IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 308 OF 2000

BETWEEN:

AMAR PRASAD
Plaintiff

AND

RAJESH SINGH AND PADMINI LATA SINGH
Defendants

F. Haniff for the Plaintiff
M.B. Patel for the Defendants

Dates of Hearing: 20th October 2000, 28th February, 
1st May, 29th November 2001

Date of Judgment: 4th December 2001

JUDGMENT

This is an application for possession of land under Section 169 of the Land Transfer Act Cap. 131. The land in question is described in Crown Lease No. 723, Lot 8, Section 7, Samabula Indian Government Settlement and possession is sought by the Plaintiff from his niece the Second-named Defendant who is the daughter of the Plaintiff’s elder brother, Kalika Prasad, deceased.

The Plaintiff is a beneficiary in the estate of Shiu Narayan Pitam. Shiu Narayan Pitam had nine children all of whom are beneficiaries of their father’s estate. The First Defendant’s father’s estate is also one of the beneficiaries of the estate of Shiu Narayan Pitam. Letters of Administration were granted to Hari Prasad on 4th March 1999; he is also a beneficiary in his father’s estate. Pursuant to his duties he realised the assets of the estate which were sworn for probate by the Administrator on the 23rd of February 1999 at a gross value of $71,700.00. On 3rd September 1999, the Plaintiff bought the property for $45,000.00. This amount is currently held in Trust by Messrs Munro Leys solicitors for the Plaintiff to be paid out to the beneficiaries upon completion of the sale of the two freehold vacant lands held by the estate of Shiu Narayan Pitam.

In an affidavit sworn on the 23rd of August 2000, the Defendant Padmini Lata Singh inter alia claims that she is one of the beneficiaries of the estate of Shiu Narayan Pitam either through her father or through her father’s estate. She alleges that the property was sold at gross under value by the Administrator to the Plaintiff, that the total number of beneficiaries were not disclosed in the oath of the Administrator and that the sale of the property from the Administrator to the Plaintiff was fraudulent.

On an application under Section 169 of the Land Transfer Act the onus is upon the Second Defendant to satisfy the Court that she has a right to possession of the property. (Section 172)

The only ground on which the Second Defendant relies as having an interest in the property is that her father’s estate is one of the beneficiaries in the estate of Shiu Narayan Pitam. In other words the Defendant claims that she is entitled as against the Plaintiff the registered proprietor of the property because it forms part of the assets of her grandfather’s estate in which her father’s estate has an interest.

In essence, the Second Defendant is relying on the estate of another, that is to say that she is relying on the title of personal representative of her father’s estate to defend this action. She has produced no evidence to the Court to suggest that she is the personal representative to her father’s estate. Further, and I consider importantly, there is no evidence before the Court which suggests that Probate or Letters of Administration have been obtained in Padmini Lata Singh’s father’s estate. Her father’s estate has not been administered, which is not denied in the Defendant’s written submission.

In Eastbourne Mutual Building Society v. Hastings Corporation (1965) All ER 779 it was held that no person interested either under a will or intestacy in the estate of a deceased person has any proprietary interest in any particular asset of the estate while the estate remains unadministered.

In Lall v. Lall (1965) 3 ALL ER 330, on somewhat similar facts to those in the instant case the Defendant claimed that the Plaintiff was a trustee of the property in question for her husband’s estate. The Defendant’s husband died intestate and no grant of administration of the estate had been obtained. The Defendant claimed that she was entitled to occupy the house on the ground that it formed part of an asset of her husband’s estate in which she had an interest.

Buckley J. held that although the Defendant had an interest in the house if it formed a part of her husband’s estate, nevertheless she had no locus standi to defend her son’s action for possession because she had no interest in the property recognizable by law because her husband’s estate was unadministered.

Mr. Justice Buckley applied the following dictum of Viscount Radcliffe in the Privy Council case of Commissioner of Stamps v. Livingston (1964) 3 ALL ER 692 in reaching his decision:

“While it may well be said in a general way that a residuary legatee has an interest in the totality of the assets (though that proposition in itself raises the question what is the local situation of the ‘totality’), it is in their Lordships’ opinion inadmissible to proceed from that to the statement that such a person has an equitable interest in any particular one of those assets ....” 

Mr. Justice Buckley at page 333 concluded:

“I do not understand what sort of locus standi she can have unless it is based on some interest which the law recognizes in property and so far as she herself is concerned, I think that the submissions made by the Plaintiff on this application are sound and that the Defence does not disclose a sufficient ground of the Defence of the action.”

In respect of these submissions the Defendants allege that the property had been transferred to the Plaintiff in highly questionable circumstances and without full and proper consultations presumably with the Defendants or the other beneficiaries. The Defendants allege that if anything, the Administrator had failed to carry out his duties and discharge his obligations under the Trustee Act. It is then said that the property, having been transferred to one of the beneficiaries in the above circumstances, is evidence that the transfer was not bona fide and is thus tainted with illegality and fraud. Furthermore it is claimed that the Administrator having not proved the duly executed Will in probate was engaged in an exercise in fraud in dealing with the property including the transfer thereof. I pause here to say that in the evidence before the Court produced by the Defendants there are two copy Wills allegedly by Shiu Narayan Pitam dated respectively October 1956 and October 1959 but the first purported Will is not dated and the second purported Will is not witnessed in accordance with the Wills Act Cap. 59. So I must ignore these.

When the Second Defendant appeared in person before me on the 15th of February 2001 she handed over a Valuation and Report prepared by Speedy Valuations on the property concerned here. This estimated its market value at between $80,000.00 and $100,000.00 but the Defendant did not formally tender the valuation which, however I read and meant to return it to the Defendant. For some reason which I cannot recall the document has remained in the Court file and has now been read by counsel for both the Plaintiff and Defendants. This document may indicate some fraud by the Administrator of the estate for accepting the Plaintiff’s offer of $45,000.00 but on the material before me there is no evidence to suggest fraud by the Plaintiff. As Pathik J. said in Vijay Prasad v. Satish Prasad Civil Action HBC307 of 1996, unreported judgment of the 12th of December 1996, if the Defendants are not satisfied about the administration of the estate then they are entitled to institute proceedings against the Administrator ; so far this has not been done.

In my judgment the answer to the allegations so far made by the Defendants is in line with the authorities I have cited earlier - they must first obtain full administration of the Second Defendant’s father’s estate. Until they do so they have no locus standi to make any claim in this Court against the Plaintiff.

Indeed in the written submission by their counsel they filed on the 26th of April 2001 this is recognised. They say, “The Second-named Defendant is at liberty to institute an action against the Administrator, however, one cannot ignore the fact that the Plaintiff’s title is subject to be challenged”.

The Plaintiff accepts this but he wants possession of his property.

At the brief hearing before me on the 29th of November I informed counsel for the parties that I was satisfied an order should be made granting possession of the property to the Plaintiff but would grant a Stay of Execution for two months from the date of delivery of my judgment. This should enable the Second Defendant if she is so inclined to obtain administration of her father’s estate which will then allow her to take proceedings if she wishes against the Administrator of the Plaintiff’s father’s estate. I accordingly make the order sought in the Summons of the 4th of August 2000, grant a Stay of Execution of two months from the date of this judgment and order the Defendants to pay the Plaintiff’s costs of $600.00.

JOHN E. BYRNE
JUDGE