENDRA KUMAR SINGH s/o Kuar Singh
Plaintiff

AND:

DHARMENDRA SINGH s/o Mahendra Pratap Singh

AJIT KUMAR SINGH s/o Kuar Singh
Defendants

COUNSEL: Sir Vijay R Singh for Plaintiff
: Mr. R. Prakash with Mr. R. Singh for Defendants

Hearing: 5th October, 1999

Decision: 5th October, 1999

JUDGMENT

This was originally an application for the Court to pronounce for the validity of a Will allegedly executed by the deceased Kuar Singh on 9th July 1994. The application was made under Order 76 of the High Court Rules 1988.

However, after calling three witnesses and closing its case, the Plaintiff sought, and obtained leave to discontinue its action. Sir Vijay Singh, counsel for the Plaintiff informed the court, that having considered the evidence, and the wording of the 1994 Will, he was of the view that the Plaintiff’s application should be dismissed.

The Plaintiff’s action was then dismissed under Order 76 Rule 11 of the High Court Rules.

The Court then considered the validity or otherwise of the Will propounded by the Defendants, under the Defence and Counter-claim. That matter was uncontested, the Plaintiff having been given leave to withdraw from the proceedings.

The Defendants called two witnesses orally, DW1 Dharmendra Singh, and DW2 Harish Sharma. The Defendants also relied on the sworn affidavit of Ajit Kumar Singh sworn on 24th September 1999.

The Defendants’ case is simple. They say that Kuar Singh, the deceased did not sign the 1994 Will. They say that the signature is not Kuar Singh’s, that the witnesses purporting to Kuar Singh’s signature in 1994 were unworthy of belief, and that the clauses of the purported Will read in an ambiguous way. They ask that the court pronounce for the validity of the 1992 Will on the strength of the evidence of Mr Harish Sharma, Barrister and Solicitor.

I have carefully considered all the evidence in this case. I am aware that the evidence of the validity of the 1992 Will rests on the evidence of a person who is not a handwriting expert.

However I accept that DW2, a Barrister and Solicitor who enjoyed a close relationship of some 20 years with the deceased, is in a position to recognise the handwriting of the deceased, through familiarity with his signature. Furthermore I accept that the deceased signed the Will dated 16th September 1992 in the presence of DW2, and in accordance with section 6 of the Wills Act Cap. 59.

I am satisfied, having heard all the evidence that the signature of the Will dated 9th July 1994, is not the signature of the deceased, and that this Will, is not the last Will and Testament of the deceased. I have also given weight to the evidence of the deceased’s character and personal attributes, and to the opinion expressed by the Plaintiff’s witnesses and the Defendants’ witnesses that the deceased was a methodical and conservative man with an orderly mind. I am satisfied that the venue and mode of execution of the 1994 Will was out of character for the deceased.

I am of the view therefore that there is ample evidence that the Will dated 9th July 1994 is not executed by the deceased, and that the Will dated 16th September 1992 is the valid Will of the deceased.

I therefore order as follows:

(i) I pronounce for the force and validity of the Will of 16th September 1992;

(ii) I pronounce against the validity of the Will dated 9th July 1994;

(iii) I order the grant of probate in accordance with the terms of the Will dated 16th September 1992 and that caveat nos. 16/95, 24/95 be removed forthwith.

I make no order for costs as both parties have agreed to pay their own costs.

(Nazhat Shameem) Ms
JUDGE

At Suva
29th October 1999