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Deo v Narayan [1998] FJHC 188; Hbc0104j.92s (17 June 1998)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 104 OF 1992

Between:

INDAR DEO
f/n Muni Deo
Plaintiff

and

NAVEDETA ASHWINI NARAYAN and
APRADETA ASHWINI NARAYAN
(f/n Samlal Shyamji a.k.a Shyamji)
Defendants

Mr. M. Raza for the Plaintiff
Mr. V. Maharaj & S. Chandra for the Defendants

JUDGMENT

The plaintiff sues the defendants in their capacity as the administrators and trustees of the estate of Samlal Shyamji (hereafter referred to as "Shyamji") of Dilkusha, Nausori, deceased in respect of the alleged sale to the Plaintiff of a piece of land contained in CT.23696 being Lot 18 on D.P.5682 (the "land") for the sum of $8500 pursuant to a supposedly handwritten `agreement' in writing of 22 January 1987 (exhibit I).

The plaintiff says that he has paid the purchase price of $8500 in full. Shyamji has since the agreement died and the Plaintiff had repeatedly requested the defendants to comply with the terms of the agreement to transfer the land to him but they have neglected to do so.

The plaintiff claims in the alternative that there be judgment for him in the said sum of $8500.00. Also "an order that in addition or in lieu of specific performance of the said agreement the defendants pay damages". he further asks for an injunction restraining the defendants from selling, mortgaging, charging or otherwise dealing with the land except under the direction of the Plaintiff.

The defendants by their defence deny that there was ever any such agreement as that alleged. They further deny that the plaintiff paid the sum of $8500.00.

The issues for Court's determination are as contained in the Minutes of Pre-trial Conference dated 11 January 1995. They are as follows:-

(a) Whether or not the Plaintiff paid the purported sum of $8,500.00 (EIGHT THOUSAND FIVE HUNDRED DOLLARS) as deposit to the Defendant on 22nd January, 1987 for the purchase of Lot 18 on D.P. 5862.

(b) Whether or not the Plaintiff is entitled to the conveyance of Lot 18 on D.P. 5862 from the Defendants pursuant to the deposit if paid in the preceding paragraph hereof.

(c) If the deposit has been paid, whether or not the Defendants are liable to return the said purported sum of $8,500.00 (EIGHT THOUSAND FIVE HUNDRED DOLLARS) on 22nd day of January, 1987.

(d) Whether or not the Defendants are liable to pay damages which the Plaintiff has sustained by reason of the refusal and neglect of the Defendants to perform according to the purported Agreement dated 22 day of January, 1987.

(e) Whether or not the costs of this action ought to be paid by the Plaintiff or the Defendants.

Mr. Raza made oral and written submissions and Mr. Maharaj filed written submissions.

Consideration of the issues

This action was instituted by the plaintiff on 27 March 1992 which was some two years following the death of Shyamji who died on 7 February 1990.

For the plaintiff evidence was given by MUNI DEO (PWI), the plaintiff (INDAR DEO) himself (PW2) and MRS. MAATA SAKITI (PW3) the then Acting Registrar of Titles.

For the defendants evidence was given by SUNITA DEVI (DWI) the widow of Shyamji.

The evidence is as follows:-

MUNI DEO (PWI), the plaintiff's father testified, inter alia, that he knew Shyamji well and had dealings with him and in 1970 bought a piece of land from him. He says that the land in question was bought by him for the Plaintiff (his son) in 1987 for cash. He said that Shyamji "put something in writing" dated 22 January 1987 (exhibit I). He later lodged caveat against the Title (the land).

In cross-examination he said that between 1987-1990 he did not make effort to get the transfer of the land. He wanted the return of his money which Shyamji said he will give. The witness said "he was honest man to me".

INDAR DEO (PW2) testified that he is claiming the land from the defendants. He said that his father (PWI) told him he is short of $3300 so he (PW2) borrowed from one Mohammed Hassan (now deceased) and gave it to him.

In cross-examination he said he neither had any land dealing with Shyamji nor did he ask him to transfer the land. Dealing was with his father (PWI) so he left it to him.

For the defendants the evidence was given by Shyamji's wife (now divorced) SUNITA DEVI under a Power of Attorney. She said that she worked very closely with her husband in the sale of lands and he was a land "developer" at Waila, Nausori. She said that she knew PWI who had dealings with Shyamji before; Shyamji used to make receipts for even $5.00. She produced some receipts for payments made to him whether they were relatives or strangers. She also produced two Sale and Purchase Agreements between PWI and Shyamji. The Agreement of 1975 was not executed by PW2 as he was unable to make payments and the land was sold and profit divided between them.

