IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CASE NUMBER: HBC 18 of 1998

BETWEEN:

DHAN WATI
PLAINTIFF

AND:

SUNDAMANI aka CHINTA MANI as executrix and trustee in the estate of Tangvellu.
DEFENDANT

Appearances: Mr. R. P. Singh for the Plaintiff.
Mr. A. Sen for the Defendant.

Date / Place of Judgment: Wednesday 15 August, 2012 at Labasa.

Coram: The Hon. Justice Anjala Wati.

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JUDGMENT

CATCHWORDS:- 

DUTY OF EXECUTOR AND TRUSTEE TO COMPLY WITH TESTATOR'S WILL- TESTATOR NOT OBLIGED TO EXPEND HER PERSONAL MONIES TO COMPLY WITH THE DIRECTIONS OF THE WILL-NEED FOR AVAILABILITY OF FUNDS IN THE ESTATE TO COMPLY WITH THE TESTATOR'S WILL.

LEGISLATION:

TRUSTEE ACT, CAP. 65: S. 54.
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1.	This case was heard on 26 January, 2000 by the Hon. Justice D. Fatiaki. His Lordship did not hold office after the year 2006. The matter came before me on 6 October, 2011 and the parties agreed that I should proceed to write the judgment based on the hearing notes of his Lordship.

2.	I have the benefit of very well maintained trial notes of his Lordship. I did not have the benefit the seeing the demeanour and deportment of any witness and the parties have appreciated that before they have requested me to proceed to writing the judgment.

3.	The plaintiff claims from the defendant a sum of $30,000 pursuant to one Mr. Tangvellu's will of June 1975.

4.	The provision of the will pursuant to which the claim is brought is as follows:-

" I HEREBY EXPRESSLY DIRECT my Executors and Trustees to maintain support educate and provide for the maintenance and arrange and stand for all the expenses of the marriages of my daughters namely, BIMLA WATI aged 17 years, CHANDRA WATI aged 13 years and DHAN WATI aged 10 years"

5.	The claim is for the period 14 November 1994 until 7 July 1995. The earlier date being when the defendant was appointed as executor and trustee and the latter being when the plaintiff got married.

6.	The parties have agreed to certain facts which are important to recite.

7.	The plaintiff is the daughter of Tangvellu. She obtains locus to bring this proceedings against the trustee as a beneficiary in the will of her father. She is a beneficiary by virtue of the provision recited in paragraph 4 above. 

8.	Mr. Tangvellu died on 3 October, 1975. His wife Unnamale and son Keshwan Mudaliar became the trustees of his estate. 

9.	One trustee, the son, died on 13 August, 1992 and the other trustee, the wife, died on 16 September, 1994. 

10.	On 14 November, 1994 letters of administration in the estate of the deceased was granted to the wife of Mr. Keshwan Mudaliar. She is the defendant in this case.

11.	The estate property comprises of a sugar cane farm over Crown Lease No. 7002 comprising 20 cares 1 rood.

12.	The parties have expressly agreed that arising from the pleadings, the only issues that the Court has to decide are:

1.	Whether the defendant failed to maintain, support, educate and provide for the maintenance and arrange and stand for all the expenses of the marriage of the plaintiff, either in whole or in part.

2.	If so, what is the amount that the plaintiff is entitled to from the defendant?

3.	Did the estate have sufficient funds to fulfil the requirements of the testator's will?

13.	The plaintiff expressly claims $2000 for her maintenance at the rate of $20 per week for the period mentioned above, a sum of $20, 180.00 for the traditional wedding which did not take place and a sum of $5,000 for stress and trauma caused by the defendant.

14.	All the issues can be answered together.

15.	The plaintiff contends that the defendant failed to comply with the provisions of the will by not maintaining her and by not paying for her wedding expenses. 

16.	After the plaintiffs' mother died, she was looked after by all her brothers who were living on the land. She did not incur any expenses for her maintenance. 

17.	There is evidence that the income of the estate property went down because when the defendant took over as the trustee, no one worked the cane farm and the tonnage of cane produced went drastically down to 50 tonnes. The proceeds from the estate property were taken up by the mortgagee as debt was incurred on the property prior to the appointment of the defendant. The defendant also took some loan but that was only for the purpose of renewing the land lease.

