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Prasad v Nand [2018] FJHC 485; HBC43.2011 (6 June 2018)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 43 OF 2011

IN THE MATTER OF SECTION 169 – 171 OF THE LAND TRANSFER ACT CAP 131
SATENDRA PRASAD

Plaintiff

V

SHIVA NAND

Defendant

Counsel : Ms. S. Dunn for the Plaintiff o/i Legal Aid Commission.

: Mr. Dorsami Naidu for the Defendant o/i Messrs. Pillai Naidu & Ass.

................... CONSOLIDATED WITH .................

CIVIL ACTION NO. HBC 170 OF 2011

SHIVA NAND

Plaintiff

V

SATENDRA PRASAD
Defendant

Counsel : Mr. Dorsami Naidu for the Plaintiff o/i Messrs. Pillai Naidu & Associates.

: Ms. S. Dunn for the Defendant o/i Legal Aid Commission.

Date of Hearing : 6^th and 12^th September 2017

Written Submissions : Not filed by both the parties.

Date of Judgment : 22^nd May 2018

Judgmt Delivered on : 6^th June 2018

Judgmt Delivered by : Justice Mr. Mohammed Mackie

______________________________________________________________________________

J U D G M E N T

_______________________________________________________________________________

1. Introduction:
   

1. This judgment was ready to be delivered on 22^nd May 2018 and same was put off for today, as the learned Counsel for the Defendant, representing the Legal Aid Commission, moved to have further 7 days’ time to file written submissions. Accordingly, though this Court gave 10 more days till 2^nd May 2018, yet no written submissions were filed by either party.
   
2. The plaintiff in the above styled action no. HBC- 170 of 2011, namely, Shiva Nand, filed his writ of summons and the statement of claim on 17^th October 2011 against the Defendant, namely, Satendra Prasad, and by his subsequent amended statement of claim filed on 21^st January 2016, prayed for the following reliefs.
   
   1. Order staying the Civil Action No.43 of 2011 until determination of this action.
   2. Detailed accounts from the Defendant as to the Administration of the Estate of Parma Nand (deceased).
   100. Order that the Defendant not to transfer or deal with the Housing Authority sub – lease No. 260960 until determination of this action.
   4. All bank accounts in the name of the Estate of Parma Nand (deceased) be frozen until determination of this action.
   5. Setting aside all transactions in relation to the Estate of Parma Nand (deceased) as per paragraphs (9) (11) (12) (13) (14) (15) (16) of the Amended Statement of Claim.
   6. Transfer of the assets or properties of the Estate of Parma Nand (deceased) to the plaintiff.
   7. Punitive Exemplary damages.
   8. Interest from 12^th Day of May 2006 till the date of payment
   9. Cost on Solicitor/client indemnity basis.
      
3. The Defendant by his amended statement of defence dated 15^th March 2016 and filed on 18^th March 2016, while denying the material averments in the statement of claim, moved for the dismissal of the plaintiff’s Amended Statement of Claim with costs on a Solicitor – Client indemnity basis and for other ancillary reliefs. The plaintiff duly filed his reply to the Amended Statement of Defence on 21^st April 2016 moving for the dismissal of the Amended Statement of Defence with cost on indemnity basis.
   
   2. Background & Brief Summary:
      
4. The brief facts of both these actions, according to the pleadings, are as follows.
   
   1. The plaintiff is the only surviving heir of his late father Parma Nand, who died on the 12^th Day of October 2005. The plaintiff’s Mother Bodh Wati predeceased his father in the year 2000.
   2. At the time of the death of his father, the plaintiff, having born on 29^th of September 1986, was a Minor and living with his father at the Land and premises in suit described below. The plaintiff’s father Parma Nand died intestate.
   100. The plaintiff’s father at the time of his death owned (1) Housing Authority sub-lease number 260960 being Lot 46 on DP 5850 having an area of 456m2 on which three flats are situated, (2) A Van bearing Registration No. BW 585 (3) Insurance Policies, and (4) a Saving Account at ANZ Bank, Nadi Branch.
   4. Upon the death of the plaintiff’s father, the defendant being one of the siblings of the deceased, applied for the Letters of Administration (L.A) of the Estate of the plaintiff’s father without the knowledge and/or consent of the plaintiff and obtained same on the 12^th of May 2006.
   5. It is alleged that after obtaining the L.A, the defendant dishonestly/fraudulently , through misrepresentation and undue influence, without the consent and/ or knowledge of the plaintiff;
      
      • (1) Transferred the Housing authority sub-lease No. 260960 to his personal name on 20^th day of May 2009 and had already collected the rental from the flats therein from May 2006 and converted it to his own use.
      • (2) Converted the Moneys from the deceased’s Bank Account and proceeds from insurance policies to his own use, and
      • (3) Converted the Vehicle No. BW 585 to his own use and benefit.
        
   6. The defendant failed to account to the plaintiff of the management and administration of the Estate of the deceased, and converted the properties into his name, acted contrary to the fiduciary relationship, failed to explain his legal rights and entitlements and did not allow the plaintiff to have access for independent legal advice.
   7. The plaintiff was never informed that he was the sole beneficiary of the Estate of his late father Parma Nand. He seeks the return of all the properties belonged to the Estate and damages incurred as a result of Defendant’s fraud/ dishonesty/ misrepresentation / undue influence / breach of fiduciary relationship conduct.
   8. Prior to this action, the defendant in this action, Satendra Prasad, had instituted Civil Action No: HBC-43 of 2011 under section 169 of the Land Transfer Act Cap.131 to have the Plaintiff and other tenants ejected from the Land and premises in suit. (vide the 1^st heading)
      
5. The stance taken up by the defendant in his amended statement of defence is,
   
   1. That the L.A was obtained by him with the consent and knowledge of the plaintiff as the plaintiff was with the defendant, when the defendant gave instructions to Mr. Chandra Singh to obtain the L.A.
   2. That the plaintiff on 15^th April 2009 renounced all his rights , interest & shares in the deceased’s Estate in favor of the defendant,
   3. The plaintiff was given all the accounts,
   4. That the plaintiff was fully aware of the deed of renunciation and the contents of same were explained to him by Mr. Vijay Naidu,
   5. The plaintiff was given legal advice by Mr. Chandra Singh, when he agreed for the defendant to obtain the L.A and by Mr. Vijay Naidu, when he signed the deed of renunciation,
   6. That the plaintiff is not entitled to return the assets and properties.
      
