Singh v Mati [1987] FJLawRp 21; [1987] 33 FLR 147 (30 January 1987)

[1987] 33 FLR 147

IN THE SUPREME COURT OF FIJI

SOHAN SINGH

v

BHAN MATI

[SUPREME COURT - F.X. Rooney J. - 30 January 1987]

Civil Jurisdiction

Probate and Letters of Administration - proof in solemn form - alleged with lacking attestation clause - no presumption of due execution - onus of proving will lies upon party propounding it - alleged will declared to be forgery.

F. Khan and later Mrs A. Hoffman for Plaintiff
S. M. Koya and Mrs F. Adam for Respondent

Plaintiff, the elder brother of the deceased Bhajan Singh a medical practitioner formerly of Labasa commenced an action wherein he alleged that he was the executor appointed under will of the deceased dated 16 July 1978 in which he claimed to have been the sole beneficiary of the estate in terms of the purported will.

The defendant was the widow of the deceased and had claimed that he died intestate. To her on 30 November 1982 the Court had granted letters of administration of the estate.

The widow as defendant denied that the deceased executed the purported will claimed that he died intestate that the purported will was a forged and false document and that the signature appended to the document was not that of deceased.

Evidence for the defendant was that in 1973 she met the deceased whilst a student at the University of Bombay, returned to Fiji in October 1978 and married the deceased on 21 February 1978. After the marriage she went to live with her husband's family. She claimed that she and the deceased enjoyed a normal married relationship though it seemed that as she went out with her husband frequently this did not please her mother-in-law Harbans Kaur. In late 1979 she and her husband set up their own home and surgery.

Johra Singh father of the plaintiff, the elder brother of the deceased and the deceased died about 1967. He had been a successful business and property owner in Labasa and his widow Harbans Kaur was a principle witness in the litigation. Following the death of Johra Singh his firm continued to operate as a partnership between his widow and 2 sons each owning a third share. The plaintiff was obliged to discontinue his education so that he could look after the family business: whereas the younger brother, the deceased, completed his secondary education, thereafter went to India to study medicine. On his return to Fiji in 1976 the deceased spent sometime in the employment of the Government before setting up a medical private practice in Labasa in 1977.

The plaintiff had a traditional Indian outlook on life. In particular he regarded it his duty to preserve his father's estate for the benefit of the family as a whole. Whilst the plaintiff concerned himself with business and family matters the deceased became prominent in Labasa, adopting with his wife (defendant) a style of life modern rather than traditional. The plaintiff regarded the deceased as a family investment. The firm of Johra Singh and sons had made a substantial contribution to his education. When the deceased commenced medical practice it was expected he would hand over his professional fees to the partnership. Quarrels over this and other matters led the deceased and his wife to live separate and apart from the rest of the family. After the death of the deceased and advertisement as a prelude to obtaining letters of administration the plaintiff called upon the defendant's solicitor at his office questioning his authority to act for the estate of his later brother and claim he should be the one to apply for ‘probate'. The solicitor replied he was acting on the instructions of the deceased widow and suggested the plaintiff consult a solicitor whereupon the plaintiff became abusive and had to be told to leave the office. The plaintiff did, through the firm of solicitors make a claim against the estate on behalf of himself and his mother Harbans Kaur in a letter dated 18 August 1982. It demanded about $100,000 which included salaries due to plaintiff’s wife and mother for services rendered to Johra Singh and Sons which were to be debited in whole or part of the deceased estate.

Harbans Kaur told the Court of finding the alleged will. She recalled that over 5 years previously the deceased had given her an envelope told her it was a will and she was not to mention it to anyone. She put it away and forgot it until September 1983.

The alleged will found by her was produced in evidence and is copied in the reasons for judgment. There were 3 alleged witnesses, 2 of whom were called as witness and claimed to have signed it at the invitation of the deceased. One witness Mohammed Hussein had worked for Johra Singh and Sons for many years and was still on the payroll. His wife was also a witness.

