In the High Court of Fiji at Suva

Action No. 269 of 2010
 
Between:

Ram Deo
Plaintiff

And:

Suruj Kuar
First Defendant

And:

Rosaline S Deo
Second Defendant

And:

The Registrar of Titles
Third Defendant

And:

Attorney General of Fiji
Fourth Defendant
 
 Appearances: Mr Suresh Chandra for the plaintiff 
 Mr Ritesh Naidu for the first and second defendants
 Ms K. Vuibau for the third and fourth defendants
 Date of Argument: 22nd,23rd and 24th July,2013

Judgment

1.	Introduction 

a)	The plaintiff was brought up by the deceased, Ujagir Singh and the first defendant. The first defendant is the wife of Ujagir Singh. The second defendant is the daughter of the plaintiff. By his will of 8 June,2004, Ujagir Singh bequeathed the property in his estate comprising Crown Lease no. 949 to the first defendant for life and on her demise, to the plaintiff. Ujagir Singh died on 26th May,2005. The first defendant, as sole executor and trustee admittedly, transferred the estate property to the second defendant. In these proceedings, the plaintiff seeks that:(a) the transfer be cancelled on the ground that the transfer extinguishes the plaintiff's beneficial interest in the lease, (b)the first defendant be removed as the trustee of the estate of Ujagir Singh, and the plaintiff be appointed as sole executor and trustee, and (d) a declaration that the first defendant has a life interest in the property. 

b)	The first defendant counterclaims that the court pronounce against the validity of the will of 8 June, 2004, and an earlier will of the testator of 4 March, 2004, on the ground that the wills were procured by the undue influence of the plaintiff. Alternatively, a declaration, that the plaintiff and another beneficiary, Kushma Singh are excluded from taking any benefit under the will of 4 March, 2004, for failing to take care of the first defendant.The first defendant also seeks a grant of Letters of Administration of the estate and an order that the plaintiff give vacant possession of the estate property to the first defendant. 

2.	The statement of claim

i.	The statement of claim recites states that on 8th July,2008,the first defendant executed an instrument of Transfer and fraudulently transferred the estate property to the second defendant, by way of natural love and affection in consideration of a sum of $10.00.The particulars of fraud pleaded are:

(a)	The first Defendant purposely removed the Public Trustee of Fiji as sole Executor and Trustee and replaced it by herself with the intention to deprive the Plaintiff of his contingent interest in the Will by transferring the estate property. State Lease No. 949 to the second Defendant by way of natural love and affection.

(b)	The first Defendant upon being appointed as the sole Executrix and Trustee and being the holder of life interest as well in the estate property disposed off the estate property to the second Defendant by way of gift depriving permanently the Plaintiff of his contingent interest in the Will.

(c)	The first Defendant acted dishonestly to deprive the interest of the Plaintiff permanently to which interest the Plaintiff was entitled to as a residuary beneficiary under the said Will of late Ujagir Singh.

ii.	The first defendant, in breach of her duties as a trustee under the Trustees Act, (cap 65) presented a stamped instrument of Transfer to the third defendant, to dispose the estate property to the second defendant. The particulars of breach pleaded are:

(a)	The first Defendant failed to honour her oath dated 20th June 2006 wherein she swore to administer the estate of Ujagir Singh according to law which devolved and vested in the personal representative.

(b)	The first Defendant disposed off the estate property in consideration of natural love and affection i.e. by way of gift prohibited by the Trustee Act.

(c)	The first Defendant in breach of the Section 24 of the Trustee Act disposed off the estate property without obtaining valuable consideration.

iii.	On 1st July, 2009, the third defendant accepted and registered the transfer. The particulars of breach pleaded are:

(a)	The first Defendant as sole Executor and Trustee executed an instrument of transfer dated 8th day of July 2008 by express provision on the instrument disposed of the estate property by way of gift.

(b)	The third Defendant with or without any knowledge of those express provision on the instrument of transfer accepted the same and registered on 1st July 2009.

