IN THE HIGH COURT OF FIJI
(AT SUVA)
PROBATE JURISDICTION

ACTION NO. HPP 0037 OF 1994

IN THE ESTATE of RAM KUMARI
daughter of Nand Lal of Cuvu, Sigatoka, Retired School Teacher, Deceased

BETWEEN:

PARAS RAM
(f/n Raghubar Dayal) of
Cuvu, Sigatoka, Farmer
Plaintiff

AND

RAGHUBAR DAYAL
(f/n Nandlal) of
Cuvu, Sigatoka, Farmer
First Defendant

AND

LEKH RAM CHANDRA
(f/n Mutaiya) of
Cuvu, Sigatoka, Farmer
Second Defendant

H. Shah for the Plaintiff
Sir Vijay R. Singh for the Second Defendant

Dates of Hearing: 14th, 15th, 16th May, 3rd, 4th July 1996
Date of Judgment: 22nd August 1996

JUDGMENT

When Ram Kumari died at the age of about 80 on the 25th of November 1993 she had made three Wills, the first on the 6th of November 1979 prior to her departure for approximately eighteen months for a holiday in India, the second on the 3rd of November 1992 and the third which is now before this Court on the 12th of February 1993.

Under her first Will which was prepared by the Public Trustee who was also appointed the Executor, Miss Kumari bequeathed all moneys or cash remaining at the time of her death to various charities including Arya Pratinidhi Sabha of Fiji and Lekh Ram also known as Chandra of Cuvu. She then left the residue of her estate to Lekh Ram.

Under the second Will which was prepared by the Second Defendant's solicitors she bequeathed all her estate to the present Plaintiff, her nephew. Probate of this Will was revoked in 1994 as a result of Miss Kumari having made her later Will.

In applying for Probate of the second Will the present Plaintiff who was Executor of the Will swore an affidavit stating among other things that he believed the paper writing then produced and marked by him was the original last Will and testament of Miss Kumari, a curious statement as it transpired, because the original of the second Will was always in the possession of Miss Kumari's solicitors Sir Vijay R. Singh & Co.

Under her last Will of the 12th of February 1993 Miss Kumari appointed two Executors one of them being the Second Defendant to whom I will henceforth refer as "the Defendant" because the First Defendant has taken no part in any of these proceedings.

Under that Will Miss Kumari bequeathed the sum of $20,000.00 to Cuvu Arya Samaj and the remainder of her estate both real and personal to the Defendant. Probate of that Will was granted on the 11th of January 1994. Probate of her earlier Will had been granted on the 3rd of August 1994 so that of necessity the Probate of the last Will granted on the 11th of January 1994 could only be recognised.

During her life-time Miss Kumari was a school teacher by profession and a spinster. After she retired as a teacher she devoted a good deal of her time to the study and teaching of religion in which by all accounts she was very learned and devout. She was a Pandita or learned person, the foundation member of Cuvu Arya Samaj and later a member of the Nadroga Arya Samaj. She preached to the community particularly about the Vedic faith which she also taught in schools generally as a volunteer.

When the Plaintiff discovered that Miss Kumari had made her last Will under which he received nothing he issued the Writ in the present proceedings on the 24th of May 1994. The Statement of Claim describes Miss Kumari's last Will as "the Pretended Will" and alleges that at the time she made that Will she was suffering from high blood pressure, general disability, a stroke of her right side, heart attack, heart failure and kidney failure and that her memory was defective and untrustworthy there being total loss of memory of recent events and in particular she had forgotten and was frequently unable to recognise her closest relations and friends and unable to understand the nature of any acts or their effects. Secondly it is claimed she lacked testamentary capacity at the time she made her last Will.

Alternatively to that allegation the Plaintiff claims that the Defendant being Miss Kumari's neighbour took advantage of her old age and ill health and made use of her complete dependence upon him for the every day necessities of life to force her to make her last Will contrary to her own wish and intention. He claims a declaration that the Pretended Will is false, null and void and that Probate of that Will be revoked. He then seeks a declaration that the Will and Testament of Miss Kumari of 3rd November 1992 be pronounced in solemn form of law as constituting the true last Will of the deceased.

All these allegations are denied by the Defendant.

Before dealing with the evidence given at the trial of this action it is necessary to refer briefly to earlier interlocutory proceedings between the present parties.

On the 5th of September 1994 a Bailiff seized the motor vehicle belonging to the deceased, Miss Kumari, and on the same date the sum of approximately $51,000.00 in the deceased's account with the Bank of Baroda, Sigatoka was paid out to the trust account of the Plaintiff's then solicitors Messrs A.D. Patel & Co.

