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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
Civil Action No. HBC 198 of 1990
BETWEEN
VIRENDRA KUMAR and SHALENDRA KUMAR both sons of Ami Chand Prasad as the Executors of AMI CHAND PRASAD (son of Baijnath Prasad (late of Drasa, Lautoka and as the Ultimate Executors and Trustees of the Estate of BAIJNATH PRASAD (son of Sheo Raj) late of Drasa, Lautoka.
PLAINTIFFS
A N D
SUMINTRA ARJUN widow and executrix/trustee of the estate of ARJUN.
DEFENDANT
Appearances: Mr. W. Pillay of Gordon & Co. for the Plaintiffs
Mr. N. Nand of Vijay Naidu & Associates for the Defendant
Trial Dates: 15 & 16 April 2014
Date of Judgement: 18 June 2019
JUDGEMENT
INTRODUCTION
THE PLAINTIFFS
THE DEFENDANT
FAMILY
PARTITIONING OF CT 7706
WHAT IS THIS CASE ABOUT?
HISTORY OF PROCEEDINGS
SURVEY OF THE 45 ACRES
TRIAL
ONUS
THERE WAS AN ARRANGEMENT BETWEEN ARJUN & AMI CHAND PRASAD
COMMENTARY – PECULIAR EVIDENTIARY PROBLEMS
TO WHAT LEVEL OF SRCUTINY SHOULD THE EVIDENCE BE TESTED?
In a case of a person suing a deceased estate the court normally looks for some sort of corroboration: see Re Hodgson [1885] UKLawRpCh 249; (1886) 31 Ch D 177 even though, as a matter of law, corroboration is not absolutely necessary. Experience, however, shows that when plaintiffs are making a claim against a deceased estate the court is wise to look for corroboration.
...... and undoubtedly it is established that in cases of this sort the Court scrutinizes very carefully a claim against the estate of a deceased person. It is not that the Court looks on the plaintiff's case with suspicion and as primâ facie fraudulent, but it scrutinizes the evidence very carefully to see whether it is true or untrue.
THE UN-CONTROVERTED FACTS
54. The Baiju family has enjoyed a long, continuous and uninterrupted occupation and possession of this 45 acres since the 1950s[17]. Their possession began when the late family patriarch, Baiju, went to settle there, shortly after he and the other five co-owners purchased CT 7006.
The share or interest which a tenant in common has in land is an "undivided" share, that is to say, "a distinct share in property which has not yet been divided among the co-tenants" ((2) Megarry and Wade, The Law of Real Property, 5th ed. (1984), p.422.).
A division of the property is repugnant to the nature of a tenancy in common ((3) Fisher v. Wiggs (1700) 12 Mod.296, at p 302 ( 88 ER 1332, at pp 1335-1336).), for it is an essential characteristic of a tenancy in common that each of the tenants has the right to occupy the whole of the property in common with the others. Like joint tenants, tenants in common have a unity of possession; unlike joint tenants, they need not have a unity of interest, nor a unity of title, nor need there be a unity in the time when the interests of the co-owners vest.
THE EVIDENCE
| 1. | THAT I am a registered Surveyor in accordance with the relevant laws and regulations applicable and in force in Fiji. My licence number
is 123. |
| 2. | THAT I was also the Manager of the Lautoka Office of Harrison & Grierson & Partners, consulting Engineers, Registered Surveyors
and Town Planners. |
| 3. | THAT Harrison & Grierson & Partners were engaged by the then surviving, remaining and interested registered proprietors of Certificate
of Title Number 7006 namely ......either themselves if they were alive or through their executors, trustees or administrators to
carry out a subdivision of Certificate of Title Number 7006 so as to divide the said land into six (6) equal shares or less and have six (6) separate Certificates of Title issued. |
| 4. | THAT I was the Principal and Chief Surveyor who carried out the said survey(s). |
(my emphasis)
| 15. | That I have been shown a photocopy of a survey plan which has some handwriting on it at the bottom and which is marked as “AC1”
and annexed hereto. I confirm that this is a photocopy of the survey plan of the land on which I in my handwriting wrote out the
agreement between Arjun and Ami Chand Prasad and the representations and promises made by Arjun and had them sign the same in my
presence and in the presence of Leone Kolikoli a technical assistant that was in the employ of Harrison & Grierson & Partners
and under my supervision who affixed his signature to the same as a witness. |
| 16. | That my reading of the said photocopy shows that the following is written: (handwritten note, see below) |
| 17. | That based on the above an additional 45 acres more or less of land that fell into that part of the land that was to be subdivided
and given to Ami Chand Prasad and Hans Raji as Executors and Trustees of the Estate of Baij Nath Prasad namely Lot 2 was transferred
