IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. 64 Of 2005

BETWEEN:

RAM KRISHNA & LATCHMANIYA NAIDU
both sons of Enkatesu of Nuku Estate "Waimotu" Natawa Bay, Vanua Levu.
1st PLAINTIFF

VENKTAIYA NAIDU  as executor by virtue of chain of executorship entitling him to bring this action for and on behalf of the estate of Kumaraiya also known as Ram Chetty Kumaraiya
2nd PLAINTIFF

NARSAIYA as the executor and trustee in the estate of Meraiya aka Meraiya Naidu aka Nagaiya of Wailevu, Labasa, now residing in Australia.
3rd PLAINTIFF

RAM KRISHNA NAIDU & RAM DULARI as executor and trustees under the will of Enkadeo also known as Yenkatesh Naidu also known as Enkatesu.
4th PLAINTIFF

AND:

ANTHONY ELWYN HARCOURT SMITH of Narewa Estate, Vanua Levu, Fiji, as the purported trustee in the estate of Frank Harcourt Smith, late of Nuku Estate, Natewa Bay, Vanua Levu, retired planter, deceased.
1st DEFENDANT

ANTHONY ELWYN HARCOURT SMITH of Avalon Beach, Sydney, Australia.
2nd DEFENDANT

COOPER & LYBRAND, Chartered Accountants (as receivers for Burns Philip Trust Company Ltd), Pacific House, Butt Street, Suva, in the estate of Frank Harcourt Smith late of Nuku Estate, Natewa Bay, Vanua Levu, retired planter, Deceased.
3rd DEFENDANT

REGISTRAR OF TITLES
4th DEFENDANT

Appearance: Mr. Amrit Sen of Maqboll & Company for the Plaintiff
Mr. Haniff with Mr. R. Singh of Howards Lawyers for the 1st and 2nd Defendants
Mr. J. Mainavolau for the 4th Defendant

Date of Judgment:	23/05/2014	

JUDGMENT

1.	The writ of summons was filed by the 1st to 4th Plaintiffs and sought the following declarations and the damages.

1.	Declaration that Transfer CT No. 3958 infavour of the 2nd Defendant is false unlawful and or fraudulent.
2.	Declaration that the Plaintiffs are entitled to purchase and have the property comprised in CT No. 3958 transferred or vested to them.
3.	Specific performance of clause in the will of Frank Harcourt Smith.
4.	General damages.
5.	Costs.
6.	Paintive damages.
7.	ALTERNATIVELY a declaration that the Plaintiffs are enlisted to have the property comprised in CT No. 3958 and to have a title issued to them by virtue of adverse possession.
8.	Such other and further relief as this Court deem just and expedient.

BACK GROUND

2.	This is a case where the plaintiffs are claiming their rights under a last will and codicil of late Frank Harcourt Smith pertaining to Certificate of Title No. 3598.

2.1	The main issue is pertaining to the last will executed by the deceased Frank Harcourt Smith which states:

THIS IS THE LAST WILL AND TESTAMENT of me FRANK HARCOURT SMITH of Nuku in Natewa Bay in the Island of Vanualevu in the Colony of Fiji, Planter.

1.	I REVOKE all wills and testamentary dispositions at any time heretofore made by me. 

2.	I APPOINT BURNS PHILLIP TRUST COMPANY LIMITED of Bridge Street in Sydney in New South Wales to be sole executor and trustee of this will.

3.	I GIVE AND BEQUEATH to my adopted son ANTHONY ALWYN SMITH m small unglassed revolving bookcase and my Westminster Chimes clock of semi-circular design absolutely

4.	I GVIE AND BEQUEATH my antique china cabinet to the eldest daughter living at the time of my death of Doctor E. Clifton Smith of Pastoral Chambers in Inverell in the State of New South Wales aforesaid absolutely.

