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Prasad v Wati [2011] FJHC 442; HBC315.2010 (12 August 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 315 of 2010

BETWEEN:

KAMTA PRASAD aka KAMPTA PRASAD (f/n Dukhu) previously of 50 Extension Street, Suva but now of Lidcomb, NSW, Australia, Retired as Administrator De Bonis Non of the Estate of DUKHU (f/n Lila).
PLAINTIFF

AND:

SULBHA WATI (f/n Shiu Nath) of 50 Extension Street, Suva, Domestic Duties.
DEFENDANT

BEFORE: MASTER DEEPTHI AMARATUNGA

COUNSELS: Mr Shelvin Singh of PARSHOTAM & CO for the Plaintiff
Ms. Vaurasi L. of SHEKINAH LAW for the Defendant

Date of Hearing: 20th June, 2011
Date of Ruling: 12th August, 2011

RULING

1. INTRODUCTION
   

1. This is an application by the Plaintiff in terms of Section 169 of the Land Transfer Act for the eviction of Defendant. Plaintiff is filing this action as the person who is holding the letters of administration de bonis non of the estate of one Dukhu who is having interest for 1/3 share of the property. The property in issue was owned by Sukhu, Dukhu and Naraini in equal shares, in terms of the Last Will of the said Dukhu, whose name appeared in the title at the time of his death. All the above three were brothers who were engaged in a business and they are all dead and this property is at unadministered state and the Defendant has resided in the said premises for over 30 years, after her marriage to a son of said Sukhu. The Defendant alleges that the building where she resides was built by said late Sukhu who was the father of her late husband. She had considered the premises she lives as her late husband's and other members of the 'extended family' did not object to the said 30 year old possession. Plaintiff, who is residing in overseas, after obtaining letters of administration de bonis non for his father's estate, seeks eviction of Defendant in summary manner in terms of Section 169 of Land Transfer Act and states that he needs to sell the property as the administrator to finalize the administration of property after more than 30 years from the issue of probate in relation to estate of late Dukhu.
   

2. FACTS
   

2. The property in relating to this application is filed is 'owned' by late Dukhu and the Plaintiff is the administrator de bonis non of the estate. The property is equally owned by three brothers Dukhu, Sukhu and Shiu Narain as stated in the Will of Dukhu. The property was purchased by late Dukhu's name but in the last Will stated "I declare that the freehold land together with the buildings thereon at Extension Street, Suva and the boat –building business at Walu Bay together with the Auxillary Ketch "Asha" are in my own name but that the said land buildings and vessel are owned by my brothers Sukhu and Shiu Narain and myself in equal shares.". (emphasis is added)
   
3. It is an indication that the three brothers who were engaged in the boat building business contributed to acquire the said properties through the boat building business or by some other means and, though it was registered in late Dukhu's name.
   
4. The Defendant is the wife of a son of Sukhu named Hari Krishan and has lived on the property from 1975, without any objections from the relatives.
   
5. The Defendant alleges that the concrete portion of the building on the property which she resides in was built by her father in law, namely Sukhu. No details of that have been submitted but there is a mere denial of that fact in the affidavit of reply by the Plaintiff. The Plaintiff does not state as to who built the building where Defendant lives.
   
6. In the affidavit in reply, the paragraph 15 of the affidavit in opposition filed by the Defendant is denied including the existence of boat building business and purchase of the property from profits derived from that business, but it can be deduced from the above quoted paragraph from the Will of the late Dukhu, that Sukhu, Dukhu and Shiu Narain were engaged in boat building business and the said property was also purchased during that time from the profits that derived from that business or all have contributed to said purchase of the property. It is also clear that the Defendant has come to the property after her marriage to Hari Krishan, a son of said Sukhu and had lived in that property from 1975.
   
7. The Defendant and her late husband Hari Krishan have been maintaining the property and they were living and paying for expenses related to the property including rates to city council, with the knowledge of the Plaintiff and alleges equitable estoppel.
   