   100. Agreed Facts and Issues in Dispute
        
6. Followings are the agreed facts.
   
   1. The plaintiff is the Son of Parma Nand (deceased), who died on 12^th of October, 2015.
   2. The defendant is the brother of the deceased.
   3. The deceased died intestate.
   4. The plaintiff was 19 years of age at the time of his father’s death.
   5. At the time of death the deceased had (a) The Housing Authority sub lease No. 260690 for Lot No. DP 5850, (b) Vehicle No. BW 585, (c) Insurance policies, (d) a saving account.
   6. The deceased’s wife Bodh Wati predeceased the deceased leaving the Plaintiff as the surviving issue of the deceased.
   7. After the death of the deceased the defendant applied for and was granted the letters of administration in the Estate of deceased on 12^th May 2006.
   8. The defendant transferred the Housing Authority sublease No. 260690 on to his name on the 20^th day of May, 2009 in his capacity as administrator of deceased’s Estate.
   9. The defendant transferred Vehicle no. BW 585 to his name under letters of administration Number44895.
      
7. Following are the issues in Dispute.
   
   10. WHETHER the transfer of the Housing Authority subleases No. 260960 by the defendant to his name was fraudulent?
   11. WHETHER the transfer of the Vehicle No. BW 585 by the defendant to his name was fraudulent, or whether it was done with the consent and knowledge of the plaintiff?
   12. WHETHER the defendant obtained the letters of administration in his name with the consent and knowledge of the plaintiff or whether the defendant obtained the same through fraudulent means, if so what were the fraudulent means?
   13. WHETHER the plaintiff executed the deed of renunciation in the defendant’s favour on 15^th April 2009?
   14. WHETHER the plaintiff was explained the nature and effect of the renunciation prior to the execution and whether the plaintiff understood the same?
   15. IF it is found that the defendant acted fraudulently, is the plaintiff entitled to transfer of the Housing Authority Sublease and all assets of the Estate of Parma Nand (deceased) to his name?
   16. IF the Defendant is found to have acted fraudulently, then is the plaintiff entitled to damages and if so the quantum of the same?
   17. WHETHER the Defendant is entitled to expenses from the Estate in his capacity as administrator of deceased’s estate?
   18. WHETHER the Defendant is entitled to refund of all his personal moneys expended by him in looking after the estate and its beneficiaries?
   19. WHETHER the Defendant in his capacity as the administrator of the deceased estate was entitled to collect the proceeds under the insurance policies and take control of the saving bank account, and if so, how were the moneys to be applied and whether it was applied correctly?
   20. Whether the Defendant shared a joint account with the plaintiff to have the proceeds from the insurance policies and saving deposits?
       
   4. The Law
      
8. The law of succession that governs the dispute in hand is very clear and unambiguous.
   

CHAPTER 60- SUCCESSION, PROBATE AND ADMINISTRATION

Succession to property on intestacy

6.-(1) Subject to the provisions of Part II, the administrator on intestacy or, in the case of partial intestacy, the executor or administrator with the will annexed, shall hold the property as to which a person dies intestate on or after the date of commencement of this Act on trust to distribute the same as follows:

(a)........
(b)..............
(c).........
(d) if the intestate leaves issue, but no wife or husband, the issue of the intestate shall take
per stripes and not per capita the whole estate of the intestate absolutely;( emphasis
mine)

(e) ..........
(f) ........

(g) ...........

(h) if the intestate leaves no husband or wife and no issue or parents, then the brothers and sisters
of the whole blood, and the children of deceased brothers and sisters of the whole
blood of the intestate shall take the whole estate of the intestate absolutely in equal
shares, such children taking per stripes and not per capita;

9. Section 41 of the Land Transfer Act (LT) provides as follows:
   

“Any instrument of title or entry, alternation, removal or cancellation in the register procured or made by fraud shall be void as against any person defrauded or sought to be defrauded thereby and no party or privy to the fraud shall take any benefit therefrom.”

5. Summons For Ejectment (HBC 43 of 2011)
   

10. The Defendant Satendra Prasad on 8^th March 2011 filed Summons by action bearing No.HBC-43 of 2011 against the plaintiff Shiva Nand, under section 169, 170 and 171 of the Land Transfer Act Cap 131, supported by his affidavit, to have the plaintiff and the occupants of other 2 flats (2nd and 3^rd Defendants) ejected on the basis that he is the last registered owner of the land and premises in both these actions.
    
11. The plaintiff in action no HBC- 170 of 2011, namely, Shiva Nand, as the 1^st defendant in HBC-43/2011 action, filed his affidavit in opposition dated 09^th April 2011 and the defendant in HBC 170 of 2011 namely, Satendra Prasad, as the plaintiff in HBC 43 of 2011, filed his affidavit in reply on 28^th June 2011.
    
