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Prasad v Prasad [2018] FJHC 956; HPP Action 59 of 2013 (4 October 2018)

IN THE HIGH COURT OF FIJI AT SUVA
PROBATE JURISDICTION


HPP Action No. 59 of 2013


IN THE MATTER of the Estate of MAHES aka MAHESH PRASAD



BETWEEN : SALENDRA PRASAD



PLAINTIFF


AND : JANDRA PRASAD


DEFENDANT


Coram : The Hon. Mr Justice David Alfred


Counsel : Mr V. Singh, Mr E. Kumar with him, for the Plaintiff

Mr R. K. Naidu for the Defendant


Dates of Hearing : 27 and 28 September, 1 October 2018


Date of Judgment : 4 October 2018


JUDGMENT

  1. The Plaintiff in the Statement of Claims says as follows:
  2. The Defendant in his Defence and Counterclaim says as follows:

Defence

(1) The final will is invalid and ought to be set aside.
(2) It is admitted that under the final will the Plaintiff is the sole executor and trustee and the residuary legatee of the estate.
(3) The Defendant challenges the validity of the final will.
(4) The Plaintiff, the Defendant, all their siblings, and Isha signed the Agreement voluntarily and of their free will.
(5) The Defendant denies any knowledge of the final will prior to being provided with a copy by the Plaintiff’s solicitors circa 30 August 2013.
(6) On 24 July 2013, the Plaintiff seized the original agreement from the Defendant at the Suva post office and ran away with it.

Counter-Claim

(7) By the Agreement, signed by the Plaintiff, the Defendant, their siblings and Isha it was agreed that the Defendant be appointed administrator of the estate and the farm land be held by the siblings and Isha in the proportions specified therein.
(8) Prior to his death, the deceased had agreed to give the land held under Certificate of Title No.39671 to the Defendant for reasons specified in the Counterclaim.
(9) The deceased died under suspicious circumstances and the final will appears to be made under suspicious circumstances, the particulars of which being appended.
(10) The final will was not duly executed in accordance with section 6 of the Act, the particulars being that it was not signed by the testator in the presence of 2 witnesses both present at the same time or in the presence of any of the said witnesses.
(11) Particulars of the alleged lack of instructions, particulars of fraud, particulars of undue influence, force and coercion by the Plaintiff were appended.
(12) The Defendant further alleges that 4 earlier wills were made by the deceased under undue influence, force and coercion by the Plaintiff, the particulars of which were appended, and ought to be revoked or set aside.
  1. The Plaintiff filed a Reply to Defence and Defence to Counterclaim, wherein he says as follows:

Reply

(a) The Plaintiff notes the admissions and says the final will is a valid will.
(b) He denies he signed the Agreement.
(c) Prior to 30 August 2013 he had provided the Defendant with a copy of the final will.

Defence

(d) The Plaintiff returned to Fiji in August 2012 to be with the deceased until his death.
(e) He requested the deceased to travel to New Zealand for medical reasons but the deceased refused to do so.
(f) The Plaintiff assisted the Defendant by paying off approximately $12,000 owed by the Defendant to the Fiji Development Bank.
(g) The deceased’s intention in relation to his estate is contained in the (final) will.
(h) Since the death of the deceased, the Plaintiff has been looking after his widow, Isha in terms of the (final) will.
  1. The Defendant filed a Reply to Defence to Counterclaim.
  2. The Minutes of the Pre-Trial Conference dated 26 February 2015 record, inter-alia, the following:

Agreed Facts

(1) The witnesses to the said (final) will dated 6 May 2013 are Jagan Nath and Shalendra Singh.
(2) The Agreement provides for shares in the estate to the Defendant and their other siblings and appoints the Defendant as the legal representative of the estate.

