Kumar Rajaratnam alias Vairamuthu Rajaratnam v Bala Saravanamuthu Rajaratnam

• Jurisdiction: Singapore
• Judge: Mavis Chionh Sze Chyi
• Judgment Date: 13 February 2006
• Neutral Citation: [2006] SGDC 41
• Court: District Court (Singapore)
• Published date: 23 March 2006
• Year: 2006
• Plaintiff Counsel: Shankar (Shankar Nandwani & Partners)
• Defendant Counsel: Vinit Chabra (Vinit Chabra Partnership)
• Subject Matter: Civil Procedure,Pleadings,Striking out statement of claim under O 18 r 19, Rules of Court,Whether an abuse of the process of court,Whether writ action a bona fide one,Separate writ action an attempt to circumvent procedure in O 71 and O 72, Rules of Court,Whether plain and obvious case for striking out,Whether appropriate to order amendment of the statement of claim instead
• Citation: [2006] SGDC 41

13 March 2006

District Judge Mavis Chionh:

The defendant in this case applied to strike out the plaintiff’s statement of claim under O 18 r 19 of the Rules of Court and under the inherent jurisdiction of the court. The application was granted by the deputy registrar, whose decision the plaintiff appealed against. I dismissed the appeal; and the plaintiff filed an appeal against my decision.

The brief factual background

2. The undisputed facts are these. The plaintiff and the defendant are both the lawful sons of one Saravan Muthu Rajaratnam (‘the testator’) and Mdm P. Rajaratnam nee Parameswari (‘Mdm Rajaratnam’). The testator and Mdm Rajaratnam had made a mutual will on 20 July 2001. This was what the plaintiff referred to in his statement of claim as the “1^st Mutual Will”. This 1^st Mutual Will was revoked by the testator and Mdm Rajaratnam on 12 October 2001 when they executed a “2^nd Mutual Will”. The 2^nd Mutual Will was revoked on 28 August 2003 when the testator and Mdm Rajaratnam made the “3^rd Mutual Will”. The “3^rd Mutual Will” too was revoked on 3 November 2003 when a “4^th Mutual Will” was made by the testator and Mdm Rajaratnam.

3. It is the plaintiff’s case that this 4^th Mutual Will cannot stand. The plaintiff cited various reasons for this in his statement of claim. Firstly, he claimed that the testator and/or Mdm Rajaratnam had lacked the “physical/mental capacity or understanding” to execute the said will. Moreover, according to the plaintiff, the mental incapacity of either or both of them meant that the revocation of the 3^rd Mutual Will was in breach of the terms of this 3^rd Will which required an intention on the part of both parties to consent to revocation. Finally, the plaintiff claimed that the 4^th Mutual Will was “obtained by undue influence” exercised by the defendant.

4. At the hearing before me, the plaintiff’s counsel agreed that in fact, the plaintiff had benefited under the terms of the 4^th Mutual Will because it made him and the defendant equal beneficiaries. However, according to counsel, the plaintiff was concerned about the fact that the 4^th Mutual Will did not appear to provide for certain charitable intentions which the testator and Mdm Rajaratnam had evinced in the 3^rd Mutual Will.

The reasons for my decision

5. At the outset, it should be noted that the parties did not disagree that the test relevant to a striking-out application were those pronounced by the Court of Appeal in The Osprey [2000] 1 SLR 281: namely, that the courts would exercise their power to strike out only in “plain and obvious” cases; and that their policy was to afford litigants the right to institute bona fide claims before the court and to prosecute them in the usual way. What the parties disagreed on was how this test applied to the facts of their case.

6. The defendant’s application to strike out the statement of claim was based on several grounds. Firstly, the defendant argued that the allegation of undue influence was completely unclear and provided him with no clue as to the case he had to meet. In this respect, I agreed that the statement of claim was oddly devoid of particulars as to the manner and means by which the undue influence was supposedly exercised. Under the heading “Particulars of undue influence” (at paragraph 19 of the statement of claim), the “particulars” which the plaintiff purported to provide did not in fact merit that description: rather, they were vague general statements about the defendant having been the “controlling mind” of the testator and having “misused his power, position and authority to acquire benefits or achieve a purpose by the 4^th Mutual Will”. There was a reference to the defendant having “covertly removed” the testator and Mdm Rajaratnam “from their home in Kuala Lumpur” and brought then “to the lawyers office whilst admitted to St Lukes Hospital for respite” (sub-paragraph xi of the statement of claim at page 7), but no explanation was provided as to how or when or where the alleged undue influence was then exercised by the defendant. The plaintiff’s affidavit of 25 November 2005 provided no help either, as it merely made more vague general statements about the defendant having “schemingly planned” for their parents to change the will without offering any particulars of the said “schemes”.

7. Even in the above circumstances, however, and putting aside other factors, it might have been possible – as an initial response - to direct that the plaintiffs amend their statement of claim so as to provide proper particulars of the alleged undue influence. The court has, after all, a discretion to allow amendment of pleadings instead of striking them out: see for example Tan Soo Leng David v Wee, Satku & Kumar [1994] 3 SLR 481.

8. On the other hand, amendment will only be directed if it is the appropriate method for curing the error or defect: see for example Chung Khiaw Bank v Tio Chee Hing [1987] 2 MLJ 701. In this case, I did not find it appropriate to order amendment of the statement of claim as I was of the view that there were other factors warranting striking-out.

9. The plaintiff filed the present writ on 20 September 2005. Prior to this date, the executor of the testator’s estate (who is not the defendant) had already commenced probate proceedings in DCP 1994/2005, in respect of the 4^th Mutual Will. The plaintiff filed a caveat in these probate proceedings on 16 September 2005 (paragraph 20 of the statement of claim). O 71 r 37 and r 38 of the Rules of Court stipulate the procedure which follows upon the filing of a caveat. Basically, a caveat once filed remains in force for 6 months and operates to prevent the making of a...