Vyas v Mahalatchmi [1962] FJLawRp 49; [1962] 8 FLR 229 (12 October 1962)

[1962] 8 FLR 229

SUPREME COURT OF FIJI

RAS ARAS RAO VYAS

v.

MAHALATCHMI

[SUPREME CO1962 (Hammet P.J.), 27^th September 4^th, 12th October]

Civil Jurisdiction

Probate and Administration-probate in solemn form execution of will-circumstances c suspicion-proof of knowledge and approvadeceased of <160;cons;of will.

Practice and procedure-witness-cross-examination-questions affecting credibility by attack onacter-necessityssity for reasonable grounds for thinking imputation wounded.

Evid>Evidence and proof-questions only relevant as affecting credibility-attack on character or witness-necessity for reasonable grouor thg iing imputation well founded.

The dehe dehe deceased, aged about years, was operated on in hospital for rupture, on1^st May 1961, and for an eed pred prostate gland on the 25^th&#16> May, 1961. Thrations were sere successful but his condition suddenly deteriorated and he died on the 3^rd June, 1961. He had made a iill in 1949 in favour of idow, the defendant. The will in favour of the plaintiff, wff, who was an Assistant Medical Officer unrelated to the deceased, which ught to prove in solemn form, was signed on the morning of g of the 25^th May, 1961, wthe deceased waed was being prepared for the prostate operation. The instructions were said to have been given the evening before to a law clerk, a friend of thintiff. The court, on a review of the evidence, held that that there were a number of circumstances of suspicion in the conduct of the plaintiff, the absence of independent advice, the calling of only one of the attesting witnesses to give evidence and the hasty execution of the will when the deceased was under some form of sedation, which rendehe conrt unable to holo hold that it had been proved to its satisfaction that the deceased knew and approved the contents of the will.

Criticism of crossinati a witness by questions affecting his credibilityility by a by attacking his character, but not otherwise relevant to the enquiry, unless there are reasonable grounds for thinking that the imputation conveyed is well founded or true.

Action in the Supreme Court for a decree of Probate in Solemn Form.

A. D. Patel for the plaintiffR I. KaI. Kapadia for thendant.

The fahe facts sufficiently appear from the Judgment.

HAMMETT P.J.: [12th October, 1962]-

Thentiff claims that he is the executor and sole bene beneficiary under the last Will and Test Testament dated 26^th May,, of ate Irragudu s/o Ns/o Naraidu, who died in Lautoka Hospital on 3^rd Jun0;June, 1961, aat Probatrobate be decreed is Will in solemn form.

The Defendant is the widow of the deceased in whose favour aour an earlier will dated 11th July, 1949,been made by the deceased. Under that Will she was appointeointed the deceased's executrix and sole beneficiary.

The Will set up by the plaintiff is opposed on the following grounds:

1. That at the time it was executed deceased was not of sound mind, memory and understanding;

2. That the execution of the will was obtained by the undue influence of the Plaintiff; and

3. That the decease0;at the time of exef execution of the Will did not know and was unable to approve the contents thereof.

Many of the facts in this case are not in dispute and I hold these to be as follows.

The deceased was an elderly man of about 70 years of age. He lived at Labasa where he had property and came to Suva at about the beginning of 1961 and visited some old friends. Before coming to Suva he had sold some of hi property and he carried an appreciable amount of cash with him. According to the Plaintiff the deceased had about £500 in cash with him shortly before he died in Hospital.

In Suva he stayed with one friend for a while and then for about six weeks with one Appanna, a fellow Southern Indian, where he met an acquaintance named Paidi. He then travelled with Paidi to Lomowai, where Paidi lived, with the object of renewing acquaintance with old friends in the Western Division.

