IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HPP 18 OF 1999S

Between:

DHANRAJI SINGH
(f/n Bhagwan Singh)
Plaintiff

and

KARNAIL SINGH
(f/n Dalabh Singh)
Defendant

V. Kapadia for the Plaintiff
No appearance by the Defendant

JUDGMENT

Both parties live in Australia, the Plaintiff in Paramatta and the Defendant outside Brisbane. The Plaintiff is the widow of Dalbagh Singh. The Defendant is her son. Dalbagh Singh, who died on 1 September 1982 was his father. Dalbagh Singh left a will a copy of which is the second document in Annexure C to the Plaintiff’s supporting affidavit. The Defendant is the sole executor and trustee of his late father’s estate. Probate was granted to him on 20 January 1984.

Under clauses 3 and 4 of the will the whole of the estate property was left to the Defendant subject, relevantly to these proceedings, to the obligation imposed upon him under clause 3 (b):

“TO MAINTAIN support and suitably provide for my wife DHANRAJI during her life AND to pay my said wife during her life such sums as my trustees shall in their absolute discretion think fit and proper having regard to the condition of life to which she has become accustomed up to the time of my death AND to provide her with suitable accommodation.”

In her supporting affidavit the Plaintiff averred that apart from occasional payments totally together no more than $5,000 the Defendant had paid her nothing since her husband’s death and has not provided her with any or any suitable accommodation.

The Plaintiff asks this Court to award her a lump sum of AU$115,200 representing support due to her from the Defendant at the rate of AU$600 per month and AU$100,000 representing support due to her for the next ten years at the rate of AU$833.33 per month. In the alternative, the Plaintiff seeks transfer to her of the estate’s principal asset which is an improved piece of land over 30 hectares in size (the property) known as “Drekeniwai” and “Namuka” which is contained in Certificate of Title 26917 and which is situated in the district of Nadroga not far from Natadola beach.

In July 1999 the Defendant acknowledged service through his solicitors Messrs. William Scott Graham & Co.. In October 1999 he filed an affidavit in answer. The Defendant claimed to have paid AU$30,000 to the Plaintiff and not merely AU$5,000. He averred that the property is only worth $69,000 and that it is only capable of generating an income of $1,000 per annum. While he did not dispute that his mother was living in low cost housing and was receiving a state pension he suggested that the most that she is entitled to recover from him is $1,000 per annum generated by the property.

In November 1999 it was agreed that the property be valued however the Defendant refused to contribute towards the cost of the valuation. In April 2000 I was told that a valuation had been carried out but in May 2000 I was told by the Defendant’s solicitors that their client was adamant and was refusing to take their advice. It seemed that there was no possibility of settlement and that the matter would have to go to trial. In view of the substantial issues of fact raised in the affidavits already filed I directed that the matter should proceed as though commenced by writ, the affidavits standing as pleadings.

In August 2000 after Messrs William Scott Graham & Co. had complied with all formalities they were given leave to withdraw as solicitors for the Defendant.

In October 2000 the Plaintiff filed a second affidavit principally exhibiting a copy of a valuation which had been prepared by Rolle Hiller Parker, a prominent firm of estate agents and valuers in March 2000. The property was valued at F$450,000.

In February 2001 the Plaintiff issued a summons for directions. The Defendant appeared in person and the usual orders were made.

In March 2001 the Defendant issued a summons seeking transfer of the action to Lautoka. Although advised of the hearing date of the summons at an address in Lautoka which he himself given to the court the Defendant did not appear at the hearing. I read the affidavits filed by both parties in support and in opposition and dismissed the summons.

In May 2002 the Plaintiff applied pursuant to Order 34 to have the matter set down for trial. The Defendant did not appear on the return date and the trial was fixed for September 2002.

In September 2002 the Chief Registrar wrote to the Defendant in Australia advising him that the trial had been postponed until 3 February 2003. A copy of the letter in on the file. The Defendant was advised that it was in his interests to attend the trial and to bring any witnesses and relevant documents with him.

On 3 February the Plaintiff who told me that she is 78 years old and that she had flown from Sydney to Fiji for the trial appeared but the Defendant did not. I proceeded to hear the Plaintiff’s evidence.

The Plaintiff confirmed the contents of her affidavits. She told me that she was living alone in low cost rented accommodation, that she was surviving on a state pension together with help from her daughters, that she receives nothing from her son and that all she had ever received from him was at most $5,000. She told me that she is in poor health. In the Defendant’s absence I questioned the Plaintiff fairly closely and she impressed me as a witness of truth. It appears that she and her son finally fell out about six years ago since when they have not spoken.

The second witness called by Mr. Kapadia was the Plaintiff’s daughter Gurmit Singh. This witness confirmed that her mother and brother were not on speaking term and had not spoken for the last six years. She told me that neither she nor her sisters were receiving anything from the estate and as far as she knew her mother was not benefiting either.

Having heard the undisputed evidence of the Plaintiff and her daughter I was left in no doubt that the Defendant has persistently failed to provide for his mother as required by the terms of the will. The papers do not however disclose the Defendant’s occupation and I know nothing of his personal circumstances. I am satisfied that it is reasonable to accept that the land near Natadola is worth a very considerable sum. The question now is what orders to make in the Plaintiff’s favour.

There is no doubt that under the Trustee Act (Cap 65) and under the Land Transfer Act (Cap 131) the Court has ample power to right wrongs resulting from the refusal of a trustee to comply with the terms of a trust embodied in a will. The Defendant has chosen not to appear at the trial and could not now be heard to complain that orders against him were made in his absence. At the same time this is obviously an important and valuable property and I am reluctant to order its sale without hearing from the Defendant. While I was entirely satisfied that the Plaintiff has not assisted his mother as was required by the terms of the will I am less certain how far back I should compensate her. And even less certain how far I should make an order in her favour for the future given her age and ill health.

If need be I will decide these important matters without hearing from the Defendant but I think the better course would to be to provide him with a copy of this interim Judgment and an opportunity to allow him to seek legal advice and representation.

Having heard counsel I will give further directions for the conduct of this matter.

M.D. Scott
Judge

11 February 2003