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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
ACTION NO. HBC0191 OF 1997
BETWEEN:
JASMIR SINGH
PLAINTIFF
AND:
GURDEB KOUR
1ST DEFENDANT
PIYARA SINGH
PREM KAUR
ATMA SINGH
Trustees of the Estate of
HARBHAJAN SINGH
2ND DEFENDANT
MOHAN SINGH
3RD DEFENDANT
Mr V P Mishra and Mr Boseiwaqa for the Plaintiff
Mr M S Sahu Khan for the 1st Defendant
Dates of Hearing: 2 June, 20 June 2005
Date of Judgment: 16 September 2005
INTERIM JUDGMENT OF FINNIGAN J
This is a claim for an inheritance filed in 1997. The claim is now against the First Defendant only. I am told that the other two Defendants have died. At the commencement of the hearing Plaintiff’s Counsel advised that the causes of action had been narrowed to (1) breach of trust and/or a fiduciary duty and (2) fraud. The issues were said to be those set out in the minutes of a pre-trial conference dated 13 April 1997, and they are 10 in number. They all will be decided by the view that I take of the evidence and my findings of fact. All of the evidence is the Plaintiff’s. Counsel for the Defendants did call the First Defendant who was sworn, but then elected to offer no evidence.
Initially, the Plaintiff wished to litigate a host of issues, but at the hearing they came down to this; Has the First Defendant cheated the Plaintiff of his inheritance? That is what I have to decide.
The Facts
The fundamental facts are undisputed. The Plaintiff (“Jasmir”) is the adopted son of Saran Das and Kisso. The 1st Defendant (“Gurdeb Kour”) is their daughter. When Saran Das died in July 1972 he left a Will dated 5 April 1972 in which Kisso was the sole Executrix . He left his entire estate to her “absolutely till she remains my Widow and after her death to and unto my son JASMIR SINGH ............absolutely”.
This is the foundation of Jasmir’s claim. He says he has got next to nothing while his sister has arranged things so that she has taken his inheritance.
Kisso died in March 1980. She left a Will appointing Gurdeb Kour and Jasmir her executors. She bequeathed her entire estate “including any property over which I may have a power of appointment or disposition to and unto my daughter GURDEO KOUR.....and my adopted son JASMIR SINGH and .............in equal shares share and share alike absolutely”.
It is helpful to pause here and assess the cumulative effect of these two Wills. In my opinion the first Will can only be read as giving Kisso a life interest in the whole estate with a gift over to Jasmir absolutely. It can make sense only if the first “absolutely” is omitted. It might have been intended to mean “solely”. That being so, Saran’s estate cannot be included in the bequest by Kisso of all her estate “including any property over which I may have a power of appointment or disposition”. Saran’s estate was already given to Jasmir, subject to her life interest. She could not bequeath her life interest, neither could she bequeath Saran’s estate. She had no power of appointment or disposition over that estate, other than to keep it for Jasmir.
It appears however that when she died in March 1980 she left “part of the estate of Saran -..............unadministered”. These are the words of Counsel and they appear in Letters of Administration De Bonis Non which were granted to Gurdeb Kour on 17 June 1981. The meaning of that quoted phrase will become clear.
Jasmir at that time was about 15 so his sister was made trustee to administer whatever was left to him from Saran’s bequest after Kisso’s enjoyment of her life interest.
Gurdeb Kour with Harbhajan Singh and Mohan Singh (the 2 deceased Defendants) jointly and severally bound themselves for $7,215.00 to [inter-alia] “distribute all the real and personal estate of the deceased [i.e. Saran Das] according to law .........” It is clear at this point in the narrative to that Gurdeb Kour could administer the estate of Saran for the benefit of nobody other than Jasmir.
