Singh v Rajkumari [1969] FJLawRp 16; [1969] 15 FLR 107 (27 June 1969)

[1969] 15 FLR 107

IN THE FIJI COURT OF APPEAL

SAM KUAR SINGH

v

RAJKUMARI

[COURT OF APPEAL, 1969, (Gould V.P., Hutchison J.A., Marsack J.A.) 19^th, 27^th June]

Civil Jurisdiction

Wills – direction in will that widow of testator be given proper maintenance – widow maintained by executor – variation of system of maintenance acceas satisfactory by widow &#ow – sufficient compliance with terms of will.
Limitation of actions – jewellery belonging to widow of testator coming into hands of executor – executor in position of bailee – onus on bailee to explain absence of jewellery and to establish defence of Statute of Limitations – Limitation Act 1623 (21 Jaq. 1, c.16) (Imperial).

By his will the deceased made his brother (the defendant) a trustee of his estate for the children of the deceased absolutely, but with a direction that his widow stay and live at the house of the defendant and be given proper maintenance out of the estate. For seventeen years the widow (plaintiff in the action) and her family lived in the defendant’s house and he maintained the whole family at much greater cost to him than the amount he received as estate income. The defendant then left the house but the plaintiff stayed on and was maintained by her son from the proceeds of land, half of which belonged to the estate and half to the defendant.

Held: The ece showed that the plae plaintiff was fully in agreement with the course adopted, which provided her with adequate maintenance out of the proceeds of the estate land. There was therefore a sufnt compliance with the inte intention of the testator and the plaintiff had no claim to other estate income received by the defendant.

The plaintiff claimed that the defendant had, on her husband’s death in 1941, taken over jewellery which was her own property and the return of which she demanded in 1965. The trial judge accepted the plaintiff’s evidence that the defendant had received the jewellery but held that the plaintiff’s claim was statute barred.

Held: (per Gould V.P. and Hutchison J.A.)
1. The defendant was not a trustee of the jewellery for the plaintiff but was in the position of a bailee.
2. The case should be remitted to the Supreme Court to be completed on the footing that the claim was not statute barred, because there was no evidence of any conversion in 1941 and the defendant had not discharged the onus of proving what became of the jewellery and of establishing a defence under the Statute of Limitations.

3. (per Marsack J.A., dissenting) On the true construction of the judgment of the trial judge there was no definite finding that the plaintiff had established facts which would entitle her to judgment for the value of the jewellery and the evidence would not support such a finding.

Cases referred to:

Wilkinson v. Verity [1871] UKLawRpCP 18; (1871) L.R. 6 C.P. 206; 24 L.T. 32:
Bells v. Receiver for the Metropoliolice District and Carter Pter Paterson & Co. Ltd. [1932] 2 K.B. 595; 147 L.T. 336:
Granger v. George [1826] EngR 752; (1826) 5 B. & C. 149; 108 E.R. 56Southern Pacific Insurance Co. Ltd v. Subramani <160; (1962) 8 F.L.R. 195

Appeal from a judgment of the Supreme Court awardisum by way of maintenance unce under the provisions of a will and cross appeal against the dismissal of a claim for the recovery of jewellery or its value.

R. Kermode for the appt.
B.C. RaC. Ramrakha for the respondent

The facts sufficiently appear from the judgments.

The following judgments were read:

HUTCHISON J.A.: [27th J969]-br>In this case tase there are appeal and cross-appeal, and I think it convenient to refer efer to the parties as they were in the Supreme Court, plaintiff and defendant respectively. Plaintiff is the widow of Ram Kuar Singh, who died in August 1941, and defendant was the brother of her late husband and the executor of his will. The will provides:-
"This is the Last Will and Testament of me Ramkuar Singh father's name Sahodar Singh of Nemena in the district of Tailevu and Colony of Fiji storekeeper REVOKE all former wills and testamentary dispositions herefore by me made
I appoint my dear brother SAM KUAR SINGH the sole EXECUTOR of this Will.
I GIVE DEVISE AND BEQUEATH all my property of Whatsoever nature and Wheresoever situate unto my brother Samkuar Singh on trust for the benefit of all my children or survivor of them absolutely.
"I direct that my dear wife shall be given proper maintenance during her life or until she marries out of my estate I further direct that my dear wife Rajkuar Shall stay and live at the house of my brother the said Samkuar Singh."

Plaintiff by her Statement of Claim delivered with her Writ dated the 12th April, 1966, claimed that defendant had paid her no maintenance for 7 years then last past. She has not re-married. She further claimed that defendant unlawfully detained some jewellery, as itemised, which she claimed as her property.

