BATTAN SINGH Vs. AMIRCHAND

JUDGEMENT

(1.) This is an appeal from a judgment and decree of the Supreme Court of Fiji in its Probate Jurisdiction which decreed probate of a will dated 3 April 1944, of an Indian named Jaimal, who, died on the day after the execution of the will. The issue to be decided is whether that will which was in favour of the respondents Amirchand and Mehar as the sole beneficiaries is valid or whether a will dated 25 February 1944 in favour of the testator's nephews ought to be admitted to probate.

(2.) The testator was a Sikh who had come to Fiji about 38 years before his death. He had made a considerable fortune as a money - lender and his estate amounts to more than ?20,000. He was illiterate and ill - educated but be could write his name in English. Amirchand and Mehar were in no way related to him but they were both indebted to him at his death, Amirchand for about ?400 and Mehar for ?6 500. The testator had no wife or child, but he had had a brother who lived in India and who died about 1940 or 1941. This brother had four sons, the beneficiaries under a will of 26 November 1941, which was confirmed by a codicil of 1 July 1942, and they and their father had been the beneficiaries under a still earlier will of 21 January 1938. It is proved that the testator had been on affectionate terms with his brother to whom he paid a prolonged visit in India in 1938 to 1940, and that he was also on good terms with his nephews to two of whom be had at one time given a power of attorney to enable them to deal on his behalf with certain property belonging to him in India. He employed a firm of solicitors in Fiji, Messrs Ellis Munro Warren and Leys, to attend to his affairs and this firm had been instructed by him to draw up the testamentary writings above referred to except the final and disputed writing of 3 April 1944. Jaimal became gravely ill with pulmonary tuberculosis, and in the early part of 1944 he was in the Suva Government hospital. He left that hospital in February and went to the Sikh temple at Samabula. It was while he was at this temple that he executed the will of 25 February 1944 appointing the President, Secretary and Treasurer of the Sikh Gurudwara Committee at Samabula, Suva, to be his executors and trustees and leaving all his property to his four nephews equally. Amirchand was present at the making of this will. Shortly afterwards, as Jaimal wanted to enter the Lautoka hospital at Ba, Amirchand brought him to a stable near Mehar's house at Ba in which he stayed for a few days before entering the hospital. He removed from there to the Sikh Gurudwara at Lautoka, and was next taken to a house hired by Mehar at Yalaleva, where he arrived about two or three weeks before his death. On Friday 3lst March, he received a visit from a young man named Hari Charan, who as a boy about 12 years earlier had bad some acquaintanceship with him. Hari Charan gave evidence that this was the third visit that he had paid to Jaimal in as many weeks and that it was a casual visit. Jaimal, however, on this occasion is said to have lost no time in taking Hari Charan into his confidence about his testamentary intentions. According to Hari Charan, whose evidence the learned Chief Justice appears to have accepted only because it was uncontradicted, Jaimal told him that he wished to make a will in favour of Mehar and Amirchand because they had looked after him so well and he asked Hari Charan to get a lawyer to draw up a will for him. Hari Charan asked whether he bad ever made a will before and Jaimal said he had made two, but that he was not worrying about them and that he wished to make his last will in favour of these men. He also said that he had neither wife nor children but that he had relatives "regarded as brothers" in India to whom he had given sufficient property in the way of money and assets. It does not appear from Hari Charan's examination in chief that Jaimal asked him to do more than to get a lawyer for him, but in his cross examination he says that Jaimal asked him to get a will drawn up in favour of Amirchand and Mehar. Hari Charan went on the same day to Mr. Davidson, a lawyer in Fiji, and gave him instructions which enabled Mr. Davidson to draw up the will. Amirchand accompanied Hari Charan to Mr. Davidson's office but remained outside and Mr. Davidson is said to have had no direct communication with him that day. The will is in the following terms : "This is the last will and testament of me Jaimal (father's name Nehala) formerly of Suva bat now of Yala Levu in the District of Ba in the Colony of Fiji 'Financier' I revoke all former Wills and Testamentary Dispositions made by me and declare this to be my last and only Will after payment of all my just debts funeral testamentary and medical expenses I give devise and bequeath unto my dear friends Amirchand (father's name Utham) and Mehar (father's name Saudi) both of Yala Levu aforesaid Farmers as Tenants in Common in equal shares absolutely all my estate and property whatsoever and wheresoever situate and whether in possession reversion or remainder and I appoint them the said Amirchand and Mehar to be the Trustees and Executors of this my said Will, I declare that I have no next of kin nor blood relations in Fiji or elsewhere who are known to me I desire to express by this my said Will my deep gratitude to the said Amirchand and Mehar for their devotion to me during my present illness."

(3.) Mr. Davidson deponed that the expressions of affection for and gratitude to Amirchand and Mehar were inserted by him of his own volition and without instructions from Hari Charan, and that for the statement that the testator had no next of kin nor blood relations in Fiji or elsewhere his only warrant was Hari Charan's statement that Jaimal had no wife or children and that he inferred the rest. Mr. Davidson typed out this draft Will either on the after, noon of Friday 31 March or the next morning According to their evidence Amirchand and Hari Charan had expected Mr. Davidson to deal with the will as a matter of urgency, and as no progress had been made by Monday morning they went in a taxi cab to his office and fetched him to see Jaimal. Mr. Davidson said that he put questions to Jaimal and read over the will in Hindi and then in English which was again translated into Hindi by his clerk : that Jaimal listened carefully and at the end gave his assent to the will and said he wanted nothing in it changed : that among other questions put to Jaimal before he gave his final assent, Mr. Davidson asked who Amirchand and Mehar were and Jaimal put a hand on each of these two men and spoke with affection of them and said he wanted to give them all his property. In answer to other questions he said they were the only persons who had helped him in his illness, that he had no relations in Fiji and that he did not know if he had any relations elsewhere than in Fiji. Mr. Davidson also said be was told by Jaimal that be had made a previous will but Mr. Davidson asked no questions about its contents. Jaimal tried to sign the will, but his hand was too shaky. He then tried to affix his thumb mark but he was too weak to do so unaided and Mr. Davidson had to help him. Mr. Davidson considered that Jaimal was a very sick man though his mind was perfectly logical. He also formed the opinion that Jaimal was not receiving adequate medical treatment and he said so to Amirchand. Amirchand and Mihar were present in the room with Mr. Davidson and Jaimal during the whole interview between them and it is significant that Amirchand, who must have hear the questions and answers about Jaimal's relations and who must also have known from being present when the earlier will was made that Jaimal had nephews in India, did not intervene to correct Jaimal's memory. Amirchand, in his own evidence, which was disbelieved by the learned Chief Justice, falsely depones that he did intervene to say that Jaimal bad nephews in India. It was no doubt in consequence of Mr. Davidson's advice that Amirchand took Jaimal to a hospital in the afternoon. Jaimal was by that time unable to speak. The doctor found that be was in a very weak condition, but gave him some medicine and told Amirchand to take him home. Jaimal died next day.