and/or shifted and/or given to Arjun to be part of his share namely Lot 1. |
94. In cross-examination, DW1 agreed that the arrangement between Arjun and Ami Chand Prasad was made before the completion of the survey[35]. DW1 even vouched for the veracity of the late Ami Chand’s recollection as follows in cross examination[36]:
| Q. | You said on issue of subdividing, Ami Chand was the “key” guy because he was present all along. |
| A. | Yes. He was vital to the agreement. |
| Q. | He would know the ins and outs of what really was agreed. |
| A. | Yes. |
| Q. | Does it not make sense, to protect estate of Baijiu, Ami Chand enter into Agreement on partition of land |
| A. | History relevant. Why did Baiju pick Lot 2 if he has homes of sentimental value in Lot 1? |
| Q. | I put to you that in order to protect assets of Baiju estate, Ami Chand Prasad entered into an Agreement with your father. |
| A. | Does not make sense to me. Normal person would protect his home. Does not make sense why he picked Lot 2 when his home in Lot 1. |
| Q. | You are saying that 45 acres, which includes site of Baiju house, to be sold |
| A. | Before or after subdivision? |
| Q. | Before subdivision, it was no man’s land. No one owned the 45 acres. Would your father or you sell the 45 acres to Baiju Prasad? |
| A. | Yes |
| Q. | Ami Chand Prasad already has his home there. It would not make sense for Ami Chand Prasad or executor to be buying land he sits on. |
Certainty & Fairness Of Equal Division
Actually that part of land is the most valuable .... in the whole property. It is the frontage, close to the road, electricity and water and if subdivide into residential lots it will value more than all our property. Therefore the property of that value should produce in proper agreement if it is to be given away.
Anyway when we are making a separate Title for 45 acres tell the surveyors to make it longer taking Johnson’s margin and shouldn’t touch the estate the estate of Badri Prasad’s 15 acres which we suppose to give free of charge. We don’t have to bother about Kaushilia’s contract. That can’t be missed out for we don’t want to make it wider to loose better part along the roadside. If we were to give away, we just have to think of 45 acres, wherever it makes up.
“It has long been a principle of equity that in the absence of sufficient reasons for any other basis of division, those who are entitled to property should have the certainty and fairness of equal division; for ‘equity did delight in equality’. The maxim is ‘equality is equity’, and this has been applied in a variety of ways.”
And at page 38:
“[The] maxim ‘equality is equity’ may be illustrated by a number of more modern instances. In general, the maxim will be applied whenever property is to be distributed between rival claimants and there is no other basis for division. ‘I think that the principle which applies here is Plato’s definition of equality as a ‘sort of justice’; if you cannot find any other, equality is the proper basis: Jones v Maynard [1951] Ch. 572 at 575, per Vaisey J’”.
The Arrangement Between Arjun & Ami Chand Prasad?
“I Arjun agree that as soon as the survey is finished, will proceed with further subdivision of lots and transfer 45 acres to Ami Chand. “Boundaries to be finalized in field in course of survey.”
That agreement on a piece of paper should not have any value. Because it is not registered and does not even make clear why I should give 45 acres to Ami Chand. Does not say it is a part of estate of Baij Nath. Most of the wordings are in short hardly visible. Actually that part of land is the most valuable .... in the whole property. It is the frontage, close to the road, electricity and water and if subdivide into residential lots it will value more than all our property. Therefore the property of that value should produce in proper agreement if it is to be given away.
Express Trust?
Hepburn[44] summarises Paul v Constance thus:
In this regard, words and conduct carried out over a period of time may be taken into consideration. On the facts of the case – the history of the relationship between Constance and Paul, the fact the he repeatedly stated during their relationship “This money is as much mine as it is yours”, as well as the joint deposits made into the bank account and the interview with the bank manager – were all considered to amount to an intention on the part of Constance to declare himself trustee of the money for himself and Paul jointly.
It [is] not necessary for the trust to be created in writing on the date that it was declared as long as some written evidence of the trust was available for the court at the point of enforcement.
