High Court of Fiji

(c) he or she satisfies such orher requirements withrd todence, employmentyment, pro, profession or any other matter as may be prescribed in the by-laws of the co-operative.

(5) The The founder members present at the Founders' Meeting shall be exempted from the application and admission procedures set out in subsection (4) of this Section provided that their names appear in the application for registration of the proposed co-operative&#16 they have have signed the minutes of the Founders' Meeting and the proposed by-laws of the co-oive and have made made the necessary payments to the capital of the co-operative as agreed upon em."

Rules 3(a), (b) of By-Law

"(a) to purchase from the Nasinu Land CompaCompany Limited part of CT 3213 on DP 2000 on taward of the Suva to Nausori road;

(b) >(b) to arrange for the for the subdivision, survey and distribution of holdings among the Members so as to provide one holding but not more than one holding for each Member, upon such terms and conditions as the general meeting shall determine, and to enter into an agreement with each Member accordingly in the form annexed as Schedule 'A' to these by-laws."

Rule 12 of By-Law

"All shares shall be fully paid prior to allotment. Share certificates signed by the Chairperson and Secretary shall be issued to shareholders for all shares allotted."

Rule 43 of By-Law

"On the death of a Member the Co-operative may transfer the share or interest of the person nominated in accordance; with Section 31 of this Act of if there is no person so nominated, to the person as may appear to the Board to be the heir or personal representative of the deceased Member, or pay to such nominee, heir or personal representative, as the case may be, a sum representing the value of the Member's share or other interest in the capital of the co-operative as determined in accordance with these By-Laws."

5.0 Plaintiff's Case

5.1 By consent all documents forming part of Agreed Bundle of Documents dated and filed on 29 May 2008 and Supplementary Plaintiff's Bundle of Documents dated and filed on 29 July 2009 were marked as Exhibits 1 to 22 and 23 to 29 respectively.

5.2 Plaintiff called Muni Deo, Plaintiff's Secretary as its only witness.

5.3 Mr Muni Deo during examination in chief gave evidence that:-

(i) From 2007 to 13 September 2013, he has been Plaintiff's Assistant Secretary and from 14 September 2013 to date of trial has been Plaintiff's Secretary;

(ii) He is aware about the subject matter from his dealing with Plaintiff's Solicitors and records kept by Plaintiff;

(iii) Plaintiff was incorporated in 1961 when it had 447 members;

(iv) Plaintiff is engaged in the subdivision of 326 acres of land. Subdivision was carried out in stages (stages 1 to 9);

(v) Part of the lots would be transferred to members who paid their shares and part would be sold in open market;

(vi) Not all 447 members were allotted lots;

(vii) Lots are allotted to paid members by ballot system;

(viii) Membership ceases when a member dies;

(ix) Also members share are paid in one lump sum or in installments;

(x) Deo Datt Bidesi ("Bidesi") was a member of the Plaintiff and was allotted the subject property;

(xi) Bidesi was asked by the then Chairman late Sharda Nand to obtain title for the subject property;

(xii) Bidesi did not obtain title to the subject property;

(xiii) Bidesi died on 8 October 1971 and until his death he stayed on the subject property and thereafter his son Mani Ram and his wife Sumintra occupied the subject property;

(xiv) Bidesi was asked to obtain title to the subject property because he was staying on the land;

(xv) After Mani Ram died Mrs Sumintra was staying on the subject property and when she decided to migrate to Canada she sold the subject property to Plaintiff;

(xvi) In referring to exchange of letters between Messrs Maharaj Chandra & Associates and Plaintiff; he stated that Mani Ram was never registered as a member of Plaintiff and Bidesi's membership was never transferred to Mani Ram;

(xvii) Whilst Sumintra took charge of Lot 10 she was never registered as a member;

(xviii) Plaintiff paid Sumintra $21,000.00 for subject property as follows:-

(a) $6,000.00 was taken towards arrears;

(b) $15,000.00 was paid to Sumintra;

(xix) After Plaintiff obtained Title over the subject property Plaintiff issued notice to vacate on Defendant who was in occupation of the subject property.

5.4 During cross-examination Mr Deo stated:-

(i) He was not sure whether advise received by Plaintiff and as mentioned in letter of 13 April 1984 from C. Zaman the then Acting Secretary to the Plaintiff (Exhibit 20) had been acted upon by the Plaintiff;

(ii) A member can nominate a person to be a member in his/her place and if member dies without nominating anyone his/her membership ceases;

(iii) Bidesi's membership was never transferred to Mani Ram during Bidesi's lifetime and as such Mani Ram was not a member;

(iv) Since Mani Ram was Bidesi'sson and was staying on the subject property the property was to be transferred to Mani Ram and upon Mani Ram's death to his wife Sumintra;

(v) Plaintiff dealt with Mani Ram and his wife Sumintra because Mani Ram was Bidesi's son and always resided on the subject property;

(vi) He was not aware about Letter of Administration granted in respect to Bidesi's estate in favour of Raj Pati but saw Letter of Administration on the Plaintiff's file;

(vii) Because Sumintra was living on the property with her husband Mani Ram, she was considered to be the owner of the subject property.

6.0 Defendant's Case
6.1 Defendant gave evidence himself and did not call any other witness.

6.2 During examination in chief Defendant stated that:-

(i) He is son of Raj Pati;

(ii) Raj Pati made a will which is subject to challenge in High Court action commenced by his brother Bipin Rishi Shankar;

(iii) He entered into Sale and Purchase Agreement with Sumintra Devi (Exhibit 3) but the Agreement was not recognized by Plaintiff;

(iv) He spent almost $120,000.00 on the subject property;

(v) He did not protest to Sumintra about Deed of Settlement because he only became aware about the Deed when he was served with eviction notice;

(vi) His brother is challenging his mother's will in respect to another property at Lot 9,RatuDovi Road;

(vii) He is residing on the subject property because he purchased it from Sumintra and alternatively because his mother had obtained Letter of Administration in respect to Bidesi's estate.