8. On the 19th of April 2000, the Defendant has lodged a caveat on the Title to protect her 'equitable interests' which has not been removed yet. This was done more than 10 years prior to the institution of this action and so far no attempt was made to remove it, either Plaintiff or another person who is having a beneficial interest in the said property.
   
9. The Defendant together with the intended Administrator for the Estate of Sukhu have filed a Writ in the Suva High Court (138/2011) seeking amongst other orders, an order for the transfer of the property to the three brothers, Dukhu, Sukhu and Shiu Narain in equal shares this case is pending before this court.
   

100. LAW AND ANALYSIS
     

10. 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 persons summoned to which he may be otherwise entitled." The burden is shifted to the Defendant to satisfy the court that she has a right to possession of the land in dispute. In Morris Hedstrom Limited –v- Liaquat Ali CA No: 153/87, the Supreme Court of Fiji described the scope of the said provision.
    
11. In the case of Morris Hedstrom Limited –v- Liaquat Ali CA No: 153/87, the Supreme Court said that:-
    

"Under Section 172 the person summonsed may show cause why he refused to give possession of the land if he proves to the satisfaction of the Judge a right to possession or can establish an arguable defence the application will be dismissed with costs in his favour. The Defendants must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under Section 169 procedure. That is not to say that final or incontrovertible proof of a right to remain in possession must be adduced. What is required is that some tangible evidence establishing a right or supporting an arguable case for such a right must be adduced." (emphasis is mine)

12. In opposition to this application the Defendant states that she has an equitable interest in the said property. In Denny v Jessen [1977] 1 NZLR 635 at 639 Justice White summarized the proprietary estoppel as follows:
    

"In Snell's Principles of Equity (27th ed) 565 it is stated that proprietary estoppel is "... capable of operating positively so far as to confer a right of action". It is "one of the qualifications" to the general rule that a person who spends money on improving the property of another has no claim to reimbursement or to any proprietary interest in the property. In Plaimmer v Wellington City Corporation (1884) 9 App Cas 699; NZPCC 250 it was stated by the Privy Council that "...the equity arising from expenditure on land need not fail merely on the ground that the interest to be secured has not been expressly indicated."(ibid, 713, 29). After referring to the cases, including Ramsden v Dyson [1866] UKLawRpHL 7; (1866) LR 1 HL 129, the opinion of the Privy Council continued, "In fact the court must look at the circumstances in each case to decide in what way the equity can be satisfied" (9 App Cas 699, 714; NZPCC 250, 260). In Chalmers v Pardoe [1963] 1WLR 677; [1963] 3 All ER 552 (PC) a person expending money was held entitled to a charge on the same principle. The principle was again applied by the Court of Appeal in Inwards v Baker [1965] EWCA Civ 4; [1965] 2 QB 29; [1965] 1 All ER 446. There a son had built on land owned by his father who died leaving his estate to others. Lord Denning MR, with whom Danckwerts and Salmon L JJ agreed, said that all that was necessary;

"... is that the licensee should, at the request or with the encouragement of the landlord, have spent the money in expectation of being allowed to stay there. If so, the court will not allow that expectation to be defeated where it would be inequitable so to do."(ibid, 37,449).

The general rule, however, is that "liabilities are not to be forced upon people behind their backs" and four conditions must be satisfied before proprietary estoppel applies.

There must be an expenditure, a mistaken belief, conscious silence on the part of the owner of the land and no bar to the equity ..."Conscious silence" implies knowledge on the part of the defendant that the plaintiff was incurring the expenditure and in the mistaken belief that here was a contract to purchase and that here defendant "stood by" without enlightening the plaintiff. In short the plaintiff must establish fraud or unconscionable behavior. The rule based on the cases cited, is stated in Snell (op cit) 566 as follows:

"Knowledge of the mistake makes it dishonest for him to remain willfully passive in order afterwards to profit by the mistake he might have prevented. The knowledge must accordingly be proved by "strong and congent evidence"

This passage was adopted by Megarry J in Re Vandervell's Trusts (No 2)[1974] Ch 269,301[1974] 1 All ER 47, 74".