Saran’s Estate
About Kisso’s estate I did not hear much. In the evidence there is a dispute about some cash and valuables uplifted by Gurdeb Kour from a bank safe deposit, which is not included among the stated issues, but I shall address it in this judgment. In Saran’s estate the major part seems to have been a lease of a 90 ¼ acre cane farm. This lease was wholly owned by Saran. At the time of his death in 1972 it had about 11 years to run until January 1983. Saran’s lease [Exhibit P2] was No. 9271 and Kisso’s interest as Administratrix was registered in July 1975. It was still owned by his estate in 1980 when Kisso died and when the letters of administration de bonis non were taken out by Gurdeb Kour. Using the letters of administration as her authority Gurdeb Kour wholly surrendered that lease on the date of its expiry 31 December 1983 [Exhibit P3]. Gurdeb Kour then on 1 January 1984 was granted a 30 year lease of 7.268 hectares which so far as I can tell is part of the original 90 ¼ acres. I think 7.2 hectares is about 44 ½ acres. Gurdeb Kour’s lease is No 20591. The Estate officer of the NLTB who gave evidence said that from the original or head lease 3 new leases had issued. He did not know the names of the other lessees.
There were actually 4 leases, and the original farm of 90 ¼ acres was divided into four lots. The names of the four lessees, identified by the numbers given by NLTB Estate officer, are in a letter written on 9 May 1991 by Gurdeb Kour’s solicitors to the Sugar Industry Tribunal. [Exhibit Doc. 7]. They are Sohan Singh, Ajodhya Prasad, Harbhajan Singh and Gurdeb Kour.
Why did Gurdeb Kour do these things with Saran’s lease and its cane farm?. Before he died Saran himself had set the events in motion, and they were not completed by the time Kisso died. On 5 October 1971, six months before he made the Will, he had signed an agreement with Harbhajan Singh whereby he sold 30 acres of his farm to Harbhajan Singh including farm equipment and livestock which were detailed. The parties agreed to a set of terms and conditions and accounts which had commenced from 7 October 1968. The agreement also recited the fact that Saran had agreed to give 8 acres “adjoined to the cane farm land” to Gurdeb Kour free of charge. Harbhajan Singh was to pay $400.00 per acre a total of $12,000.00.
Saran had also made other agreements. He had sold off most of the cane farm. The evidence did not tell me, but I presume that all these contracts for sale were made at about the same time as the one with Harbhajan Singh in 1971. Jasmir at that time was only 5 years old. He knew nothing about it.
Kisso owned 20 of the 90¼ acres. She sold her 20 acres to Ajodhya Prasad in an agreement dated 20 July 1977 [Exhibit D1 doc. 12]. The document recites that she held this land under an agreement to lease dated 30 May 1964. It is declared to be part of lease No 9271 which is the 90 ¼ acres. It could never have been intended by Saran Das to be included in his estate and 3 years before her death Kisso removed it from hers. On 11 February 1976 her solicitors wrote to the NLTB about delays in consent for this dealing and by 6 May 1978 that was still not resolved (Exhibit P4 docs 10 & 11).
This was never explained to Jasmir so far as I can gather, at least not until 1995 when he was nearly 30 and had taken out joint administration with Gurdeb Kour of the estates of Saran Das and Kisso. On 31 January 1995 his solicitors wrote to the solicitors for Gurdeb Kour seeking an explanation for the surrender of the original lease and the issue of the new leases Gurdeb Kour and others. They demanded this explanation on the basis that “our client was clearly the sole beneficiary of the ........estate .......[and] feels that surely he was entitled to some part of the lease”. They had by then on his behalf already commenced the present proceedings which they described in that letter as being for breach of trust and fraud.
That letter was answered on 18 April 1995. The reply went to three pages and on its face it is the full explanation of everything that had happened from the time when Saran Das subdivided his farm, which was 12 years before he died. I shall concentrate on the issues which I am required to decide therefore will not set out the explanation. The explanation does have its complexities but the bulk of it was easily contained within one page of the explanatory letter. What is clear to me from the evidence of Jasmir is that he was not aware of these arrangements before the explanation was given to him and he has never accepted the explanation because the letter stated that “Saran Das and Kisso made certain variations to the original dealing with the consent of all the parties.....”. He says he never consented to anything. He says he should now be the owner of Saran Das’ cane farm, or at the least any part of it currently owned by his sister Gurdeb Kour.