On her first claim the learned trial Judge found for her in the sum of £300, being 6 years at £50 per annum, that £50 being the amount of the estate's half-share of the annual rent earned by property owned in common by the estate and the defendant personally. On her second claim he found that defendant, at some time at any rate, had the jewellery, but he held against plaintiff on the ground that her claim was statute barred.

I deal first with the appeal by defendant against the judgment on plaintiff's first cause of action. The effect of the will is to make the defendant a trustee of the estate for the children of the deceased absolutely. There is a direction that the wife stay and live at the house of the defendant and that she be given proper maintenance during her life or until she marries out of the estate. The estate was of very little value at the time of the death of the testator, its gross value was declared as £1,105 and the debts amounted to £740. (I omit shillings and pence). The assets, apart from a negligible amount of cash, comprised a half-share in a rice milling business, a launch and a half interest in some pieces of land. The defendant sold the half-share in the rice milling business, and sold the launch and paid off the debts owed by the estate. From 1941 until early 1958 the plaintiff and her children, of whom there were six, the eldest of whom at the date of her husband's death was 12 years of age, lived in the defendant's house, which was owned half by the defendant and half by the estate. The defendant fed, clothed and housed them and paid for the wedding of one of the daughters,. There is no doubt at all that during those 17 years defendant spent vastly more than any income that there could have been from the estate in the maintenance of the plaintiff and her children and the education of the children. Indeed the plaintiff herself estimates or guesses that it would have cost him about £10 a week over that period. In 1958 serious difficulties arose between defendant and the plaintiff's sons, and in the result defendant left where he was living to the sons and to their mother, the plaintiff, and went elsewhere. One of the sons has thereafter, besides living in the house, been farming a property belonging half to the estate and half to the defendant, constituting about two-thirds of the arable land in which the estate had an interest, and paying no rent. The mother has been maintained in that house by the son. The learned Judge said:-
"The whole question of whether or not the defendant has failed in his duty towards the plaintiff under the terms of the will depends, in these circumstances, on whether or not the plaintiff agreed to the arrangements made by the defendant for her in lieu of the "proper maintenance" which he was legally obliged to give her."

In her cross-examination, the plaintiff had said on this point:-
"Q: The true position is that you elected to stay back with your son; your family has pooled its resources; and you have been maintained adequately for the last 10 years?

A: Yes.

Q: Until three years ago you made no claim on the Defendant for maintenance?

A: Yes.

Q: Until then you were satisfied with the arrangements made by Defendant?

A: Yes."

With all respect for the view taken by the learned Judge, I think that this passage shows that she was fully in agreement with the course taken and that it provided her with adequate maintenance. Looking at the matter broadly, I think that this fully complied with the intention of the testator, as expressed in his will. The view was by the learned Judge was that, as during that time defendant was receiving £100 as rent of another piece of land belonging half to the estate and half to himself, he should have made £50, being half that amount, available to the widow as maintenance. With respect, I do not agree with that. The defendant justifies retaining this money as a slight partial reimbursement of the thousands of pounds which he spent over and above any available income of the estate in maintaining the plaintiff and her children from 1941 to 1958. In the view which I have taken and expressed, she has been receiving proper maintenance out of the estate during the period from 1958 onwards by virtue of her living in the estate house and being maintained out of the proceeds of the estate farm for which no rent is being paid. If anyone is entitled to challenger the defendant’s use of the £50 towards reimbursement of himself – I do not suggest that anyone is entitled so to do – it is not the plaintiff but could only be the residuary beneficiaries. For these reasons I would allow defendant’s appeal.

Dealing with the jewellery, the subject of plaintiff’s cross-appeal, the learned Judge held on the probabilities that the defendant took over the jewellery contained in a safe which belonged to the deceased, which safe he properly took charge of as being the executor of deceased’s will; but held that plaintiff’s claim to the jewellery or its value was statute barred as the time ran from 1941 or 1942.

Defendant denies that there was ever any jewellery in the safe. Other than finding that the jewellery was in the safe at the time when it was taken over, the learned Judge found it unnecessary to make any findings in the view which he took as to the effect of the relevant provision of the Limitation Act 1623, and I shall find it necessary to make certain findings of my own on matters which he did not cover.

As to the finding which he did make, for myself I might possibly have felt on the evidence, having regard to the lapse of time between 1941 or 1942 and the 24th August, 1965, when plaintiff's solicitors on her behalf made a demand on the defendant to return the jewellery, that plaintiff had failed to discharge the burden of showing that the defendant ever did have the jewellery in his possession. However, that was not the view of the trial Judge, and I do not feel that I can suggest reversing him on that.