The form of will itself had some peculiarities. The paper itself was not a complete sheet. It was dated 16 July 1978 in words typed at the bottom, there were indications that '1978' had been the subject of alterations as also were two other names only in the will i.e. the typed name of the deceased; so that if the will is reversed and held up to the light as if the name 'Harbans Kaur’ had been erased and Bhajan Singh (f/n Johra Singh) substituted.

There were other comments about peculiarities of this paper. The expert and others who knew very well the signature of the deceased expressed the opinion that what appeared to be his (incomplete) signature on the purported will was not his signature.

Held: The purported will did not contain an attestation clause. Therefore there were no presumption of due execution. The onus of proving a will lay upon a party propounding it who must satisfy the Court that the instrument so propounded was infact the last will of a free and capable testator.

(See re Lavinia Musgrove, Davis v. Mayhew (1927) p. 264 per Lord Hanworth M.R. at p. 276.)

If the testimony of the attesting witnesses stood unchallenged and there was no other evidence to be considered the Court would be entitled to accept the purported will as the last will and attestment of the deceased. However, this was not the case.

For reasons he gave, the Court rejected the story of the finding of the will as a fabrication. He was satisfied that the plaintiff and his mother had conspired to present to the Court a forged document. Apart from the expert opinion as to handwriting there was enough evidence to throw considerable doubt upon the signature (alleged to be that of the deceased).

The Court declared the will to be a forgery.

Action dismissed with costs.

Case referred to:

Re Lavinia Musgrove Davis v. Mayhew (1972) P. 264.

ROONEY, Mr Justice

JUDGMENT

On the 13th June, 1982 Dr Bhajan Singh (the deceased), a medical practitioner died at the Labasa Hospital following an overdose of drugs. He was survived by his widow who is the defendant in these proceedings.

On the 30th November, 1982 this Court granted to the defendant, letters of Administration pertaining to the estate of the deceased. On the 9th November, 1983 the plaintiff, who is the elder brother of the deceased, commenced this action. In his amended statement of claim he alleges that he is the executor appointed under the will of the deceased bearing the date 16 July, 1978. He also claims to be the sole beneficiary of all the deceased's estate in terms of the purported will. He pleads that the will was discovered by his mother, Harbans Kaur, on the 21st September, 1983. The plaintiff asks this Court to revoke the Letters of Administration and to pronounce in solemn form Probate of the will upon which the plaintiff relies.

The defendant denies that the deceased executed the purported will. She claims that he died intestate. The defendant further alleges that the purported will is a forged and false document and that the signature appended on the said document is not that of the deceased, there is an alternative allegation that the purported will was not duly executed according to the provisions of the Wills Act Cap. 59. There is a counterclaim in which this Court is asked to pronounce against the will dated 16th July, 1978. The issue was joined by the plaintiff who admits that the defendant is the lawful widow of the deceased, but, he states that she has no right or interest whatsoever in his estate.

Johra Singh, the father of the plaintiff and the deceased, died about 30 years ago when the plaintiff was just over 13 years of age and his younger brother, the deceased, was 7. It would appear that Johra Singh had been a successful business man and property owner in Labasa. His widow is Harbans Kaur (PW 3). After the death of Johra Singh, his firm, styled Johra Singh & Sons, continued to operate as a partnership between his widow and two infant sons, each owning a third share. The plaintiff was obliged to discontinue his education so that he could look after the family business. The younger brother was more fortunate in that he was not only able to complete his secondary education but, to go to India to study medicine. On his return to Fiji in 1976 the deceased spent some time in the employment of Government before setting up a medical private practice in Labasa in 1977.

The deceased married the defendant on the 21^st February, 1978. The plaintiff told the Court that he was not too happy about this marriage as the defendant was a Hindu and not a Punjabi Sikh. I do not put too much weight on that circumstances except insofar as it may be relevant to a consideration of the plaintiff’s attitude as revealed in the evidence.