(c)	The third Defendant had a duty of care towards the plaintiff as holder of contingent interest which duty it breached.

iv.	The statement of claim concludes that the actions and or omissions of the first, second and third defendants has permanently extinguished the contingent beneficial interest of the plaintiff under the will.

3.	The first defendant's statement of defence and counterclaim

a)	The first defendant, in her statement of defence and counterclaim states that she executed the transfer in favour of the second defendant, after obtaining proper legal advice from her former solicitors.

b)	The plaintiff intended to "sell/transfer/dispose off the estate property by fraudulent means", to permanently deprive the first defendant of her interest in the property and migrate overseas. 

c)	The plaintiff is not entitled to any interest in the estate property under the will of 08 June, 2004, since that will is invalid.

Counterclaim

i)	The plaintiff is the son of the first defendant's sister Chand Kumari. The second defendant is the daughter of the plaintiff. The first defendant is 78 years of age. 

ii)	The deceased and the first defendant had no children. The first defendant and the deceased looked after the plaintiff, since he was 8 years, as they did for another, Kushma Singh.

iii)	The estate of the deceased comprises of Crown Lease No. 949 at 62 Ruve Street, Samabula, on which is constructed a "double story" concrete house.

iv)	The deceased made two wills dated 04 March, 2004, and 8 June, 2004, prepared by the office of the Public Trustee of Fiji.

v)	Under his will of 04 March, 2004, the deceased bequeathed all his assets to the first defendant for her lifetime, and upon her demise to the plaintiff and Kushma Singh, whoever took care of the first defendant during her lifetime.

vi)	Under his will of 08 June, 2004, the deceased bequeathed all his assets both real and personal to the first defendant for her lifetime and upon her demise, to the plaintiff.

vii)	It is alleged that the second will was made under undue influence, force, threats and coercion from the plaintiff and fear of him. The particulars pleaded read:

The deceased was 74 years of age when he made the second will. The deceased did not intent to make a will since he knew that after his death his wife (the first defendant) would automatically inherit the deceased's estate. The deceased had no close relatives. The second will was not a produce of his own volition but was procured by the plaintiff.

After making the first will the deceased on the same day told the plaintiff that he had made a will in favour of the plaintiff and Kushma Singh. The plaintiff got very aggressive and angry on the deceased. He demanded to have a look at the will. The deceased gave it to him. The plaintiff questioned why was he not the sole beneficiary. He told the deceased that he wanted Kushma Singh's name removed from the will.

The deceased's will was overborne, had he been free from the influence, he would not have made the second will. The deceased did not act voluntarily, he was procured to make the will as he feared for his own and the first defendants safety and well-being. The plaintiff was in a position of special influence over the deceased. The deceased was placed in such a category of special disadvantage, he had no close relatives, he was becoming ill and each day his health was deteriorating. The plaintiff dominated the deceased psychologically so as to benefit under his will and the power was so unbalanced prior to and at the time of making the will that the deceased could not make a choice. The plaintiff made it clear that he will not look after the deceased and the 1st defendant if he was not the sole beneficiary under the second will. The deceased was fearful that after his death, the plaintiff will refuse to look after the 

1st defendant and provide her with emotional care, medical care, food and attention and that the plaintiffs behaviour towards the 1st defendant would worsen after his death. The deceased was forced and threatened to make the second will which was prepared by and under the plaintiff's instructions, whereby the plaintiff was to have become the sole beneficiary under the said will.

The plaintiff's actions caused the deceased and the first defendant to believe that the plaintiff would cause them harm or injury, hence they co-operated with the plaintiff and obeyed his instructions.

The deceased was very sickly. The plaintiff took advantage of the deceased's old age and ill-health and coerced him into making the second will. The plaintiff would make the deceased drink gin in his flat and when drunk, he would exert enormous pressure on the deceased to change the will.

