Jethanand Harkishindas Bhojwani v Lakshmi Prataprai Bhojwani (alias Mrs Lakshmi Jethanand Bhojwani)

• Jurisdiction: Singapore
• Judge: Tan Puay Boon JC
• Judgment Date: 08 October 2020
• Neutral Citation: [2020] SGHC 216
• Court: High Court (Singapore)
• Hearing Date: 09 March 2020
• Docket Number: Originating Summons No 1339 of 2019 and Summonses Nos 5872 of 2019 and 138 of 2020
• Plaintiff Counsel: Liew Teck Huat, Kanapathi Pillai Nirumalan, Ow Jiang Meng Benjamin and Ho Jun Yang Joshua (He Junyang) (Niru & Co LLC)
• Defendant Counsel: Yeo Khirn Hai Alvin SC, Chang Man Phing Jenny, Gavin Neo Jia Cheng and Khoo Kiah Min Jolyn (WongPartnership LLP)
• Subject Matter: Equity,Remedies,Account,Res Judicata,Issue estoppel,Extended doctrine of res judicata,Trusts,Trustees,Powers
• Published date: 20 October 2020

Tan Puay Boon JC: Introduction

HC/OS 1339/2019 (“OS 1339/2019”) filed on 24 October 2019 was an application by the plaintiff, Jethanand Harkishindas Bhojwani, for a declaration that court orders that had been previously made in HC/OS 1407/2017 (“OS 1407/2017”) were no longer operative, and, further or in the alternative, for a variation of the said orders. These orders in HC/ORC 50/2019 (“ORC 50/2019”) pertained to the plaintiff’s obligation to disclose certain documents to the defendant, Lakshmi Prataprai Bhojwani, in fulfilment of his obligation as trustee to give an account of the trust property to the defendant as beneficiary of the trust under the last will and testament (“the Will”) of the late Harkishindas Ghumanmal Bhojwani (“the Testator”). As the parties have taken on different roles in various legal proceedings, and with the parties’ consent, I will refer to the plaintiff as the “Husband”, and the defendant as the “Wife”, although interim judgment has already been given in separate divorce proceedings.

The basis of the Husband’s application in OS 1339/2019 was two sets of deeds that he had executed after the Court of Appeal made its decision in the appeal from OS 1407/2017 in CA/CA 231/2018 (“CA 231/2018”). On 3 October 2019, the Husband executed a “Deed of Advancement”. On 10 January 2020, he further executed a “Deed” and a “Deed of Appointment”. The Husband argued that by either of these sets of deeds, he had excluded the Wife as a beneficiary of the trust and was no longer liable to give an account to her. He also made further arguments relating to the Wife’s alleged conduct, which I will detail below.

Having considered the parties’ submissions, I granted the Husband’s application in part, ordering the Husband to provide an account of the trust property by furnishing the documents set out in the document “P1” annexed to ORC 50/2019, but only for the period for which the Wife was a beneficiary, ie, until 9 January 2020, the day before the Deed and Deed of Appointment were executed. The Wife and Husband have filed an appeal and cross-appeal respectively. I now furnish the grounds for my decision.

Facts The parties

The Husband’s father, the Testator, was the patriarch of the Bhojwani family. He passed away in 2007 and was survived by three sons, namely the Husband, Jaikirshin Harkishindas Bhojwani (“Mr Jaikirshin”), and Moti Harkishindas Bhojwani (“Mr Moti”).¹

The Husband was married to the Wife at the time that the Will was written and when the Testator passed away. The Wife had filed for divorce on 5 October 2017, and interim judgment was granted on 29 October 2018.² The Husband and Wife have three sons (collectively, “the Sons”) – Devin Jethanand Bhojwani (“Mr Devin”), Dilip Jethanand Bhojwani (“Mr Dilip”), and Sandeep Jethanand Bhojwani (“Mr Sandeep”)³ – who featured in these proceedings, although they were not parties.

The Will

This case concerned trusts established under the Testator’s Will.⁴ Under the Will, the Testator’s estate (“the Estate”) was dealt with in various parts. Each of his three sons (including the Husband), was appointed as trustee of each of the different parts for the benefit of their immediate families.⁵ In total, five discretionary trusts were constituted by the Will: (a) one under cll 4.1 and 4.2 for specific property in favour of Mr Moti’s family; (b) one under cll 5.1 and 5.2 for specific property in favour of the Husband’s family; and (c) three under cl 7 for each of one-third of the residue of the Estate for the Husband, Mr Jaikirshin, and Mr Moti, to each hold on trust for their respective families.

The Husband was appointed as a trustee of a trust under cl 5.1 of the Will (“the Clause 5 Trust”). Clause 5.1(ii) defined “the beneficiaries” as, inter alia, the Wife and the Sons. The property in the Clause 5 Trust was defined under cl 5.1(iv) of the Will, and included the property at 32 Branksome Road, Singapore (“the Branksome Property”), and shares in various companies (“the Clause 5 Shares”).⁶

Clause 5.2 of the Will, which was at the heart of the present dispute, reads as follows:

I direct my trustee to hold the Trust Property upon trust for all or such one or more of the beneficiaries at such ages or times in such shares and upon such trusts for the benefit of all or any one or more of the beneficiaries as my trustee in his absolute discretion may by deed or deeds revocable or irrevocable at any time or times during the trust period appoint and in making any such appointment my trustee shall have powers specified in clause 3 above during the Trust Period.