The plaintiff, like his mother, has a traditional Indian outlook on family life. In particular he regarded it as his duty to preserve his father’s estate for the benefit of family as a whole. There was a history of quarrels between these parties for several years before the untimely death of the deceased. I do not propose to deal with these events in detail as they are not relevant to the testator's intentions at the date of the purported will. They do, however, illustrate the plaintiff’s character and the contrast between the two brothers. The plaintiff was a man of limited education compared to his more sophisticated younger brother. While the plaintiff concerned himself with business and family matters, the deceased, as a professional man, became prominent in Labasa. He joined a number of service clubs and had friends and interest among professional people. He and his wife adopted a style of life which was modern rather than traditional. The couple attended dances and parties and mixed freely with other people.

The plaintiff on the other hand regarded the deceased as a family investment. The firm of Johra Singh &. Sons had made a substantial contribution to his education. When the deceased commenced medical practice in Labasa, it was expected that he would handover his professional fees to the partnership in much the same way as the plaintiff collected the daily takings at the cinema which the partnership operated in the town. It was quarrels over this and other matters which led to the deceased and his wife living separate and apart from the rest of the family. I have no doubt that this is not what the plaintiff wished or expected and it must have given rise to considerable resentment.

After the death of the deceased, the defendant instructed Anil Tikaram (DW 4) to obtain Letters of Administration. Mr Tikaram advertised the estate in July and shortly afterwards the plaintiff called upon him at his office at Suva. The plaintiff questioned Mr Tikaram's authority to act for^- the estate of his late brother and claimed that he should be the person who should apply for "probate". Mr Tikaram replied that he was acting on the instructions of the deceased's widow and suggested that if the plaintiff thought it should be otherwise, he could consult a solicitor. The plaintiff became abusive and had to be told to leave Mr Tikaram's office. This shows that the plaintiff vas displeased at the prospect that the investment which had been made by Johra Singh & Sons in the deceased was likely to fall into the hands of his widow who was beyond the plaintiff’s control as a member of the family.

The plaintiff then made, through a firm of solicitors, a claim against the estate on behalf of himself and his mother in a letter dated 18th August, 1982 (Ex. D47). The letter is not easy to understand, but, it would appear that the plaintiff’s solicitor was demanding about $I00,000. Included in the particulars were claims for salaries due to the plaintiff’s wife and mother for services rendered to Johra Singh & Sons which were to be debited in whole or in part to the deceased’s estate.

Whether or not the plaintiff subsequently withdrew that claim is not for me to decide. He told the Court that his present position is that if this action does not succeed, he will be pressing these claims against the estate of his late brother. In other words, the plaintiff appears to be resolved to recover as much as possible from the estate of the deceased either as his brother’s sole heir or as a major creditor.

According to Harbans Kaur (PW 3) she was greatly affected by the death of her younger son. She was confined to her bed with "a kind of stroke" for six months. It was not until the following year, as the festival of Diwali was approaching, that she decided to clean up the family house. She opened all the boxes and cartons in the house. In a suitcase she found a lot of papers. She called the plaintiff, as she was illiterate, and took out the documents in the suitcase one by one. She wanted to burn the old papers, but, the plaintiff said that they should first be read. Among the papers found was an old brown envelope which she gave to her son. He asked where she had got it from. She told him that it had been given to her by the deceased.

The witness then recalled that over five years previously, the deceased had come into the kitchen and given her the envelope and told her that it was a will and she was not to mention it to anyone. She put it away and forgot about it until September 1983. When cross-examined by Mr Koya, Harbans Kaur said that she did not have any occasion to open the suitcase from the time she put it away until the discovery. She agreed that she knew that the document given to her was important and that it was a will and that her late son had left all his property to the plaintiff.