5.	I GIVE DEVISE AND BEQUEATH all the rest residue and remainder of my property both real and personal of whatsoever nature and kind and wheresoever situate unto my trustee UPON TRUST to sell call in and convert into money all such parts thereof as shall not consist of read money AND after paying thereout all my just debts and funeral and testamentary expenses and all duties estate succession or otherwise payable in respect of my dutiable estate and every part thereof TO INVEST the net residue of my estate (hereinafter referred to as "my residuary estate") and to stand possessed thereof and of the investments representing the same UPON the following trusts that is to say:-

a.	TO PAY the whole of the next income from my residuary estate to the said ANTHONY ALWYN SMITH during his life.

b.	DURING the period of twenty-one years after the death of the said Anthony Alwyn Smith TO PAY the whole of the net income from my residuary estate to the widow of my said adopted son for so long during such period as she shall live AND if she shall fail to survive such period or if my said adopted son shall leave no widow him surviving then TO PAY the whole of the said net income to the child or children of my said adopted son who shall be living during such period and if more than one in equal shares.

c.	UPON the expiration of the said period of twenty-one years of upon the termination of the trusts provided in the preceding paragraphs (a) and (b) of this Clause 5 whichever shall first occur TO PAY the whole of my residuary estate to such charitable body or bodies or institutions having for its or their purposes the welfare of crippled children and aged destitute persons or wither or both of these purposes as my trustee shall in its absolute discretion decided to be used for the aforesaid purpose that the receipt of the secretary, treasurer or other proper officer of any such body or institution shall be a full and sufficient discharge to my trustee for any such payment nor shall my trustee be bound to see to the application thereof. 
6.	I DECLARE that I make no provision for my wife in this my will for the reason that she totally described me on or about the 15th day of March 1953.

7.	I DIRECT that my trustee shall when selling my plantation at Nuku aforesaid give to the present lessees thereof namely Kumaraiya, Enkatesu and Nagaiya also known as Meraiya or the survivors or survivor of them the first option of buying the same including all chattels upon and about the property and not hereinbefore specifically bequeathed as a going concern for the price of £9,000.00 (Nine thousand pounds).

8.	I EMPOWER my trustee notwithstanding the trust for sale hereinbefore contained to carry on either alone or in partnership with any person or persons whomsoever whether persons with whom I may be in partnership at the date of my death or otherwise any business in which I may at that date be engaged for so long as my trustee in its absolute discretion think fit to employ or concur in employing such persons at such remuneration and generally upon such terms as my trustee shall think fit to employ therein such part of the capital of my residuary estate whether employed therein at the date of my death or not as my trustee shall think advisable to determine what part of the profits of such business shall be deemed income and what capital and generally to act in all respects in relation to such business or my partnership share therein as if my trustee were the absolute owner thereof AND I DECLARE that my trustee shall not be liable for any loss occasioned by carrying on the said business under the power herein contained. 

9.	I EMPOWER my trustee in the execution of the trusts of this my will in addition to all other powers vested in it by law or otherwise to do all or any of the following acts:- 

Transacting any legal business arising in the said Colony upon the administration of the trusts thereof.

IN WITNESS whereof I have hereunto subscribed my name this 24the day of July One thousand nine hundred and sixty.

(Signed: Frank Smith)"

SIGNED by the Testator the said FRANK HARCOURT SMITH as and for his last will and testament in the presence of us both present at the same time who at his request in his sight and presence and in the sight and presence of each other have hereunto subscribed our names as attesting witnesses:

Witness (Signed)	(Signed: Frank Smith)"	

2.2	Burns Phillip Trust Company was appointed as the Sole Executor and the Trustee of the will, on the death of Frank Harcourt Smith.