The case for the plaintiff on this appeal was directed to the application of the Statute of Limitations. Counsel made the startling submission that there is in Fiji no limitation of action except in respect of real property. I was not at all impressed by this argument, but I find it unnecessary to deal with it and pass it by. Alternatively, he submitted that the period of limitation would run not from 1941 or 1942 but from some later date. He submitted that the time would run from the demand of the 24th August, 1965, or, alternatively, that defendant stood in the capacity of a trustee under circumstances in which he could not invoke the Statute.

As to the latter of these submissions, the learned Judge was, in my opinion, right in saying that defendant was not a trustee for plaintiff in respect of her jewellery. In connection with the former of them I must make certain findings of fact. In my opinion, defendant did not convert the plaintiff's jewellery in 1941 or 1942. If he had, surely plaintiff would have asked for the jewellery then or at the latest when the estrangement began between them in 1958. The only real finding that I can make, accepting the trial Judge’s finding that the jewellery was in the safe when defendant took it over, is that the jewellery went missing some time between then and August 1965, for I find that it was not in the safe then. Defendant during that time was a bailee of the jewellery; the onus of proving what became of it rested on him, and the onus of establishing the basis for his special defence of the Statute of Limitations rested on him too. On the evidence of course, defendant’s case being that the jewellery was not ever in the safe, there was no attempt to establish when or how the jewellery disappeared and, that being so, there is no evidence that it disappeared more than six years before the issue of Writ.

Upon this view of the case I do not find it necessary to come to any final view whether the period of limitation would run from the date of the demand, though my impression is that it would not. In Wilkinson v.ty #160;[1871] UKLawRpCP 18; (1871) L.R. 6 C.P 206, Wil state general rule, as set out in the judgment of du f du Parcq J. in Betts v. Receivereiver for the Metropolitan Police District and Carter Paterson & Co. [1932] 2 K.B. 595 at p.605:-
"It is general rule that, where there has once been a coe cause of action arising out of contract or tort, the stat statute begins to run and that subsequent circumstances which would but fe prior wrongful act or defr default have constituted a cause of action are disregarded."

du Parcq J. went on:-
"This rule had already been laid down and acted upon forty-five years previously in the case of (160;(1826) 5 mp; C. 149. T49. The facts in #160;were he take that case case out of the general rule, to exces may arise where there are ‘circumstances nces to show a trust for the owner or to f to found an option to sue either for the wrongor the breach of the originriginal terms’ of a contract of bailment (see per Willes J.). No such circumstances exist here."

This is accepted in ury's Laws of England, Hnd, Hailsham Edition (which edition e as being ping prior to the Limitation Act of 1939 (U.K.) ) Vol. 20 p.603 paragraph 757, where, citing Wilkinson v. Verity"Wherre has once been a complete cause of action arising out of t of contract or tort, time begins to run, and subsequent circumstances whould, but for the prior wrongful act or default, have constconstituted a cause of action, are disregarded."

For a later reference to this case, see 3rd Edn. Von. Vol. 24 note note (p).

In this case I would not find any circumstances, trusteeship, concealed fraud or the like, which would justify a departure from this general rule.

The result is, opinion, that the claim ofim of plaintiff to the value of the jewellery which was in the safe is not statute barred. The learned trial Judge, not having found it necessary to make any finding as to what jewellery was in safe or what its value was, and the material before us being quite insufficient to enable us to make findings on these points. I think that the case should go back to the Supreme Court, there to be finally dealt with as indicated in this judgment.

I think the parties should pay their own costs of the appeal and cross-appeal.

GOULD V.P.:

I have had the advantage of reading the judgment of Hutchison J.A. in which the facts are fully set out. On the appeal, in relation to the sum of £300 for which judgment was awarded in the Supreme Court, I am entirely in agreement with the reasoning and conclusions of my brother Hutchison.

As to the cross-appeal by the plaintiff in relation to the jewellery, I have reached the same conclusion though possibly by a slightly different route. On the facts as found by the learned trial Judge the defendant had the plaintiff’s jewellery, but on her own showing he must have come into possession of it as executor of the plaintiff’s deceased husband who was lawfully in possession of it. I see nothing in the defendant’s receipt of the jewellery under these circumstances which could amount to an act of conversion. If there was some other act of conversion before the demand which the plaintiff eventually made, it was upon the defendant to prove it if he proposed to rely upon it. There is no such claim and no such evidence.