The will found by Harbans Kaur (but not the envelope in which it was placed) has been produced in evidence (EX. A) and I set it out below:

THIS IS THE LAST WILL AND TESTAMENT - DR BHAJAN SINGH

1. I hereby revoke all former wills and other testamentary dispositions heretofore, made by me.

2. I appoint Sohan Singh (s/o of Jhora Singh) to be the sole executor and trustee of this my will.

3. I give devise and bequeath all my property both real and personal whatsoever wheresoever and of what nature or kind soever unto Sohan Singh (s/o Jhora Singh) for his own use and benefit absolutely.

IN WITNESS WHEREOF I, the said Bhahan Singh (f/n Jhora Singh) Medical Practitioner of Nasea, Labasa.

Dated at Labasa this 16th day of July, 1978.

This document contains the following features:

1. There are indications of an alteration on the typescript where the name "Bhajan Singh (f/n Jhora Singh" appears. If the original of the will is reversed and held up to the light the name "Harbans Kaur” is visible, as if the effect of the presumed alteration was to erase that name and substitute with the words "Bhajan Singh".

2. There ire indications that the date "1978" has been the subject of an alteration.

3. The testator's signature is not complete and if it was written fully, may have continued off the page to the right of the document.

4. The rubber stamp impression "Dr Bhajan Singh M.B.B.S." whether or not it was added after execution appears to be totally unnecessary.

5. Although it is the practice that two witnesses are required to validate a will, three persons' names appear in that capacity on the document exhibited above. Of these three witnesses, only two have come forward to give evidence of due execution. The other witness, Deo Karan, is unknown to anyone. Although there is evidence that a man called Deo Karan lives at Labasa and has a shop about 60 yards away from the house of the plaintiff, he has not been called as a witness by either party. Neither Mohammed Hussain nor his wife Shamshad Bano have identified the Deo Karan whom they saw at the time of the execution of the will as being the Deo Karan who is resident at Labasa.

Mr Mohammed Hussain (PW 2) has been working for Johra Singh & Sons since 1973. He is the projectionist at the cinema. He told the Court that he remembered that in 1978 his one year old son suffered a burn on his leg. He accompanied his wife and the baby to the deceased's surgery one afternoon so that this wound could be dressed. When they entered the surgery they found a stranger, described as an Indian man. After the boy’s leg had been dressed by the deceased the latter asked Hussain if he would sign a paper.

Mr. Hussain was very cautious. He asked the doctor what sort of paper it was that he would be required to sign. He said that unless he read it well he could not sign it. The deceased showed him a paper which contained some difficult words which required interpretation into Hindi. The witness understood that it was a will. The deceased signed it first in the presence of all three persons. Mr. Hussain maintains that it was he who advised the deceased that it was important for him to be the first to sign. The witness signed, the stranger signed and Mr. Hussain’s wife signed. Mr. Hussain identified Ex. A as being the document which was signed on that occasion and he identified the signature appearing thereon as that of Dr. Singh. Many years later the plaintiff showed him Ex. A. He immediately recognised it.

Cross-examined by Mr Koya, Mr Hussain agreed that he was not familiar with the procedure for the execution of a will. However, it was he who insisted that the deceased should sign it first. Hussain not only added his signature, but, wrote the word "wit" before his name and that of his wife and the man Deo Karan.

The day upon which the signing took place was a Sunday. Hussain had been told to bring the child for dressing after a few days, but, the deceased had not specifically mentioned a time or place. The witness agreed that he had worked for Johra Singh & Sons for many years. He was still on the payroll. After Dr Singh died he took no interest in any problems involving his estate. If he is to he believed, he took very little interest in his employer's affairs. Hussain has never seen the third man since that day although he used to keep a look-out for him at the theatre. This witness was not familiar with the handwriting of the deceased and he could not say whether the signature appearing on the will was that normally used or not. There was nothing unusual about the doctor's behaviour on that day.

