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Devi v Chand [2011] FJHC 412; HBC163.2009L (1 August 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 163 of 2009L

BETWEEN:

SUMAN SHALINI DEVI
Plaintiff

AND:

MUL CHAND
Defendant

FINAL JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr H A Shah (Plaintiff)
Mr I Khan (Defendant)

Solicitors: Haroon Ali Shah Esq (Plaintiff)
Iqbal Khan & Assocs (Defendant)

Dates of Hearing: 1 July 2011

Date of Judgment: 1 August 2011

INTRODUCTION

[1] This judgment is for the distribution of the proceeds from the sale of a Housing Authority lease. The plaintiff is the daughter in law of the defendant. The parties agree that the proceeds are to be distributed equally but do not agree as to whether the expenses on the property should be deducted from the proceeds first before distribution.

THE BACKGROUND FACTS

[2] The plaintiff is the sole administratrix of the estate of her late husband, Pradeep Chand. Pradeep Chand is the son of the defendant. The property in question, Housing Authority lease No 181198, was first registered in the father's name on 15 December 1980. The property was under mortgage to the Housing Authority which mortgage has now been discharged, the date on which that was done is not clear from the documents. On 15 June 1994, the son became registered as proprietor with his father as tenants in common in equal shares. On 16 October 1998, the property was mortgaged to the National Bank of Fiji which later became the Colonial National Bank. On 27 February 2009, the plaintiff became registered as the administratrix of the son's, her husband's, half share.

[3] She says in her affidavit in support of her application, sworn on 2 September 2009, that differences have arisen between her and her father in law as to the management of the property. According to her and the documents annexed to her affidavit, her late husband withdrew $5,348 from his FNPF monies on 22 March 1995 to pay off Housing Authority to avoid the property going on mortgagee sale. She also says that her late husband made repayments between 1997 and 2004 amounting to about $47,000 and she made repayments herself between 2005 and 2009 amounting to about $29,000. She says her father in law has not made any repayments towards the mortgage and she is still paying off the debt to the Colonial National Bank of $34,717.33. She has arranged for a buyer to buy the property for $110,000 but her father in law refuses to sign the contract.

[4] Her father in law in reply by his affidavit sworn on 21 October 2209, admits that the plaintiff lived on the property and that differences have arisen between them. He also admits that his son made those repayments but says that it was pursuant to an agreement between them for his son to pay off the mortgage to offset the price for his half share and the cost of his house on the land worth $30,000 which was dismantled to enable his son to build a new house on the land. He also says he was not aware of the repayments made by his daughter in law and that she chased him and his wife from the property and they have not been living on it for two years.

[5] His daughter in law says her father in law's house was only a lean to worth no more than $5,000 and that he transferred a half share to his son because he could not keep up with the mortgage repayment.

CASE HISTORY

[6] The plaintiff filed her originating summons on 8 September 2009. The application came before Master Tuilevuka on 9 October 2009 who gave directions for the filing of affidavits in reply and response. Five further appearances followed before the Master and I until the matter was set down on 11 December 2009 for hearing on 12 April 2010. The hearing did not take place because counsel for the defendant was overseas. Further mentions followed until 20 July 2010 when the parties by consent agreed that the property was to be sold privately at the highest price and the proceeds of sale were to be deposited in the plaintiff's solicitor's trust account and not to be released until ordered by the Court. Five further mentions followed without the matter progressing further. On 7 February 2011, the defendant filed an application for orders by consent that the matter had been settled, the property had been sold (for $100,000) and the proceeds of sale be distributed after repayment of the mortgage on 50/50 basis. On 16 March 2011, the defendant filed an application for orders that the plaintiff's solicitors provide details of the moneys paid to the Bank and the Lautoka city council from the sale proceeds, or, alternatively, the balance of the sale price be deposited into Court until final determination of this matter. The defendant later filed an amended application on 12 April 2011 for orders that the monies be paid into an interest bearing account and the plaintiff provide security for costs as she now lives in New Zealand having migrated there since issuing these proceedings.

THE APPLICATION NOW FOR DECISION

[7] Both applications were eventually set down for hearing on 1 July 2011. Although the property had been sold, the plaintiff wanted more for her share because she says she had paid off all the monies on the property. The parties had reached another impasse so both counsel asked that I decide how much each of them should get. This is my decision.

HOW MUCH EACH PARTY TO GET?

[8] The defendant first owned the property solely. It was under mortgage to the Housing Authority. It is not disputed that the agreement between the father (defendant) and his son was for the son to pay his father for his half share by paying off that mortgage. The agreement binds the son's executrix, the plaintiff. Whatever repayments the son and the plaintiff made towards the mortgage were in fulfilment of their obligations under that agreement. It is not clear when the Housing Authority mortgage was paid off and the circumstances under which the second mortgage came to be given although counsel for the defendant submitted that it was given to secure money borrowed solely for the plaintiff's and her husband's business. I am inclined to believe it because the defendant is a retired elderly labourer. She occupied the property after her husband's death as if her husband owned the property solely and without compensating her father in law for his half share of the property. She should be solely responsible for the outgoings on the property during the period of her occupation. I therefore find that the defendant is entitled to 50% of the sale proceeds without deduction for all mortgage repayments or payments to the Lautoka city council or any other outgoings on the property, that is to say, the defendant is entitled to $50,000.

COSTS

[9] I think the normal rule should apply and therefore order that the plaintiff pays the defendant's costs of $1,000. Those costs are to be paid out of the sale proceeds now held in her solicitor's trust account.

ORDERS

[10] The orders are therefore as follows:

• (a) The plaintiff shall pay to the defendant the sum of $50,000.
  
• (b) The plaintiff shall pay to the defendant his costs of $1,000.
  
• (c) The payments ordered in paragraphs (a) and (b) are to be made out of the proceeds of sale of HA lease No 181198 currently held in the trust account of the solicitors for the plaintiff within 7 days.
  

Sosefo Inoke
Judge