2.3	Clause 7 of the will was revoked and the following Clause was substituted by codicil which states: 

THIS IS A FIRST CODICIL to the last will and testament of me FRANK HARCOURT SMITH of Nuku Estate in Natewa Bay in the Island of Vanualevu in the Colony of Fiji Planter which will bears date the twenty-fourth day of July One thousand nine hundred and sixty.
a.	I REVOKE Clause 7 of my said will and direct that the following shall be substituted therefore: 

"7. DIRECT that my trustee shall when selling my plantation at Nuku aforesaid give to the present lessees thereof namely Kumaraiya, Enkatsu and Nagaiya also known as Meraiya or the survivors or survivor of them the first option of buying the same including all chattels for the price of £9,000.00 (Nine thousand pounds) payable without interest by consecutive monthly payments of £40.00 (Forty pounds) each the first such payment falling due one month after the date of my death they being at liberty to increase each or any such payment if they so wish."

b.	I CONFIRM my said will in all other respects.

I WITNESS whereof I have hereunto subscribed my name this 27th day of June One thousand nine hundred and sixty seven.

(Signed: Frank smith)

SIGNED by the Testator the said FRANK HARCOURT SMITH as and for a first codicil to his last will and testament in the presence of us both present at the same time who at his request in his sight and presence and in the sight and presence of each other have hereunto subscribed our names as a attesting witnesses.

Signed: (Witnesses)	Signed: 	

2.4	The Plaintiffs' alleged that the 3rd Defendant with knowledge and notice of the Plaintiff's rights and entitlements under the will of Frank Harcourt Smith allowed the 2nd Defendant to be appointed as the purported executor and trustee in the said estate of the deceased without administering the said estate in accordance with the terms of the will of the deceased with intention to destroy and/or deprive the plaintiffs right and entitlements.

2.5	The 1st and 2nd Defendants had raised an issue stating that whether 2nd and 3rd Plaintiffs lack locus standi to bring this action and further submitted they do not have any reasonable cause of action to sue the Defendants. In reply to this the Plaintiffs submitted that:

2.5.1	The Plaintiffs' capacities were not challenged by the Defendants in the pleadings and not form part of the issues at the pre trial conference.

2.5.2	Citing order 18 Rule 7 of the High Court Rules it was submitted that a party must plead all grounds of defence or reply that show the opponent's case is not maintainable which might take the other party by surprise.

2.5.3	In the case of Shankar v. Fiji Foods Limited Civil Appeal No. 113/85 (unreported decided on 14 November 1986) Roper JA stated:

"This rule enforces one of the Cardinal principles of pleadings namely, that every defence of reply must plead specifically any matter which makes the claim in preceding pleading not maintainable or which might take the opposite party by surprise, or raise issues of fact not arising out to the preceding pleading. The effect of the said rule Buckley LJ in Re Robinsons Settlement, Grand v. Hobbs (1912) ICH717 at 728 is for reasons of practice and justice and convenience to require the party to tell his opponent what he is coming to court prove" 

2.5.4	The Plaintiff' counsel also submitted the 2nd Defendant is attempting to introduce new issues which was not raised in the original pleadings contrary to the provisions of the High Court Rules 1988 Order 18 rule 9(1) which states:

"9 – (1) A party shall not in any pleading make allegation of fact or raise any new ground or claim, inconsistence with previous pleading of his."

2.5.5	As submitted by the Plaintiffs' counsel the issue of locus standi was not raised by the Defendants at any stage of these proceedings, in the pleadings or at the pre trial conference or when the 2nd Defendant was testified before this court. 

2.5.6	It is also observed the 1st and 2nd Defendant is the same person sued in two different capacities.

1.	As the purported Trustee of Late Frank Harcourt Smiths Estate.
2.	In the personal capacity of Anthony Elwyn Harcourt Smith.
Anthony Elwyn Harcourt Smith was testified before this Court and he didn't challenge the locus standi of the Plaintiffs in his evidence.

2.5.7	It is further observed paragraphs 19 of the Pre Trial Conference minutes the said Elwyn Harcourt Smith agreed that he knew the rights and entitlements of the Plaintiffs namely, Ram Krishna, Latchamiya Naidu, Venktaiya Naidu, Narsaiya at the time when he made application to be appointed as Executor and Trustee. 