12. Subsequently, the question of consolidation of both the matters being argued before my brother Judge Hon. A. Tuilevuka, by ruling dated 24^th September 2013; His Lordship made order to amalgamate both the actions. An application that had been made by the defendant, Satendra Prasad, to strike out this action No. HBC-170 of 2011 was dismissed by the said ruling.
    
13. When making the order for amalgamation as aforesaid, my brother judge in paragraph 7 of his ruling observed as follows.
    

“7. Hence, by law, it would appear that Shiva Nand is entitled to all the estate property as the sole beneficiary. With that in mind, it would appear that Shiva Nand has a very strong case. And if he were to succeed in his HBC 170 of 2011 case, the result would be to undermine the very foundation on which Satendra Prasad’s whole section 169 case in HBC 43 of 2011 is premised i.e. his title and its indefeasibility. Having said that, even if I was to proceed to determine the section 169 application first and separately, I would be inclined to find that Shiva Nand has a strong arguable case to remain in possession of the land in question and accordingly, dismiss the section 169 application”

14. Hence, the adjudication of this action HBC 170 of 2011, through the scrutiny of the evidence adduced and by answering the issues raised herein, would certainly once and for all dispose action no. HBC- 43 of 2011(169 application) too leading to the final decision as to who is entitle to the estate of the deceased Parma Nand.
    
    6. Trial in HBC-170 of 2011
       
15. At the two days trial before me, the plaintiff gave evidence for and on behalf of prosecution and the defendant and another witness testified for and on behalf of the defence.
    
16. The plaintiff relied on documents in the bundle of documents filed on 21^st December 2016 and several other documents in the supplementary bundle of documents. The learned counsel for the defendant indicated that she does not object the documents therein being led in evidence for the plaintiff’s case.
    
17. On behalf of the defendant, a preliminary consent order signed by both parties with regard to the collection of rent, a notice of discontinuance filed by the defendant, Satendra Prasad, at the Nadi Magistrate’s Court in an action against the plaintiff, Shiva Nand, and four receipts in proof of certain payments made by the defendant to his Solicitors Messrs. Vijay Naidu Associates were marked as exhibits, it is important to note that these four receipts were marked from the possession of the defendant when the defendant was under cross examination by the plaintiff’s counsel Mr. D. Naidu.
    
    7. Discussion
       
18. It is observed, that first 6 issues (issue No.10 to 16) are mainly founded on the alleged fraud on the part of the defendant perpetrated through the execution of the impugned Deed of Renunciation, claimed to have been signed by the plaintiff on 15^th April 2009 relinquishing all his rights and interest in the land and premises in question and in relation to the transfer of the vehicle in favor of the defendant.
    
19. The remaining four issues (from issues No. 17 to 20) are seem to be focusing on the monetary reliefs, the defendant expect to obtain in the event the plaintiff succeeds in his claim by attracting affirmative answers for the issues 10 to 16. This shows that the defendant is mindful of the legal position stated in paragraph 7 and 8 above and as to where he actually stands as far as his purported claim on the estate of the deceased is concerned.
    
20. However, the onus of proving the alleged fraud squarely relies on the plaintiff by adducing cogent evidence. In the event the plaintiff succeeds in his endeavor for a judgment in his favour, by attracting affirmative answers for the issues 10 to 16, then only the question will arise as to whether the defendant is entitled to monetary reliefs, which in fact he has not specifically pleaded or prayed for in his amended statement of defence. All what he prays for is the dismissal of the plaintiff’s action.
    
21. The main question that begs answer is whether the defendant, being the administrator, committed fraud on the Plaintiff pertaining to the intestate estate of the deceased, Parma Nand, for which the plaintiff is the only beneficiary according to the law stated above. Let me by analyzing the evidence led before me both oral and documentary, arrive at the most justifiable answers to the issues raised.
    
    1. It is undisputed that the plaintiff being the only child was living in the land and premises, which is the part of the estate, with his father, Parma Nand, who died on 12^th October 2005. Plaintiff being a Minor and his Mother being predeceased, the circumstances compelled the plaintiff to accede to the proposal made by the defendant to have the funeral rites in Rakiraki, where the most of the siblings and the mother of the deceased were, admittedly, living.
       
    2. It is also not denied that after the funeral rites were over, the plaintiff was made to stay with the defendant and work for him in his vegetable farm. Plaintiff was given 3 meals, lodging and a nominal amount of money, only when asked for. According to the documents from the Bank of Baroda, found in pages 48, 49, 52 to 59 of the plaintiff’s bundle of document and uncontested evidence, that the defendant managed to open a joint saving account by convincing the plaintiff soon after the 13th day rituals, in order to collect the rental income, dues to the estate from the insurance companies and to bring in the balance money remained in ANZ bank, where the deceased had his joint account with the plaintiff according to the plaintiff’s evidence. Interestingly, it is observed that only in the year 2006 (first year) the new account shows certain deposits and thereafter no deposits and only withdrawals have taken place till the balance is fully exhausted. The account now stands defunct.
       
    100. As per the newspaper publication dated 10^th January 2006, found in page 43 of the plaintiff’s bundle of documents, the defendant has commenced the testamentary proceedings within a very short period after the death on 12^th October 2005 and managed to obtain the letters of administration on 12^th of May 2006. This clearly shows that the defendant has had a keen interest in obtaining the letters of administration at the earliest possible. The defendant’s evidence that there was a family meeting to discuss about applying for the probate is not substantiated by any supporting evidence from his other family members. The plaintiff being a minor, educated only up to form 4 and while working as a laborer at the defendant’s farm, could not have been instrumental or on his own suggested or requested the defendant to apply and obtain the L.A. The plaintiff being a minor at that time, the defendant should have followed due process to obtain the plaintiff’s consent. No evidence to that effect.
         