Findings

As Mr. Raza says, it is all a question of fact and the decision will have to be based on the credibility of witnesses.

I have given very careful consideration to all the evidence adduced in this case and to the submissions of both counsel.

It is not in dispute that Shyamji and Plaintiff's father knew each other very well; in fact PW1 worked for Shyamji for sometime and because Shyamji was a land developer, PWI, had some land dealings with him and there have been no problems in that regard.

For some reason not disclosed the Plaintiff did not take any steps to have the land transferred to himself during Shyamji's lifetime. Although Ex I was made on 22 January 1987 and Shyamji died on 7 February 1990, this action was not commenced until 27 March 1992.

At the outset I must say that PW2's evidence does not enhance the assertions made by PWI; it was an alleged son and father affair regarding the alleged loan of $3300 from PW2 to PWI to enable PWI to purchase the land for PW2. The PW2 himself had no dealings with Shyamji in regard to the alleged dealing. The only reference to PW2 is in Exhibit I which reads:

Dilkusha,

Nausori,

22nd January 1987.

To Whom It May Concern

Dear Sir,

This is to certify that I Shyamji (f/n Ram Narayan) of Dilkusha Nausori Landlord have sold a residential lot 18 on D.P. 5862 situate at Dilkusha aforesaid containing 810m to Mr Indar Deo f/n Muni Deo for the price of $8500.00 (Eight-thousand five hundred dollars).

Yours faithfully

(Sgd) SHYAMJI

In my view had $8500 in cash been paid to Shyamji, PW2 should have insisted on a receipt. There is no cogent evidence as to the exact date on which this alleged sum was paid. It cannot be said that it was paid if it was paid at all on the date stated in exhibit I. The said exhibit does not say that the sum of $8500 has been received or as to how this sum is to be paid. Neither PWI nor PW2 has produced any proof of payment of this sum of money for it is after all a large sum of money. As Mr. Maharaj submits, why was Exhibit I not made in the name of either PWI or PW2 instead of being addressed "To Whom it May Concern".

Both father and son are claiming that the land ought to be transferred to them. Also on the evidence both cannot be the alleged purchasers. As already stated PW2 (the son) knows nothing about the alleged dealing except that PWI says he borrowed $3300 from his son (PW2) for this purpose. It appears though from Exhibit I that because PW2's name appears on Exhibit I, PW1 must have mentioned to the deceased to make Exhibit I in PW2's name.

The evidence of PW2 does not strengthen his case. In a nutshell his evidence is that his father PWI borrowed $3300.00 from him. PW2 himself did nothing as far as the alleged sale to him is concerned. Since he maintains land was sold to him, although allegedly paid by his father, he should have taken appropriate steps to have the land transferred to him. But he did nothing. Even PWI did not do anything concrete about it if it is true that he had already paid for the land. From PW1's evidence it appears he could not find money for the transfer. If he was really serious about the transfer then he should have taken immediate steps for the transfer of the land. If he has paid the principal sum then there was no reason for him to wait so long.

On a balance of probabilities on the evidence before me I am not satisfied that the sum of $8500.00 was paid by PWI. Both PWI and PW2 did not take steps to fortify their position when Shyamji was alive. Neither PW1 nor PW2 produced any receipts for alleged payments made by him or them. Exhibit I does not prove, on a balance of probabilities, that the sum of $8500,00 was paid to the deceased for it merely says that the land was `sold' for the price of $8500.00 and then it is addressed to "To whom it may Concern". The only person who could have thrown light on whether payment was made or not is Shyamji but that is not possible now. I find as fact that Shyamji was in the habit of making receipts for payments made to him as the receipts produced to Court show and also as recorded in the `Red Book' which was referred to during the hearing and which recorded land transactions. In the circumstances I am far from satisfied that this was a Sale and Purchase Agreement for the purposes of a land transaction for anyone to act upon. By no stretch of the imagination one can imagine a claim based on exhibit I for transfer of the land which does not set out the terms of the sale and which does not even acknowledge receipt of the sale price of $8500.00.

To conclude, for the above reasons, on a balance of probabilities, the Plaintiff has failed to prove his claim. It is therefore dismissed with costs which is to be taxed unless agreed.

D. Pathik
Judge

At Suva
17 June 1998

HBC0104J.92S