On 6th September 1994 orders were made by this Court that the motor vehicle be returned to the Defendant forthwith and all moneys paid into the trust account of the Plaintiff's solicitors be deposited in this Court. That was not done and it culminated in contempt proceedings being taken against the Plaintiff and his then solicitor Mr. Jasbir Singh as a result of which the Plaintiff and Mr. Singh were fined by this Court.

I now turn to the relevant evidence given before me.

The Plaintiff did not give evidence and the only witness called by him was Dhirendra Lal a Medical Practitioner of Sigatoka who said that he had been a Medical Practitioner for twelve years but had really only done a basic course for treatment of patients of simple complaints. The deceased Miss Kumari was his aunt. He said that he was employed at Sigatoka District Hospital from 1991 until April 1995.

On the 27th of January 1993 he was in-charge of the out-patients clinic at the Sigatoka Hospital. Just after 2.00 p.m. Miss Kumari came into the clinic in a wheel chair accompanied by somebody whom he presumed to be a relative. He did not know this person but said that he knew all the relatives of Miss Kumari.

He greeted her but she did not respond. He knew her medical condition before he examined her as she was a regular attender at the Sigatoka Hospital for treatment of hypertension.

On examining Miss Kumari he found she had symptoms of renal failure, a stroke on her right side and heart failure. She was not aware of her surroundings but he said the fact that she did not recognise Mr. Lal was probably due to the fact that with such conditions the eyesight is weakened.

Mr. Lal wanted to admit her that day but the people accompanying her were reluctant to do this so she was not admitted. She was given appropriate treatment and sent home on advice to return in three days time or earlier if necessary. She was not brought back into the hospital in three days and there is no record in the hospital of her being brought back there in February or March 1993. He said her condition could not be reversed. She was admitted on the 13th of April 1993 at 12.15 a.m. having been referred by a General Practitioner complaining of neck pains, pain at the back, sweating and fainting at home that morning.

She was discharged on the 16th of April and was diagnosed as suffering from heart disease and had probably had a heart attack at home causing her to come to the hospital.

Mr. Lal remarked there is a consistent regression in Miss Kumari's condition from there on. After her discharge she returned on the 11th of August at 6.15 p.m. suffering from acute pulmonary oedema, left ventricle failure, severe hypertension and acute renal failure. She remained in the hospital until the 22nd of August 1993 and was admitted again for the last time on the 18th of November 1993 suffering from severe heart failure. She was discharged home on the 21st of November and died on the 25th of November.

Mr. Lal tendered a report dated the 5th of January 1994 which he sent to the Plaintiff.

In that report he said that she had been attending the medical clinic since 1988 suffering from high blood pressure. She had been in a stable condition since then until early in 1993 when she started developing complications. He then mentioned her general symptoms which I have previously mentioned but also said that following his examination on the 27th of January 1993 "she continued her poor health and confused state till she expired later 1993. Ref. Folder Number 1075/3610." 

Mr. Lal's reference to her confused condition until her death is not supported by the hospital records which were tendered by the Plaintiff. There are only two references to Miss Kumari being confused in these records and both are by nurses attending her. The first is for the night of the 14th of April and reads, "Patient seems to be confused. Fell out of bed few times and had to put her back otherwise no complaints." The second reference is for the morning of 15th April where Miss Kumari is described as "patient bit confused".

Mr. Lal then said that it was impossible for the patient to recover in such a short time between 27th January 1993 and 12th February 1993 the date on which she made her last Will. He also said that if she had returned to the hospital before 12th February she could not have reversed the effect of her stroke. 

The Defendant then gave evidence. He said that he had been taught by Miss Kumari at Cuvu Primary School which he left at the age of 15. In about 1977 Miss Kumari had asked him for a piece of land in the same yard as his own house. He gave her this land and helped her build a small house on it. Mostly Miss Kumari ate with Mr. Chandra and his family and she lived there for three years before going to India for a holiday and later on her return. She went to live with the Plaintiff in December 1992 and then returned to Mr. Chandra in January or February 1993. 