Issues to be Determined

(1) Whether the final Will was executed in accordance with the Act.
(2) Whether the deceased made the final will voluntarily and with his free will.
(3) Whether the final will is fraudulent.
(4) Whether the deceased prior to his death agreed to give the land to the Defendant.
(5) Whether the Agreement is valid or fraudulent.
  1. The hearing commenced with the Plaintiff {DW1) giving evidence. He said the deceased died on 22 June 2013 of gunshot injuries, and was aged 77 years. His health was normal and he worked at the farm. He left a will dated 6 May 2013 (final will) which PW1 saw, after his death, among his personal belongings and documents. This was tendered as Exhibit P1. Prior to his death, the deceased never discussed the will with PW1. PW1 never signed the Agreement and first saw it in Lawyer Parshotam’s Office, a month or two after the death. It is not his signature on it. Since the death of the deceased, PW1 has been looking after the farm.
  2. Under cross-examination, PW1 said he has never seen the (unsigned) instructions and has not seen the (unsigned) Power of Attorney (P.A). It is not true he tried to get the deceased to sign the P.A. in hospital. He did not know who prepared the will but he did not prepare it. He did not remember if any meeting was held with the siblings to discuss the estate. He did not meet any J.P. to sign the Agreement. He inserted in the Fiji Sun, an advertisement on 10 July 2013 of an application for Letters of Administration. He did not disclose to any of his siblings that he had come across the (final) will, because after the death, there were arguments about the estate. He did not execute the Agreement and he did not go to the Post Office to photostat it, and he did not run away with the Agreement. He had seen the earlier wills, but had not pressured the deceased to make new wills.
  3. The next witness was Ms Hirideshni Kumari (PW2) who is an officer in the Probate Registry. She said the application for probate of the estate of the deceased was made on 2 August 2013. The advertisement in the newspaper of the probate application was on 10 July 2013 and the date of the will is 6 May 2013, the original of which is in the file. Probate was not granted as caveats were lodged, neither of which have been withdrawn.
  4. Under cross examination PW2 said (after comparing both) that the advertisement placed in the Fiji Sun (Exhibit D1) is the same as that in the (registry) file.
  5. The next witness was Shalendra Singh (PW3), a Justice of the Peace (J.P.). The deceased meet him on 6 May 2013 in Suva at the house of Jagan Nath. There he was given one document in 3 copies. PW3 asked the deceased whether he understood the contents which were in English and he said he knew what was written in the document. PW3 read in English and explained in Hindi to the deceased. The deceased signed in front of him, then Jagan Nath signed and after him, PW3 signed. All three were present when the signatures were placed. When Exhibit P1 (the final will) was shown, PW3 said this was the document he was referring to.
  6. Under cross-examination PW3 said the deceased did not tell him he had made 6 or 7 wills before lawyers. The final will was signed by the deceased in front of him. He, PW3, did not know who prepared the will.
    1. The next witness was Jagan Nath (PW4). The deceased did not discuss the will until he came to PW4’s place in May 2013. The deceased took documents from a black bag and called PW3 who read the document in English and then explained in Hindi. The deceased then signed, then PW4 signed and then PW3 signed. They were all together at the signing. Exhibit P1 (the final will) was shown and he confirmed his signature is at the right hand bottom corner, and that this is the document that PW3 read in English and explained in Hindi. The deceased understood the document.
    2. Under cross-examination PW4 said the deceased came alone. The will was read by PW3 and signed by the deceased in PW’s presence in the residence of PW4. The Plaintiff had never stayed in PW4’s place.
    3. With this the Plaintiff closed his case and the Defendant opened his.
    4. The Defendant (DW1) said his wife and him prepared the Agreement. He was told by the Plaintiff that there was no will. The 5 siblings met at the deceased’s place with Isha to distribute the estate in accordance with this Agreement. It was orally discussed. He prepared the agreement in New Zealand and it was signed by the siblings in various places. The Plaintiff took both originals from the clerk in the Post Office and ran away with both. DW1 is challenging the final will – Exhibit P1. He was not aware of previous wills. All these were immaterial to him (DW1). The deceased was a strong willed man and would not be pressured by his children.
    5. Under cross-examination, DW1 said in Exhibit D10, the Bank was saying the deceased’s business is all right. Even though the deceased said there were threats, DW1 did not come to Fiji. His wife and him prepared the agreement in New Zealand. He was then not aware of the (final) will that the deceased had prepared. If he had known of that he would not have prepared the Agreement, He said it is not true that the Plaintiff did not know of the Agreement, did not sign it and did not take it.