In about March, 1961, Paidi brought the deceased to Nadi Government Hospital for medical treatment. He was suffering from "pains in the joints" - apparently arthritis. He was seen by the Plaintiff who was an Assistant Medical Officer at the Hospital, who says he recognised the deceased as a patient he had once treated in 1959 at Savusavu Hospital. The Plaintiff attended the deceased as his patient, in a professional capacity, and treated him as an out patient two or three times a week with tablets and injections. After a short period the Plaintiff admitted the deceased to Nadi Hospital suffering from a congestive heart condition and rupture. After a week in Nadi Hospital the Plaintiff arranged for the deceased to be admitted to Lautoka Hospital for an operation for his rupture. He was admitted to Lautoka Hospital on 26^th April, 1961, for this operation which was performed successfully on 1st May, 1961. Later a further operation of a more serious nature on his enlarged prostate gland became necessary. This was performed on 25th May, 1961, and was also successful. The deceased appeared to be making a good recovery when, whilst he was still in Lautoka Hospital, his condition suddenly deteriorated and he died on 3rd June, 1961.

The case for the plaintiff is that he used to visit the deceased whilst he was in Lautoka Hospital as a friend and not in a professional capacity. He said that on 24th May, 1961, he came from Nadi to see the deceased accompanied by two friends. One of these was Parsu Ram, a lawyer's clerk. The Plaintiff said the decease never mentioned to him his intention of making a will. He related how after having been with the deceased for about 10 minutes on 24^th May, they were leaving at g at about 8.00 p.m. when the deceased said he wanted to see Parsu Ram alone. Parsu Ram then returned and rsed with the deceased on his own for about 5 minutes and then again left him. Parsu Ram haam has stated that in this brief period the deceased gave him instructions to prepare a will for him to sign in favour of the Plaintiff. He said he made very brief notes in a note book he had with him of these instructions. Parsu Ram admitted that in this very brief conversation, he did not ask the deceased or have any discussion with him about either the extent of his property or whether the deceased had any relatives or dependents alive for whom he wished, or felt he ought to make some provision in his will. He did nothing to ensure that the deceased clearly understood that the effect of the will he says he proposed making in favour of the Plaintiff, would result in any dependents or relatives he might have being left unprovided for.

Parsu Ram says he told the Plaintiff what the deceased had said as they left Lautoka Hospital at about 8.00 p.m. on 24^th May, 1961.

At that time the deceased, having been given preoperative sedatives the previous night was actually being prepared for the operation on his enlarged prostate gland

rsu Ram has given evid evidence of how after waiting until the preparations of the deceased for his forthcoming operation had been completed he read over the will to the deceased in the presend hearing of the taxi-drivedriver Tangavelu, and the Plaintiff, and that the deceased executed it by placing his thumb print on it in the presence of himself and Tangavelu and the Plaintiff. It is to be noted that Parsu Ram says he had, before its execution, typed in the date on the will as "26th" May, 1961, although he says it was in fact executed on "25th" 'May, 1961. It would appear that the date on the will was typed at a different time from the rest of the line in which it appears since it is quite out of alignment. The Plaintiff who, according to Parsu Ram, was present and within hearing whilst the will was being read over to the deceased, said he did not in fact hear what was said although he saw the deceased's thumb print being placed on a document. Tangavelu, the second attesting witness to the will was not called to give evidence in support of it.

In the course of this action an attack was made by the defence on the character of the Plaintiff. This might, of course, if successful, not only raise suspicions about his motives but also might affect his credibility as a witness. I shall, therefore, review this evidence in order that its nett effect and result can be understood.

The Plaintiff was, at the material time, an Assistant Medical Officer. He agreed that he was not a relation of any kind of the deceased and said he first met him in 1959 when he was a patient of his for a short time whilst he was stationed as a Medical Officer at Savusavu. It was first suggested to him in cross-examination that he was transferred from Savusavu to Taveuni as a result of complaints made against him in Savusavu. He denied this. No particulars of what these alleged complaints were about were given. In my opinion Counsel for the defence, Mr. Kapadia, should never have made such allegations without specifying their nature more clearly to show that they were relevant. Not only do I doubt their relevance I hold that on the evidence before me the Defence is bound by the answer given by the Plaintiff to this allegation.