13. The above, was quoted in the case of HBC 40 of 2009 in the High Court Fiji at Labasa in the case of Wilfred Thomas Peter V Hira Lal and Farasiko by Justice Anjala Wati and stated:
    

'I must analyse whether the four conditions have been met for the defense of proprietary estoppel to apply. The four conditions are:

1. An expenditure;
   
2. A mistaken belief
   
3. Conscious silence on the part of the owner of the land; and
   
4. No bar to the equity.
   

14. Though the Defendant could not produce any evidence of expenditure on property, the issue of such evidence cannot be determined by affidavit evidence alone. A person who thinks that he owns the property would not keep receipts of expenses on it for over 30 years and in any event the Defendant has come to the property through a marriage and under the circumstances it is understandable that she could not produce any evidence of expenses on the property, which she claimed was done by her father in law, before she came to reside there, 30 years ago. The building where she lives was built before her marriage to late Hari Krishan. She alleges that the concrete building on the property where she lives was built by her father in law, namely late Sukhu. No evidence to contrary was produced except a mere denial, by the Plaintiff. The Plaintiff does not even state who build the concrete structure, for which the Defendant claims. Whether the Plaintiff is unaware or conveniently left that fact open for speculation is not known, but it is clear that Defendant is claiming an equitable remedy and such an important fact should have been described in the answering affidavit.
    
15. It should be noted the said mere denial, had even refused to accept evident fact of the existence of boat building business and three brothers contributing equally to the business and more particularly to the purchase of the property. The Last Will of Dukhu (father of Plaintiff) is explicit on that and he had honestly stated that, though his name appears on the title as the sole proprietor, the property is 'owned' by all three brothers equally. The Plaintiff has not admitted even the said obvious facts and so mere denial may be due to ignorance or for convenience without understanding the object and intention of his father, late Dukhu.
    
16. From the available evidence before me it is likely that the property, in which the Defendant resides, was built by said Sukhu, as she has lived there for more than 30 years without any form of objection from other relatives who had an interest in the property. If someone other than Sukhu, had built the premises she resides then, that person or his beneficiaries would have claimed the property much earlier. It is also clear a property of this nature has to be maintained in order to live in that for more than 30 years and under the circumstances of the case, though the Defendant did not produce any evidence other than her statement, as to any expenditure on the property it can be accepted that substantial expenditure was incurred on the property by the Defendant and her predecessors and specially, late Sukhu.
    
17. It is also clear that there was no dispute from Sukhu or his successors living in the said property, even before the Defendant came to the Property, and any improvement on the property would have been incurred by respective parties on the belief that they owned their respective share on the property. This can be deducible from the conduct of the parties for over 30 years. It is also noteworthy that even the others who had an interest in the said property, did not object to the possession of the property by the Defendant and her husband, as well as said late Sukhu.
    
18. In the case of Australian Conference Association Limited v. Sela HBC 357 of 2005, Judge Coventry in considering equitable estoppels quoted Lord Denning in the case of Inwards and Others v Baker (1965) 1All England 446 at page 448 Lord Denning M. R. stated:
    

It is quite plain from those authorities (cited previously) that, if the owner of land requests another, or indeed allows another, to expend money on the land under an expectation created or encouraged by the landlord that he will be able to remain there, that raises an equity in the licensee such as to enable him to stay. He has a license coupled with equity. Counsel for the plaintiffs urged before us that the license could not stay indefinitely. The principle only applied, he said, when there was an expectation of some precise legal term; but it seems to me, from Plimmer's case (Plimmer v. Wellington Corporation (1884) 9 Appeal Cases 699), in particular, that:

"the equity arising from the expenditure on the land does not fail "merely on the ground that the interest to be secured has not been expressly indicated....the court must look at the circumstances in each case to decide in what way the equity can be satisfied."...