In my view, Ami Chand Prasad’s note is sufficient to satisfy the requirements of section 59.
Or Constructive Trust ?
Constructive Trust
[66] A constructive trust is imposed by the law as an ‘equitable remedy’. This generally occurs due to some wrongdoing, where the wrongdoer has acquired legal title to some property and cannot in good conscience be allowed to benefit from it. A constructive trust arises where equity regards it as against conscience to allow a person to deal with property as if it were his own or where it would confer ‘a manifest and unfair advantage’ or it would be unjust to allow the apparent owner of property to deny a claimant’s beneficial interest or that others have a claim to that property. In Hussey v. Palmer [1972] EWCA Civ 1; [1972] 3 All ER 744; [1972] 1 WLR 1286 Lord Denning defined a constructive trust as ‘a trust imposed by law whenever justice and good conscience require it.... It is an equitable remedy by which the court can enable an aggrieved party to obtain restitution’. Constructive trusts contain a remedial element as well (vide Muschinski v Dodds [1985] HCA 78; [1985] 160 CLR 583).
[67] In Gissing v. Gissing [2] [1970] UKHL 3; [1971] AC 886 at 902; Lord Diplock said
"A resulting, implied or constructive trust—and it is unnecessary for present purposes to distinguish between these three classes of trust—is created by a transaction between the trustee and the cestui qui trust in connection with the acquisition by the trustee of a legal estate in land, whenever the trustee has so conducted himself that it would be inequitable to allow him to deny to the cestui qui trust a beneficial interest in the land acquired. And he will be held so to have conducted himself if by his words or conduct he has induced the cestui qui trust to act to his own detriment in the reasonable belief that by so acting he was acquiring a beneficial interest in the land...”
Common intention
[68] It is said that at the heart of this doctrine is the existence of a common intention (see Ogilvie v Ryan [1976] 2 NSWLR 504) relied on by the claimant to his or her detriment. Common intention could be shown either by way an express agreement or in the absence of such an agreement, an act (such as direct contribution of money towards the purchase of the property) by the claimant from which the court may infer a common intention giving rise to an interest under a constructive trust (Lloyds Bank plc v. Rosset [1990] UKHL 14; [1991] 1 AC 107). Stack v. Dowden [2007] UKHL 17; [2007] 2 AC 432; [2007] 2 WLR 831 and Jones v. Kernott [2009] EWHC 1713 (Ch); [2010] 1 All ER 947 have enlarged the circumstances in which a common intention may be established.
[69] In Gissing’s case (supra) the House of Lords held that a common intention has to be inferred from the parties’ conduct as to how the beneficial interest is to be held. The relevant intention is that which a reasonable person would draw from the parties’ words or conduct. The court must determine what inferences can reasonably be drawn in each case. In Grant v Edward[3] [1986] EWCA Civ 4; [1986] 2 All ER 426 it was held “Mrs Grant was entitled to half of the beneficial interest under a constructive trust. There was a common intention that she was to have a share in the property. She had acted to her detriment by making substantial contributions to the house hold expenses which she would not have done unless she had believed that she would have an interest in the house.” In Nisha v Munif [1999] 45 FLR 246 a mother and son shared the family home of which the son was the registered owner. The mother claimed that she had contributed to the home by donating building materials and furnishings and by helping with the mortgage. She claimed a half share in the property. The High Court of Fiji held that in the circumstances of the case it was clear that the parties had intended to share the property equally. Accordingly a constructive trust to that effect was imposed on the son. Shameem J. said “the defendant cannot now, in all conscience, insist that the plaintiff live elsewhere, nor can he deny, her beneficial interest in the property.”
[70] In Sami v Wati Civil Action HBC No. 35 of 2005 decided on 07 June 2010; [2010] FJHC 279 Calanchini J (which Master Amartunga quoted with approval in Prasad v Wati Civil Action No. HBC 315 of 2010 decided on 12 August 2011; [2011] FJHC 442) said
“Where there is no express declaration of a trust, it is necessary to determine whether there existed a common intention of the parties concerning the equitable ownership of the land.
However that presumption may be rebutted. For instance, if the evidence established that there was an agreement, arrangement or understanding between the Plaintiff and the deceased as to the beneficial ownership of the land, then the Court would give effect to that common intention by means of a constructive trust or by means of a proprietary estoppel if the Plaintiff had suffered detriment.