On 08 June 2004 the plaintiff came in a cab and picked the deceased and the first defendant from a family friends residence and took them to the office of the Public Trustee. The deceased and the 1st defendant were very frightened. The plaintiff told the deceased if asked by the officers at the Public Trustee that the deceased was making the will on his own free will. The plaintiff gave oral instructions to one Anil at the Public Trustees Office to prepare the second will. The second will was made in the presence of the plaintiff. The plaintiff informed Anil that he was the deceased's adopted son.

The deceased did not approve the contents of the second will. He was under the control of the plaintiff and did not have independent free will.

viii)	It is alleged that the first will was made under undue influence, force, threats and coercion from the plaintiff and fear of him. 

ix)	The plaintiff failed to fulfil the express condition in the first will. The particulars pleaded read:

Under the first will the plaintiff was to inherit the assets of the deceased both real and personal if he took care of the first defendant during her lifetime. The plaintiff has failed and expressly refused to take care of the first defendant in any manner of form. ..The first defendant lives alone in her house. The first defendant is elderly, in poor health and suffers from diabetes and blood pressure. The second defendant takes care of the first defendant and her well-being. ..

4.	The third and fourth defendants statement of defence

The third and fourth defendants, in their statement of defence state that the transfer was registered with the third defendant, on the basis that all requirements of the Land Transfer Act had been met. The third and fourth defendants had not breached its powers under the Land Transfer Act.

5.	The plaintiff's reply to defence of the first defendant

1)	The first defendant, upon application removed the Public Trustee and appointed herself as executor of the estate of Ujagir Singh on 3rd July, 2006, under the will of 8 June,2004. In terms of clause 4 of the will, she has a life interest in the estate of Ujagir Singh.

2)	The plaintiff is the sole residual beneficiary in the will and only upon death of the first defendant is entitled to the remaining estate of the deceased.

3)	The trustee has no power or authority to dispose of the estate property. 

4)	The second defendant is not entitled to any shares of the estate in intestacy, as claimed by the first defendant. 

5)	The plaintiff upon attaining majority age always assisted and looked after the deceased and the first defendant, his parents.

6)	There is only one will of 8th June, 2004, by virtue of which first defendant was appointed as "Administratrix (with Will)".

7)	The will of 8thJune,2004, was procured by the plaintiff, on the own volition of the deceased and without any pressure or influence from the plaintiff.

6.	The plaintiff's reply to defence of third and fourth defendants

a)	The first and third defendants failed to comply with sections 23, 24 and other provisions of the Trustees Act.

b)	The first defendant had no powers to convey the estate property to any other party, since the will of 8th June,2004,expressly provided that there is a residuary beneficiary.

c)	The first defendant has failed to renounce her life interest in the will of 8th June, 2004.

d)	The plaintiff further says that the instrument of transfer to the third defendant on 1st July, 2009, is "prima-facie defective", as the trustee gifted an estate property to a non-beneficiary of the estate.

7.	The defence to the counter-claim of the first defendant

i.	The testator acknowledged in his will that the plaintiff was his adopted son.

ii.	The plaintiff is a beneficiary under the will of 8th June, 2004, upon the demise of the first defendant.

iii.	The plaintiff managed the affairs of the estate property for the last 35 years paying ground rent, rate and insurance. 

iv.	The plaintiff looked after the interest of the first defendant. 

8.	The reply to the defence to the counter-claim

The first defendant joins issue with the plaintiff on his defence to the counter-claim.
 
9.	The determination

a.	The case for the plaintiff is that the first defendant, as sole executor and trustee of the estate of the deceased, transferred the estate property to the second defendant, when the plaintiff was the sole beneficiary of the estate under the will of 8 June,2004, upon the demise of the first defendant. 

b.	The first defendant, while admitting the transfer, counterclaims that the will of 8 June,2004, and an earlier will of of 04 March, 2004, of the testator were made under the undue influence, force, threats and coercion of the plaintiff. The first defendant seeks that she be granted Letters of Administration of the estate.

c.	In his will of 8 June,2004, the testator appointed the Public Trustee, as the sole executor and trustee .