One can feel a warm sympathy with his point of view. He inherited from his father what he thought was the cane farm on which he had lived. He was not aware his father had at some time after 7 October 1968 “agreed to give 8 acres to Gurdeb Kour free of charge” (above). His father made no bequest to Gurdeb Kour. Now Gurdeb Kour owns in her own name a substantial part of that farm and he owns none of it. Relations between him and his sister are clearly not good. Not only has she taken what he thinks is his inheritance [including some of Kisso’s cash and the valuable chattels mentioned above] but through her solicitors she has been claiming money that she says is owed to her for his maintenance while he was a minor.
To digress briefly, I do not take seriously the claims made at the trial that the Plaintiff is in debt to Gurdeb Kour for his maintenance between 1980 and 1984. There was a document [Exhibit P5] called “Statement of Account for Sundry Debts between each party” wherein Gurdeb Kour agreed with Harbhajan Singh that she and the estate of Saran Das owed certain sums to Harbhajan Singh for bus fares and for food supplied to Jasmir Singh and legal fees in respect of probate for Kisso’s estate. I would think long and hard before allowing these as debts payable by the Saran Das estate. Likewise there is a charge for survey fees. If this relates to land sold to Harbhajan Singh, there is no warrant given by the agreement for charging these fees to the vendor. I was shown no reason why the estate of Saran Das should pay any survey fees. However the Harbhajan Singh Sale and Purchase Agreement provided that Saran Das would pay to Harbhajan Singh $600.00 per year with no period limited “for the support of family and annual expenses”. No evidence was given about the meaning or effect or practical result of this term.
About the complexities in carrying out the arrangements whereby Saran Das subdivided his cane farm into 4 parts, suffice to say that the parcels were rearranged among the 4 new lease holders so that Gurdeb Kour increased her landholding from the 8 acres given her by Saran Das to 17.95 acres so that she, like the other 3, could take out a cane contract. Her 8 acres was increased by 4 acres which she bought from Ajodhya Prasad’s portion and 2 acres given to her by Harbhajan Singh from his portion together with 3.95 acres, described by her lawyers in the letter of 18 April 1995 as the interest of Jasmir Singh. The claim of her solicitors was, and is, that after Saran Das subdivided the cane farm by selling specific acreages all that was left for Kisso’s life interest and ultimately for Jasmir was 3.95 acres. Their contention in April 1995 and again since that time and again at this trial is that this is Jasmir’s inheritance. They say it is included in Gurdeb Kour’s lease but that she acknowledges it is his. He has been told that it is available for him to cultivate but he has not done so. I assume Gurbeb Kour’s position is that he is entitled to a pro rata share of the annual income from her cane contract. Her claim through her lawyers however is that he must work his 3.95 acres himself if he wants the money. This is difficult to reconcile with her claim in her lawyers letter that she is holding that land as trustee for him. Why has the land not been transferred to him?. Why has he been deprived of his choices? Why has he not been receiving his share of the income? The only answer revealed by the evidence is the enmity between them, for which she on the evidence is the prime mover.
From a letter written by Gurdeb Kour’s solicitors dated 2 April 1980 [Exhibit D1 doc. 16] it is apparent that the Rural Local Authority was not at that time approving leases under 15 acres. If that restriction applied to Gurdeb Kour when she took out her cane contract then her 8 acres even with the 6 acres obtained from Ajodhya Prasad and Harbhajan Singh was insufficient. Without appropriating the land she was holding for Jasmir as trustee she could not have got the benefit of a cane contract for herself. This by itself might not necessarily disadvantage Jasmir because it enabled him to obtain an income from his 3.95 acres, but this has not happened. Jasmir has been alienated by what she has done.
Another part of the arrangements that concerns me is that once the 4 acreages had been settled among the 4 new lessees the area absorbed in road and creek reserve was taken not from their acreages but from the balance, which belonged to Jasmir. This was 6.11 acres. Gurdeb Kour (and it seems, Kisso) rearranged what Saran Das had arranged. Had the lessees absorbed this acreage within their own during the re-arrangement that land would have been available to him. However, I have insufficient evidence on which to say much more. I think I can say however that Gurdeb Kour as his trustee badly administered his inheritance for that reason alone.