The next suggestion made to the Plaintiff under cross-examinations by Mr. Kapadia was that the Plaintiff was transferred from his next station, Tavuni, as a result of complaints by a female patient that he had interfered with her sexually as a result of which he was charged by the police with a criminal offence. The Plaintiff admitted he had been so charged by the police but said that that charge had been withdrawn. Here again the fact that a female patient may have made such a complaint is quite irrelevant as far as the character of the Plaintiff is concerned unless those allegations have been admitted by the Plaintiff or proved to be true.

I feel I should make it quite clear that it is improper for Counsel to put questions, which affect the credibility of a witness, by attacking his character, but which are not otherwise relevant to the actual enquiry, unless he has reasonable grounds for

Since it was never suggesuggested to the Plaintiff in cross-examination by Mr. Kapadia that the truth of these allegations had ever been admitted by him or that they had been proved to be true it would appear that they should not have been put. In any event he was bound by the Plaintiff's replies to those questions.

In my opinion, therefore, neither of those suggestions reflect adversely on the Plaintiff's credibility as a witness in any way and I have entirely discounted them in evaluating the evidence in this case.

The third suggestion put to the Plaintiff was that his appointment as an Assistant medical Practitioner had been terminated. The Plaintiff admitted this and said that the reason for the termination of his appointment was because he had issued at Nadi without authority, prescriptions for certain drugs. This might possibly have adversely affected his character and thereby his credibility as a witness, if the extent of such malpractice had been made clear. Since however there is no evidence of the particular circumstances that led to the Plaintiff's appointment being terminated and it is possible that it was due to ignorance or some such cause not bringing with it any opprobrium, I do not consider that it would be right to allow even this evidence of itself to reflect adversely on the Plaintiff's credibility as a witness.

In any event, the Plaintiff gave very little evidence of what the deceased's intentions were, and none of what instructions he gave for his will, nor what was read over to the deceased before he executed the will, and my decision in this case does not rest on the Plaintiff's credibility as a witness.

After considering the whole of the testimony before me and notwithstanding the fact that the deceased had, shortly before he made this will, been the Plaintiff's patient, although he was not at the time he actually made it, I have no hesitation in holding that there is wholly insufficient evidence to support the allegation that the deceased's execution of this will was obtained by the undue influence of the Plaintiff.

Nevertheless there are a number of circumstances in this case that do excite suspicion. They are these.

In the first place there are the actual circumstances in which the will was executed. On the c evening of the 24^th May, 1961, the Piff knew thew that the deceased was going to have a quite serious operation the on the morning of the 25^th May, 1961. he left the dece deceased evening he said he first learned of the deceased's instructtructions to Parsu Ram to prepare a will making him, the Plaintiff, the exr and sole beneficiary. I find it difficult to believe that that the Plaintiff did anything to ensure that this was a settled and considered decision on the part of the testator. The Plaintiff himself seems to have acted largely as if it was he, rather than the deceased, who was determined to get the will executed before the deceased's operation the next morning. The Plaintiff himself did not disclose the matter to or consult a senior medical man as to what should be done in the circumstances. On the contrary it was the Plaintiff who phoned up A.M.O. Laisiasa very early in the morning of the 25^th May, 1961, and said that s was the deceased who wanted to see him, the Plaintiff, urgently. Parsu Ram said nothing about this and I do not understand thd of the Plaintiff himself to see the testator again on the 25^th May after fter havinn him ohim only the night before. Again I find it difficult to understand if the Plaintiff did not know of the deceased's intention of leaving him all his propentil after his visit to the deceased on the 24^th/sup> May, 1961, why it was that the Plaintiff did not express his gratitude and appreciation to the testator as soon as he saw him on the morning of the 25^th May, 1961. That is wha might have expected a normal reaction to be. Again, althoulthough the Plaintiff told A.M.O. Laisiasa that the deceased wanted to makill, he did not tell Laisiasa that this will was going to leave everything to the Plaintiffntiff himself. This failure to be open and frank with A.M.O. Laisiasa about this was most unfortunate.