    4. Another, question that demand answer is, why the defendant showed such an interest, hurry and took trouble, while the deceased had other Brothers, Sisters and Mother of the deceased was alive to come forward either to make claim or to obtain letters of administration in order to assist the plaintiff. However, the above factors need not, necessarily, have raised any doubt on the defendant’s conduct, if not for his subsequent surreptitious activities, which were inimical and detrimental to the plaintiff’s interest in the estate as the sole beneficiary of it. His subsequent actions are found to be in direct violation of his fiduciary duty as an administrator towards the estate and the plaintiff. It is to be noted that none of the defendant’s siblings came or brought by the defendant as a witness to assist him in his purported claim.
       
    5. It is in evidence that the plaintiff after spending about 3 months as a laborer at the defendant’s farm, subsequent to his father’s death, comes back to Nadi to live at his flat. But the defendant persuaded the plaintiff to go back to Rakiraki. In order to execute his plan, the defendant managed to remove and transport all the Household items the plaintiff had in Nadi House, which compelled the plaintiff to move out without an alternative. The evidence of the plaintiff on this remains unchallenged.
       

Q. For how long did you stay in Rakiraki at that time after the funeral – how long did
you stay there for?

A: Three (3) months my Lord.

Q: That’s in 2006 mid-March you all came to Nadi, right – did you go back to
Rakiraki on your own?

A: No my Lord.

Q: Then how did you go; who took you?

A: Satendra Prasad took me my Lord.

Q: And what about the furniture you said – took all the household items – who
took that?

A: Satendra Prasad my Lord. (Vide- ex. In chief in pages 11 and 12 of the transcript)

Vide - cross examination in pages 48 and 49

Q: You also do confirm that he did not bring other people to force you into a vehicle to go to Rakiraki?

A: They were taking all the household items, for that reason I had to go because I had nothing in my house.

6. The next noteworthy move made by the defendant, according to his own document found in page 19 the plaintiff’s bundle of document, is sending the letter dated 29^th June 2006 through Messrs. Chandra Singh & Associates, addressed to a tenant of the premises in suit requesting to pay the rentals directly to the defendant, while it could have been collected through the joint account at the BOB. In fact the defendant managed to collect rentals until the dispute arose in the latter part of the year 2010 as evidenced by the letters found in pages from 20 to 24 in the plaintiff’s bundle of documents. If the plaintiff was collecting rentals after 2006, as alleged by the defendant, the plaintiff need not have gone several times unto the defendant pleading for money as the defendant stated in his evidence.
   
7. The plaintiff’s Solicitor sent the letter dated 15th September 2010 to the defendant requesting to put the things in order. This was followed by another letter dated 8^th November 2010 addressed to the defendant about the fraudulent transfer of the property into his name, while being an administrator and demanding the defendant to take remedial measures. (These letters are in pages 20 to 22 of the plaintiff’s bundle of documents.) The plaintiff’s Solicitors on 14^th September 2010 have also sent two letters are addressed to the tenants requiring the rentals to be paid into the trust account. As a result tenants did not pay to either of them after August 2010. This shows that the defendant has managed to collect the rental for 2 flats from May 2006 at least till August 2010.
   
8. The next move of the defendant in violation of his duty as the Administrator was the transferring of the Van No: BW 585, that was in the name of the deceased Parma Nand, into the name of the defendant in May 2008, seemingly, by making use of the letters of Administration he had obtained. No plausible explanation came from the defendant at the trial as to how and why the van was transferred into his name. Instead, the defendant was in an unsuccessful attempt to justify his act by producing some documents pertaining to certain Traffic offences committed by the plaintiff. The defendant also made an unfounded allegation against the plaintiff that he caused damages to the House in question. This included other allegations such as theft and nuisance allegedly committed by the plaintiff and these allegations were not substantiated. The plaintiff’s evidence with regard to the Vehicle remains unchallenged.
   
9. The most devastating act, as per the convincing evidence adduced by the plaintiff, the defendant had committed in breach of his duty as the Administrator of the estate, was the surreptitious transferring of the land and premises into his name, which is the main part of the estate of the deceased, by executing a purported “Deed of Renunciation” which I can say without any reservation, is not even worth the paper it’s written on. (vide page 26 of the plaintiff’s bundle of document). This document shows as to how the defendant exploited the plaintiff and got him to declare that the defendant is a beneficiary of the estate and to renounce plaintiff’s due rights in his favour.
   
10. The plaintiff was at the age of 23 at the time of this purported execution. What was the reason for the plaintiff to just give away his valuable property only to the defendant without any consideration? Would a matured person like the plaintiff, at his prime age waiting to enter into his married life, have given away his much valued and the only property for nothing, causing him to be thrown to the street? The defendant should have elicited and explained through reliable evidence as to how he became the beneficiary and what made the plaintiff to renounce his rights as shown in the purported Deed of Renunciation.
    
11. The Plaintiff in fact does not deny the going to the office of Vijay Naidu Associates on the day in question i.e. on 15^th of April 2009 and signing a document in front of a Clerk there and not before Mr. Vijay Naidu as claimed by the defendant. The plaintiff’s evidence in this regard is firm and withstood the lengthy cross examination. His stern position was that he signed the document in question on being told that it was for the purpose of obtaining a bank loan for the , purported, extension of the building within the land in question by showing a plan that had been taken by his late Father. The following part of the plaintiff’s evidence richly strengthens the plaintiff’s case and the learned Counsel for the defendant has not been successful in proving contrary by cross examination or adducing contrary evidence.
    

Q: Now witness in April 2009 did you come to Lautoka with the Defendant?

A: Yes my Lord.

Q: Did you come of your own wish or what?

A: No my Lord.

Q: How did you come – what happened – who told you to come to Lautoka?