18.	The plaintiff's brother Biyan Mudaliar who gave evidence for her stated that the farm is not in a good condition. The cane production has dropped. He stopped cultivating the farm when his mother died. In 1999 it produced only fifty tonnes of cane. The defendant is having difficulty in cultivating the land as she has no farming implements. After the death of the mother, all farming implements were taken from her. He stated that the plaintiff was looked after by all the brothers when his mother died. The brothers maintained and supported her. The plaintiff was well looked after. She was loved and cared by the brothers as it was their duty to maintain her.

19.	Mr. Biyan Mudaliar also testified that the defendant did not get any money from the estate which was mortgaged to ANZ Bank.

20.	Another brother of the plaintiff being her witness named Ponsami Mudaliar also stated that the estate farm produces very little income. The expenses from the farm were paid through the proceeds of the cane. The defendant worked the farm and no one else did. He also said that if the plaintiff wanted a religious wedding, they would have conducted one for her at their expense.

21.	On 28 August, 1996, the bank wrote to the trustee of the estate and indicated that there was loan on the estate farm for a sum of $6,800 and that it was a continuing loan and the term for payment was six and half years. There is also evidence from the Bank that 100 per cent of the cane proceeds were taken for repayment of the debt. The arrangement was from the time the defendant took over as the trustee and until the plaintiff got married. 

22.	There is clear and uncontested evidence that the plaintiff did not incur any expenses for her maintenance and marriage for which she is bringing the action. Her brothers who maintained her did so out of their love and moral obligation. They are not claiming any money from the estate for spending on the sister. The brothers were also prepared to give the plaintiff a wedding if she asked for one but she never did.

23.	The plaintiff was not in talking terms with the defendant and so the defendant could not arrange any marriage for her. I accept that the plaintiff did not ask for a traditional wedding from anyone. Her own witness said that if she did, she would have been granted a traditional wedding similar to one done for all other sisters.

24.	The plaintiff has thus no right to claim for the monies for which she has not incurred any expenditure. Even if there was any right there is undisputed evidence that the estate did not derive any income from which the defendant could maintain the testator's wishes. 

25.	S. 54 of the Trustee Act unequivocally states that the monies have to come from the property held under trust and that the costs for the maintenance are subject to any prior interest and charges. 

26.	The defendant in this case was bound to submit all income from the property for payment of the debt and after the payment of the same there was nothing left to offer for the maintenance and support of the plaintiff. 

27.	There is evidence that the defendant had 5 children of her own and whatever she derived from her taxi permit, she used it on her children. She had no family support from her husband's brothers and sisters and she was on her own trying to manage her children. It is most improper if she is looked at to support the plaintiff who was already cared for by her other brothers and who had already attained the age of majority. 

28.	The plaintiffs claim is unsustainable in light of the undisputed background that she never incurred any expenses and that the estate did not derive enough income to maintain and support her and to spend on the plaintiff's marriage.

29.	There is no question of selling the estate property as that belongs for the use and benefit of the defendant and her children which they inherited from Mr. Keshwan Mudaliar's estate. That is the only property that was given to the defendant's husband under the will. The provision in the will reads:-

"The remaining of my real and personal property shall pass unto my wife UNNMALE d/o Ponsami during her lifetime and after her death unto my son Keshwan Mudaliar absolutely for his own use and benefit".

30.	The other siblings got their share from which they are managing their lives. It is only the defendant who was left to struggle and maintain the estate property. After all her hard work, she derived nothing from which she could comply with the testator's wish. She thus cannot be held to have failed in her duty.

31.	The defendant was under no obligation to incur her expenses and go through hardship to maintain the testator's wish. The obligation of the trustee is not so onerous to extend to incurring financial and physical hardship. 

32.	The plaintiff's claim thus has no basis and I dismiss the same.

33.	The defendant is entitled to costs of the proceedings which I summarily assess in the sum of $3,000.

Anjala Wati
Judge

15.08.2012