Gurdeb Kour knew as long ago as March 1984 that the Native Land Trust Board had conditionally approved a new lease for her part of the original farm, what was to become Lot 3 Vatuyaka Subdivision commencing 1 January 1984. She might have made it obvious that she was acting bona fides if at all times from then on she had made it clear to the world, or even just to Jasmir, that she was taking part of that land as a trustee for Jasmir. [Letter to her solicitors from N L TB dated 6 March 1984, Exhibit D1, doc. 3]. It is clear from the documents [Exhibit D1, docs 4, 5, 6, 18 and 19] that she came perilously close to losing the land she was holding as trustee for Jasmir in a mortgagee sale. It is not necessary to decide whether this would have been a breach of her duties as trustee, but clearly it would have been.
I note among the documents [Exhibit D1 doc. 6] that on 23 December 1994 the Fiji Development Bank wrote to Jasmir’s solicitors advising that Gurdeb Kour’s solicitors had written to the Bank stating that the claim by Jasmir under the estate of Saran Das and Kisso had nothing to do with the land in Native Lease No 20591. This letter was completely ignored in the evidence. Had it come in issue without further explanation, I should have been bound to find that the reported statement is not only wrong but contrary to the explanation which would be given about a week later by those solicitors in the letter of explanation referred to above. Because of that wrong statement the Bank then required Jasmir’s solicitors to explain why Jasmir was claiming against the lease of Gurdeb Kour when, as the Bank noted, she held that lease in her own right and not as an administratrix. This again questions her bona fides and raises the question why she did not register herself as the trustee. This letter was written by the Bank because Jasmir was making a claim on some monies to be paid by the Bank to Gurdeb Kour. As part owner of her lease he had some colour of right. Perhaps he was deprived, but I can make no more of it than that.
I am now able to determine some of the 10 issues identified in the minutes of pre-trial conference dated 13 May 1997. It may be of some use.
(a) Whether the Plaintiff is entitled to benefit from the estates of Saran Das and Kisso and if so in what share and/or proportion.
Ans: He is, and his entitlement is governed by their Wills. His
inheritance from Saran Das is the entire estate, to be vested in him after Kisso’s death. By the evidence this was 3.95 acres of land from the original 90 ¼ acres. It seems this 3.95 acres can be identified. It is within Kurdeb Kour’s lease No 20591. It seems there should be more. There is no evidence I can identify about what other than the lease No 9271 that was proved as Saran Das’ estate. His inheritance from Kisso is half of her estate shared equally with Gurdeb Kour “share and share alike”. It seems his includes a half equal share of the cash and valuables taken from the Bank safety deposit.
(b) Whether any benefits have been received by the Plaintiff from either of the two estates and if so the extent thereof.
Ans: He has received one gold coin from the estate of Kisso but nothing else.
The Plaintiff’s solicitors in a letter to Gurdeb Kour dated 9 January 1995 state that the estate of Kisso was proved at $9,126.82. This was not directly referred to in the oral evidence but if that was the actual value of the whole estate then the Plaintiff is entitled to half that amount.
(c) Whether letters of administration De Bonis Non of the estate
of Saran Das probate No 17627 was taken out wrongfully
and unlawfully.
Ans: On the evidence and submissions before me, I cannot say.
(d) Whether the 1st Defendant has acted bona fide and whether
she is in beach of trust.
Ans: No, and Yes.
(e) Whether the 1st Defendant has acted fraudulently and in collusion with Harbhajan Singh and in breach of her fiduciary duty as trustee executrix and administratrix in disposing of the assets of the estate of Kisso and Saran Das and in not handing over to the Plaintiff his lawful entitlement.
Ans: No, on balance. There are too many issues here.
(f) Whether the 2nd Defendant and 3rd Defendant are liable under bond dated 25 April 1981.
Ans: The Plaintiff did not continue his claim against them.
(g) Whether the subdivision of Native lease 9271was carried out by the Defendants in accordance with various agreements entered into by Saran Das and Kisso which included the surrender of the said lease.
