IN THE HIGH COURT OF FIJI AT SUVA
Probate Jurisdiction HPP No. 23/2006

Between:

Jagat Ram
Plaintiff

And:

The Public Trustee Office of Fiji
First Defendant

And:

Sant Ram
Second Defendant

Appearances: Mr Ram Chand for the plaintiff
 Mr Sunil Kumar for the second defendant 

JUDGMENT

1.	In these proceedings,the plaintiff challenges the validity of a Will dated 28th December,1995,said to be the third executed by his father Sahadeo, within a period of three and a half months. In terms of that Will, the second defendant and his children are the beneficiaries. The second defendant is the plaintiff's younger brother. In his counter-claim, he challenges the validity of a second Will of the testator of 21st December,1995, executed at the office of Ram Chand, Solicitor; the plaintiff is the sole beneficiary under that Will. Sahadeo died on 21st February,1996.

2.	The statement of claim
2.1	 The statement of claim provides that on 15th May,1991, probate had been granted to the first defendant, in terms of the first Will of the testator of 15th September,1995,while an application for probate under the second Will of 21st September,1995,was pending. 

2.2	The plaintiff challenged the grant of probate to the first defendant in Probate action no 32755/32086 of 2005. On 9th September,2005,Winter J made Order that:

(i)	Probate be granted in terms of the Will of 21st September,1995.

(ii)	The grant of probate under the Will of 15th September, 1995, to the first defendant, on 15th May,1996, be revoked and declared null and void. 

2.3	The statement of claim proceeds to state that the second defendant produced a third Will dated 28th December, 1995, after that Order was pronounced. The plaintiff alleges that the Will contains suspicious features and elements of forgery and fraud. The contents of that Will are the exact duplicate of the Will of 15th September, 1995, in these respects(a) the first defendant is the sole executor and trustee,(b)the wordings,the format of the typing, including the paragraphing and all the particulars contained therein are the same except for the date, signatures and hand written words.

2.4	 The Will of 28th December, 1995, appears to be executed recently while the typed contents thereof are old.

2.5	The grant of probate of the Will of 21st September,1995.in terms of the Order of 9th September,2005, was stayed, upon an application made by the second defendant.

3.	 The statement of defence 
The statement of defence of the second defendant states that;

a)	The second defendant was unaware of the existence of the Will of 28th December,1995,and unable to instruct the first defendant. It was discovered sometime in September,2004, by "Narayan Prasad", after applications were filed by the plaintiff in Probate action no 32755/32086 of 2005.

b)	The Will of 28th December,1995, was drawn by the testator, to revoke his prior Wills.

c)	A Police investigation in respect of the Will of 21st December, 1995, had not been completed. 

d)	The plaintiff, in his reply to defence, states that the Will of 21st December, 1995, was the valid last Will of the testator and superseded the Will of 15th September, 1995. He puts the defendant to strict proof that the testator made the Will of 28th December, 1995, to revoke his prior Wills.

4.	The hearing
At the commencement of the hearing, Mr Ram Chand, counsel for the plaintiff stated that the action against the first defendant had been discontinued.

The plaintiff testified. His evidence was preceded by two officers of the Public Trustee's dept.The second defendant, a dairy owner and three others gave evidence for the defence.

5.	The determination

The Third Will
5.1	 The only issue to be determined in this case, as recorded at the pre-trial conference reads as follows:

 Whether the testator, Sahadeo did execute the last Will dated the 28th day of December 1995 and in that event, if he did that Will shall be the last and shall prevail and supersede over and above all other Wills and the Honourable Court do pronounce in solemn form of law the Will of the testator dated the 28th day of December 1995.

5.2	 The plaintiff seeks to establish that the third Will of 28th December, 1995, was not executed by his father. In support of this contention, he relied primarily on the evidence of PW1,( Anwar Ali). PW1 is stated as the first attesting witness in the testator's first Will of 15 September,1995, as well as the Will of 28th December, 1995.

5.3	PW 1 was an Acting Estate Officer of the Public Trustee's office, in 1995. His duties included the drafting of Wills. He said that Wills are computer generated in the office of Public Trustee. The original Will is kept with the Public Trustee. 

5.4	PW 1 recalled making a Will dated 15 September,1995,for Sahadeo. He had explained that Will to the testator.The signature of the second attesting witness was his clerk, Presilla Devi. She was present on that day. He said that he does not recollect the testator making another Will on 28 December,1995. He saw the testator only once on 15 September,1995. He said that if the testator came back after three months, he would have advised him that there was no purpose in changing a Will, if the beneficiaries were the same. In re-examination, Mr Ram Chand questioned him as to whether the second attesting witness Presilla Devi could have filled in his name and address in manuscript. PW1 replied that it was his practice to fill in the date.