A: Satendra Prasad asked me to come to Lautoka with him my Lord.

Q: Did he tell you why?

A: He told me that we are going to apply for loan and for that we’ll have to go to
one of the lawyer’s office and sign the papers my Lord.

Q: How did you come to Lautoka?

A: In the van – BW-585 my Lord.

Q: Who drove the van?

A: Satendra Prasad my Lord.

Q: And was there anyone else with him or just you and him?

A: Satendra Prasad’s son was also there my Lord.

Q: What was his name?

A: Amit Prasad my Lord.

Q: Your cousin, correct?

A: Yes my Lord.

Q: So when you came to the lawyer’s office did you meet the lawyer?

A: No my Lord.

Q: Who did you meet witness?

A: There were three (3) girls working in that office my Lord.

Q: And can you recall the type of office it was witness?

A: Yes my Lord it was a big office – it was double story my Lord.

Q: Where did you go to or where were you taken to?

A: Downstairs my Lord.

Q: And whom did you see?

A: The girls working in that office my Lord.

Q: And your uncle was with you throughout?

A: No my Lord, Satendra Prasad asked me to wait for him, he went and I was there
alone.

Q: Can you recall what happened witness?

A: During signing of the papers they told me that these papers are for the loan for
that house.

Q: Which house?

A: The house in Waqadra my Lord.

Q: Who told you that?

A: One of the girls my Lord.

Q: Now can you recall which lawyer’s office this was witness?

A: Vijay Naidu & Associates my Lord.

Q: Have you ever been to that office before?

A: No my Lord.

Q: What about after?

A: No my Lord.

Q: Have a look at this document – page 26 of the Plaintiff’s bundle Tab 17. Can you
see it – is that your signature on the right hand side?

A: Yes my Lord.

Q: Now who was present when you signed that – who all were present?

A: There was one girl and Satendra Prasad my Lord.

Q: That’s the Defendant?

A: Yes my Lord.

Q: And when you signed they explained to you what it?

A: No my Lord.

Q: What did they tell you?

A: This is for the purpose of bank loan my Lord.

Q: You see on the signature on the left somebody signed there – was that signed in
front of you?

A: No my Lord.

Q: Were you given a copy of the document?

A: No my Lord.

50. Further, 15^th of April 2009 was the only occasion the plaintiff, admittedly, visited Mr. Vijay Naidu’s office and not before or after that. But , the defendant had visited the office several times prior to the day in question i.e. 15^th April 2009, as evidenced by receipts dated 26^th January 2009, 24^th March 2009 and 9^th April 2009, which came out of his bag during the cross examination by the plaintiff’s Counsel. This shows that the defendant on his own had visited the Solicitor’s office in Lautoka all the way from Rakiraki and paid substantial amount of Money as Solicitor’s fees, stamp duty and charges for valuation report etc. in order to have the land transferred in his name for which he was not entitled to by a will or any other acceptable mode of acquiring right or ownership.
    

13. It is the burden on the defendant to prove that the instrument signed was nothing but a Deed of Renunciation and was in fact signed before Mr. Vijay Naidu by calling him as a witness. But, for the reason best known to the defendant he opted not to call Mr. Vijay Naidu. It was only a Son of defendant’s another Brother, who came to give evidence in support of the defendant’s claim. But, his evidence contradicted with that of the defendant on the point as to in which language the, purported, renunciation was read out to the plaintiff. Apart from this, he was seen as a witness vested with interest.
    
14. It is very clear from the evidence adduced, that the defendant, having made all the pre-arrangements to have the land in question transferred in his name, brought the plaintiff to the Solicitor’s Office in Lautoka only on the 15^th of April 2009 and surreptitiously got the ill-fated Deed of Renunciation signed under the guise of signing a document to obtain a bank loan to put up another flat in the Land in question. I find that the defendant took advantage of the vulnerable position of the plaintiff, who had become destitute after the death of his parents.
    
15. In the following answers to the questions put to the plaintiff under cross examination by the learned defence counsel, show that the plaintiff has firmly maintained his stance with regard to the language in which it was read out. It is also observed that when the defence counsel suggests and the document says that it was read out in English, the defence witness, Nilesh Prasad, who gave evidence claiming to have been present at the time of signing, says it was explained in Hindi as well. Nilesh Prasad also says that it was explained by both the Solicitor Vijay Naidu and the girl, which is an unusual practice and not supported by other witnesses.
    

Plaintiff under cross examination:

Q: And you do confirm that the deed of renunciation was explained and read to
you in English?

A: No my Lord I was told something else.

Q: I’m putting it to you that the content of the deed of renunciation was read to
you, it was explained to you in English.

A: My Lord if I would have known the meaning I wouldn’t have signed the
document.

Q: I’m putting it to you that you knew the meaning and you signed it.

A: No my Lord.

Defence Witness Nilesh Prasad under cross examination

Q: And can you tell this court who explained to Shiva, Vijay Naidu or the girl?

A: My Lord, both that girl and Mr. Naidu; they both explained to Shiva.

Q: In what language?

A: In the English language, my Lord; and also in Hindi my Lord – the girl explained in Hindi.

Q: And what van was that?

A: My Lord, the vehicle that belonged to Shiva.

22. Another remarkable event that took place during this tussle was the filing of the 169 application by the defendant to eject the Plaintiff by action No:-HBC- 43 of 2011 filed on 8^th March 2011. The defendant, instead of duly replying the letters dated 15^th September 2010 and 8^th November 2010 sent by the plaintiff’s Solicitors requesting the defendant to put the matters in order, the defendant chose to send the purported “Notice to Vacate” dated 2^nd November 2010 to the plaintiff demanding the vacation of the premises. (Vide- page 25 –Tab 16 of the plaintiff’s bundle of documents).
    
