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Bhan v Bhan [2011] FJHC 184; HBC243.2009 (23 March 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CASE NUMBER: HBC 243 OF 2009

BETWEEN:

SURUJ BHAN
PLAINITFF

AND:

RAJNESH ASISH BHAN
DEFENDANT

Appearances: Mr. S. Valenitabua for the Plaintiff.
Mr. Ronal Singh for the Defendant.

Date / Place of Judgment: Wednesday, 23rd March, 2011 at Suva.
Judgment of: The Hon. Justice Anjala Wati.

JUDGMENT

____________________________
LAND TRANSFER ACT, CAP. 131 –application under s. 169 of the Land Transfer Act for defendant to show cause why an order for immediate vacant possession should not be made against him – right of one registered proprietor holding the property as tenant in common to use s. 169 procedure- right of beneficial owner to stay and live on property discussed-application for vacant possession dismissed with no order as to costs.
_____________________________________
Legislation
Land Transfer Act, Cap. 131.
____________________________
Cases Referred To
Capital and Counties Bank v Boulter [1922] 1 Ch 75.
In Re Johnston, Morgan v. McCaughey and Others [1986] NI 229.
Central Rentals Limited v. Patton & Storck Limited - Supreme Court Civil Appeal No. CBV 0004 of 2008.

Case Background

1. This action is between the father and the son. A family dispute led the son to assault his father which gave rise to this action for vacant possession by the father against his son.
   
2. The action was brought by a summons filed on the 6th day of August, 2009 with a supporting affidavit. The subject land is comprised in Certificate of Title No. 26463 and described as Lot 6 on Deposited Plan No. 6587 together with the dwelling house thereon.
   
3. The application is opposed by the defendant, who filed an affidavit in opposition on the 16th day of September, 2009.
   

The Grounds in Support

4. The plaintiffs affidavit in support outlines the following grounds:-
   
   1. The plaintiff is the registered proprietor of the subject land. The plaintiff attached to the affidavit, the title of the said land which clearly shows that the plaintiff is the registered proprietor of undivided one - third share in the property. One of the plaintiffs other son who does not feature in the dispute is also a co-owner of undivided one-third share in the property. The defendant is also a beneficial owner in the property but his share is held on trust by his father pursuant to a deed of trust.
      
   2. The defendant is not yet registered as the co-owner of the property. His son, the defendant, brutally assaulted him on the 01st day of May, 2009. He reported the matter to the police. The defendant was charged with assault and was convicted and sentenced to two months imprisonment.
      
   100. The plaintiff had purchased the property and had included the two sons as co-owners of the property. He was to hold the property on trust for the defendant but now that he has turned against him and assaulted him, he does not want the defendant to remain in the property or be a co-owner any longer.
        
   4. A notice to quit was prepared and served on the defendant in prison and on the defendant's wife who occupied the property when the defendant was in prison.
      
   5. Despite the service of the notice, the defendant's wife continues to occupy the property.
      

The Grounds in Opposition

5. The defendant states the following through his affidavit:-
   
   1. His father held the property in trust for him as he was a minor at the time and now he has attained the age of 21 and so he is entitled to stay and live on the property.
      
   2. He is not in prison and the assault was provoked by his father when he entered his bedroom without knocking at the door in an attempt to embarrass the couple.
      

The Grounds in Reply to Opposition.

6. The plaintiff responded as follows:-
   
   1. He bought the property without any financial assistance from his sons. He bought the property in $27,000 when the defendant was still attending school. He cared for his children and so he registered one of them as co-owner of the property. The defendant son was under the age of 21 and so a deed of trust was created whereby it was agreed that he as the father would hold the property in trust for the defendant son until the son attained the age of 21. The defendant is 21 years of age but now the plaintiff wants the deed of trust to be set aside.
      
   2. He lived on the property form 1999 until the 01st day of May, 2008 when the defendant assaulted him. He got injured and had to move out of the subject property. The defendant would not allow him to live in the property.
      
   100. The defendant was in prison when the application was filed.
        

The Submissions

7. Counsel for the plaintiff repeated the contents of the affidavit and added that the deed of trust must be set aside as there is a rift between the father and the son and it would be contrary to public policy to allow the deed to stand. In support of his submission, the plaintiff's counsel relied on the cases of Capital and Counties Bank v Boulter [1922] 1 Ch 75 and In Re Johnston, Morgan v. McCaughey and Others [1986] NI 229.
   
8. The defendants counsel submitted that the application is flawed in that the application should have been brought by all registered proprietors and not just one person who holds a one-third share in the property.
   
9. The defendants counsel also submitted that the defendant is the beneficial owner of the property with rights of possession and occupation. The right was created by a deed of trust. The deed of trust had no conditions attached to it, breach of which could result in setting aside of the same. Under the deed what ought to have been done has not been done. It was the obligation of the father to transfer the property to the defendant upon the defendant attaining the age of 21 years. The plaintiff has failed in its obligation and cannot have the deed of trust set aside as there are no pre-conditions in the deed that the son has or had an obligation to look after the father and that upon fulfilment of the condition will the land be transferred to the defendant. The only condition that was attached was that the land would be transferred upon the defendant attaining the age of 21 and that condition has been established. The defendant now can make an application for vesting order against the plaintiff pursuant to the Trustee Act.
   
