Lakshmi Prataprai Bhojwani v Moti Harkishindas Bhojwani

• Judge: George Wei J
• Judgment Date: 18 May 2018
• Neutral Citation: [2018] SGHC 121
• Citation: [2018] SGHC 121
• Defendant Counsel: Gopalan Raman (KhattarWong LLP)
• Docket Number: Originating Summons No 1229 of 2017
• Hearing Date: 18 January 2018
• Plaintiff Counsel: Melanie Ho, Chang Man Phing, Chan Yu Xin and Valerie Quay (WongPartnership LLP)
• Published date: 01 March 2019
• Court: High Court (Singapore)
• Date: 18 May 2018
• Subject Matter: Trusts,Probate and administration,executors,trustees

George Wei J: Introduction

This was an application by the plaintiff, Lakshmi Prataprai Bhojwani (“the Plaintiff”), for the defendant, Moti Harkishindas Bhojwani (“the Defendant”), to provide an account of the assets of the estate (“the Estate”) of the late Harkishindas Ghumanmal Bhojwani (“the Testator”).

Specifically, the application was for an account of the Estate as at 4 March 2007, being the date on which the Testator had passed away and also as at the time the application was made. The account was to include details of any investment or divestment of the assets of the Estate, and the proceeds of such investment or divestment.

At the conclusion of the hearing on 18 January 2018, I dismissed the Plaintiff’s application. The Plaintiff was dissatisfied with my decision and has appealed. I now furnish the grounds of my decision.

Facts Parties

An introduction to the background of this application must begin with a description of the Bhojwani family tree.

The Testator was the patriarch of the Bhojwani family, and it is his last will and testament (“the Will”) that was at the heart of this application. He is survived by his three sons, namely, Jethanand Harkishindas Bhojwani (“Jethanand”), Jaikirshin Harkishindas Bhojwani (“Jaikirshin”) and the Defendant.¹

Jethanand, Jaikirshin and the Defendant are each married and have children of their own. The Defendant was at all material times the sole executor of the Will,² while each of the three sons is trustee over different parts of the Estate.³

The Plaintiff is the wife of Jethanand, and hence the daughter-in-law of the Testator.⁴ However, the Plaintiff’s marriage with Jethanand deteriorated over the years, and this culminated in divorce proceedings filed by her on 5 October 2017.⁵ The Plaintiff is one of the beneficiaries named in the Will.⁶

The Will

Pursuant to the Will, the Estate was divided into three groups of assets. Generally, each of the Testator’s three sons was appointed as trustee for each group of assets, with his respective family members being the beneficiaries of the assets of which he is trustee.⁷

I pause to note that the Will creates five discretionary trusts: one for the assets under cl 4 of the Will, one for the assets under cl 5 of the Will and three separate discretionary trusts for the residue of the Estate under cl 7 of the Will. The Plaintiff’s interest as a beneficiary flows from her position as a member of the class of discretionary beneficiaries under cl 5 of the Will, as well as one of the trusts under cl 7.

Clause 4 of the Will specifies assets of which the Defendant (the executor of the Estate) is trustee. Clause 4 states:⁸ 4.1 In this clause: (i) “the trust period” means the period of 30 years commencing from the date of my death; (ii) “the beneficiaries” means (a) MRS BHAUNA MOTI BHOJWANI …

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(c) remoter issue of MOTI who may be born before the end of the trust period together with any spouse, widow or widower of any such children or remoter issue; and (d) any person or class of persons nominated to my trustees by two beneficiaries and whose nomination is accepted in writing by my trustees. (iii) “my trustee” means MOTI and includes any trustees that may be appointed by MOTI; and (iv) “Trust Property” means (a) such interest as I may have in No. 32A Branksome Road, Singapore … (b) 2,000 shares in Malaya Silk Store (Private) Limited[;] (c) 73,001 shares in Shankar’s Emporium (Private) Limited; (d) 5,000 shares in Sharrods (Private) Limited; (e) 2,000 shares in Shankar’s Pte Ltd; (f) 5,000 shares in Sovrein Investments Private Limited; (g) 3,000 shares in Lions Amalgamated Industries Private Limited; (h) my 1 founder’s share in Malaya Silk Store (Private) Limited … and (i) my 1 founder’s share in Sherridon Exim Pte Ltd … 4.2 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.

