Singh v Mati [1987] FijiLawRp 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