Hussain's wife, Shamshad Bano (PW 4) also gave evidence. She said that her son was hurt in July 1978 and that she went to the deceased's surgery on a Wednesday evening. The deceased attended to him and told her that she was to bring the child back after two or three days. She decided to return on a Sunday afternoon. She did not know the man who was sitting in the surgery The deceased attended to the child and when they were about to leave, the deceased asked them both to sign a paper Her husband demanded to have the contents of the paper explained to him. She said that the deceased told them that the document was his will and that since Sohan Singh had spent so much money on his education, he was making this will in his favour, giving him everything. The two other persons signed the will and she added her signature and the word "wit". She said in evidence, "'16th July was not there when I signed the will. The word ‘16' was not there when I signed the will." She persisted with this evidence in cross-examination.

Bano also said that before they went away the deceased said "Do not mention this to anyone". She never saw the third witness again. The next she heard about this business was many years later when her husband showed her a copy of the will and said "This is the paper we signed".

The plaintiff relies upon the evidence of Hussain and his wife to prove that the deceased made a valid will on the 16th July, 1978. It is his case that his brother gave the will to their mother, told her of its contents and that she put it away in a box. She forgot its existence until it came to light in the manner which she described. The existence of the will was not known to anyone but the testator, the witnesses and to Harbans Kaur.

The will does not contain an attestation clause and therefore there is no presumption of due execution. The onus of proving a will lies upon the party propounding it and he must satisfy the conscience of the Court that the instrument so propounded^-is the last will of a free and capable testator. (In re Lavinia Musgrove, Davis v. Mayhew (1927) P. 264 per Lord Hanworth M. R. at 276).

If the testimony of Hussain and his wife stood unchallenged and there was no other evidence to be considered, the Court would be entitled to accept Ex. A as the last will and testament of the deceased. However, that is not the case.

As I have remarked earlier. the testator's signature is not complete on Ex. A. It is difficult to understand why the testator should not have appended his signature more carefully on such an important document. Other undisputed specimens of the deceased's signature which were placed before the Court do not suggest that the deceased was careless in this respect. It was submitted that the error was occasioned as the deceased may have been in a hurry. There was nothing in the evidence of either Hussain or his wife. who claimed to have witnessed the signing of the will, which supports that theory.

Kamachi Murti (DW 2) was employed as a nurse at the doctor’s surgery in Labasa from 1977 until a few weeks before his death. She was familiar with his signature from prescriptions, cheques, deposit slips and the like. She said that the deceased always signed clearly and underlined his signature. Shown the signature on Ex. A. she was positive that the deceased never signed like that. Shown other signatures of Dr Singh on other documents which she has not seen before she identified them as his without hesitation.

Another witness, John Alexander (DW 3) is a Senior Pharmacist in the Minister of Health. He first met the deceased in 1975 when they were both working in the Medical Department at Suva. He also was familiar with the doctor's signature through prescriptions made out and submitted to the pharmacy. Shown Ex. A, he doubted that the signature was that of the deceased.

Alexander West (DW 1) described himself as a forensic document examiner and handwriting analyst. He said that he has spent 27 years in the study of hand-writing as a means of identification and the techniques of the examination of the documents including paper, typescript and ink. He has worked in the New Zealand Police Department in that capacity where he held the rank of Detective Chief Inspector. He admitted that no institutions exist for the study of this particular subject. It is not possible to obtain a diploma or degree in this discipline.

This witness examined Ex. A and other documents bearing the undisputed signature of the deceased. On the 9th August, 1985 he went to the Probate Registry in Suva and examined Ex. A under a microscope.

The witness expressed the opinion that the paper Ex. A has four edges and that the right hand edge has been cut either by a scissors or a sharp instrument. He noted the correction over the name "Bhajan Singh" to which I have already referred and the alteration of the date "1978". In particular he pointed out that the alignment of the figures "1978" was lower than the other words on the same line.