"All that is necessary is that the licensee should, at the request or with the encouragement of the landlord have spent the money in the expectation of being allowed to stay here. If so, the court will not allow the expectation to be defeated where it would be inequitable so to do."

(highlighting is added)

At page 449, Danckwerts L.J. stated:

"It is not necessary, think, to imply a promise. It seems to me that this is one of the cases of an equity created by estoppels, or equitable estoppels as it is sometimes called by which the person who has made the expenditure is induced by the expectation of obtaining protection, and equity protects him so that an injustice may not be perpetrated."

19. The issues of promissory estoppels and equitable estoppels were discussed in the High Court of Australia in the case of Waltons Store (Interstate) Limited v. Maher and Another, 164 C.L.R. p. 387. The head note at p. 388 reads as follows:
    

"Per Brennan J. To establish equitable estoppels it is necessary for a plaintiff to prove that:

1. The plaintiff assumed that a particular legal relationship then existed between him and the defendant or expected that a particular relationship would exist between them and, in a latter case, that the defendant would not be free to withdraw from the expected legal relationship;
   
2. The defendant induced the plaintiff to adopt that assumption or expectation;
   
3. The plaintiff acts or abstains from acting in reliance on the assumption or expectation;
   
4. The defendant knew or intended him to do so;
   
5. The plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled;
   
6. The defendant has failed to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.
   

(high lighting is added and it should be noted that the said case deals with an action seeking proprietary estopple by the Plaintiff against the Defendant's property)

An analysis of this case would prove that all the above mentioned requirements are fulfilled in this case, on the materials available to me at this time, but such matters are best dealt in an appropriate action by way of a Writ, and Section 169 of Land Transfer Act is not suitable to deal under the circumstances of the case.

20. In the case of Nisha v Munif [1999] 45 FLR Justice Shameem considered the issue of equitable trusts as a result of contributions as stated:
    

"The question is whether the effect of her contributions creates a constructive trust in the Plaintiff's favour.

The leading Fiji authority on the creation of equitable trusts in property is Sheila Maharaj v. Jai Chand [1986] 1 AC 898 a decision of the Privy Council reversing the judgment of the Fiji Court of Appeal.

In that case the parties had lived together for twelve years in a de factor relationship. They had one child of their own. The Plaintiff had obtained land from the Housing Authority and had made all contributions for the financing of the home. The Defendant used her earnings to support the family.

The Plaintiff sought vacant possession of the property. The Defendant claimed an equitable trust and estoppels. At page 125 of the Judgment, the Privy Council said:

"The authority was now classic in the speech of Lord Diplock in Gissing v. Gissing [1970] UKHL 3; [1971] AC 886, 902-911, and later reviewed in the judgments of the Court of Appeal in Grant v Edward [1986] EWCA Civ 4; [1986] 2 All ER 426, which concerned an unmarried couple. In such cases a contract or an express trust as at the time of the acquisition may not be established, because of lack of certainty or consideration or non-compliance with statutory requirements of writing; but a constructive trust may be established by an inferred common intention subsequently acted upon by the making of contributions or other action to be detriment of the claimant party. And it has been held that, in the absence of evidence to the contrary, the right inference is that the claimant acted in the belief that she (or he) would have an interest in the house and not merely out of love and affection."

The court held that as a result of the trust the Defendant had the right to continue to live in the house permanently with her children. However, her right was "a personal right not amounting to a property interest diminishing the rights of the plaintiff's lessor and mortgagee."

The application goes beyond an application to acknowledge a right not to be evicted, and a right to possession. This is an application for an order to transfer half share in the property to the Plaintiff."

21. In the case of Bannister v. Bannister [1948] 2 All ER 133, the plaintiff had sold a house at a low price to the defendant on terms that she be permitted to live there rent free so long as she lived. The property was then transferred to the defendant. It was held that the defendant held the property on trust during the life of the plaintiff to allow her to live in it as long as she liked. The Court of Appeal held that in equity a constructive trust existed to prevent a legal owner from defeating a beneficial interest belonging to another.
    