Proprietary estoppel enables an equitable interest to be granted to a person who has been induced to suffer detriment upon reliance on a representation that the Plaintiff would acquire ownership of the land as a result. Under the remedy the court may award one of a number of rights ranging from freehold title through to merely equitable compensation in money.
“A recent development in the law that applies to cases such as the present is an approach based on avoiding unconscionability if the First Defendant were permitted to deny the Plaintiff an equitable interest in the land. This approach looks for an agreement between the parties and then examines the entire course of dealings between the parties. The aim is to reach a fair result and to supply the parties with a common intention if that is necessary.”
[71] A further survey of legal literature shows that common intention could now be established by (1) express or overt statement, agreement, promise, assurance, arrangement or understanding, before or after the acquisition between the parties (e.g. Rosset and Grant) but it does not matter that the express assurance in whatever form occurs after the legal owner has acquired the property (see Clough v. Killey [1996] 72 P & CR D 22; [1996] NPC 38) (2) inferred common intention by way of a direct contribution to the purchase money such as lump-sum or mortgage payments (e.g. Rosset and Burns v. Burns [1984] Ch 317) (3) inferred common intention from the parties’ entire course of conduct ( e.g. Gissing, Hammond v. Mitchell [1992] 1 WLR 1127, Chan v. Leung [2003] 1 FLR 23, Stack, Kernott, Geary v. Rankine [2012] EWCA Civ 555) where evidence of common intention can come from a wide-raging of factors which are not exhaustive (4) imputed common intention which is an intention the parties would have had, had they thought about it. In Kernott the majority of judges determined that there may be circumstances when it is permissible to impute a common intention to the parties, at least as to the quantification of shares when the parties are already co-owners and the same view of was taken in Geary as well. Thus, where it is possible the parties are deemed to have a common intention to share the property in such proportions as is fair in all the circumstances. However, the Court of Appeal in Geary indicated that the imputation is relevant only to quantification, not acquisition.
Detrimental reliance
[72] With regard to the detrimental reliance which is the second limb of establishing a constructive trust, Lord Denning in Greasley v. Cooke [1980] 2 All ER 710 suggested that if there is evidence of ‘detriment’, there should be a presumption of reliance. Consequently, in the absence of evidence to the contrary adduced by the legal owner, the court is entitled to assume that the claimant did, indeed, rely on the assurance made. This is so even if the evidence suggests that the claimant had been motivated partly by other reasons such as love and affection for the legal owner (see Chun v. Ho [2002] EWCA Civ 1075). ‘Detriment’ may take many forms. For example, it may be financial or any other conduct. Giving up of existing accommodation, doing extraordinary work of the property, spending one’s life savings and sacrificing other opportunities are some examples of ‘detriment’ which does not have to be detrimental in the sense of being harmful. Further, detriment need not necessarily be made in relation to the property in which the claimant acquires an interest either. Payments or conduct is evidence upon which a common intention can be established and they also can be the detriment consequent on the said intention.
56. Just as the starting point where there is sole legal ownership is sole beneficial ownership, the starting point where there is joint legal ownership is joint beneficial ownership. The onus is upon the person seeking to show that the beneficial ownership is different from the legal ownership. So in sole ownership cases it is upon the non-owner to show that he has any interest at all. In joint ownership cases, it is upon the joint owner who claims to have other than a joint beneficial interest.
69. In law, "context is everything" and the domestic context is very different from the commercial world. Each case will turn on its own facts.
“Give us the 45 acres, or no partition”.
ORDERS
Anare Tuilevuka
JUDGE
Lautoka
Appendix 1
49 Barrack Rd
Mt. Wellington
Auckland, New Zealand.
12.10.92
Dear Pradip,
Yes I have received your letter. Pleased to hear everyone in Fiji are doing well and you have seen Ben Uma rang Rosy yesterday and mentioned about you. They are happy that you are working on the land. Ben is fit now, by doing all that you have taken most of the problems from head. What you are doing now should have been done long ago but anyway it is not late even now. What I want to see that my children were happy with the income of my property before I am gone. I am so happy that besides many other things you have done for the family, you put your step on a very major work which will make the family life happy. I and Amma are very proud of you and always talk about you, that you always think of your brothers and sisters which now days very few people will do.
