Chandar v Chand [2011] FJHC 337; HBC105.02L (8 June 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 105 of 2005L

BETWEEN

RAM CHANDAR, ARTIKA DARSAMI, KAMLA WATI, CHANDNI LATA and RAKESHNI LATA
Plaintiffs

AND

MUKESH CHAND
Defendant

FINAL JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr R Singh (Plaintiff)
Solicitors: Patel & Sharma (Plaintiff)

Dates of Hearing: 26 April 2011
Date of Judgment: 8 June 2011

INTRODUCTION

[1] The parties are the children of Ram Khelawan, a farmer of Votualevu in Nadi. He died on 14 June 2001. This is a dispute over his will. The plaintiffs say that it was a forgery.

THE FACTS

[2] The defendant applied for grant of probate over his father's estate pursuant to his father's will dated 7 February 2001. He lodged a caveat on 25 June 2001 and his application for probate on 8 August 2001. The first named plaintiff also lodged an application for the grant of letters of administration. Because of the caveat, the applications could not be considered and the matter remained unresolved until the defendant withdrew his caveat and both applications put before the judge for consideration. Byrne J, as he then was, considered the applications and ordered that probate issue. Probate No 39303 was consequently granted to the defendant on 5 November 2001.

[3] His brothers and sisters, the plaintiffs, claim that the will pursuant to which probate was issued to the defendant was a forgery. They say their father did not execute the will; his signature was forged by their brother, the defendant.

[4] This is the issue to be determined in this case.

CASE HISTORY

[5] The Writ of Summons was filed on 2 January 2002 in this court's probate jurisdiction in Suva as HPP 1 of 2002. On 1 February 2002, the plaintiffs obtained an injunction restraining the defendant from disposing $28,519.54 held in their father's bank account and other assets of his estate until further order. On 18 March 2002, by consent, the matter was transferred to this court in Lautoka. It was given action number HBC 105 OF 2002L. Nothing much happened until the defendant filed his defence on 13 April 2004. The matter then travelled between the Deputy Registrar, the Master and several judges over the next four years. The plaintiffs filed their list of documents on 7 March 2008 and the defendant filed his list on 26 March 2008. The PTC Minutes were filed on 2 June 2008. Several mentions before Master Udit followed until 28 November 2008 when the judge set it down for hearing on 4 May 2009. That hearing did not take place because of the closure of the courts in April 2009 and the matter eventually came before me on 26 June 2009. I set it down for hearing on 25 September 2009. On 25 September 2009, counsel for the defendant withdrew and counsel for the plaintiff asked the matter to be referred to the Master for mediation which I set for 15 October 2009. No one appeared before the Master on 15 October 2009 so he rescheduled it for mention on 29 October 2009. The defendant appeared in person in three mentions but did not appear on 23 November 2009 on the mediation date that was set in his presence. Master Tuilevuka then adjourned the failed mediation to me for mention on 11 December 2009 to fix a date for hearing. The defendant having not appeared, I set the formal proof date for 8 February 2010. On 8 February 2010, counsel advised me that even though the first plaintiff had withdrawn his instructions and was not being cooperative the other plaintiffs were keen to proceed with the hearing. The original probate file was in the Suva registry so the hearing could not proceed. I directed the registry produce a certified copy of the probate file to this court and adjourned the hearing to 29 April 2010. On 29 April 2010, counsel informed me that the first plaintiff did not want him to act for him any longer and had sent him a text to that effect. I granted him leave to withdraw as counsel. He remained as counsel for the other plaintiffs. The matter then proceeded to hearing on 29 April 2010.

THE HEARING ON 29 APRIL 2010

[6] The fourth plaintiff, Rakeshni Lata, gave evidence. She is the daughter of Ram Khelawan. The defendant is her brother. There are five sisters and three brothers. One of the sisters has died. The four sisters that are alive are the plaintiffs. Before she was married, she lived with her brothers and sisters and their parents in Nadi. The relationship between them and their father was good and happy one. The first plaintiff, Ram Chandar, and others left the family home after they got married and she was left with her two brothers, Ramesh and Mukesh Chand, the defendant. The first plaintiff had an argument with their father because he wanted his share of the property but their father refused so he moved out to where he now lives. Their father trusted Mukesh Chand a lot. He would support their father in farming sugar cane and filled forms and books for their father and for the cane farm. Their father would sign withdrawal slips and Mukesh would take them to the bank. And if their father was busy, Mukesh would sign the forms for their father. That was until Mukesh withdrew an extra $2,000 without their father's approval. The relationship between Mukesh and their father deteriorated after Mukesh got married in 1992. He stopped supporting and looking after their father. He built his own house and moved out and left their father alone. When their father died in June 2001 they were not in talking terms. Their father had said that he had made a will but the will was at the lawyer Harish Sharma's office. Harish Sharma dealt with all their legal matters. She is the youngest and was very close to their father. She is familiar with their father's signature. She was shown a copy of the will dated 7 February 2001 and she said it was different from an earlier signature which his father had signed on a variation for lease in December 1981.

[7] Her sister, Kamla Wati, the third plaintiff, also gave evidence. She lived with their father before she got married. She corroborated her sister's evidence.

[8] At the end of evidence I suggested to counsel that he should try and locate the witnesses to the deceased's signature. He agreed so I adjourned the hearing to 28 June 2010. On 28 June 2010 I was informed by counsel that he had located one of the witnesses but he was finding it difficult to "get him". The probate file had still not arrived from the Suva registry so I adjourned the hearing further to 14 September 2010. Counsel took ill on that day so I adjourned the matter to 28 September 2010. Further mentions followed awaiting arrival of the probate file from Suva until the matter was set down for hearing on 26 April 2011. The probate file had arrived by then and at counsel's request I gave him leave to obtain copies of the file and for him to file submissions within 28 days. He wanted me deliver judgment thereafter.

THE JUDGMENT

[9] The time given counsel to file submissions has expired. Rather than delay judgment further I will proceed to deliver my judgment because I do not think his submissions would have swayed me.

[10] I sympathise with counsel when he candidly admitted that his clients could not afford a handwriting expert. That is his clients' biggest hurdle because without such expert evidence I am unable to set aside the grant of probate. Counsel submitted that the forgery could be proved by circumstantial evidence but the evidence in this case fell far short of the required standard of proof.

[11] I am therefore not satisfied that the plaintiffs have proven on the balance of probabilities that the signature of the deceased in the will dated 7 February 2001 is a forgery. The plaintiffs' action therefore fails and is dismissed.

[12] Counsel informed me that the money in the bank account had been dissipated so I make no further orders in that regard.

[13] I also want to make it clear that this judgment is not about the distributions under the will. This judgment only affirms the validity of the will and if any of the plaintiffs are unhappy with the distribution of their shares under the will then they are free to take whatever action they think necessary

ORDERS

[14] The orders are therefore as follows:

1. The plaintiffs' action is dismissed.
   
2. There is no order as to costs.
   

............................................................
Sosefo Inoke
Judge
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