Raji v Singh [1979] FJSC 64; Action 217 of 1977 (30 March 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA

Civil Jurisdiction
Action No. 217 of 1977

BETWEEN

SHIU RAJI f/n Devi Prasad
(Plaintiff)

AND

THAMMAN SINGH f/n Bishan Singh
(1st Defendant)

REGISTRAR OF TITLES
(2nd Defendant)

Mr. Vijay Chand for the Plaintiff
Mr.G.P. Shankar for the 1st Defendant.

JUDGMENT

The plaintiff was threatened by the deceased Bhagwan Dei as her adopted daughter, though there was no formal adoption. The first defendant was the husband of the deceased and had been so for about 30 years. The day before she died the deceased executed a will naming the plaintiff as her executrix and trustee and also making her the sole beneficiary of all her real and personal property. Probate of this will was granted to the plaintiff.

Apparently the only property or at least the only property of any relevance that she owned prior to her death were two pieces of real property. The first was an interest in a cane farm and sugar cane contract which the deceased assigned to the 1st defendant on 18/6/73, the consideration being stated as "the natural love and affection which the Assignor bears towards her husband the Assignee." The cause of action of the plaintiff does not cover this property.

The second was a more valuable piece of property being a half share in a piece of land situated in the middle of Sigatoka (C.T. 10795). This piece of land was the subject of a transfer of title from the deceased to the 1st defendant on or about 19/6/72 (i.e. over two years before her death on 20/9/74).

Both assignment and transfer were effective before the death of the deceased and it is perhaps significant that the plaintiff seeks to set aside the earlier transfer of title to C.T. 10795 on various grounds, but does not challenge the later assignment of the cane farm though this occurred just over a year before the death of this assignor. There is no doubt that C.T. 10795 is by far the more valuable property.

The plaintiff seeks to set aside the transfer on these grounds. Firstly on the ground that the purported transfer was fraudulent in that the deceased Bhagwan Dei did not execute a transfer in favour of the 1st Defendant;

Secondly and in the alternative that if the deceased did purportedly execute a transfer of the land it was fraudulent in that the deceased was not aware that she was executing a transfer of the land.

Thirdly and in the alternative that the transfer was involuntary and null and void and of no effect by reason of the fact that if she did execute a transfer she did so under duress and undue influence exercised over her by the defendant.

Well the first two grounds can be disposed of quite simply and quickly. She certainly did execute a transfer of the land to the 1st Defendant, Exhibit 2, which was an agreed document is clear proof of the transfer, and if this were not sufficient the evidence of Sahbas Khan, the managing clerk present during the execution of the transfer, was entirely convincing in this respect. I also accept his evidence that the deceased knew very well what she was executing at the time.

There remains only the third ground to consider. The plaintiff herself gave no real evidence on any of these points apart from an allegation that relations between the deceased and the 1st Defendant were not good and she had seen him strike the deceased with his fist once. She gave no evidence relevant to the transfer as such, and there was no attempt by her to relate either the bad relations-even if I were to accept this,-or the punch to the execution of the transfer. Spouses can of course be on bad terms one day and on good terms for the next day or even the next year.

The evidence of the plaintiff's brother as to the instances of slaps that he described I discount entirely. He was quite unconvincing and his attempts to explain the incidents were patently false. According to him, whenever he saw the deceased and the 1st Defendant they seemed to be frozen in the same position, the deceased sitting down, the 1st defendant standing over her, saying "Give me the land" and administering one or two slaps and always to the head. Against this was the evidence of Sahbas Khan not only as to the relations between the deceased and the 1st defendant, which he described a very affectionate, but as to the circumstances of the transfer and the assignment, his evidence was, to me, entirely convincing, and the only point on which counsel for the plaintiff could attack him was that the transfer document contained a statement by the deceased acknowledging payment of $3000 in consideration of the transfer. He knew of no payment of money, certainly there was no payment in his presence and there might well not have been any transfer of money. But as he pointed out this was only an acknowledgement of payment, and there is not necessarily anything sinister in the fact that no money changed hands at the time of execution or perhaps never changed hands at all. The deceased might have been acknowledging settlement of a prior debt, or the statement with regard to consideration might have been intended to ensure payment of a lower rate of stamp duty (if such were the intention it did not succeed since the Commissioner of Estates demanded a higher rate of stamp duty).He said that the deceased understood what she was signing and there was no question of her being under any illusion, or under any duress by the 1st Defendant.