After this the Plaintiff never visited her. Miss Kumari's funeral was held from Mr. Chandra's house. She had made it clear that she wanted to be cremated: according to Hindu custom the son of the deceased lights the fire. She had no son and none of her nephews lit the fire. The Defendant did so because he said their relationship was a defacto nephew/aunt relationship. He said that she did not tell him why she was going to live with the Plaintiff, and came back without any prior warning. Mr. Chandra did not know that she had made a Will in favour of the Plaintiff. He never took her to the Sigatoka Hospital in January 1993 in a wheel chair. He took her to the hospital in April. He said that after she returned from the Plaintiff's house in January she visited various people and attended gatherings. She drove her own car right until the first time Mr. Chandra took her to the hospital in April. In cross-examination he said that from 28th January to 14th February 1993 Miss Kumari was not sick at all. He did not see her driving during that time because he was at work during the day. He did not know that she had any heart problem or kidney failure or that she was confused. He said that whenever he saw her she was always mentally alert but complained of her legs at night while she was having dinner. He did not take her to the shop of Vivekanand Sharma where she made her last Will on the 12th of February and said that he did not see her at all that day. He also said that he never discussed with Miss Kumari to whom she was going to leave her estate.

The second Defence witness was Vivekanand Sharma of Cuvu, Sigatoka a shopkeeper who had known the deceased since 1956 when she was a teacher at Cuvu. Mr. Sharma was one of the witnesses to Miss Kumari's Will of the 12th of February 1993. She frequently came to his shop where he had a video library and watched video during the day and always drove her own car to the shop. On the 11th of February Miss Kumari asked Mr. Sharma to telephone Sir Vijay R. Singh with a view to his preparing another Will for her. Sir Vijay was not there so she spoke to his Clerk Satish Narayan and told him to come to Mr. Sharma's shop where she would make her Will.

Mr. Narayan came to the shop about 5.00 p.m. and interviewed Miss Kumari.

She returned to his shop about 11.00 a.m. the next day in her car which she drove and parked it near the shop. Mr. Sharma talked to her the previous day when she was watching films and said she was not out of her mind and was just as she had been previously. She did not mumble and spoke to him normally. She walked with the help of a stick. She was like this the next morning when she came.

When Satish Narayan arrived in the afternoon Mr. Sharma was present when Satish read the Will to Miss Kumari in English and explained it in Hindi. She then took it and read it after which she said, "This is what I want done" and then she signed it in the presence of Mr. Sharma and Satish Narayan. After this a few more copies were signed by her and all of them there, Satish taking one copy and Miss Kumari gave Mr. Sharma one. She then drove away in her own car. After this she visited Mr. Sharma two or three times a week and always drove her own car for the next three months. They used to talk: sometimes the Defendant Lekh Ram Chandra drove her. She complained frequently of pain in her leg. The witness said the reason why Miss Kumari had come to the shop to sign her Will was because she could not climb the stairs to Sir Vijay Singh's office.

In cross-examination the witness said that he found it very hard to remember whether Miss Kumari came to his house at all in January and did not know whether she was driving her car in January at all. After the 27th of January she was well, drove her car and had no stroke symptoms. He said she had an old model manual operated car with an ordinary steering system not power steering. He said in his opinion her mind was good and she understood everything. He could not say whether her right hand was impaired.

The third witness for the Defence was Deo Darshan Kumar a farmer whom I found in some ways an unsatisfactory witness with very poor recollection of dates and other events. However Mr. Kumar said that he considered Miss Kumari was mentally sound. He talked to her about religion when he visited her at the Defendant's house about two days after she returned there from the Plaintiff's house. He last visited her about three weeks before her death when she was weak but still talked sensibly to him. He said that in January she could recognise people, was not confused and knew what she was doing.

The next witness was Satish Narayan who has been a law clerk for the last 16 years and has drawn several Wills in that time. He said the Plaintiff was his uncle. He was not related to the Defendant and did not know him before this litigation. I now quote part of his evidence-in-chief in which he describes the circumstances in which Miss Kumari came to make her last Will. He said, "I received a phone call from the deceased from Ajay Sharma's shop in Cuvu to meet her at the shop on the afternoon of the 11th of February 1993. The call was at about 2.00 p.m. After work about 5.30 p.m. I met the deceased at the shop and then in a private room, a lounge, and discussed the Will with her. I borrowed a pen and page from Vivekanand Sharma and took instructions from Miss Kumari. I asked her to call in at the same place on the 12th of February 1993 at about 5.30 p.m. to sign the Will. I knew her before this because she was my school teacher. Miss. Kumari spoke to me in Hindi and I took all her instructions in English. Her speech was normal. She had no difficulty speaking and spoke sensibly. She recognised me.