2.5.8	The evidence was placed before this court by the Plaintiffs by producing the probates issued with regard to the persons named in the codicil.

(a)	Venkataiya Naidu is the executor and trustee in the estate of Kumaraiya. (High Court of Suva Probate No. 37022)

(b)	Narsaiya is the executor and Trustee in the estate of Nagaiya also known as Meraiya. (High Court of Suva Probate No. 42134)

(c)	Ram Krishna Naidu and Ram Dulari are executors and trustees in the estate of Enkadeo also known as Yenkatesh Naidu also known as Enkatesu. (High Court of Suva Probate No. 44785)

I believe in the evidence of the 2nd witness with regard to Plaintiffs' locus standi who explained relationships. The witness was firm in his answering at the cross examination and locus standi of the plaintiffs was not challenged by the 1st and 2nd Defendants. 

2.5.9	For the reasons set out in paragraphs 2.5.1 to 2.5.8 I conclude the Defendants cannot raise the issue of locus standi in their submissions and the Defendants submission fails and I hold infavour of the Plaintiffs. There is no merit in the argument of the Defendant that the witness Rama Krishna Naidu did not gave evidence. I conclude the 2nd Plaintiff gave evidence on behalf of all the Plaintiffs. They filed the case as joint Plaintiffs, and the 1st and 2nd Defendants never challenged the evidence neither raise an issue of locus standi during the cross examination.

3.	The Defendants made submissions with regard to the issue of Res – judicata and estoppel. The issue of res judicata and estoppel was not pleaded nor was an issue for the consideration of this court in the Pre Trial Conference. As such there is no merit to consider the submission made by the Defendants and I hold with the Plaintiffs. 

FURTHER CONCLUSIONS

4.	I also wish to cite the determination of Hon. Winter J.'s ruling dated 29 March 2006 on the Strikeout application filed by the 1st and 2nd Defendants in these proceedings.

"[12]	Counsel conceded when pressed that there has been no judgment on the court to determine the meaning of paragraph 7 of the Codicil. There has been no argument relating to the defendants conditional proprietary rights. 

[13]	Indeed I see that issue was reserved by Justice Byrne in an orbiter comment at page 6 of his Judgment where his Lordship said:

"The Defendants conditional proprietary right to purchase the land in the event of its sale which is not disputed by the Plaintiff will survive their eviction."

In the submission of the Defendant failed to bring the ruling of Winter J. in these proceedings and it was an abuse of the process of this Court. 

5.	ANALYSIS OF EVIDENCE, SUBMISSION AND FURTHER CONCLUSIONS

5.1	Chronology of the events is important in this matter.

(a)	Frank Harcourt Smith died on 24 January 1976 and he was the registered proprietor of Certificate of Title No. 3958.

(b)	Upon his death Burn Phillip Trust Company were granted Probate No. 1723 (Agreed Bundle of Documents Marked P1 – Tab 1) on 17 May 1977.

(c)	Burns Phillips Trust Company went into receivership and the 3rd Defendants were appointed as Receivers and Managers of the Trustees.

(d)	On 13 December 1991 the 2nd Defendant made an application to the High Court and the Second Defendant was appointed as the Executor and Trustee of deceased Frank Harcourt Smith's estate. (P 1 – Tab 15)

(e)	The 2nd Defendant to get him appointed as the Executor and Trustee of the estate of Frank Harcourt Smith had filed originating summons in the High Court Case No. 57 of 1991. (P1 – Tab 14) On 21st of November 1991 supported by the affidavit sworn by the 2nd Defendant Antony Elwyn Harcourt Smith.

(f)	As submitted by the counsel for the plaintiff the codicil made by Late Frank Harcourt Smith was not divulged to the Court in the Affidavit of Anthony Elwyn Harcourt Smith.