Therefore, as the matter stands, the only act of conversion of which there is any evidence was the demand and refusal which took place in 1965. The claim is not statute barred on that account and as there is no other proved act of conversion it is immaterial whether or not under the Limitation Act, 1623, time might in other circumstances have run from an earlier date. I therefore agree that for the reasons given by Hutchison J.A. that this issue should be referred back to the Supreme Court to be finalised on the basis that the claim is not statute barred.

In the result the appeal is allowed and the judgment in favour of the plaintiff for £300 is set aside. The cross-appeal is also allowed and the issue concerning the jewellery is referred back to the Supreme Court to be finalised on the basis that the claim is not statute barred. There will be no order for costs of the appeal or cross-appeal.

MARSACK J.A.

I have had the advantage of reading the judgments of Gould V.P. and Hutchison J.A. and entirely agree, for the reason set out in the judgment of Mr. Justice Hutchison, that the appeal must be allowed in respect of the judgment for the sum of £300 given against appellant in favour of respondent.

With regard to the cross-appeal, I regret that I differ from the other members of the Court on the question of the proof of the facts necessary to establish respondent's claim to the jewellery.

As I see it, the onus lay on the respondent in the Court below to establish two facts:-
(a) that the time of her husband’s death she had been the owner, in her own personal right, of the jewellery which she claimed; and
(b) that such jewellery had come into the possession of appellant who had refused or failed to hand it over to the rightful owner, the respondent.

As to the ownership of the jewellery at the time of her husband’s death, respondent’s evidence is contradictory and generally unsatisfactory. In the course of her evidence she says:-
"My husband left me the jewellery. When he was alive he was the owner of that jewellery. It was his property not mine....Jewellery belonged to me. It was given to me by my husband before his death......I am not very good at my sense, my sense is not very good."

Later, in cross-examination, she reaffirms that her husband left her the jewellery, but goes on to say that he left all his property to his children and the only provision made for her was for maintenance.

As to the second point respondent’s evidence was to this effect:-
"When my husband was alive all this jewellery was kept by him in steel safe. After he died the defendant took the safe away. The jewellery was in the safe then."

Appellant's evidence was as follows:-
"The plaintiff received jewellery when she was married. I saw it at the wedding. I never saw it after the death of my brother. I deny that the jewellery was in the steel safe."
"There was no safe belonging to Raj Kuar Singh. After his death I did not come into possession of the steel safe. It was in my possession all the time. I have the key to the steel safe. My brother Raj Kuar Singh did not have a key to it ...... I deny that the jewellery was in the steel safe."

There is also the admitted fact that respondent made no claim for the jewellery at any time during the 16 years she was living with the defendant or a further 7 years thereafter; and there is no evidence of the jewellery having been seen in the possession of anyone during the whole of that period.

On that evidence the learned trial Judge comments:-
"It seems likely therefore that the defendant did take over the jewellery when the testator died. On the other hand, if he did so, why has the plaintiff waited so long to claim it? Taking these facts into account I believe the plaintiff and disbelieve the defendant. I believe that he did have her jewellery."

A little further on in his judgment however he concludes that respondent’s claim to the jewellery is statute barred and he says:-
"It is, therefore, not necessary to decide the facts."

I am unable to read this part of the judgment of the learned trial Judge as amounting to a definite finding of the two facts set out under (a) and (b) above. He has certainly expressed his view that he believes the plaintiff and disbelieves the defendant, though that finding would appear to be based on the admitted fact that the respondent had jewellery – some jewellery – at the time of her marriage, and the presumption that it was unlikely that she would have sold it before her husband’s death.

An appellate tribunal is reluctant to interfere with the findings of fact made in the Court below, particularly when those findings are based upon the opinion of the Court as to the credibility of the witnesses. Even so, as was pointed out by this Court in its judgment in Sou Pacific Insurance Coce Co. Ltd v. Subramani (1962) 8 F.L.R. 195, the appeal court must sometimes do s do so as a matter of justice and of judicbligation. In this case I de I do not think it is necessary to go so far as to differ from the learned trial Judge of his findings of fact, as I am not satisfied that he has actually made such findings in respect of the jewellery. He makes it clear that, because of his view regarding the applicability of the Statute of Limitations, it was not necessary to decide the facts.

In the result I am of opinion that respondent has not proved what it would be necessary to prove to justify an entry of judgment against appellant for whatever might be found to be the reasonable value of the jewellery claimed.

For these reasons I would dismiss the cross-appeal.

Appeal and cross-appeal allowed.