According to this witness, microscopic examination revealed that the testator's signature showed a lack of fluency. The pen had been lifted from the paper and replaced. He noted the unfinished state of the testator's signature and that no adjustment had been made by the signature to allow for the edge of the paper. He concluded that this signature was not made by the same person who signed the other documents bearing the signature of the deceased. Alexander was unmoved from his opinion by cross-examination.

The testator's signature on the document Ex. A is not underlined in the usual manner. Although there is a mark below it, it goes in another direction.

In a case such as this I would be slow to be persuaded by the testimony of an expert's opinion alone. But, I am impressed by the fact that all the other signatures of the deceased which have been produced in this Court appear to be well formed, precise and have a characteristic underlining, whereas the signature on Ex. A is ill-formed, incomplete and not underlined as in the other specimens. There is enough evidence to throw considerable doubt upon the signature on Ex. A. There is nothing on record to suggest to have made his will, he was anything, but, his normal self. The peculiarities of the signature which I have mentioned might be explained if the deceased was at the time drunk or drugged or excessively fatigued, at least to the extent that he was unable to make a proper adjustment for the space available.

On the 16th July, 1978 the deceased had been married for only 5 months. If he had executed his will prior to the 21^st February, it would have been automatically revoked by his marriage. (Wills Act. Cap. 59. s.13). I consider it possible that prior to his marriage the deceased might have been inclined to make a will in favour of the plaintiff. But, unless it was the case that his relationship with his wife deteriorated very soon after the marriage, it is not to be expected that the testator would make no provision at all for her in July 1978. On this point there is some evidence.

The defendant told the Court that in 1973 she was a student at the University of Bombay from where she obtained a B.A. degree in October 1977. It was while the was a student at Bombay that she first met the deceased. She returned to Fiji in October 1977. After the marriage she went to live with her husband's family. She said that she and the deceased enjoyed a normal marriage relationship. She went out with her husband frequently, which did not always please her mother-in-law, Harbans Kaur. It was not until late 1979 that she and her husband setup their own home in the surgery.

The defendant denied that she went out alone at night, coming in late while her husband was asleep. She had never discussed wills with her husband although they talked about life insurance and money matters.

The plaintiff in his evidence made no complaint about the conduct of his sister-in-law. He did, however. say that the deceased liked to bank money and that he wanted to make provision for his wife rather than for his mother and the plaintiff. Indeed, the deceased's desire for financial independence seems to have been the cause of much of the subsequent troubles between the brothers. It is totally inconsistent with the deceased having, a few months after his marriage, made a will leaving all his property to the plaintiff.

Harbans Kaur had a different story to tell. She said that after her son had opened the surgery, the defendant, whom she did not know, used to visit him there. One day he brought her home to lunch and told his mother that he wanted to marry the girl. Her reply in her own words was "Very well, get on with it". She alleges that she liked the defendant but that the deceased did not. She said that her son wanted to marry a Muslim girl who was a doctor. Apparently Harbans Kaur found this prospect so repugnant that she forced her son to get married to the defendant.

Harbans Kaur complained that the defendant was not a good daughter-in-law as she refused to help in the house. She was not very consistent in all this, saying at one stage, that up to three months after the marriage the couple stayed happily together but that after that, the deceased did not like his wife very much.

I am satisfied that this witness was endeavouring to give the impression that her son and his wife had serious differences shortly after their marriage which might explain why he made no provision for her in his will.

In cross-examination Harbans Kaur said that she did not know that the defendant had met her son while they were both students in India. I find this quite incredible. I have no reason to believe that the deceased was forced to marry the defendant or that the couple were unhappy thereafter. The fact remains that the defendant was still married and living with the deceased up to the time of his death over four years later.

Harbans Kaur may be an old lady and not highly educated, but, she is no fool. It is in her interest to support the claims of her remaining son. She must be well aware that the date of the alleged will is awkward and not easy to explain.

Harbans Kaur said that when her son told her that he had willed all his property to the plaintiff she was pleased because it meant that the brothers were helping each other. She said and I quote:

"I did not think of the defendant at that time the wife was not there. I thought that the wife would get something. I thought that Bhajan Singh had his own share. He had money in the hank."