(g)	The second Defendant in paragraph 5 of the Affidavit stated since the granting of the probate to the said Burns Phillip Trustees Company limited have failed to carry out the functions in paragraph 4(a) of the will. It is interesting to note the 2nd Defendant waited for 16 years to apply to the Court to change the Trustee and Executor Burns Phillip Trustees Company for their failure until Burns Phillip Trustee Company went under liquidation and the 3rd Defendant being appointed for the receivership.

(h)	Further I observe the originating summons filed on 21st November 1991 and the Probate was granted on 13th December 1991 with the consent of Paul McDonnell of Counsel for Coopers and Lybrand. Being the Receivers of Burns Phillip Trust Company Limited the 3rd Defendant was aware of the codicil and he had failed in his duty to divulge the information to the Court and I agree with the Plaintiffs Counsel the 3rd Defendant Counsel had conspired with the 2nd Defendant for him to get appointed as the Executor and Trustee. The Second Defendant had not applied for the probate thereafter pursuant to Succession, Probate and Administration Act Chapter 60 and I conclude that the appointment of the 1st Defendant as the trustee was fraudulent and unlawful. 

6.	Now I turn to the law applicable pursuant Succession Probate and Administration Act Cap 60 Section 35 which states:

"The Court may remove executor:

35.	The Court may for any reason which appears to it to be sufficient, either upon the application of any person or of its motion on the report of the Registrar and either before or after a probate has been made –

(a)	make an order removing any executor of will of such deceased person from office as such executor and revoking any grant of probate already made to him; and

(b)	by the same or any subsequent order appoint an administrator with will annexed of such estate; and

(c)	make such other orders as it thinks fit for vesting the real and personal property of such estate in the administrator and for enabling the administrator to obtain possession or control thereof; and

(d)	make such further or consequential orders as it may consider necessary in the circumstances."

7.	The Plaintiff's counsel had submitted that subsequent to obtaining the order of the Court on 13th December 1991 the 2nd Defendant could only be appointed as an administrator with will annexed and not a trustee and cited section 20 and 21 of the Succession Probate and Administration Act which states:

20. (1)	Subject to the provisions of subsection (2) every person to whom administration is granted shall, previous to the issue of such administration, execute in the form prescribed by the rules, a bond, with one or two sureties conditioned for duly collecting, getting in, administering and disturbing the real and personal estate of the deceased.

 (2)	No such bond shall, unless specifically ordered by the court, be required from the Public Trustee of England, a trustee corporation or from any person obtaining administration to the use or for the benefit of the Crown.

The Plaintiff alleged the 2nd Defendant did not enter any bond did not make any application for probate, did not obtain a probate but ventured into destroying the rights and entitlements of Enkatesu, Kumaraiya and Nagaiya who were living at that time.

7.1	Further it was submitted pursuant to the instrument 319563. (P1 – Tab 16) as the trustee without obtaining the Probate. Similarly the 2nd Defendant made request for provisional Title on 22nd April 1993 the 2nd Defendant had the title No. CT 3958 being the plantation of the Nuku Estate was transferred to himself by the instrument No. 336967. (P1 – Tab 17) In the said instrument no. 336967 the 2nd Defendant had declared.

"I Anthony Elwyn Harcourt Smith of Narewa Estate Vanua Levu Fiji, planter (hereinafter called the transferor) being the proprietor as Executor and Trustee of an Estate fee simple, subject, however, to such leases, mortgages and other encumbrances as are notified by memorandum underwritten or endorsed hereon on the following land administration and not by way of sale transfer to Anthony Elwyn Harcourt Smith…" 

Title 	Number	Description	Province or Island	District or Town	AREA
A.	 B. P.	
CT	3958	"WAIMOTU" 	VANUALEVU	NATEWA	500	-	-	
		(PART OF)'						
					WHOLE		

7.2	I find the said transfer is unlawful for the following reasons.

7.2.1	Section 14 of the Succession Probate and Administration Act states:

14.	No Executor, as such, shall be entitled to take beneficially any residue not expressly disposed of by the will of the testator, unless it appears by such will that he is intended so to take.