    6. The next witness was Kiniviliame Kiliraki (DW2). He was a JP from 2000 to 2013. Exhibit D11 (the Agreement) contained his JP stamp and his signatures on 23 July 2013.
    7. Under cross-examination DW2 said he could recollect one lady.
    8. The next witness was Ms Anaseini Rasowaqa (DW3). She said in 2013 she was with Post Fiji doing photocopying. On the reverse of Exhibit D11 (the Agreement) was her signature. The original was taken away by whom she could not recall.
    9. Under cross-examination DW3 said she saw the original taken away but had no idea who it was and did not see the face.
    10. The next witness was Ms Sunila Devi Singh (DW4). She is the sister of the parties. On the same day as the funeral they had discussions and she asked the Plaintiff if the deceased had told him anything about the property. He was quiet and shook his head. There were discussions by all the siblings and Isha. Because the deceased did not tell anything how to share the properties, what is good for them was discussed. The Plaintiff was part of the discussions. There was a written agreement as to how the properties are to be divided. There was a video camera recording. She signed the agreement before a J.P. in New Zealand.
    11. Under cross-examination, DW4 said she stays in Auckland where the Defendant also stays. She did not know the deceased left a will. The division percentages of the properties were agreed. She was not sure if it was agreed who would be the administrator. If she knew of the will, she would not have signed the Agreement.
    12. The next witness was Ms Sharmila Devi Prasad (DW5). She is married to the Defendant and the deceased was her father in law. They only found out about the will in August 2013. She was not present at the meeting. She drafted the Agreement (Exhibit D11) by listening to the video recording. She sent the video recording on a CD to Naidu Lawyers. She was told in September 2018 that it could not be played. The information could not be recovered from the CD.
    13. Under cross-examination, DW5 said she was a practising lawyer in Auckland, admitted to practice in June 2013. She drew up the written agreement according to the recording. She did not of her own personal knowledge see the Plaintiff signing the Agreement.
    14. The final witness was Praveen Kumar Singh (DW6). He is married to DW4 and the deceased was his father in law. When the deceased was admitted to hospital 3 siblings decided to get a P.A done. He could not remember who the lawyer was. He never saw the draft and never saw the actual P.A. He said the deceased discussed the P.A with him and the deceased told him he did not sign the P.A as he was unhappy with it.
    15. Under cross-examination, DW6 said the lawyer prepared the P.A. The Plaintiff did not prepare the P.A.
    16. With that the Defendant closed his case and Counsel made their submissions.
    17. Mr Singh referred to s.6 of the Act and said the final will (Exhibit P1) was signed in the presence of 2 witnesses who both signed. There was no renunciation of the entitlements of the Plaintiff. He applied for probate but was stopped before it could be granted. The Plaintiff denies he signed the Agreement. The witness said he did not know about whether the Plaintiff signed. There was no identification of the Plaintiff as the person in Court who signed the agreement. DW1 and DW4 said the Agreement was executed because they did not know there was a will. The Plaintiff did not execute the Agreement and no order for specific performance of it and no order for a declaration that the Agreement was valid are sought by the Defendant. With regard to the Counterclaim, DW6 said the Plaintiff did not prepare the PA, and that a lawyer had taken the PA to the deceased in the hospital. No evidence of any pressure being applied to the deceased was given. The Plaintiff asked for the orders sought in his claim and for the Defendant’s Counterclaim to be dismissed with costs.
    18. Mr Naidu then submitted. He said the onus is on the party propounding the will to show that the testator knew and approved its contents. Darkness and suspicious are the features. The matters raising suspicions are:
      • (1) The deceased died of a gunshot injury.
      • (2) There are 6 other wills prepared by lawyers and witnessed by lawyers and their clerks.
      • (3) The final will was not prepared by a law firm or a legal person. The deceased did not want to go to a legal firm for the final will and did not tell the Plaintiff of the final will. He said DW5 confirmed she listened to and drafted the Agreement. DW4 confirmed the video recording of the meeting. DW2 was the one who witnessed the signatures of the Plaintiff, the Defendant and Isha on the Agreement and identified them through their IDs. DW3 could not identify who ran away with the documents. The deceased said he did not sign the PA when it was brought to him by the lawyer. The final will is an afterthough created by the Plaintiff after the Agreement was executed. The Plaintiff applied for probate which was advertised in the Sun.