Ans: On the evidence, probably, but the 6.11 acres road and creek
reserve is equivocal.
(h) Whether the 1st Defendant holds Native lease 20591 as trustee for herself and for the Plaintiff as to 4 acres.
Ans: Yes, but the Plaintiff’s share is 3.95 acres.
(i) Whether the Plaintiff’s claim is frivolous and vexatious and has been brought as an abuse of process of Court.
Ans: No.
(j) Quantum of damages and costs.
Ans: Counsel did not pursue the damages claim. Breach of trust may provide some foundation for an award of damages to the Plaintiff. Although I was not asked, I think there is also some foundation for a claim against Gurdeb Kour’s $7215 bond in the Administration de Bonis Non.
Conclusion:
I have done the best I can with the evidence. The parties and Counsel knew much more about this than I did, Counsel for the Defendants having been involved in the transactions made by Gurdeb Kour. I have however learned a great deal from studying since the hearing the documents that were put in as evidence.
The relationship of Gurdeb Kour to Jasmir Singh is not just a family relationship. He is younger than she, and her parents put her into a relationship with him that is fiduciary. The fiduciary obligations of a trustee to a beneficiary have been enforced strictly for a very long time, since at least Keech v Sandford (1726) Sel Cas King 61.
As a fiduciary clearly Gurdeb Kour has not acted bona fides. She has acted without sensitive attention to the rights and needs of the beneficiary for whom she was trustee, as Executrix of their parents’ wills. This is shown by the mere existence of the present situation which includes the following fixtures:
I was not asked to rule on her liability under the $7, 215.00 bond she gave on taking out letters of administration de Bonis Non. This is not included among the prayers of the statement of claim, of which there are 8. Counsel for the Plaintiff in his closing submissions did not make crystal clear those which he still seeks. I accept his submission that the documents leave a great deal to be explained by the trustee who has a fiduciary duty to the Plaintiff. It seems therefore he seeks and I can grant prayer (d) an order that the 1st Defendant provide full accounts of the estates of Kisso and Saran Das from the date of death of Kisso. Parallel with that accounting must come an acknowledgment that from the commencement of her lease she has been holding at least 3.95 acres of the lease as trustee for the Plaintiff. With that must go a proportion of share of the profits from the cane contract. Surely that acreage must be transferred to him forthwith and surely it is equitable that he have a say in the choice of land. I say “at least” because subject to her explanation there could be more.
Also, on 19 January 1994 the Plaintiff obtained an injunction which prevented the 1st Defendant from uplifting cane proceeds from her farm No 1863 and restraining her from further encumbering the farm. It was by then mortgaged to the Fiji Development Bank. On 11 July 1997 she applied to this Court for an order releasing $15,798.57 of that money to the Fiji Development Bank to prevent a mortgagee sale of the farm. The Plaintiff consented. So far as I am aware the injunctions are still in force but I was not advised whether any money is currently held by the Fiji Sugar Corporation. If there is, there must be an accounting. Some of it belongs to Jasmir.
Counsel referred to the gold jewellery and cash held at the Westpac Bank in Ba, said to be $8,006. 00 more or less in cash and unspecified jewellery of which the Plaintiff received one gold coin. Clearly the Plaintiff is entitled under Kisso’s will to half of this but no remedy has been sought, but it will be covered in the accounting. There will be a debit of $800 for money advanced to him from the estate in respect of a criminal liability he incurred.
In respect of the accounting Counsel submitted that the probate value of the estate of Saran Das was over $23,000.00 of which the Plaintiff was residuary beneficiary. He has had no accounting. The estate of Kisso was valued for probate at $9126.82 and even though he has taken out probate he has been able to obtain nothing. The Plaintiff does acknowledge that $800.00 was paid to him in respect of his liability in a criminal matter and that this was paid from the estate.
In respect of accounting, Counsel for the Plaintiff points to the amount paid to the Fiji Development Bank and submits “this shows what this farm could have produced”. In his submission it should have been at least $5,000.00 per annum after expenses from 1980 onwards. He seeks an accounting for these profits. The 1st Defendant must supply that accounting.