The codicil dated 27 June 1967 (P1 – Tab 2) specifically states that first option of the purchase should be given to Kumaraiya, Enkatesu and Nagaiya also known as Meraiya or the survivors. I further find there is no provision made in the will of the deceased to transfer the property in the name of the 2nd Defendant. The will only provides for the Executor and Trustee to dispose the property subject to the provisions made in the codicil and to invest such monies for the benefit of the 2nd Defendant. As per the will the said Anthony Elwyn Harcourt Smith cannot get the property transferred in his name even as the Administrator. He was only a beneficiary under the will. As such I conclude that the 1st and 2nd Defendants acted malafide and registered the property in his name depriving the interest of the Plaintiffs in contravention of Section 14 of the Succession Probate and Administration Act. As such the Transfer effected in favour of the 2nd Defendant by instrument no. 336967 dated 22nd April 1993 is declared void.

7.3	In case of Hipwell, Hipwell v. Hewitt [1945] 2 ALL ER 476 at page 477 Lord Green M.R. stated:

"… I have always thought that proper way to consume a will, like any other document, is to place prima facie meanings on particular words but to place a final and definitive meaning upon the words arrived at by an examination of the document as a whole …"

7.4	By applying the above principle my conclusion is deceased Frank Harcourt Smith gave the option of selling to the Trustee by the words "my trustee when selling my plantations at Nuku …" but in such and event first option should be given to the plaintiffs. This also establish that the 1st Defendant had acted in unlawful manner to transfer the property in his name and support my conclusion and that the instrument 319563 is unlawful.

8.	Having concluded as above now it's a matter to decide on survivorship of the plaintiff. I have considered the submissions of both parties and conclude the Plaintiffs are the survivors in terms of substituted clause 7 of the codicil and now I turn to consider the evidence led in this case.

9.	PLAINTIFFS' EVIDENCE

9.1	Ramakrishna Naidu gave evidence and stated he was born on the land in question Nuku and now his age is 47 years. Enkatesu is his father Meraiya and Nagaiya are brothers of his father. He knew deceased Frank Harcourt Smith and he was living alone and his family looked after him. (Agreed Bundle of Documents marked as P1 and will in Tab 2 tendered.) Witness was also working in the land. His father and his brothers died in Nuku. He was continuously living in the land and his possession is uninterrupted and he was paying money to the 3rd Defendant. He pray for the reliefs in the Statement of Claim.

9.2	The witness was cross examined by the Defence Counsel and stated Mr. Smith died in 1976 and he was 10 years old at that time. He and his brothers live in the land. His grandfather was Kumaraiya and he got the probate for his father Enkatesu. They have paid money to the 3rd Defendant but not as rent. P1 Tab 23 was shown to the witness a letter by Kumaraiya dated 24 April 1977 which addressed to Burn Philip Trust Company which states promising to pay the rent for the land. P1 Tab 24 letter dated 25/11/1976 shown and it showed the rent will be paid for December and January together. Letter was written by Kumaraiya the witness stated payments are being made. P1 Tab 13 shown and the Defence Counsel proposed the receipts are for the rent but the witness stated its payments are for the land. When the Defence suggested that Burn Philip Trust Company never offered the land for sale the witness stated Kumaraiya was told that the land was to be sold to him shown P1 Tab 14 and 15 the witness stated he don't know whether probate was granted to Burns Phillip Trust Company or to Anthony Elwyn Harcourt Smith. He doesn't know whether the property was transferred to Anthony Elwyn Harcourt Smith by Administration or by sale.

In re-examination the witness stated that probates obtained are in the agreed bundle of documents.