As a result of her instructions I was satisfied that she knew what she was doing and I prepared the Will the next day. My name and Vivekanand Sharma's names were typed in before I went to Miss Kumari. I knew I would be one of the witnesses and I had asked Vivekanand Sharma if he would be the other and he agreed. He said that the witnesses' names were typed in advance because Sir Vijay Singh had instructed his staff that the names of witnesses "should be typed on the Will - period". He then continued, "When I brought the Will back on the 12th of February I saw Miss Kumari's car which I knew. She was in the lounge and I went to see her. Vivekanand Sharma was in the front shop and then he joined us in the lounge after about five minutes. I then read over the Will to Miss Kumari in English and explained it in Hindi paragraph by paragraph. After this Ram Kumari took it from me and read it herself and said "This is what I want". She then signed it in our presence and Mr. Sharma and I then signed it. I gave a copy to Miss Kumari and brought one back to the office. I sat in the lounge with Miss Kumari for about half an hour but Vivekanand Sharma was busy and went out to the shop. Ram Kumari and I talked - she was a teacher of mine. I found her talk sensible, she knew what she was talking about. I saw no one else who could have been the driver of her car. After this I saw Ram Kumari in Cuvu driving her car. I saw her three or four times in the two months after the Will was signed. I never met her again but saw her once entering the shop when I was getting petrol. This is about six weeks after the Will was signed and she seemed fairly well. She was walking normally without a stick or crutch."

In cross-examination Mr. Narayan said that he did not put down Vivekanand Sharma's name as witness as a matter of convenience. He got his consent first. It will be noted here that there is a difference in the testimony of Satish Narayan and Vivekanand Sharma as to what happened before Miss Kumari signed the Will. Satish Narayan says that both he and Sharma explained the contents to Miss Kumari, where as Mr. Sharma says that only Satish Narayan did the reading and interpreting and explaining. I will return to this subject when commenting on the evidence.

The last witness in the case was Bhuwan Dutt who is the Permanent Secretary for Lands, Mining and Energy. He is also the General Secretary of the Arya Pratinidhi Sabha of Fiji the national organisation of all the local Aryan Sabha in Fiji which conducts eighteen schools.

Mr. Dutt said that he had known Miss Kumari as a Pandita or learned person who practises the religion and who is allowed to perform marriage ceremonies. In late March or early April 1993 there was a very important function held at Natabua, the opening of a new Arya Samaj school at which Mr. Dutt was present along with about 100 people. Ram Kumari was the principal guest at the function. She appeared in reasonable health, she was walking around and stood at the flag ceremony. As chief guest she had to unfold the flag. She walked slowly to the pole looking frail but able to walk. Mr. Dutt could not remember whether she had a stick or crutch. The function lasted about 1½ hours. He talked to her. She made the main speech for about 15 minutes. She spoke in a style easily understandable but perhaps slightly slower than her normal delivery before her stroke. He said that she was very clear and sensible in what she said and made a contribution of $14,000.00 to the fund. The function was reported in the Daily Post newspaper of the 5th of April 1993 and Mr. Dutt tendered a newspaper cutting of the event which included a photograph of Miss Kumari. 

He said that he had met her before the function because he had to make arrangements for the event about one month ahead. He met her at the Defendant's house and was with her for about half an hour. She was frail but very alert and he could easily understand what she was saying. She was a little slow in her speech but very clear.

He said after the function and before her death he visited her at least twice because her health was then getting weak and they prayed for her. This was about in September or October. She was sitting on her bed, her eyes were very sharp. She did not say much but what she said was very quiet and sensible. He said that during all his discussion with Miss Kumari he never thought she had lost her mind because she was always clear, sound and alert.

I now come to a consideration of the evidence and the submissions made to me by counsel. It is convenient to deal with those of counsel for the Plaintiff first. Mr. Shah first stated that I should draw no adverse inference from the failure of the Plaintiff to give evidence because he said the Will of November 1992 is not challenged. This is true but in my view that does not answer the important question of what may have happened between Miss Kumari and the Plaintiff which caused her to leave his house and return to the Defendant's house after a relatively short stay and whether he could offer any explanation for his being excluded altogether from her last Will. He could also have given evidence about her mental and physical condition at the time and her arrival and departure but he did not. There is no evidence that after she left him the Plaintiff ever visited Miss Kumari at the Defendant's house.

In my view the failure of the Plaintiff to give evidence allows me to draw the inference that he was afraid to do so, in the way mentioned by the High Court of Australia in Jones v. Dunkel and Another (1958-59) 101 CLR 298 particularly the judgment of Windeyer J. at pp320 and 321 where His Honour said in part,

"Unless a party's failure to give evidence be explained it may lead rationally to an inference that his evidence would not help his case."