22. In the case of Hussey v Palmer [1972] EWCA Civ 1; [1972] 1 WLR 1286 the plaintiff had paid for an extension to the defendant's home on a promise by the defendant that she could live there as long as she liked. She left and claimed to reimbursement to the value of her contributions.
    

Lord Dennings M.R. and Phillimore LJ held that the defendant held the property upon a constructive trust for the plaintiff of a beneficial interest proportional to the amount of her payment. Lord Denning said of the doctrine of constructive trusts at p. 1290:

"It is a liberal process, founded upon large principles of equity, to be applied in cases where the legal owner cannot conscientiously keep the property for himself along, but ought to allow another to have the property or the benefit of it or a share in it. The trust may raise at the outset when the property is acquired, or later on as the circumstances may require. It is an equitable remedy by which the court can enable an aggrieved party to obtain restitution."

23. In the case of Gissing v. Gissing [1970] UKHL 3; [1971] AC 886 Lord Diplock said at p. 905:
    

"A resulting, implied or constructive trust – and it is unnecessary present purposes to distinguish between three classes of trust – is created by a transaction between the trustee and the cestui que trust with the acquisition by the trustee of a legal estate in land whenever the trustee has so conducted himself that it would be inequitable to allow him to deny to the cestui que trust a beneficial interest in the land acquired. And he will be held so to have conducted himself if by his words or conduct he has induced the cestui trust to act to his own detriment in the reasonable belief that by so acting he was acquiring a beneficial interest in the land."

24. The principle is not confined to interest in the matrimonial home. The court should look for evidence of the common intention of the parties when the property was acquired. A common intention can be construed where both persons contributed to the property in money work and labour (Doohan v Nelson [1973] 2 NSWLR 320).
    
25. The Plaintiff has made a mere denial that there was a common intention for the brothers to reside on the property. However, he has not explained as to how the Defendant has lived in the property, and had not even tried to explain why his father, late Dukhu, in his Will described that the said property was 'owned' by all three brothers and it is also noteworthy that the Plaintiff was not named in the Will as an executor of the said Will and only a brother of Plaintiff, namely Mahesh along with Sukhu and Narain were the executors of the said Last Will of Dukhu. The said brother of the Plaintiff did not evict the Defendant or her predecessors, during his lifetime. The said probate in the names of Sukhu, Narain and Mahesh was obtained in 1973 and Defendant has resided on the property since 1975 and the period of possession, covers a time period during the life of the two brothers of late Dukhu and brother of the Plaintiff who was an executor of the Will of Dukhu. Clearly, even after the demise of all of them, till Plaintiff brought this action there was no attempt to remove the Defendant or her husband, legally. It is also noted that the Plaintiff's interest is subjected to 1/3 share of the property, as per Last Will of the Plaintiff's father, late Duku.
    
26. The issue is subdivision of the property and this has to be done in order to satisfy everybody's interest in the property in an just and equitable manner. These are matters that has to be considered in a proper action by way of a Writ, where the parties have the opportunity of examining witnesses on oath and also subject to discoveries and the issues can be further narrowed down in pre trial conference. The affidavit evidence is grossly inadequate to determine such matters relating to inheritance where the property was subject to improvements over a considerable time, for over a generation as in this case, that would prejudice parties who are before as well as who are not before court, but have an interest in the said property due to inheritance and also due to improvements to the property over the years. It is also noted that such complex matter relating to inheritance of over two generation cannot be ascertained summarily, in an equitable manner as parties have done improvements to the property and the Defendant alleges that her father in law had build the concrete structure where she lives. These has to be ascertained before the property is disposed, and if not done, the equitable rights would be seriously prejudiced. The property cannot be disposed in a summary manner as suggested by the Plaintiff, though that would result in quick administration of the property that was left unadministered for over 30 years.
    