5.5	PW1 emphatically stated that the signature in the third Will was not his nor the hand written words setting out his name and address. It was his practice to state in the jurat, that the contents were explained to the testator in "Hindustani", as provided in the first Will.The third Will provides that it was explained in "Hindi". He was quite sure that no instructions were received from the testator as regards the disputed Will nor was there a record of that Will in their office. The similarities between the Will of 28th December,1995, and the testator's first Will of 15th September, 1995, were that the beneficiaries, the two witnesses and sole executor are identical as are the contents, the wordings and the format. 

5.6	On the final date of the hearing,Mr Sunil Kumar, counsel for the second defendant moved that the evidence of two witness as noted by Justice Jitoko, be considered. I decline to accede to that request. The case was heard de novo before me.

5.7	The testimony of PW1 stands uncontradicted. His evidence was supported by PW2(Epeli Vula), the Legal Officer of the Public Trustee dept. PW2 said that his office had no record of this Will. He verified with his staff and they were surprised to hear of the existence of that Will. He too highlighted the similarities and dissimilarities in the two Wills.

5.8	Interestingly, the disputed third Will had admittedly surfaced,after an order of probate was granted to the plaintiff under the second Will, and the first Will was declared null and void. 

5.9	 The second defendant, in his evidence in chief, said that his father did not tell him about the Will of 28th December. In answer to Mr Suresh Chandra, the second defendant stated that the third Will was found in September, 2004, by his cousin, Narayan Prasad Maharaj, among his water bills. 

5.10	A written statement from Narayan Prasad Maharaj was produced. This provides that the testator, after having lunch with him sometime at the end of 1995,at his house at Makoi, had left behind an envelope. Nine years later, in September, 2004,when he(Narayan Prasad Maharaj ) was shifting house he came across the envelope with the original Will and other documents. He rang the second defendant and informed him to collect the papers. He had collected it "1 or 2 months later". Narayan Prasad Maharaj was not called to testify.

5.11	The second defendant, in his evidence, said that he then took the Will to the first defendant. Anil Kumar at that office, told him to take it to a lawyer, since Mr Ram Chand, Solicitor and PW 2 were "old friends". A delay of one year arose, as he was collecting money to pay lawyer's fees. 

5.12	I find astounding how the disputed Will was alleged to have been found eight years after the testator's death and collected one year later by the second defendant, after an Order was made by this Court granting probate to the plaintiff, in terms of an earlier Will.

5.13	I did not find the second defendant to be a reliable witness. In order to establish that the testator could not have attended the office of Mr Ram Chand, solicitor in Nausori, to execute the second Will of 21st December,1995,he produced a receipt which stated the testator had sold a calf on that day at 11.30 a.m. When it was put to him that the other receipts in the receipt book do not state the time, he said the time was written at the purchaser's request. The time was written by him, since his father was illiterate.

5.14	On a review of the totality of the evidence, I conclude that the third Will is forged. I pronounce against the Will dated 28th December,1995. I declare that Will to be a forgery.

The Second Will of 21st December, 2005 
5.15	The second defendant, in his counter-claim has sought that the Court pronounce against the second Will of 21st December, 2005. 

5.16	The defence sought to establish that the testator had not left his farm at Tailevu on 21st December, 2005, during his rest hours between milking the cows. The second defendant said that the signature on the second Will was not his father's signature. He portrayed the plaintiff as a villain of the piece. He was exiled to New Zealand by his father and had travelled on a forged passport. Consequent to him assaulting his father, a notice was put up on the testator's farmland prohibiting him from entering the land. It was similarly suggested to the plaintiff that he had assaulted his father, forced him to work at 70 years and live in the quarters of the dairy farm, where he passed on. 

5.17	But this is an attempt to relitigate a claim, in respect of which this Court has made a final decision. Winter J made Order granting probate to the plaintiff, in terms of the Will of 21st September,1995.The matter is res judicata. The only question before me was whether the testator had executed a Will subsequent to the Will of 21st September,1995.

5.18	PW2 testified that in the action before Winter J, the Public Trustee looked after the interests of the second defendant, after obtaining instructions from him. I have perused that court record. I find that the first defendant had filed affidavit in reply to the inter partes summons, stating that the Will of 21st December, 2005 was forged. The Public Trustee had finally consented to the plaintiffs' inter partes summons, as provided in Winter J's notes on the day sheet of 9th September,2005. As Simon Tuckey QC stated in Palmer v Durnford,(1992) 2 All ER 122 at page 128:

Any attempt to resurrect the claims..could be met by a successful plea of res judicata. It does not matter that the judgment was by consent (see Cohen v Jonesco [1926] 1 KB 119 at 125).

5.19	I strike out the second defendant's counter claim, as an abuse of the process of court.

6.	Orders 
a)	I pronounce against the Will dated 28th December,1995.

b)	The order granting probate to the plaintiff under the Will of 21st September,1995, in terms of the Order of 9th September,2005, in Probate action no 32755/32086 of 2005 prevails.

c)	The second defendant shall pay the plaintiff costs summarily assessed in a sum of $ 6000.

7th March, 2014

A.L.B.Brito-Mutunayagam
Judge