The brother of the deceased was called as a witness for the defendant, and he gave evidence as to the good relations between the deceased and the first defendant- evidence which was in conflict with evidence given by and for the plaintiff. I see no reason to question his evidence.

There is therefore no direct evidence to suggest that the deceased was under any duress of any kind when executing the transfer of the land to the 1st Defendant. In fact the only evidence I have heard, called by the defendant, is to the contrary, and I do not believe the evidence given by the plaintiff and her brother as to the bad relations between the deceased and the 1st Defendant or as to the assaults by the 1st Defendant. On this point I do not overlook the fact that the deceased was staying with the plaintiff at the time of her death, or that the funeral took place from her house. Even on the plaintiff's own evidence, the deceased who was clearly very ill was only released from hospital one week before her death, and the deceased was staying with the plaintiff because the 1st Defendant, who is a fairly old man was not properly able to give her the care she needed. It could have been a question of convenience for the funeral to take place from the house where the deceased died, and no evidence to the contrary was given and it was not suggested that the 1st Defendant failed to attend the funeral, to pay for it or afford the deceased the proper rites.

There is no presumption of undue influence from the marital relationship between the deceased and the 1st Defendant, and no onus rests upon the 1st Defendant to disprove the allegation of undue influence. See Howes v. Bishop [1909] UKLawRpKQB 96; (1909) 2. K.B. 390, McKenzie v. Royal Bank of Canada (1934) A.C.460 and Yerkey v. Jones [1939] HCA 3; 63 C.L.R. 649. I therefore find that the Plaintiff's claim to have the transfer set aside as fraudulent, or as being null and void must fail. Similarly her claim to be entitled to be registered as owner of the property in question must fail, nor is she entitled to any damages.

There remains the question of the counterclaim brought by the 1st Defendant to have the grant of probate to the plaintiff set aside and the will executed on19/8/74 declared null and void. The 1st Defendant himself gave no evidence and the only evidence given on behalf of the 1st Defendant relevant to the counterclaim was as to his relations with his wife the deceased. On this point I have already said that I prefer the evidence of Sabbas Khan and the deceased's brother to that of the plaintiff and her brother. I do not believe that relations between the deceased and the first defendant were as bad as the plaintiff would have me believe or that the 1st defendant assaulted her as described by the plaintiff and her brother. I prefer the evidence of Sabbas Khan who described their relationship as being very affectionate.

The question of their relationship becomes very relevant when I come to consider the making of the will executed by the deceased.

Other than this the 1st defendant has relied on evidence obtained from the witnesses for the plaintiff under cross-examinations.

The deceased had been ill on and off for 2 or more years before her death. She was taken into the hospital about 2 weeks before her death and was released about one week before her death. She was clearly very ill and the 1st defendant asked the plaintiff to look after her because he was not able to do so properly. Since the 1st defendant is an old man that is not surprising but the plaintiff says he could have hired someone to look after the deceased. On the other hand the plaintiff whilst not the real daughter of the deceased or the 1st defendant had been brought up by them since shortly after her birth. She remained always on good terms with the deceased, although she does not seem to have remained on such good terms with the 1st defendant. She had much to be grateful for to the 1st defendant, but seems to resent that he had never given to her or her husband land he had previously promised her. Considering the relationship existing between her and the deceased it is not surprising that the 1st defendant asked her to look after the deceased and I do not attach any great significance to that nor the fact that later the funeral of the deceased went from her house.

The day before the deceased died the plaintiff's husband went to a local solicitor fairly early in the morning to say that the deceased wished to make a will. This solicitor was not the one usually used by the deceased. Clearly no time was lost because by about 9 a.m. a senior clerk from the office had visited the deceased, taken instructions, returned to the office, had a will typed, returned to the deceased and had the will signed and attested before 10 a.m. What is clear is that at this time the deceased was very ill, was paralysed on one side, could only speak slowly, and was dead by the next day.