23. After sending the purported “Notice to Vacate” the defendant filed this summons for ejectment supported by his affidavit. It is surprising to observe that the plaintiff, who was the only beneficiary of the estate, becomes a “caretaker” in the Eyes of the defendant on a, purported, verbal agreement as per his affidavit in support. I find that this 169 application was nothing but another most despicable and unfaithful move adopted by the defendant to achieve his ultimate goal of owning the entire estate of the deceased by distancing and depriving the plaintiff from enjoying it as the sole beneficiary. This 169 application warrants nothing but dismissal, in view of what has come to light through this action.
    
24. The issue No. 12 above raises the question, whether the defendant obtained the letters of administration in his name with the consent and knowledge of the plaintiff or whether the defendant obtained the same through fraudulent means, if so what were the fraudulent means?
    
    1. The plaintiff has admitted going to the office of M/s. Chandra Singh & Associates along with the defendant. The Plaintiff says that he only had a hand shake with Mr. Chandra Singh and came out. It is the duty of the defendant to prove that the consent was duly obtained, particularly, when the plaintiff was still a Minor. No evidence has been adduced by the defendant to establish that the consent was duly obtained.
       
    2. However, when the manner in which the defendant conducted the whole affairs, how he treated the plaintiff during the time material and the nature of the act committed by him are carefully considered, this Court cannot arrive at a conclusion that the defendant obtained the consent of the plaintiff.
       
    100. The defendant, in his evidence was heard to say that the, so called, family meeting took place in 2006 after 3 or 4 months from the date of his brother’s death. Since the death was on 12^th October 2015 with the cremation on 15^th October 2005, any such meeting would have been possible only after January or February 2006. But, the Newspaper publication is dated 10^th January 2006. In that case the Family meeting and consulting Mr. Chandra Prakash should, necessarily, have taken place long before January 2006. This shows the defendant is deliberately lying.
         
25. Issues Nos. 17 to 20 are in relation to the defendant’s entitlement for monetary remedy to be considered, in the event the plaintiff’s issues are answered in his favour.
    
    1. It is undisputed that the deceased, Parma Nand, had a joint account with the Plaintiff at the ANZ Nadi branch. But, the defendant managed to open a separate account at Bank of Baroda jointly with the Plaintiff at the end of 2005 or beginning of 2006 and brought the balance therein to the new account.
    2. I find it is only in the year 2006 certain deposits have come in. Thereafter, no deposits came in and only gradual withdrawals have taken place as evidenced by slips produced in evidence. By the end of October 2011 the balance is only $ 0.56. No operation of account shown thereafter.
    100. Plaintiff has reiterated in his evidence that the practice of withdrawal was, for him to sign the blank slip on the request of the defendant and the defendant did the withdrawals. The plaintiff admits the receipt of $300.00 each only on two occasions.
    4. The town rate till 2013 is admitted to have been paid by the defendant. It transpires that the defendant has collected the rentals from two flats commencing from 2006 at least up to August 2010, which he has not accounted for. It is in September 2010 the plaintiff’s Solicitor has advised the tenants to pay into the trust account, which did not eventuate due to the dispute cropped up during this period. However, the plaintiff admits receiving rent only for 4 months in 2010 or thereafter.
    5. The defendant, as the holder of L.A, has received some insurance payments as per the evidence adduced at the trial and supported by documents.
       
    • Cyclone Evan Claim No. 60727771 - $ 3,827. 70
    • On BSP life policy $2,986.91
    • Colonial Life & Health $7552.89 (to the joint Account)
      
    6. However, the defendant has paid some insurance premium, ground rentals, Town rates (till 2013) etc. These payments have been made not as an administrator in the interest of the plaintiff, but to achieve his own goal of becoming the owner of the entire estate. Though he claims to have spent on the renovations of the Flats and repairs of the Van, such expenses have not been substantiated. In my view, the defendant who committed fraud and utterly failed in his fiduciary duty has no right to any claim, except for whatever the money he paid as Ground Rent, Town rates and other statutory payments etc.
    7. However, at one point under the cross examination, the defendant stated that he is prepared to abandon his claim, if the expenses incurred by him are paid back. This shows the admission of his folly in acting on wrong advice and fraudulently dealing with intestate estate of his brother, without any right on it in his favour.
       

Vide 118; Defendant under cross examination

Q: Now he wants it back, why don’t you give it back to him?

A: My Lord he can pay for all the expenses and take the property back.

8. The Defendant has not accounted for the rents collected. The van that was the part of the estate has been converted to his name and use depriving the benefit of it to the plaintiff. Hence, the plaintiff, being the only beneficiary of the estate, is entitled to have entirety of the estate including land and premises and the Van transferred to his name or the value of the Van to be paid back.
   
9. However, when the defendant tabling the Accounts, he may deduct the total sum he has so far paid as Ground Rentals, Town Rates, any statutory payments and other reasonable expenses he incurred so far by producing bills, receipt and documents to substantiate.
   

26. The pivotal issue is whether the plaintiff Shiva Nand, in fact, executed a Deed of Renunciation relinquishing his rights and interest in the property in favour of the defendant, Satendra Prasad.
    
    1. The person who alleges the existence of a fact must prove that fact. The plaintiff denies signing the alleged Deed of Renunciation. He states that he signed a document on being told by the defendant that it is for obtaining a loan facility to expand the building in the land. The defendant relies on the purported Deed of Renunciation and says the plaintiff signed it and it is valid. The burden is then on the defendant to prove that the plaintiff did, in fact, sign the document renouncing his rights and it was clearly read out to him and he signed it having understood the entire contents of it. In order to prove this, the defendant ought to have called Mr. Vijay Naidu, who is said to have witnessed the plaintiff signing the deed of renunciation. The defendant did not make any attempt to call Mr. Vijay Naidu. The defendant deliberately avoided calling Mr. Vijay Naidu, who would have been a material witness for the defendant’s case if called, but he failed to do so.
       