10.	Defence Evidence

10.1	On behalf of 1st and 2nd Defendants Anthony Elwyn Harcourt Smith was testified. He stated he is retired and living in Queensland Australia. He was appointed as the Executor and the Trustee (P1 – Tab 15) and the l;and was transferred to him as the Administrator (P1 – Tab 16). He never offered the land to the Plaintiffs. Referred (P1 Tab 18] referred to P1 Tab 21. 22 and 23 and stated when his father was living rent was paid to ANZ Bank. After that the rent was paid to Burns Phillip Trust Company. He had taken judicial proceedings against the Plaintiffs and eviction order was obtained. He was given dwell citizenship in 1973.

10.2	In cross examination witness stated he is an adopted son of the deceased. His father came to Fiji in 1917 he acquired the land in 1940. (P1 Tab 33) Kumaraiya may be taken as a labourer in 1940 and he is not aware. Kumaraiya and his family were there in the land. He was adopted by his late father in 1940. Since 1953 his father lived alone in the farm. He believe Kumaraiya and his family looked after his father. He migrated to Australia in 1972 and returned in 1992 and went back in 1994. He is having Australian, British and Fiji Citizenship but he is not aware dwell citizenship is prohibited. He cannot prove he got dwell citizenship. His father had made a legacy in the will to have life time income from the property. His father had not given him the land directly. There is a provision made for Kumariya in the will and Trustee was advised to look after the land. The three persons namely Kumaraiya, Enkatesu and Nagaiya went to the Trust Company and ask for the land. The witness admitted his father never intended to evict the people from the land. His father had not intended him to be a trustee in the will but he made an application to the court in 1991 to become the Trustee. This application was not served on Burns Phillip Trust Company. The witness stated that when he was appointed Executor and Trustee he need not ask for a probate and he doesn't know the provisions in law. He never made any application to reseal the grant. Witness admitted he made an application to transfer the property and it was done by his solicitors he stated he never took action to evict the Plaintiff as per order in the eviction action. Witness stated that there was no provision in the will for the Testator for administering and transferring the land. There was a necessity to get the land transferred in his name. The witness further stated that he knew that Kumaraiya and other people were there in the land. The previous Trustees refused to sell the land he too continue with the Trusteeship. He doesn't know how much received by Burns and Phillips Trust Company. He doesn't get any benefit from the land and witness was named in the will as a beneficiary and his sons desire to have the land. He stated he doesn't know survivors of the three people in the will are living in the land.

In re-examination the witness stated he is legally adopted son of the deceased and from 1992 to 1994 he was in Fiji working for Australian High Commission. His father wanted to remain him in the land as a beneficiary and as the Executor and Trustee he doesn't want to sell the land. Monies received from the Plaintiffs as rent. It was not for purchase.

11.	The Defendants' counsel stated that 1st Plaintiff action be dismissed on the basis that there is no interest or bequests over the will of deceased Frank Harcourt Smith, there is no evidence to establish about the capacity and the 2nd Plaintiffs evidence does not establish his claim. In all the Plaintiffs failed to prove their claim. I don't agree. The evidence before me establish the Plaintiffs are descendants of Enkatesu, Kumaraiya and Nagaiya and the 1st and 2nd Defendant failed to challenge the evidence and I conclude the survivorship is with the Plaintiffs. On perusal of the will it is clear the Testators intention was to make Kumaraiya, Enkatesu and Nagaiya in absence of them their survivors to live in the land peacefully. It well established in evidence that the first option to purchase the land was given to Kumaraiya, Enkatesu and Nagaiya and the 1st and 2nd Defendant to have the benefit of the money invested on sale of the land. As admitted in evidence by 1st and second Defendant he was fully aware he was not intended to have the ownership by the Testator knowing this fact he got the property transferred in his name unlawfully. It is more serious issue the property was transferred in 1st and 2nd Defendants name during the life time of Enkatesu, Kumaraiya and Nagaiya and the Solicitors for the 2nd Defendant failed in their duty, to divulge the interest of the plaintiffs to the court.