[emphasis in original]

The named beneficiaries under cl 4 are the Defendant’s wife and son.

Clause 5 of the Will provides for the group of assets of which Jethanand (husband of the Plaintiff) is trustee. Clause 5 states:⁹ 5.1 In this clause: (i) “the trust period” means the period of 30 years commencing from the date of my death; (ii) “the beneficiaries” means (a) LAKSHMI PRATAPRAI BHOJWANI MRS LAKSHMI JETHANAND BHOJWANI [the Plaintiff] … (b) DEVIN JETHANAND BHOJWANI … (c) DILIP JETHANAND BHOJWANI … (d) SANDEEP JETHANAND BHOJWANI … (e) remoter issue of JETHANAND who may be born before the end of the trust period together with any spouse, widow or widower of any such children or remoter issue; and (f) any person or class of persons nominated to my trustees by two beneficiaries and whose nomination is accepted in writing by my trustees. (iii) “my trustee” means JETHANAND and includes any trustees that may be appointed by JETHANAND; and (iv) “Trust Property” means (a) such interest as I may have in No. 32 Branksome Road, Singapore … (b) 9,000 shares in Malaya Silk Store (Private) Limited; (c) 150,000 shares in Shankar’s Emporium (Private) Limited; (d) 15,000 shares in Sharrods (Private) Limited; (e) 11,360 shares in Shankar’s Pte Ltd; (f) 15,000 shares in Sovrein (Private) Limited; (g) 12,001 shares in Lions Amalgamated Industries Private Limited; (h) 1 share in Shankar’s Investments Pte Ltd (formerly known as Shankar’s Vietnam (Private) Limited); (i) 1 share in Liberty Merchandising Pte Ltd; and (j) my 1 founder’s share in Shankar’s Emporium (Private) Limited … 5.2 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.

[emphasis in original]

As can be seen from cl 5, while it is true that the Plaintiff is a beneficiary named in the Will, she is only a beneficiary with respect to the assets of which Jethanand is the trustee. The other named beneficiaries of these assets are the three sons of Jethanand and the Plaintiff.

In addition, the residuary estate, being all the remaining assets in the Estate that had not been previously dealt with in the Will (“the Residuary Estate”), is further divided into three parts and given to Jethanand, Jaikirshin and the Defendant to hold on trust for their respective families. Clause 7 states:¹⁰ 7. 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: (a) one-third (1/3) to my son JAIKIRSHIN HARKISHINDAS BHOJWANI (hereinafter referred to as “JAIKIRSHIN”) to hold on trust for all or such one or more of the beneficiaries stipulated in clause 8(ii) hereinbelow 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 8(ii) hereinbelow as JAIKIRSHIN 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 8(i) hereinbelow appoint and in making any such appointment JAIKIRSHIN shall have powers specified in clause 3 above during the trust period as stipulated in clause 8(i) hereinbelow; (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 clause 5.1(i) hereinabove; and (c) one-third (1/3) to my son MOTI to hold on trust for all or such one or more of the beneficiaries stipulated in clause 4.1(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 4.1(iii) hereinabove as MOTI 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 4.1(i) hereinabove appoint and in making any such appointment MOTI shall have powers specified in clause 3 above during the trust period as stipulated in clause 4.1(i) hereinabove.

[emphasis in original]

Reading the Will in its entirety, it is apparent that the Plaintiff is a beneficiary of three main categories of assets (collectively, “the Assets”), namely: the property at 32 Branksome Road, Singapore (“the Property”); the shares listed in items (b) to (j) of cl 5.1(iv) (“the Clause 5 Shares”); and one-third of the Residuary Estate.

The Defendant’s actions in relation to the Assets

At this juncture, it would be pertinent to state that at the beginning of the hearing, I had queried the parties on whether they were ad idem as...