Mr Naidu asked the Court to pronounce against the final will, to grant Letters of Administration to the Defendant and to pronounce against the 4 other wills.


  1. At the conclusion of the arguments I said I would take time for consideration. Having done so I shall now deliver my decision.
  2. There are 2 issues for me to resolve in this matter. The first is the Plaintiff’s claim for the Court to grant probate of the final will. The Second is the Defendant’s Counterclaim that the Court pronounce against the final will and also against the 4 other wills and to grant Letters of Administration of the estate of the deceased to the Defendants, and other ancillary relief. I shall deal with the Plaintiff’s Claim first.
  3. A. PLAINTIFF’S CLAIM

The basis of the Plaintiff’s claim is the final will (Exhibit P1). On the face of this written document is the signature of the testator and also the signatures of 2 persons who attest he signed this document in their presence. These comply with the requirements of s.6 of the Act for a will to be valid. Counsel for the Defendant never challenged PW3 that the testator did not sign the final will in his presence. On the contrary Mr Naidu obtained from Shalendra Singh the sworn testimony “It was signed by Mahes in front of me”. Similarly PW4 when cross examined by Mr Naidu, said the deceased came alone, PW3 read the will to him and the deceased signed the will in his presence.


  1. In these circumstances the Court fails to see how the Defendant can conceivably allege that the final will was not signed by the deceased in the presence of 2 witnesses present at the same time.
  2. I note the following gleanings from Tristram and Coote’s Probate Practice (29th edition) at pages 651 and 652. A plea of undue influence ought never to be put forward unless the person who pleads it has reasonable grounds on which to support it. Nor may the plea be used as a screen behind which to make veiled charges of fraud and dishonesty. For there to be undue influence there must be coercion or fraud. The burden of proving that a will was executed under undue influence is on the party who alleges it. Here that is the Defendant.
  3. There is not an atom of evidence provided by the Defendant that the final will is a fraud or that it was made under undue influence force or coercion by the Plaintiff, when the Court notes he was never present at the material time in the residence of PW4 or at all.
  4. Further there was not a shred of evidence that the deceased was not compos mentis. This was made crystal clear to the Court by the evidence of the Defendant himself who said “the deceased was a strong willed man and would not be pressured by his children”.
  5. Finally the Court notes that s.7 of the Act states “Publication is not necessary for the validity of a will.
  6. In short, the above cause the Defendant’s allegations against the Plaintiff and his contentions regarding the deceased to collapse.

Consequently, I find the Plaintiff has proven his case and I therefore enter judgment for him against the Defendant.


  1. DEFENDANT’S COUNTER CLAIM

The basis for this is the Agreement (Exhibit D11). The Court notes that the original was never produced in evidence at the trial. The explanation for this failure was the allegation that the Plaintiff had made off with it at the Post Office. This is according to the evidence of DW3 the Post Office worker. Yet the police report No 7705/13 dated 24 July 2013 made at the Totogo Police Station (see the reverse of the Exhibit) was never produced at the hearing. In the face of the Plaintiff’s denial that he took the original and in the face of DW3’s evidence that she did not know who took the original, the Defendant has failed to provide the Court with any independent evidence to prove his allegation.


  1. Even the alleged execution of the Agreement by the Plaintiff was not proved. It was the CD that was spoilt according to DW5. Yet the original video recording from which the CD was made was never produced in Court and no evidence pertaining to it was led. The audio recording would have at least established the Plaintiff’s presence at the meeting.
  2. Further the Defendant made no attempt to prove that the Plaintiff had executed the Agreement. His Counsel failed to ask the J.P. if he could identify the person, who signed, among those in the public gallery of the Court where the Plaintiff was seated
  3. Finally, the Defendant failed to obtain the services of a hand writing expert to confirm if indeed the signature on the Agreement was that of the Plaintiff. The Plaintiff is alive and around to provide the expert with any number of his signatures for that purpose.
  4. The Court finds and so holds that the Defendant has failed to prove the Plaintiff had signed the Agreement.
  5. At the end of the day the Court finds the Defendant has failed to prove his Counterclaim and therefore enters judgment for the Plaintiff.
  6. In fine the Court pronounces for the validity of the final will. This means the 4 earlier wills must be taken to have been revoked by the testator stating in para 1 of the final will that “I hereby revoke all former wills and testamentary dispositions heretofore made by me and declare this alone to be my last will and testament”. It therefore follows that no letters of administration of the estate well be granted to the Defendant. Thus the Plaintiff will not be ordered to make good and return the assets, nor to provide a true inventory of the estate. The Defendant’s claim for damages for fraud fails and there will no order for an inquiry to be made by the Director of Public Prosecutions. In any event it is clear that the Defendant has abandoned these claims as no evidence was led regarding them nor any submission made by his Counsel.
  7. In the result I make the following orders:

Delivered at Suva this 4th day of October 2018.


................,................

David Alfred

JUDGE

High Court of Fiji

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