I have almost finished paying Man Singh for the Korotogo property. After you paid the major amount what was left. I was paying 2 weeks’ pay to you and the other 2weeks to Man Singh’s lawyer in Fiji. So after that I will have some money to use for our self. Now I can apply for our citizenship which is about $270 for both of us. The next thing after subdivisions we will have to pay your bank off and for that the quickest one will be the .... Property (Estate of Badri Prasad). We suppose to give them 15 acres free of charge and whom they have 15 acres title they want another 20 acres to buy for the brother. That time they can mortgage the two Titles to obtain money for the 20 acres. That is where Saten Nandan can help us and we will be able to pay off Ben and your bank easily. Anyway I am sure everything will work out well when you have taken interest on it. May God help us. Now I will tell you the story about this property from the start, then you will realize what I am doing and why. How my father and other 3 brothers were bitten and how I came in ...
My father Bhagwandin were seven brothers, the eldest being Jhakari, the second was my father and the third Ganga Prasad, the fourth Jagan Nath (the one who gave me his property) the fifth Baij Nath (father of Ami Chand) sixth Pardesi (father of Subhas Chand) and the last one Badri Prasad (father of Ghotka – Baichuka).
Our uncle (Fuffa) Buchuna Prasad were three brothers – Buchuna Prasad, Ram Samy Prasad and Ram Suchit Prasad (The Prasad’s Studio family).
In 1946 the two families decided to buy a piece of land 1387 acres of freehold land. It was to be 50-50. The price of the land was 12 shillings and 10 shillings per acre (1 dollar 20 cents and 1 dollar) which would be about 800 pounds (1600 Dollars) for the most of the land was hilly and the hilly land was $1 and flats $1.20 per acre.
The money to pay the survey fees and deposit to start with from ... side was paid by my Aji. That time Aja was dead. Aja had 84 acres of cane farm (Leasehold) from Johnson where we are now. That farm of 84 acres had only one contract. After the death of Aja (Shri Raj) the contract was somehow transferred to the elder brother Jhakari.
They also had one rice farm close to Vakabuli known as Aladubu. Aji and Aja most of the time lived in that farm about six miles from the cane farm. All their brothers used to go in the rice farm in turns. I used to be the pet of the grandparents and lived most of the time with them and also their youngest son Badri Prasad. That time they had one hundred pounds in their tin suit case. That one hundred pounds was a big money for that time. When Aja died the rice farm was sold to one Sesa Reddy (father of Jai Ram Reddy – Solicitor) for dairy farm for 98 pounds. These 198 pounds were used to pay the deposit and the survey fees for the said freehold land bought in the share of 2 families.
That 198 pounds supposed to be Badri Prasad’s money because he was the youngest and always lived with his parents and looked after the cattles and also a sickly person from the beginning. Even then you will see how his eldest brother bit him at the end.
You might think how I know all this exact figures. Firstly how I know how much Aja and Aji had with them, as I told you earlier that I was their pet and lived with them the most, secondly I was the only most educated in the whole family. I was the only one went up to class 8. In 1946 I was in class 8 and was used by Jakan Prasad as his clerk. All the school teachers went to teachers training after class. There was only one secondary school in Lautoka of whole of Western side and only the choiced went to secondary school. I went to Natabua Secondary School in 1947.
Alright the said freehold land 1378 acres Title 7006 the 50% would have been about 400 pounds Aja whose name should go on the Title. Jakri Prasad told his brothers, since the others party are only 3 brothers we put 3 names from our side to make 50-50 share and after the mortgage is paid off, then the whole land will be subdivide. Then there will be seven names in our share but not in written. So the title showed 3 names on each side. The Buchuna Prasad 3 brothers on one side and the other parties instead of three names from elder and down, Jhakari chose himself and the fourth and the fifth brothers on the title. Why he left aside the second one and the third name which we later realize that he had in his mind from the beginning to bit the quite ones. He took on his side whom he thought to be smarter ones and will fight later.
Now to make the payment as I previously said 84 acres of cane land was on Jhakari’s name. The seven brothers has separate areas to work on. Every year total harvest harvest used to be close to 1600 tons. That means each one had 200 to 300 tons in each farm. But all the money came on Jhakar account. The first cane payment (the biggest payment) each paid 50 pounds ($100) for the payment towards the freehold land. I was the clerk of the family used to do all the accounts. Take out the harvesting expenses manure and others. That is 7 x 50 pounds almost paid off the whole amount which I now realize. Those days I was also very ignorant that I was cutting my own throat. I left Drasa and came to Sigatoka in 1953. From 1946 – 1953 that is 8 years they kept on paying 50 pounds each and even after I came away they kept on paying till 1958 when Jhakari went to India and after coming back he demanded 117 pounds each and said if you all pay that amount then I will give your share of freehold. By that time they all realized it was wrong. After paying so much how come they have to pay 117 pounds each .... to pay off the title. Big trouble started .... The four left overs refused to pay and the land ... by remained on the name already on the Title Jhakari, Jagan Nath and Baij Nath (Baiju) which was the main aim of Jhakari Prasad.