    2. The Fiji Court of Appeal in Subramani v Sheela [1982] 28 FLR 82 (2 April 1982) held that:
       

“The indefeasibility of title under the Land Transfer Act is well recognized; and the principles clearly set out in a judgment of the New Zealand Court of Appeal dealing with provisions of the New Zealand Transfer Act, which on that point is substantially the same as the Land Transfer Act of Fiji. The case is Fels v. Knowles 26 N.Z.L.R. 608. At page 620 it is said:

The cardinal principle of the statute is that the register is everything, and that, except in case of actual fraud on the part of the person dealing with the registered proprietor, such person, upon registration of the title under which he takes from the registered proprietor, has an indefeasible title against the entire world.”

100. However, a registered title whether in freehold or leasehold is defeasible for fraud, a registration of title procured by fraud is to be void (See section 41, LT). Fraud is an exception to indefeasibility. The defendant, in this case, has become registered proprietor by use of a forged Deed of Renunciation.
     

4. The plaintiff was to inherit the estate of his father, Parma Nand, but the defendant, Satendra Prasad, by fraudulent means had the Land and premises registered in his own name on 20th May 2009. The defendant has used the process of transmission by death dated 20th May 2009 to register himself as the owner, being the administrator of the estate of his late brother, Parma Nand, for and on behalf of the plaintiff.
   
5. The defendant knew that the plaintiff was entitled to the entirety of the estate of the Deceased, Parma Nand, which included the sub lease number 260960 Lot 46 DP 5850 (part of CL 8923) in Vuda Ba Province, containing in extent of 456m 2 and in order to become the owner of the whole property, he created the Deed of Renunciation by a fraudulent act, by making the plaintiff to believe that he was signing a document to obtain a Bank Loan. The registration of title, recorded on 20th of May 2009 making the defendant as the proprietor of the property, which is lot 46 in DP 5850, is void as it was procured by means of fraud. Therefore, the title registered in the defendant, Satendra Prasad’s name, is defeasible.
   
6. It is not in dispute that deceased, Parma Nand, did not leave behind a will and the plaintiff is the only inheritor and beneficiary. On the evidence, I find that the acts of the defendant were actual fraud as he knew that the plaintiff is the only heir and beneficiary to the estate of his father, Parma Nand.
   

8. The Acquisition of property by the defendant
   

27. The defendant, Satendra Prasad, is the uncle of the plaintiff. He, having become the Administrator of the estate of his Brother Parma Nand on his own volition, has acquired the properties that should have devolved on the plaintiff, without any right thereto or paying any consideration for same and he is not an Administrator, who is entitled thereto or a purchaser for value. The defendant’s title as registered owner is impeached by the plaintiff on two grounds, viz., first, that the registration of the defendant as owner was procured by fraud, and secondly, that such registration was invalid by reason of invalidity of the Deed of Renunciation, which, purportedly, had the effect of renouncing the plaintiff’s rights in the property, in favour of the defendant.
    
    1. Lord Lindley In Assets Co Ltd v Mere Roihi and others [1905] UKLawRpAC 11; [1905] A.C 176 at 210 states that:
       

“Fraud in these sections (i.e., actions seeking to affect a registered title) “ means actual fraud, dishonesty of some sort, not what is called constructive or equitable fraud-an unfortunate expression and one very apt to mislead, but often used, for want of better term, to denote transactions having consequences in equity similar to those which flow from Fraud.”

2. In Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd [1926] AC 101 at 106-107 the Privy Council held:
   

“If the designed object of a transfer be to cheat a man of a known existing right, that is fraudulent and so also fraud may be established by deliberate and dishonest trick causing an interest not to be registered and thus fraudulent keeping the register clear... The act must be dishonest, and dishonesty must be assumed solely by reason of knowledge of an unregistered interest.”

100. Fraud is an exception to indefeasibility of a registered title. The Supreme Court of Fiji confirmed this in Star Amusement Limited v Navin Prasad and Others Civil Petition No. CBV 0005 of 2012 (Court of Appeal No. ABU 0065 of 2011) at para 42 (page 14) the Court observed that:
     

“42. The decision in Subramani & Maria v Dharam Sheela and three others, supra, is important not only because of the peculiar facts of that case, but also because Marsack JA., in the course of his judgment in that case, referred to with favour the landmark decision of the majority of the Court of Appeal in New Zealand in Fels v. Knowles [1906] NZGazLawRp 66; (1906) 26 NZLR 604 in which it was observed at page 620 that-

"The cardinal principle of the statute is that the register is everything, and that, except in cases of actual fraud on the part of the person dealing with the registered proprietor, such person, upon registration of the title under which he takes from the registered proprietor, has an indefeasible title against the world ... Everything which can be registered gives, in the absence of fraud, an indefeasible title to the estate or interest, or in the cases in which registration of a right is authorized, as in the case of easements or incorporeal rights, to the right registered."

28. The evidence justified the finding of fraud on the part of the defendant, Satendra Prasad. The defendant, as the uncle of the plaintiff and brother of the deceased, had full knowledge of plaintiff’s entitlement to the estate that was left behind by his brother Parma Nand. The defendant was aware of the plaintiff’s rights. The defendant dishonestly and fraudulently transferred the property in his name by causing to execute a false Deed of Renunciation making the plaintiff to believe that he was signing an instrument to obtain bank loan. The defendant’s title to the property flows from fraud and that registration is invalid. His title is defeasible. The plaintiff is entitled to impeach his, purported, title on the ground of fraud. The defendant’s act falls within the definition of section 41, Land Transfer Act. Therefore, the transfer dated 20th May 2009, by instrument No. 719216 should be set aside as it was procured by fraud and I do so.
    