6.3 During cross-examination Defendant stated that:-

(i) He has been residing on the subject property since 13 December 1993;

(ii) When he entered into Sale and Purchase Agreement he had been misled by Sumintra Devi by showing Probate in respect to estate of Mani Ram and telling him that she is the beneficiary of Bidesi's estate;

(iii) Sumintra Devi told him that she would give him a clear title from Plaintiff;

(iv) When he enquired with Plaintiff he was informed that there was no Probate in respect to Bidesi's estate and that he should obtain one;

(v) Letters of Administration was granted to his mother Raj Pati in respect to Bidesi's estate;

(vi) Title to the property was transferred to Plaintiff;

(vii) In response to question if he had made any enquiries prior to entering into Sale and Purchase Agreement with Sumintra as to whether she had title in her name he said that Sumintra showed him Probate;

(viii) He did not check with Plaintiff as to whether Sumintra had title to the land;

(ix) He did not attempt to enforce Agreement with Sumintra because Sumintra left without any proper address or phone contact;

(x) He did not pay the consideration sum under the Agreement to Sumintra once;

(xi) When asked how he managed to pay Sumintra when he did not have her address or phone contract he stated that he paid her Attorney Rajendra Prasad.

6.4 After careful analysis of both documentary and oral evidence I make following findings:-

(i) Plaintiff is a registered co-operative society governed by the provision of Co-operative Act 1996, Regulations and Plaintiff's By-Laws;

(ii) Bidesi was a registered member of the Society and was allotted the subject property;

(iii) Bidesi failed to pay his shares fully and obtain title to the subject property;

(iv) AfterBidesi's death subject property was occupied by his son Mani Ram and Mani Ram's wife Sumintra Devi;

(v) After Mani Ram's death subject property was occupied by Sumintra Devi;

(vi) WhenSumintra Devi migrated to Canada, Defendant moved onto the subject property with his mother;

(vii) The Sale and Purchase Agreement was signed by Sumintra Devi's Attorney;

(viii) In letter dated 19 July 1996 to Defendants Solicitors Tevita Fa & Associates (Exhibit 12), Plaintiff informed the Solicitors as follows:-

"8. On April 1996, Sumintra Devi who lives in Canada visited Fiji and called to see us. She thanked the undersigned for not allowing Satya Nand to defraud her and pleaded with us not to transfer the Lot 10 to anyone else.

9. She further claimed that the house which stood on the land belonged to her husband the late Mani Ram and, therefore, to her as his beneficiary under the Last Will and Testament of the deceased.

10. Sumintra Devi further confirmed that the agreement signed by her Attorney was not authorized by her and she had received no consideration from Satya Nand or from anyone else. She further complained that Satya Nand had threatened her with witchcraft through one witch-doctor called 'Muni Ratnam' if she visited her property on Lot 10.

11. In the meantime, because of Satya Nand's conduct in trying to forcibly acquire the said Lot 10, we gave him notice on the 13 May 1996. A copy of our letter of the 13 May, a copy of the Notice and a copy of his handwritten reply are enclosed herewith. In his scribbled note, apparently with a view to stop his employer (VAT Unit) from finding out about his conduct, he directed us to refer all letters or notices to his Solicitors, Messrs Maharaj& Associates. We obliged. We have no notice of change of Solicitors and assume that you are duly aware of this change.

12. Through Maharaj& Associates, Sumintra Devi made it clear to us that she had not parted with her interests to anyone and certainly not to your client Satya Nand. She abandoned any claim to Lot 10 on DP 5069, and requested that we pay her something for the house which belonged to the Estate to which she was entitled.

13. After protracted negotiations, the Society reduced its claim of arrears to $6,000 and the parties agreed to the value of $21,000 for the residential premises which stands on Lot 10.

14. Under the Deed of Settlement executed between Sumintra Devi and the Society on the 11 July 1996, we paid her $15,000 for the house and wrote off the $6,000 owing to the Society (Total consideration: $21,000).

15. The Society which has always been and still is the owner of the Lot 10 in question now also owns the house."

(ix) Defendant and/or his Solicitors did not respond to the above letter;

(x) No evidence has been provided to show that Defendant had paid any monies to Sumintra Devi pursuant to the Sale of Purchase Agreement;

(xi) Since Bidesi did not pay his shares in full he was not entitled to obtain title to the subject property;

(xii) Plaintiff rightly dealt with Sumintra, the occupier to the subject property after Bidesi and Mani Ram's death in respect to compensation paid for the building;

(xiii) Plaintiffs title the subject property is indefeasible as no evidence of fraud was provided and/or proven against Plaintiff in obtaining title to the subject property;

(xiv) I agree with Plaintiffs Counsel's submission that Defendant has no color of right over the subject property.

7.0 Costs
7.1 In respect to costs I have taken into consideration that the trial lasted for two days and parties have filed their Submissions.

8.0 Conclusion
8.1 I make following Orders:-

(i) Defendant do deliver vacant possession of all the property known as Lot 10 on Deposited Plan No. 5069 comprised and described in Certificate of Title No. 31375 and situated at Lot 10 Maqbool Road, Nadera, Nasinu to the Plaintiff within sixty (60) days of this Judgment;

(ii) Defendant's counter claim is dismissed;

(iii) Defendant do pay Plaintiff's cost assessed in the sum of $3,000.00.

K. Kumar
JUDGE

At Suva

Messrs Sherani& Co. for the Plaintiff
Singh & Singh Lawyers for the Defendant