10. It was also argued by the defendants counsel that s. 169 procedure can only be used to bring an action for ejectment for non payment of rent and the defendants counsel relied on the case of Central Rentals Limited v. Patton & Storck Limited - Supreme Court Civil Appeal No. CBV 0004 of 2008.
    

The Issues, the Law and the Determination

11. The first issue that has to be decided is the right of the plaintiff to bring the action under s. 169 of the Land Transfer Act. S. 169 reads as follows:-
    

"The following persons may summon any person in possession of land to appear before a judge in chambers to show cause why the person summoned should not give up possession to the applicant:-

(a) The last registered proprietor;

(b) ...;

(c) ...."

12. The plaintiff is holding a one third undivided share in the property. The instrument of title does not state whether the property is held as tenants in common or as join tenants and in absence of any such stipulation, the law by s. 34(1) of the Land Transfer Act Cap. 131 provides that the property is held by the co-owners as tenants in common.
    
13. As a tenant in common, the plaintiff has a right to bring the action solely and I cannot see how he would be barred under s. 169 to bring an action for vacant possession. The plaintiff does not need to have the consent of the co-owner to bring the current proceedings nor does he need the co-owner to sue jointly. This simply is not logical because there are instances where an action for trespass, waste of land, nuisance, possession, partition, vesting order and likewise can be maintained against a co-owner. Would that mean that a co-owner who is to be sued needs to grant his consent to bring the proceedings? I answer that in the negative.
    
14. The next issue is whether the defendant has shown cause why he refuses to give vacant possession pursuant to s. 172 of the Land Transfer Act.
    
15. Section 172 of the Land Transfer Act states that " if a person summoned appears he may show cause why he refuses to give possession of such land and, if he proves to the satisfaction of the judge a right to the possession of the land, the judge shall dismiss the summons with costs against the proprietor,... and he may make any order and impose any terms he may think fit: provided that the dismissal of the summons shall not prejudice the right of the plaintiff to take any other proceedings against the person summoned to which he may be otherwise entitled:..."
    
16. The defendant is the beneficial owner of the property and he is entitled to be in possession and occupy the same. He further has the right to apply to the court for him to be made the co-owner of the property as well as he has attained the condition in the deed of trust that entitles him to become the owner.
    
17. I have been asked to set aside the deed of trust pursuant to which the defendant currently enjoys the beneficial interest in the property and pursuant to which he may exercise his rights to become the legal owner of the property. The grounds on which I have been asked to set aside the deed is also very interesting, which is a failure by beneficiary to comply with a condition in the deed. I have not been shown the condition which has been breached, but, in any event, I am alarmed that an order is sought for setting aside of the deed. This summary proceeding is not meant to set aside a deed of trust nor to impeach the title on any grounds. This is not the forum where such a crucial exercise is ever undertaken. It is to be used in plain and obvious cases where the defendant has no right to occupy the property. I am left to ponder how the plaintiff's counsel is such oblivious on the scope of a summary procedure of this kind.
    
18. The deed of trust currently is valid and operational in favour of the defendant as to his rights of ownership and beneficial interest, and as such I am of the opinion that the defendant has shown cause as to why he should occupy the property. The plaintiff has to choose a proper procedure for setting aside the deed of trust and an action for possession. It is not difficult to see that controversial issues would arise if such an action is filed and as such, a section 169 procedure is not an option at all.
    
19. The plaintiff has cited two cases to me and they are Capital and Counties Bank v Boulter [1922] 1 Ch 75 and In Re Johnston, Morgan v. McCaughey and Others [1986] NI 229.None of the cases are applicable as they hinge on construction of wills and the validity of the conditions in the will. These cases have no bearing on the summary action for vacant possession nor are the principles in any way applicable.
    
20. The defendants counsel used the case of Central Rentals Limited v. Patton & Storck Limited - Supreme Court Civil Appeal No. CBV 0004 of 2008. The court had said at paragraph 12 that the action for ejectment could not be brought under s. 169 except for non payment of rent. The defendants counsel has chosen not to read the case in its entire context. The entire case was about a lease between the parties and clause 12 was confining to cases where there existed a lease between the parties. I am not prepared and I will not hold that the case cited lays down or confines s.169 applications to be only applicable for actions for ejectment for non payment of rent.
    
21. For the above reasons I find that the defendant has shown cause why he should not give vacant possession to the plaintiff.
    
22. On the issue of costs, I do not intend to punish the plaintiff has he is amidst a family dispute, living out of the property and seeking relief for a shelter. He is an old aged man and he is currently not even living on the property. An order for costs is going to burden him more.
    
23. The defendant, in my view, will not suffer if an order for cost is not made in favour of him as the application did not require much paper and court work. The defendant, further, is occupying the property with no costs charged for accommodation when his father has no place to live and has had to find an alternative accommodation. The interest of justice will not be served by burdening the plaintiff financially. This is a case where an order for each party to bear its own costs will be justified.
    

Final Orders

24. The application for immediate vacant possession under s. 169 of the Land Transfer Act Cap. 131 against the defendant is dismissed.
    
25. Each party to bear its own costs.
    
26. Orders Accordingly.
    

Anjala Wati
Judge

23rd March, 2011
At Suva.

To:

1. Mr. S. Bhan, the plaintiff.
2. Mr. Ronal Singh for the defendant.
3. File: HBC 243 of 2009.