Then there is the question of the position of Parsu Ram. He was a friend of the Plaintiff, not the deceased. The deceased did not at any time receive any independent advice about his will, nor did Parsu Ram or the Plaintiff suggest or ensure that the deceased did have independent advice. Parsu Ram said he was taken to the Hospital at Lautoka from Nadi in a taxi provided and paid for by the Plaintiff and that later he gave the Plaintiff a bill of costs for the work done. NThere certainly do seem to be grounds for believing that even Parsu Ram regarded the Plaintiff, his friend, as his client rather than the testator himself, despite Parsu Ram's evidence to the contrary.

Again there was the conflict of evidence between that of Parsu Ram and the Plaintiff himself about how it was that Tangavelu, the taxi driver, came to be called inside Lautoka Hospital to witness this will. This conflict was never resolved and I found it difficult to understand. For reasons, which were not stated, the plaintiff saw fit not to call Tangavelu to give evidence for him. He could possibly have been more of an independent witness than perhaps was Parsu Ram and I find the failure of the Plaintiff both to call him as a witness and to explain his absence very difficult to understand.

Finally, the Plaintiff knew, when he called with Parsu Ram to see the testator at about 7.30 a.m. on the morning of the 25^th May,, that he would have have had a preoperative sedative the previous night and believed that he would also have had a further sedative or tranquilliser at 6:30 a.at very morning. From the Plaintiff's own evidence it wouldwould appear that he believed the deceased had had his further preoperative sedative before the Plaintiff and Parsu Ram saw him that morning, although the evidence is that he had it a little later. In these circumstances it does seem most unfortunate that the Plaintiff did not consider it to be most essential that some really independent person of standing, such as A.M.O. Laisiasa for example, should speak with the testator and read over the will, ensure that he did in fact understand its contents and effect and did appreciate the extent of his property and to ascertain for sure whether it was his intention of making no provision whatever for any of his own relatives or dependents, and to benefit only the Plaintiff under this will.

It is clear from the evidence of Parsu Ram that he acted without any reference to his principal and had little or no experience of such matters and that he made no effort to ensure that the deceased had any really independent advice, or that he knew the extent of his property or considered any moral obligations he might have towards any relatives or dependants who might survive him. Again it seems that the preparation and execution of his will were carried out with almost indecent haste with the very active assistance of the Plaintiff before the testator's operation and that at the time the testator did execute it he may, to some extent at least, have been under the effect of the preoperartive drugs or tranquillizers which had been given him the previous night.

The plaintiff gave evidence that after the deceased's last operation he visited him in Hospital periodically before he died. What I have found to be a puzzling feature of this case is the fact that the Plaintiff, when he gave his evidence, never once mentioned that he had ever said one word of appreciation to the deceased for making him his sole beneficiary. If he had done so and the deceased had, in front of independent witnesses, confirmed that this had been his intention and expressed his satisfaction at having done this, I might have been able to satisfy myself that the deceased did in fact know and did in fact fully approve of the contents of his will. As it is, however, especially as only one of the attesting witnesses has given evidence and he did not impress m me as a witness in whose testimony I could with any confidence rely, I do not feel able to say that it has been proved to my satisfaction that the deceased did know and approve the contents of this will. My doubts on this score and the circumstances of suspicion which do surround this case have not been resolved as satisfactorily as they must be to entitle me to pronounce in favour of the will which the Plaintiff has attempted to prove in this case.

In these circumstances the claim is dismissed with costs. The Defendant is entitled to apply for grant of Probate of the earlier will.

Action dismissed.