12.	As admitted in evidence by the 2nd Defendant no action was taken by him in the eviction action no. 57 of 1991 as such it is now statute barred. I conclude the fraudulent nature of the action by the 2nd Defendant the Plaintiffs are protected under section 9 of the Limitation Act which state:

"9.	(a)	In respect of any fraud or fraudulent breach of trust to which trustee was a party or privy; or

(b)	To recover from the trustee, trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to his use.

13.	The submission by the 1st and 2nd Defendant's Counsel that Indemnity Guarantee and Bailment Act is misconceived and it was never pleaded in the proceedings. I conclude there is no merit in the submissions.

14.	However I conclude the Plaintiff failed to prove the title by adverse possession since Kumariya came to the land under leave and licence from deceased Frank Harcourt Smith and the survivors of Kumaraiya and others cannot claim the title by adverse possession.

15.	I finally hold the Plaintiffs have proved their claim on balance of probabilities and answer the issues as follows.

Issue in the Pre Trial Conference minutes.

"22.	Survivors or Survivors' in Clause 7 of the codicil to the will of Frank Harcourt Smith include the Plaintiffs as survivors.

23.	The procedure adopted by 1st and 2nd Defendant in substituting the trustee is incorrect and the defendant have to reseal a new grant. After the substitution of Trustees made by the High Court.

24.	There was no requirement for the 1st Defendant to register a transmission of death on CT No. 3598 upon his appointment as an administrator.

25.	The 2nd Defendant owed a duty to inform the predecessors of the Plaintiff that he was appointed as the Executor and Trustee in the Estate.

26.	Yenkatesu, Meraiya and Kumaraiya made payments to Burns Phillip Trust Company after the death of Frank Harcourt Smith and they made the payment in terms of the codicil to purchase the property and to exercise their first option to purchase the property and the payments should be credited to the purchase price in case of a sale and exercising their option of purchase. This is proven by the evidence of the 2nd Defendant and the intention established in the will of deceased Frank Harcourt Smith.

27.	Frank Harcourt Smith's Estate is not fully administered.

28.	No evidence to establish that deceased own other than CT 3958 when 2nd Defendant was appointed as the Executor was appointed as the Executor and Trustee.

29.	The 2nd Defendant and/or his solicitors failed to inform the Plaintiffs of the application made to appoint him as the Executor and Trustee and his admission/ in evidence his knowledge on Clause 7 codicil he had the notice of the Plaintiffs interest over the property.

30.	The transfer of CT No. 3958 to the 2nd Defendant was done to defeat the interest of the Plaintiff and the said action is unlawful and fraudulent.

31.	The Plaintiffs are not entitle to be appointed as an executor Trustee in the Estate of Frank Harcourt Smith.

32.	As the Administrator the 2nd Defendant owe a duty to transfer the property CT 3598 in accordance with the will and codicil and the Plaintiffs should be given to exercise the first option of purchase of CT 3598 and all payments made after the death of Frank Harcourt Smith should be credited towards the purchase price. 

33.	The 1st Defendant holds CT 3598 to transfer the plaintiff.

34.	The Plaintiffs can rely on the doctrine of part performance.

Now I make the following orders.

1.	Declaring that transfer CT No. 3958 in favour of the 2nd Defendant is unlawful.

2.	Declaring that the Plaintiffs are entitled to purchase the property comprised in CT 3598 when the property is put up for sale and all payments made after the death of Frank Harcourt Smith should be deducted against the purchase price.

3.	Order specific performance of the substituted clause in the codicil dated 27 June 1967.

4.	No order for general damages.

5.	Costs assessed summarily at $2500.00 to be paid to the Plaintiffs within 30 days of this judgment.

6.	No order for punitive damages.

7.	Order and declare that the plaintiffs are not entitle for title by virtue of adverse possession.

Dated:	23 May 2014

C. Kotigalage
JUDGE