Probate action No.44035

d.	On 19th August,2005,the Public Trustee, made application in Probate action no. 44035, to be appointed as the sole executor and trustee of the will of 8 June,2004, of the testator.

e.	On 7th December,2005,the Public Trustee, was appointed as the sole executor and trustee.

f.	By originating summons filed on 21st March,2006, the first defendant applied in Probate action no. 44035, to be substituted in place of the Public Trustee. In her affidavit of support in that action, the first defendant attached a copy of the probate granted to the Public Trustee and moved that she be appointed as "Executor and Trustee".

g.	On 7th April,2006,the first defendant was substituted as the administratrix of the estate, under the will of 8 June,2004.

v.	On 8th July,2008,the first defendant executed an instrument of Transfer and transferred the estate property to the second defendant.

The first defendant's statement of defence and counterclaim

vi.	The first defendant, in her statement of defence and counterclaim filed on 19th October,2010, challenges the will of 8 June,2004, and 4 March,2004.

h.	In my view, the first defendant is not entitled to challenge the will of 8 June,2004, since she accepted its legality, by applying to be executor and trustee under that will and acting thereunder. She waived her right to challenge the will of 8 June,2004, by her conduct.

i.	It is an accepted principle of law that a party cannot approbate and reprobate. 

j.	In Kok Houng,[1964] AC 993 at pg 1018 Viscount Radcliffe said:

….. a litigant may ..have acted positively in the face of the court, making an election and procuring from it an order affecting others apart from himself in such circumstances that the court has no option but to hold him to his conduct and refuse to start again on the basis he has abandoned. (emphasis added)

k.	I turn to the plaintiff's claim.

l.	The plaintiff seeks that the transfer from the first defendant to the second defendant be expunged from the register.

m.	The first defendant transferred the estate lease to the second defendant, by transfer dated 8th July,2008, by way of natural love and affection and in consideration of a sum of $10.00 agreed to be paid by the second defendant to the first defendant, transferor.

n.	In my view, the first defendant did not have the power to dispose the estate property without the consent of the plaintiff, the sole beneficiary under the will of 8 June,2004.

o.	In my judgment, the transfer of the lease was a contravention of section 23 (4) of the Trustee Act,(cap 65).

p.	 Section 23(4) reads :

Where the property subject to a trust includes land, the trustee shall exercise the power conferred by the provisions of this section to sell the land, if so required in writing by the person or all of the persons at the time beneficially entitled to an interest in position under the trust of the land.

q.	The lease was transferred as a gift to the second defendant without valuable consideration. It follows that the second defendant was not a bona fide purchaser.

10.	In my judgment, the plaintiff's action succeeds. I direct the Registrar of Titles under section 168 of the Land Transfer Act, to cancel the instrument of title of 8th July,2008, from the first defendant to the second defendant.

11.	It transpired in evidence that the plaintiff was in occupation of one flat of the house built on crown lease no.949. The first defendant is admittedly, the life interest holder of the property in the lease. It follows that she is entitled to vacant possession of the entire property.

12.	Orders 
I make order as follows:

a)	The Registrar of Titles shall cancel the instrument of title of 8th July,2008, from the first defendant to the second defendant, as registered on 1st July,2009.

b)	The first defendant is removed as trustee of the estate of Ujagir Singh.

c)	The plaintiff is appointed as the sole executor and trustee of the estate of Ujagir Singh.

d)	I decline the counterclaim of the first defendant, as made against the wills of 8 June,2004, and 4 March,2004, and the alternative relief sought.

e)	The first defendant, as life interest holder is entitled to vacant possession of the property comprised in Crown Lease No 949.

f)	The first defendant shall pay the plaintiff costs in a sum of $ 3500.

7th July, 2015

A.L.B.Brito-Mutunayagam
Judge