The senior law clerk who visited her grave gave evidence for the plaintiff, and his evidence was hardly what one might expect from the senior clerk of a responsible firm of lawyers. He frequently retreated from awkward questions by saying he could not remember, but what is clear is that at the time the deceased was gravely ill and close to death, slow of speech, and her understanding must have been minimal. Although the clerk said she knew what she was doing and understood when everything was read back to her. I think this must have been doubtful. He said that the will was as she wanted it, but from his own evidence it only appears as if he asked her three or four questions. His evidence was very vague on the point and contradictory but as far as I can make out he first asked if she recognised him and she said "Yes" (It was not clear if this implied that her vision was faulty). He then asked if she had sent for him and she said "Yes". He asked if she wanted to make a will to which she replied "Yes". He asked who she wanted to be "agent" (using the Hindi expression which he translated into English to mean "executrix and trustee"). She said she wanted her daughter to be "agent". Since he knew the Plaintiff to be her adopted daughter in the will. He then asked who she wanted as beneficiary and the deceased pointed to the plaintiff. That was effectively the sum total of the instructions. The law clerk hedged and prevaricated under cross-examination but effectively that was the sum total of his questions and answers so far as I could tell. He read his instructions which he had written in English as to the drawing up of a will back to the deceased, he said she agreed, and he put her thumb print on the piece of paper on which he had written the instructions. He then signed and got a witness he had taken with him to sign (the purpose of this witness was not clear since he was not attesting the will-unless the clerk was taking precautions in case the deceased died before he could get back with the typed copy).

Within about ½ hour he was back with a will typed out, he read it back to the deceased, who according to him agreed it was correct, put her thumb print on it, he signed it himself and got another witness- a relative of the plaintiff, also to sign as testifying witness.

What is patently obvious is that this was rather a rush job, presumably to ensure it was completed before the deceased died and the law clerk omitted the prudent and cautious approach which he should have adopted in all the circumstances. He knew that the deceased was married to the 1st defendant, he apparently had no reason to believe that relations between the deceased and 1st defendant were no normal and cordial as befits a husband and wife, he knew that the deceased was near death, he knew that the deceased was in the home of the plaintiff, her "adopted daughter", he was aware that the plaintiff was present in the room throughout, he knew that the purport of the will was to make the plaintiff sole executrix and trustee, and sole beneficiary of all her property, leaving nothing to the deceased's lawful husband.

And yet he did nothing to dispel suspicions of undue influence. A prudent lawyer would have taken steps to ensure that any suspicion of undue influence was removed, if necessary asked to leave the room, the deceased asked if she realised fully what she was doing, whether she wanted her husband present, whether she wanted to leave anything to him. Why should a wife voluntarily disinherit a husband with whom she had lived apparently amicably, for over 30 years? Some explanation was surely desirable.

The whole business seems to have been conducted with unseemly haste and in suspicious circumstances. The deceased was not even asked about any debts she might owe, about payments of funeral expenses, bequests to others, or even about details of the property she was leaving. I got the impression that the deceased's condition at the time was such that she could not have understood any but the most simple questions, which brings the whole question of her mental capacity into doubt.

The testifying witness Raj Kumar, a relative of the plaintiff attempted to explain the deceased's ability to understand, and to show that she knew what she was doing, but he was a completely discredited witness. Not only was his evidence in contradiction with that of the law clerk, but these prevarications were quite astonishing. He changes his answer to one question at least 6 times in as many minutes. I cannot attach any weight to his evidence.

The plaintiff has shown herself to be rather greedy woman, activated as well by a vindictiveness against the 1st defendant to whom she had owed so much in her upbringing and by a sense of grievances because of the 1st defendant's failure to give her a piece of land she feels she owes her.

The circumstances of the execution of the will raise a string presumption of undue influence on a mind already enfeebled by illness and the proximity of death and the plaintiff has by no means dispelled that presumption.

In the circumstances I order the plaintiff to bring into court Probate No. 13973 for revocation of the said grant. The "will" dated 19/9/74 I declare null and void, and the plaintiff is ordered to make a full inventory and account of all the assets and income on the deceased.

The plaintiff will pay the costs of these proceedings.

(Sgd) G.O.L. Dyke
JUDGE.

LAUTOKA,
30th March, 1979.