Harbans Kaur had been told by the deceased that he had made a will in favour of his brother and had given it to her for safe keeping. After the untimely death of her son, she was unable to recall this. Harbans Kaur had to believe, however grief-striken and sick she may have been after the death of her son, that she had thought whatsoever to what would happen to his estate. He was her partner in Johra Singh & Sons. 1 do not accept that Harbans Kaur would have forgotten the existence of her son's will and this puts in doubt her testimony as to how she "found" the will in 1983.

What then is the position? If Ex. A was not found by Harbans Kaur it is possible that it came into existence in its present form some time after the death of the alleged testator.

There are other indications. The deceased, as a professional man, might have been expected to have obtained the services of a solicitor to draw up a will for him confidence. He would then have had the benefit of advice as to the rights of his wife. It is distinctly odd that he should have prepared a will in the form of Ex. A. It is typed on lined paper which has been cut down to a small and unusual size. It includes, quite unnecessarily, a rubber stamp. It is untidy in that it contains two alterations. If the typist had made errors, it would have been easier to retype the whole document in order to give it a better appearance. It may be assumed that the deceased knew, as most people do, that a will requires only two witnesses to the testator's signature. In this case there are three witnesses, one of whom, Shamshad Bano, has signed below the line upon which the date appears. If the deceased wished to keep his will a secret there was no need to employ three witnesses. His testimonial intentions could have been better preserved, with discretion, if he had gone to a solicitor. Nor is the need for secrecy apparent, unless it was the deceased's sole intention to keep it from his wife, that he proposed to leave her without means. There was certainly no reason f the deceased to keep the plaintiff in ignorance of his intention to make him his heir, as they were both partners in the firm of Johra Singh & Sons.

There was evidence given by the defendant and by Kamachi Murti that it was the deceased's practice to hold a Sunday surgery between 9 and 10 o'clock in the morning. He usually spent the rest of the day away from home. According to Hussain and his wife they brought their child for dressing at 2.30 p.m. and it has not been suggested by either of them that they made a special appointment for this purpose.

I think it remarkable that Shamshad Bano would have remembered, after a lapse of many years, that the date "16th" was not on the will when she witnessed it. If she is correct, then the figure was typed in later, for which purpose the document would have had to be put back into the typewriter. There is no indication that the letters "16th' is in any way out of alignment with the adjoining type as is the case with the year “1978". It would have been much easier (if the date had been left blank) to have filled it in with a pen. I must reject her evidence and I am inclined to the view that she insisted on this detail in an attempt to add verisimilitude to her testimony.

Mr Mohammed Hussain is dependent on the plaintiff for his livelihood as a cinema projectionist at the theatre at Labasa which Johra Singh & Sons operate a part of their business. That circumstances may have induced him to lie about the execution of the will and persuade his wife to do likewise. Not only do I conclude that the plaintiff has failed to establish that the purported will was that of his brother, but, having regard to all the evidence adduced at the trial, I am satisfied that the plaintiff, his mother, Mohammed Hussain and his wife, Bano, have conspired to present to this Court a forged document in an attempt to defraud the defendant. I reject entirely as a fabrication the story of the finding of the will in September 1983.

I dismiss the claim for the revocation of the Letters of Administration granted to the defendant and I decline to pronounce in solemn form in favour of the purported will. I declare it to be a forgery. This action must be dismissed with costs.

Under the Succession, Probate and Administration Act, Cap. 60, section 6(1)(a) and (f) the estate of the deceased, including his interest in the partnership in Johra Singh & Sons, falls to be divided between the defendant and Harbans Kaur. The plaintiff takes no interest. I make an order for costs against the plaintiff, such costs to be taxed on the common fund basis in accordance with Order 62 rule 28(3) and (4) so that the estate of the deceased is granted a full indemnity.

Judgement for the Defendant.