Devendra Prasad Sharma v. Ranjula Devi Kumar

• Jurisdiction: Fiji
• Court: Court of Appeal (Fiji)
• Judge: Suresh Chandra JA,Almeida Guneratne JA,David Alfred JA
• Judgment Date: 26 February 2016
• Docket Number: CIVIL APPEAL NO. ABU 13 of 2013 (High Court Action HPP 25 of 2010)
• Date: 26 February 2016
• Counsel: Mr. R. K. Naidu for the Appellant,Mr. W. Clarke for the Respondents

IN THE COURT OF APPEAL APPELATE JURISDICTION

CIVIL APPEAL NO. ABU 13 of 2013

(High Court Action HPP 25 of 2010)

Between:

Devendra Prasad Sharma

As father and next friend for Niraj Sharma

Appellant

v.

Ranjula Devi Kumar

Reshmi Devi Sharma

Executrices and Trustees of the Estate of Jasoda Devi Sharma

Respondents

Coram:

Suresh Chandra JA

Almeida Guneratne JA

David Alfred JA

Date of Hearing: 4 February 2016

Date of Judgment: 26 February 2016

Counsel:

Mr. R. K. Naidu for the Appellant

Mr. W. Clarke for the Respondents

JUDGMENT

Chandra JA

1. This is an appeal against the decision of the learned High Court Judge delivered on 15 February 2013 and to have the said decision partially set aside and seeking an order and/or declaration as follows:

“THAT clause 6 of the last will and testament of Jasoda Devi Sharma, deceased, cannot be interpreted to allow the beneficiaries named therein to retain rental proceeds from the estate property after the date of demise of the testatrix for their own benefit.”

2. The notice of appeal dated 27 March 2013 sets out the following ground of appeal:

“The Learned Trial Judge erred in law in construing the will of the deceased by holding that clause 6 read with clause 3 of the will entitled the beneficiaries named therein to retain rental proceeds from the estate property, after the date of death of the testatrix. The learned Trial Judge should have held that clause 6 of the will does not allow the beneficiaries named therein to retain rental proceeds from the estate properties after the date of demise of the testatrix for their own benefit. Alternatively, the Learned Trial Judge should have held that, the effect of Clauses 3 and 6, read with the rest of the will, is that, after the expenses including maintenance, estate debts and funeral expenses. Niraj Sharma shall be entitled to the residue of rent from the property comprised in Certificate of Title No.21978.”

Factual Matrix

3. The Appellant filed an originating summons seeking a construction of two clauses of the Last Will dated 19^th December 2008 of the Testatrix, Jasoda Devi Sharma.

4. The Testatrix had died on 2^nd March 2010.

5. The Appellant, Devendra Prasad Sharma is a son of the Testatrix and is the father and next friend of Niraj Sharma, a beneficiary under the will.

6. Ranjula Devi Kumar and Reshmi Devi Sharma the first and second Respondents are daughters, executrices and trustees named in the will.

7. The Appellant sought the following declarations by his originating summons:

“Clause 7 of the will bears the meaning that any repairs, upkeep and maintenance in respect of estate property, including that comprised in Certificate of Title No.21978 should be paid from rental proceeds of the estate property.

Clause 6 of the will cannot be interpreted to allow the beneficiaries named therein to retain rental proceeds from the estate property after the date of demise of the deceased for their own benefit.”

8. The learned trial Judge having considered the affidavits, documents and submissions tendered by both parties, made the following orders by his decision of 15 February 2013:

“(a) Clause 6 read with Clause 3 of the will entitles the beneficiaries named therein to retain rental proceeds from the estate property, after the date of death of the testatrix.

(b) In terms of Clause 7 of the will, all debts of the estate including debts relating to property should be paid from rental proceeds of the estate property.”

Analysis

9. The interpretation or construction of a Last Will has to be determined from the wording therein as set out by the Testator or Testatrix. It is necessary to arrive at what the real intention of the Testator or Testatrix was. It has often been said that, the words in the last will have to be treated as the dictionary unless the wording therein purports to bring in some ambiguity. It is only when there is ambiguity that extrinsic evidence would have to be resorted to in interpreting a Will.

10. The Respondent's submissions dealt with the Armchair Principle in interpreting a Last Will. According to this principle “the Court tries to put itself in the “armchair” of the testator so they can see the Will and understand its wording through the testator's eyes”. Re: Theimer Estate 2012 BCSC 629, foreshadowed in the case of Re Jebb [1966] Ch. 666 per Lord Denning M.R.

11. In construing a will, the objective of the court is to ascertain the intention of the testator as expressed in his or her will when it is read as a whole. The court has to put itself in the position of the testator at the point in time when he or she made the will. The main source of evidence should come from within the “four corners” of the will.

12. The Last Will of the Testatrix contained 7 Clauses and the relevant Clauses are Clauses 3, 4, 5, 6 and 7 which are as...