27. It should also be noted, that such quick administration might relinquish the duties of the Plaintiff, if all other properties were administered and if this is the only remaining asset of the estate of Dukhu, that is unadministered, but that should not be a ground to suppress or extinguish the rights of the parties who had accurued equitable rights over the property, specially it is due to inaction and implied consent of the Plaintiff's brother late Mahesh, who was an executor of the said Will.
    
28. The Defendant's evidence shows clearly that her rights are reliant on the common intention of her husband's rights which derived from his father, Sukhu who 'owned' undivided 1/3 share of the property according to the Will of Dukhu. It is to be noted that the said Last Will of Dukhu, do not bequeath the said property to his brothers, instead state that though his name appears on the title the said properties mentioned in the Last Will including the property in question is 'owned' by his two brothers and himself in equal share. The Defendant also submits that there is a constructive trust which evidence needs to be tested upon oral evidence of the witnesses, who are members of an 'extended family' being children of initial 3 owners namely, Sukhu, Dukhu and Narain. The three brothers, namely Sukhu, Dukhu and Shiu Narain are all dead and some of their children are also dead.
    
29. In the case of Sami v Wati HBC [2010] FJHC 279 HBC 35 of 2005 (7 June 2010) Justice Calanchini considered what would constitute a constructive trust:
    

"Where there is no express declaration of a trust, it is necessary to determine whether there existed a common intention of the parties concerning the equitable ownership of the land. In a case such as the present where the legal title was held in the deceased's name alone, the presumption is that the deceased was the sole owner of the equitable interest.

However, that presumption may be rebutted. For instance, if the evidence established that there was an agreement, arrangement or understanding between the Plaintiff and the deceased as to the beneficial ownership of the land, then the Court would give effect to that common intention by means of a constructive trust or by means of proprietary estoppels if the Plaintiff had suffered detriment.

Furthermore in the event that the Plaintiff had contributed to the purchase price of the land and/or to the improvements or any other financial contribution, effect would be given to the common intention of the parties by way of a constructive trust or proprietary estoppels.

Proprietary estoppels enables an equitable interest to be granted to person who has been induced to suffer detriment upon reliance on a representation that the Plaintiff would acquire ownership of the land as a result. Under the remedy the court may award one of a number of rights ranging from freehold title through to merely equitable compensation in money.

A recent development in the law that applies to cases such as the present is an approach based on avoiding unconscionability if the First Defendant were permitted to deny the Plaintiff an equitable interest in the land. This approach looks for an agreement between the parties and then examines the entire course of dealings between the parties. The aim is to reach a fair result and to supply the parties with a common intention if that is necessary. (See Equity and Trusts supra at page 631-631)." (Emphasis is mine)

The said last Will that the Plaintiff relies on has indicated clearly that though the title of the property in question depicts the name of late Dukhu only, it is owned by all three brothers. If late Dukhu wanted to bequeath the property equally, he could have done that by a grant of 2/3 share of the property to two brothers. He did not do that, instead he said in no uncertain terms that those properties 'owned' by all three brothers including himself. So, he limited his interest to 1/3 share, though his name appears as the sole proprietor. Under the circumstances, the said Last Will of Dukhu, along with the subsequent conduct of the parties for over 30 years would be sufficient to create an equitable right to the Defendant to remain in the property in accordance with the above passage from the Judgment of Justice Calanchini in Sami v Wati HBC [2010] FJHC 279 HBC 35 of 2005 (7 June 2010)

30. In Saunaka Land Purchase Cooperative Society Ltd v Ahmad HBC 110 of 2009L Justice Inoke in considering a section 169 where the registered proprietor was the cooperative seeking to evict members children. The court looked at the objective of the Society which was to obtain land for the benefit of its members and held that:
    

"These By laws clearly do not support Counsel's argument that the members have only mere rights to hold shares and no right to possession of their parts of the land. The Defendant's claim for possession has its origins in a founding member. There are issues of whether such a right can pass on to a beneficiary of a member and whether such a right can be transmitted by will or on intestacy under the Succession, Probate and Administration Act [Cap 60]. If such a right to possession can be transmitted to a beneficiary, then the Cooperative itself could be in breach of its own objectives by attempting to evict the Defendant. The Society could also be in a breach of its objects by not proceeding with the subdivision diligently. I think the Defendant has shown more than an arguable case for possession. The application therefore fails."