The “Trust Period” was defined under cl 5.1(i) as a period of 30 years commencing from the date of the Testator’s death.

Under cl 7(b) of the Will, the Husband was also appointed as trustee of a trust over one-third of the residue of the Estate (“the Clause 7(b) Trust”), in favour of the same class of beneficiaries above. The material parts of cl 7 read:

I give, devise and bequest all the residue of my movable and immovable property of whatsoever nature and wheresoever situate not hereinbefore specifically devised or bequeathed to my trustees to distribute as follows: … (b) one-third (1/3) to my son JETHANAND to hold on trust for all or such one or more of the beneficiaries stipulated in clause 5.1(iii) hereinabove at such ages or times in such shares and upon such trusts for the benefit of all or any one or more of the beneficiaries stipulated in clause 5.1(iii) hereinabove as JETHANAND in his absolute discretion may by deed or deeds revocable or irrevocable at any time or times during the trust period as stipulated in clause 5.1(i) hereinabove appoint and in making any such appointment JETHANAND shall have powers specified in clause 3 above during the trust period as stipulated in 5.1(i) hereinabove …

Events subsequent to the Testator’s death

The Testator passed away on 4 March 2007.⁷ Mr Moti was granted probate on 12 February 2008: Lakshmi Prataprai Bhojwani (alias Mrs Lakshmi Jethanand Bhojwani) v Moti Harkishindas Bhojwani [2019] 3 SLR 356 (“Moti”) at [17] (see [11] below). I set out, in summary form, what happened to the various assets in the Clause 5 and Clause 7(b) Trusts: On 1 August 2008, the Clause 5 Shares were transferred to the Husband: Moti at [18]. On 12 October 2016, Mr Moti transferred the Branksome Property to the Wife at the Husband’s request.⁸ No deed was executed at the time under the Clause 5 Trust. It appeared that the Husband had simply requested Mr Moti to perform the transfer after the Sons agreed for the Wife to receive the Branksome Property: see the Court of Appeal’s oral judgment in CA 231/2018 (“CA 231/2018 Judgment”) at para 4.⁹ As for the one-third of the residue of the Estate, it appeared that it would have been completely used to meet the expenses of the Estate: Moti at [20]. As no issue concerning the residue appeared to be raised in the present proceedings, I have addressed this in the manner stated at [32] below.

The Wife had applied to the High Court in HC/OS 1229/2017 for Mr Moti to give an account of the trust property: Moti at [1]. While those proceedings were not directly relevant to the present case, they formed an important part of the background. Judgment in that matter was given on 18 January 2018. The High Court found that Mr Moti, as executor of the Estate, owed the duty to account to the Wife for the following properties in the stated periods of time: the Branksome Property from 4 March 2007 to 12 October 2016 (when it was transferred to the Wife): Moti at [42]; the Clause 5 Shares from 4 March 2007 to 1 August 2008 (when they were transferred to the Husband): Moti at [41]; and one-third of the residue of the Estate from 4 March 2007 up to the point when it was completely used to meet the Estate-related expenses: Moti at [43].

That being said, the High Court then decided not to grant an order calling for an account, finding that Mr Moti had sufficiently discharged his duty in the course of making his affidavits for the court proceedings: Moti at [45]. Therefore, the Wife’s application was dismissed. The appeal against that decision by the Wife in CA/CA 19/2018 was dismissed by the Court of Appeal on 27 February 2019.

OS 1407/2017

On 18 December 2017, the Wife filed the application in OS 1407/2017 seeking an account of the trust property in the Clause 5 and Clause 7(b) Trusts (collectively, “the Trusts”) from the Husband. The High Court granted the Wife’s application on the following terms recorded in ORC 50/2019 (as amended in HC/SUM 1941/2019): 1. The [Husband] is to provide an account of the trust property by furnishing the documents set out in the document marked ‘P1’ in its amended form. 2. The time frame for furnishing the documents is from 6 to 10 weeks, as set out in P1, to be completed by 3 months, in batches. 3. Where the documents do not exist, the [Husband] is to file an affidavit to state that fact and provide an explanation if necessary. This should be filed by the end of 3 months from the date of this order. 4. Liberty to apply.

…

The annexed document, “P1”, provided a list of documents which the Husband was to disclose to the Wife, and also provided corresponding deadlines for compliance for each category. ORC 50/2019 was the order in respect of which the Husband sought relief in the present proceedings.

At the hearing on 21 November 2018, the High Court gave brief reasons for its decision as follows:¹⁰

On the basis that the [Wife] was a beneficiary until the time when the Branksome [P]roperty was transferred to her, she would be entitled to an account of the Trust Property up to that point.

Although the [Husband] says that the [Wife] has ceased to be a beneficiary after the Branksome [P]roperty was transferred to her, there was no formal notice of the same. Nor has the [Husband] provided any authority to show that the effect of such a...