Finally Counsel asked for an order that the 1st Defendant pay the Plaintiff what he called “the value of the lease” as valued by a valuer who is approved by the Court and paid for by the estate. That is not included in the prayers of the statement of claim and there is no prayer for further or other relief. It may be possible to accommodate this submission after the accounting has been done.
On 9 March 1992 in the High Court at Suva the Plaintiff obtained an order commanding Gurdeb Kour to bring to the Probate registry the probate of the estate of Saran Das No. 17627 which she had been granted on 12 April 1973, (Exhibit P.4 doc 4). Counsel asserted this command had never been complied with, and this was not challenged. I am well justified by all the evidence in granting prayer (c), an order removing the 1st Defendant as the executor and/or administrator and/or trustee of the estates of Saran Das and Kisso.
Taking all that into account, I am able to make and do make the following orders from among those sought. All are interim orders at this stage.
(a) An injunction restraining the First Defendant and/or her servants and/or her agents from transferring or disposing of the Native Lease No 20591 and from receiving any funds under cane Contract No. 1863, Veisaru Sector whether directly from the Fiji Sugar Corporation Ltd, or from any Bank under any security given to any Bank or otherwise.
(b) An injunction restraining the first defendant and/or her servants and/or agents from uplifting any further monies or benefits provided under Probate No. 17627.
(c) An order that the First Defendant provide on oath full accounts of the Estates of Kisso and Saran Das. Starting with the estate of Saran Das, she must itemize as at the date of death all the assets (personality including any money and realty including any houses and buildings) and all the liabilities and inter vivos commitments in respect of those assets made by the testator himself; thereafter she must likewise set out the assets and liabilities of the estate of Kisso as at the date of death. If there is not full disclosure the Court will consider any explanations she may wish to give for that. She should annex all the documents in her possession relative to the two grants of probate including any affidavits and other evidence of the values for probate. She should trace and name the present owners of all items, or give explanations. This order is to be complied with by filing in Court and service on the Plaintiff’s solicitors by 4.00pm on 31 January 2006.
(d) (Not as prayed but instead) an order that the First Defendant
provide to the Plaintiff an accounting of all cane proceeds received under cane Contract No 1863 and any preceding cane contract from 17 March 1980. This order is to be complied with by 4.00pm on 31 January 2006.
(e) An order that the First Defendant be removed as Administrator & Executrix of the estate of Kisso and of the estate of Saran Das.
(f) An order that the Plaintiff be appointed the sole executor and trustee of both the estates of Saran Das and Kisso.
Time limits were not addressed by Counsel. A reasonable period is 4 months, hence I DIRECT that the accounts ordered above in [c] and [d] be delivered to the solicitors for the Plaintiff by 4.00pm on the last day of January 2006. I have listed the matter for an appearance by both Counsel at 9.00 am on Friday 10 February 2006.
Liberty is reserved for either party to apply for further directions on 7 days’ notice.
When final orders are made, the 1st Defendant will pay the Plaintiff’s costs. These will be the reasonable indemnity costs and disbursements incurred by the Plaintiff which I am sure Counsel will be able to agree. If not they will taxed in accordance with the High Court Rules.
Claims for damages and interest were not pursued. These issues are reserved for the present.
While considering this matter I had to ask what were the statutory duties of Gurdeb Kour as executrix/administratrix of these two estates under the law in Fiji. Neither of the Counsel offered any help in that direction. I was not invited to consider the legislation. I have however looked at the Wills Act Cap 59 and the Succession Probate and Administration Act Cap 60. Some of the statutory provisions must have an impact in this case. In the Wills Act, perhaps Section 29 and 30 among others. In the Succession Probate and Administration Act surely Section 20 applies and doubtless Counsel for the Plaintiff has based some of his submissions on the provisions of this Act. It may be necessary later for me to seek submissions about what statutory powers and functions are given to the Court in the circumstances of this case. There is doubtless some case law also.
D.D. Finnigan
JUDGE
At Lautoka
16 September 2005
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