    1. Loss of income:
       
    1. The property in dispute has three flats. One flat is occupied by the plaintiff and was never rented out. According to the evidence other two flats have fetched $ 400 each per month during the material time period. Plaintiff’s evidence that the defendant collected the rental is not challenged. The defendant by his issues has, tacitly, admitted the collection of rentals and proceeds from the insurance policies. The property is situated in the prime area close to Nadi Town. The defendant has received all the rental income from the said two flats from May 2006 to August 2010. He did not show any accounts of the income from 2 flats and proceeds from insurance policies. The defendant from the inception acted on the basis that he is the owner and beneficiary of the entire estate and thus thought not accountable to anyone. He did not give any sorts of account to the plaintiff. The evidence given in this regards by the plaintiff remains unchallenged. I accept the plaintiff’s evidence in respect of the rental income from the flats and proceeds from insurance policies of his late father.
       
    2. The plaintiff has neither prayed for any loss of income nor raised an issue on it. However, if the defendant is desirous of recovering the expenses he incurred by way of payment of Ground Rentals, Town Rates, any statutory payments and other reasonable expenses, he shall have to furnish full accounts of all the proceeds from flats, insurance policies and from the Van that belong to the estate.
       
    10. Damages

The Plaintiff prays for punitive and exemplary damages. The plaintiff has committed fraud on the plaintiff taking advantage of his vulnerable position and failed his duty as an Administrator of the estate. The defendant acted deliberately to plunder the estate of the Deceased, Parma Nand, which should have duly devolved of the Plaintiff Shiva Nand. Having considered all the above, I decide to grant $ 15,000.00 as punitive damages.

11. Costs

As a winning party, the plaintiff is entitled to costs of these proceedings. He claims costs on an indemnity basis. The defendant being aware that the plaintiff is the only heir and beneficiary of the estate of late Parma Nand, committed fraud on the plaintiff and breached his duty towards the plaintiff and the estate. Considering all, I summarily assess the costs at $5,000.00.

50. Conclusion

For the reasons set out above, I declare that the plaintiff is entitle for a declaration that the, purported, Deed of Renunciation dated 15th April 2009 is void and of no effect as it was obtained fraudulently by misrepresenting and making the plaintiff to believe that he was signing an instrument to obtain bank loan.

The plaintiff is also entitled for a declaration that the subsequent instrument for the transfer of the Land and premises of this estate and the instrument for transmission on death both dated 20^th May 2009 are also void and of no effect on the ground that such transfer documents were procured by actual fraud.

The plaintiff, being the only heir, is entitled to the land and premises in Housing Authority Sub- lease number 260960, which is Lot 46 on DP 5850 having an area of 456m2 and on which 3 flats are situated.

Thus, the plaintiff can have the Instrument of Transmission on Death bearing No.719215 and the Deed of Transfer bearing No. 719216, both dated 20^th May 2009, set aside and further orders directing the Registrar of Titles to substitute the name of the plaintiff as the owner.

The plaintiff is also entitle to have the accounts of the total rental income, proceeds from the Insurance policies and the actual payments made by the defendant on account of Ground Rental, Town Rates, other statutory payments and the reasonable expenses incurred. No order is made for the recovery of loss of income as same is not prayed for. The plaintiff will be entitled for punitive damages and cost.

The defendant is entitled only to deduct the payments he made as Ground Rental, Town Rates, statutory charges and other reasonable expenses incurred by him on the property, however, subject to production of relevant bills when submitting the accounts.

13. Final Orders

1. Issues Nos. 10 to 16 are answered in favour of the plaintiff and there will be judgment for the plaintiff as follows.
   
2. The, purported, Deed of Renunciation dated 15th April 2009 affecting the land and premises in suit is void and of no effect.
   
3. The Instrument of Transmission on Death bearing No. 719215 and the Transfer No. 719216 both dated 20^th May 2009, affecting and transferring the Housing Authority Sub-Lease No: 260960, in favour of the defendant are hereby cancelled.
   
4. The Registrar of Titles must remove the transfer dated 20th May 2009 and substitute the name of the plaintiff (Shiva Nand) as the holder of sub lease to the entirety of the land and premises covered by the Housing Authority Sub-Lease No: 260960 after issuing a new lease in the name of the Plaintiff.
   
5. The Action No. HBC-43 of 2011 filed by the defendant for the ejectment of the plaintiff and others is hereby dismissed.
   
6. The Defendant shall submit the accounts of all rental income out of the two flats from 12^th May 2006 till 31st August 2010, proceeds of insurance policies, and on all payments made by the defendant as Ground Rent, Town Rates and statutory payments, together with the particulars of reasonable expenses incurred supported by bills and receipts.
   
7. Plaintiff is entitled to re-possess the Van No. BW- 585 and have it transferred into his name or the value of it as at 22nd August 2008 (date of Transfer) with the interest of 2% from that date.
   
8. Plaintiff is entitled for $ 15,000.00 as punitive damages and the defendant is ordered to pay it with 3% interest on it from the date of judgment.
   
9. The defendant may claim only the payments he made as ground Rent, Town Rates, the statutory charges and other reasonable expenses incurred by submitting proper accounts together with the bills, receipts and documents to substantiate same.
   
10. The defendant shall pay summarily assessed cost of $5,000.00 to the Plaintiff.
    

.................................
A.M.Mohammed Mackie
Judge

At Lautoka
22^nd May, 2018