You know how I became a third shareholder I never thought I would ever inherit or become a owner of Kaka Jagan Nath’s property, because many others especially Jhakan’s sons were after his property and many times they warned me indirectly that they will kill somebody who talked about Kaka’s property. The only place where I succeeded was they always ill-treated him and on the same place I always showed him the fatherly treatment. After the death of my own father I and Amma always looked them as my own parents. Helped them anyway possible. Gave them clothing and cash whenever they came home. Even one time the whole roof of their new house was blown roof and when I saw they live without roof, only under the ceiling for about six months and when we went to see then Kaka started crying. I went home and give order to Burn’s Philip store to give all the materials on my account to Kaka. Even my own brother and mother did not like why I helped Jagan Nath so much. But I never asked them whom they will give their property.
After Kaka’s death in 1975 all the cousins were jealous why he gave his property to me. All get together in which Ami Chand also gave hand and helped Tota Ram – the man used to live with Kaka but Kaka was tired of him because he hardly worked on farm and only used to drink and steal people’s goat, chicken pig etc. Even he took away chicken and pig from Kaka’s place. We had Supreme Court case for more than three years – three-four types of claim but I won all the cases because Kaka made the proper documents. Sam Matawalu was my solicitor. He never asked for fees instead he gave cash and drinks each time I visited and asked for cash for my pocket expenses. The probate was approved in 1978 but because of all the cases I could sell the Johnson land cane farm in 1980 or 1981. Then I paid Matawalu about $7000 dollars as he billed when my name came on the Title in place of Jagar Nath, then I asked Matawalu to subdivide it into six shares.
When you are writing to surveyor next, tell them to make Badri Prasad’s area to 15 acre lot. Their Contract Number as shown in this map attached .... C.N.14144 and the area 40750 ha. Next to that make one 20 acre lot for them to buy later as I stated earlier.
There is a creek running across, the land as I have coloured blue. In the first place the land was to be divided into two parts for 2 separate families. One side of the creek was for the one family and the other side of the creek the other I have marked Part 1 and Part 2 in red on the map attached. According to the agreement if there is a big difference in area then the land on the hillside to be used to make up the difference. This meant the flat lands on the both sides of the creeks were nearly same.
When the surveyors did that, they found part one that is our side to be 120 acres bigger than the Part 2. Which means 60 acres from our side to go into part 2 to make the area equal. To do that a separate Title was to be made on the hill side. A meeting was called in the surveyors office and the matter was brought up.
A piece of best agricultural land lies between the road and the creek marked red with the area 12-15 acres leased by Prakash’s father Rameshwar Prasad. Prakash’s father has his house on one corner and Prakash on the other corner. In value that piece of land is higher than 60 acres on the hillside. According to the agreement to follow the creek, that piece of land should come in part one. Before any talk of subdivisions came, Mr. Ram Suchit form the other party used to collect rent from Rameshwar Prasad. But now when the subdivision started, that came in our side that is part 1.
Now in the meeting about extra land in our side, Ram Suchit and his
Early 80’s I and solicitor Sam Matawalu decide to subdivide the title 7006 containing 1378 acres into six shares. Out of those six, one in Canada the executor and Trustee of late Jhakari. Late Baij Nath Trustees and Executors were Mrs Baij Nath and Amila the eldest son. I, Arjun the Executors and Trustee of late Jagan Nath, and the other party Mr Ram Suchit who is only person alive, out of six ..... and the trustees of both Buchamu Prasad and Ram Samujh Prasad were Mr Balram, Vinay Kumar and late Buchama’s wife Dukhni.
Therefore in the first subdivision meeting the following people were present – ARJUN, Ami Chand, Mrs Baij Nath, Ram Suchit, Balram, Vinay Kumar and Dukhni. One Narend Prasad in Canada was ... According to the registered Agreement signed by the six shareholders, it states that at any time if 3 of the six want to subdivide the land, they can do so. So we started the work and also informed Narend Prasad about it. He agreed that we should subdivide but refused to take part in the costs. All the costs were divided among the other five shares ignoring the sixth one. That is he got his Title free of charge.
