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Patorno v Ram [2013] FJHC 497; HBC254.2012 (24 September 2013)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
DISTRICT REGISTRY

HBC No. 254 OF 2012

IN THE MATTER of SECTION 169 of the LAND TRANSFER ACT (Cap 131).

BETWEEN:

RUKMANI PATORNO the sole Executrix and Trustee in the Estate of Dor Swamy of 7 Tynan Street, Western Preston, Victoria 3072, Australia.
Plaintiff

AND:

JAI RAM aka Manoj of Malolo, Nadi.
Defendant

RULING

INTRODUCTION

[1]. Before me is a summons filed by Rukmani Patorno (Patorno) against Jai Ram (Patorno's brother), pursuant to section 169 of the Land Transfer Act (Cap 131). The summons requires Ram to show cause why he should not give up immediate vacant possession of Crown Lease No. 6862 being Lot 8 on Plan No. ND 5133 and Lot 34 on ND 5184 and known as part of Nacaqara And Navo (formerly part of CT 11913) (Farm 2553) ("property"). Constructed on the property is a 5-bedroom dwelling house.

[2]. The property once belonged to one Dor Swami (deceased), the late father of the plaintiff and the defendant. The plaintiff and the defendant have one other sibling namely Vishwa Nadan who is mute and, allegedly[1], suffers some mental incapacity, which I note, is yet undiagnosed. Patorno neither confirms nor denies these allegations. Nadan lives on the property with Ram and Ram's family.

[3]. Patorno lives abroad in Australia. She is the executrix and trustee of the Dor Swami estate. By Transmission By Death, the property was transferred to Patorno in May 2005 in her capacity as executrix and trustee.

[4]. It is common ground between the parties that the defendant is not a beneficiary of the Dor Sami estate. The sole beneficiary of the estate is Vishwa Nadan.

THE LAW

[5]. Section 169 of the Land Transfer Act states 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 of the land;

(b) a lessor with power to re-enter where the lessee or tenant is in arrear for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;

(c) a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.

[6]. Patorno qualifies under the first limb. A copy of the lease is annexed to her affidavit confirming the same. The onus then shifts to Ram to show cause as to why an Order for vacant possession should not be granted against him (see section 172 of the Land Transfer Act). To discharge that burden, Ram must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under section 169. This does not mean that he has to prove conclusively a right to remain in possession. Rather, it is enough that he shows some tangible evidence establishing a right or at least supporting an arguable case for such a right (see Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at p2).

DEFENDANT'S CASE

[7]. Ram says he has been living on the property at Patorno's request. Patorno says whatever licence she gave Ram, she is now revoking. She has given Ram a notice of her intention to proceed with the distribution and has asked him to vacate the property but to no avail.

[8]. Ram's case is premised on the following:

• (i) he has been living on that property since birth. He has always helped his father cultivate the farm. He raised his family on that farm. He has no other place to go as this has been his home all his life and he is saddened that his own siblings are removing him from the only place he calls home.
  
• (ii) he was looking after Vishwa Nadan because Patorno, has neglected her duties as trustee. Dor Sami died some eight years ago and the estate is still left unadministered. She cannot fully discharge her duties as she has always lived abroad.
  
• (iii) Patorno has sub let a portion of the said land to one Thangavellu, a vegetable farmer who is not fully utilising the land. That subletting arrangement was done without the consent of the Director of Land.
  
• (iv) their father passed away in 2005 and Ram has continued to cultivate the land until 2011 when Patorno laid claim to it. At that time he was cultivating the land, there was a high sugarcane yield. That however has since declined because no one is fully utilising the land (except for the small portion on which Thangavellu is farming vegetables).
  
• (v) there were no further written or verbal requests made to him to vacate the house except for the Notice to Vacate dated 12 October 2012.
  

OBSERVATIONS

[9]. Whilst the wrangle between Patorno and Ram continues, the innocent third party who is caught in the middle and who appears to be oblivious to all is Vishwa Nadan.

[10]. Nadan is alleged to be both mute and of unsound mind. If that is true, his disabilities put him in a very delicate position. He will obviously need constant care and attention. Patorno resides abroad. Ram has always resided with Nadan in Fiji on the property. Obviously, Ram and his family have been taking care of Nadan all this time.

[11]. While I am cognizant of the fact that Ram is not a beneficiary of the Dor Swami estate, and therefore, has no prima facie right to remain on the property, it is easy to speculate that any Order to evict Ram now would have an immediate disruptive and catastrophic effect on Nadan.

[12]. This is not to say that Ram has a right to remain in possession. This is simply to say that, in the absence of any evidence of a satisfactory alternative arrangement as to how Vishwa Nandan will be looked after and catered for in Ram's absence, Ram should remain in possession, if only for Vishwa Nadan's sake.

[13]. In my view, the proper course for Patorno is to come by way of an Originating Summons to seek eviction Orders whilst also addressing the provisions of the Mental Treatment Decree 2010.

MENTAL TREATMENT DECREE 2010

[14]. Patorno is the executrix/trustee of the estate of Dor Swami. In that capacity, she may also be the person to manage the estate and affairs of Vishwa Nadan. The difficulty in making that assumption in this case is that Patorno has resided in Australia all this time and, allegedly, neglected Vishwa Nadan whereas Ram has remained in Fiji and, allegedly, looked after Vishwa Nadan. If all that were true, and without being pre-emptive, Ram may be entitled to apply to court under Part 10 of the Decree to seek appointment as manager to manage the estate and affairs of a person with an unsound mind (Vishwa Nadan) and obtain a Management Order, albeit temporary, until I am satisfied that Vishwa Nadan's affairs are protected. The short point is, for Vishwa's sake, I am not prepared to grant Order in Terms yet. The onus is on Patorno.

CONCLUSION

6. I dismiss the summons. Parties to bear their own costs.
   

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Anare Tuilevuka
JUDGE
24 September 2013.

^[1] The defendant swears by affidavit that Vishwa “suffers from mental incapacity”.