Here it is also relevant to note the Oath of Executor which Paras Ram swore on 30th of June 1994 and on which, as previously mentioned, probate of Miss Kumari's November Will was granted on the 3rd of August 1994.

Paragraph 1 of his affidavit reads:

"THAT I believe the paper writing now produced and marked by me to contain the true and original last will and testament of RAM KUMARI daughter of Nand Lal of Cuvu, Sigatoka in the Republic of Fiji, Retired School Teacher, deceased who died on the 25th day of November 1993 at Cuvu, Sigatoka."

In my judgment the Plaintiff was not telling the truth when he said that. I believe he must have known that the paper writing produced and marked by him was not the original last Will and Testament of Ram Kumari. The evidence is that the original of that Will was always in the possession of Sir Vijay Singh & Co and it may well be that if the Plaintiff lied about that, he would also lie about other material matters. In the absence of any satisfactory explanation I conclude that the Plaintiff was afraid to give evidence in this case.

Naturally Mr. Shah placed much importance on the evidence of Dhirendra Lal but as I have mentioned his statement in his report of the 4th of January 1994 that the testatrix continued to be confused after the 27th of January 1993 is not borne out by the hospital records which I have previously quoted.

Then Mr. Shah said that even if Miss Kumari got better later she need not have been in a fit condition to give instructions to make her last Will on 11th and 12th of February 1993. This is not supported by the evidence which I accept of Vivekanand Sharma and Satish Narayan. My conclusion is that the fact that Miss Kumari did not return to the hospital until April indicates that she had recovered to some extent after her stroke on the 27th of January. It is true that Dhirendra Lal's prognosis in certain respects was borne out by later events because there can be no doubt that from the 13th of April 1993 Miss Kumari gradually began to go down hill and by then it would seem that her condition had become irreversible as Dhirendra Lal had predicted. However the important dates as Mr. Shah submits, and I agree, are the 11th and 12th of February 1993 and I am satisfied that on those days Ram Kumari knew what she was doing and understood the nature and contents of the Will she signed.

In this type of case it is usually a handy litmus test, although of course nothing more, to compare any previous hand writing of a testator or testatrix with his or her signature on a Will called in question. Before I studied the evidence in this case and the submissions of counsel I first looked at the three Wills made by Miss Kumari and her signature thereon. There is a remarkable similarity in the signatures allowing for difference in the quality of writing instruments used. The signature to the Will in dispute, that made in February 1993, is as clear and firm as, and identical to those on the two previous Wills including that of November 1979 when Miss Kumari was 14 or 15 years younger.

If she were confused or frail one would expect her signature to the last Will to be weak and certainly less firm than those on the two previous Wills. This is just not true and whilst such evidence is only part of the totality of the evidence the Court must consider, in my judgment in this case it supports the view I have formed that Miss Kumari knew what she was doing and was of a determined mind when she made her last Will on the 12th of February 1993.

Mr. Shah naturally comments on the variance in the testimony of Vivekanand Sharma and Satish Narayan but in my view this is only further evidence of the well known fact that no two witnesses will give precisely the same account of any event. In my judgment the important thing about the evidence of Mr. Sharma and Mr. Narayan is that they both confirmed that Satish Narayan explained to Miss Kumari the substantive provisions of the Will and secondly, that after hearing the interpretation and reading the Will herself, she expressly stated that the provisions in the document were made with her wishes. It was then the Will was duly executed. 

For these reasons I hold that the Plaintiff's attack on the Will of Ram Kumari dated 12th February 1993 fails and I make the following consequential orders:

(1)	The Chief Registrar of this Court is to release probate of the Will of Ram Kumari of 12th February 1993.

(2)	I authorise the Bank of Baroda and the Chief Registrar of this Court to release the funds of the estate they are holding to the executors of the estate.

(3)	The Plaintiff is to pay the Second Defendant's costs and the costs made in the cause by my orders of the 6th of September 1994, 6th of October 1994, 11th of November 1994 and 13th of April 1995.

JOHN E. BYRNE
JUDGE

Case referred to in judgment:

Jones v. Dunkel and Another (1958-59) 101 CLR 298.

The following additional authorities were cited in argument:

Halsbury's Laws of England Volume 19 Para 891.
Changaiya Naidu v. Kaveri and Another 13 FLR 201.
Rajendra Dutt Maharaj v. Harry Ram Lochan 25 FLR 156.
Muni Deo Bidesi and Others v. Public Trustee of Fiji 21 FLR 65.
HPP0037J.94S