31. In the case of Director of Lands v BW Holdings Ltd [1991] FJHC 44; HBC 0251j.91s (23 July 1991) Judge Byrne when considering section 169 stated
    

"I accept as clear law that a lessor may bring an action for eviction if a term of the lease under which a tenant holds possession has expired. This is an obvious effect of Section 169(c). It was also stated by the Court of Appeal in C.A. No. 16 of 1983, Ram Narayan v Moti Ram affirming what the Court had earlier said in 1974 in Vallabh Das Premji v Vinod Lal and Others C.A. No. 70 of 1970 (unreported) that if the proceedings involve consideration of complicated facts or serious issues of law, the Court will not decide them on summary proceedings of this nature, but will dismiss the summons without prejudice to the Plaintiff's right to institute proceedings by Writ of Summons."

(emphasis is added)

4. CONCLUSION
   

32. It is clear that the Defendant had been on the said property for over 30 years and has come to the property upon the marriage of a son of late Sukhu . The property is unadministered though all 3 brothers, namely Dukhu, Sukhu and Narain had expired long time ago. There is clear evidence that late Sukhu as well as his late son Hari Krishan had lived on the said property, under the premise that it is theirs and had done improvemets on that. Not only during the lifetime of Dukhu and Sukhu but even during the lifetime of the late son of Sukhu, Hari Krishan, the property in question was used as a residential premises and late Sukhu and his successors had enjoyed the property, without any objection from the other relatives, who had undivided interest on the whole of the property including the premises in question. The defendant has instituted an action by way of a writ to transfer the property in equal shares to estates of late brothers, namely Sukhu, Dukhu and Narain. This is a complicated issue that needs to be resolved through an action of Writ, as it involves subdivision of property, where the beneficiaries of estate have substantially improved the property in common, without physical subdivision of the property, but has done it on an amicable manner, without any objection from others. It was possible because each one understood the other and had respected each others needs; the only objection seems to be from the Plaintiff, who is residing abroad who had obtained the letters of administration de bonis non for the estate of the late Dukhu after the demise of all three named executors of the Will of Dukhu. It is obvious that the amicable and peaceful possession of the property cannot exist any more, but it cannot be dissolved in a summary way, as suggested by the Plaintiff by a quick eviction of Defendant and sale of the property, as each party has to obtain their share of the property in an equitable way and that can only be done through a Writ action, where each of the parties can claim their share on the property, after adducing evidence on behalf of their interest. It should also be noted that considering the circumstances of the case there may be other factors that needs to consider more than the pure monetary factor of the property, depending on the beneficiaries of the three estates of late Dukhu, Sukhu and Narain and considering the circumstances of the case there might be parties who value this property more because of its sentimental appeal to the 'extended family' and may prefer to keep the property within the 'extended family'. The Defendant has establish a clear proprietory estoppel over the property in issue and there are serious issues to be tried in an action through a Writ and Defendant has already instituted the action High Court Action138 of 2011 in this court. The Section 169 of Land Transfer Act is not a suitable method for such as 'proceedings involve consideration of complicated facts or serious issues of law' and this application of the plaintiff is dismissed, and having considered the circumstances I do not venture to grant any cost.
    

The Court Orders as follows:

1. The originating summons issued on 4th November, 2010 for vacant possession is dismissed;
   
2. No cost is awarded.
   

Dated at Suva this 12th day of August 2011.

Mr D. Amaratunga
Acting Master of the High Court
Suva