Sam Matawalu arranged the bank of ANZ (Australian and New Zealand) for finance. We arranged the Surveyors – Harrison and Grierson in Lautoka. Before that we talked to many other surveyors. Their fees was from 15 thousand to 22 thousand dollars to subdivide the said land into 6 parts. But Harrison and Grierson agreed to do it for 5 thousand dollars only. The Solicitors fees was to be 5 thousand as well. Party were told, you have two choice whether you have 60 acres on hill side with separate Title OR you take the area leasing by Rameshwar Prasad. Ram Suchit agreed that they will have that 15 acres along the creek and not the 60 acres. Since that 15 acre area lies or would have come in Lot 1 of Part 1. Therefore the 60 acres automatically should come in lot 1 which now belongs to me (Arjun).
Another 15 acres of land (freehold), we all agreed to give to our youngest uncle (Kaka) Bachamu Prasad free of charge. The surveyors were told to put extra 15 acres out of Part 1 into Lot 1, to give to Badri Prasad which I will give from my area. That means 60 acres + 15 acres equal to 75 acres shows extras in my area and the average shows by making the area 317 acres. But it is actually 317 – 75 = 242 acres.
From the beginning the understanding was that whenever the subdivision is done, in Part 1, the Lot 1 should belong to Jhakari, the lot 2 to Baij Nath and the last and Lot 3 to Jagar Nath. No body lived on the land because there was no cane contract there. Later when FSC (Fiji Sugar Corporation) or CSR Co. (the Colonial Sugar Refining Co.) started giving cane contracts in urban areas, Baij Nath (Ami Chand’s father built his house in Lot 1 as it is now and Ram Kirpal’s wife (Ram Kirpal son of Jhakari Prasad) built their house in Lot 3 and had a cane contract in that area. Ami Chand’s father Baij Nath was very clever and did not allow any tenant to occupy land and cane contract in Lot 2. He and his sons had all contracts In Lot 2. That is in the middle of the whole area. The advantage they now have that they don’t have to deal with the tenants now and the separate titles were made. They have a clear title that is Lot 2. Whereas in Lot one which is mine now and Lot 3, ... as Executors and Trustees have many tenants.
On top of that Baij Nath acquired cane contracts to the name of his wife, himself and his son Ami Chand’s wife around the place where they built the house which is now in my area.
While the subdivision was going on Ami Chand and Narend Prasad in Canada discussed that since Ram Kirpals wife had built a house and had cane contract in Lot 3. Ami Chand asked me to take Lot 1 instead of Lot 3 (the estate of Jagan Nath) and give lot 3 to .... (the estate of Jhakan) in place of lot 1 but he will have Lot 2 (estate of Baij Nath) as it was always to be.
I agreed and said I will have any lot as far as there is no problem in future. Later Jagan Nath did not have any cane contract or his house built on that land the time of subdivision, therefore for me it made no difference which lot I was to get.
When it was decided lot 1 will be mine, then Ami Chand request me the bhaiya (brother) since me, my brother and mother have our house in your area and we also have some cane contracts there as well, I will buy about 45 acres around our ... from you and pay all the cost and the price of 45 acres.
I agreed and said since I am not going to come and live with my parents or do any farm in Drasa. I will have to sell all my land one day so why can’t I sell 45 acres to you.
We asked the surveyor Mr Ami Chand to make a small note and we both sign so he wrote on a piece of paper.
“I Arjun agree that as soon as the survey is finished, will proceed with further subdivision of lots and transfer 45 acres to Ami Chand. “Boundaries to be finalized in field in course of survey.”
Even this does not state that 45 acres will be the part of the estate of Baij Nath. It was Ami Chand himself asked for that area for himself. He himself cannot be the owner of Baij Nath’s property. There were two trustees appointed by Baij Nath - His wife and Ami Chand. So there is no reason why I give 45 acres to Ami Chand free of charge. If it was to be the part of the estate of Baij Nath, it should have been included in the Lot 2 to make one title and there was no reason to make another title to include in Lot 2.
When the surveyors made the scheme plan everybody agreed including Narend Prasad and signed (the six parties - papers were sent to Canada for Narend to sign and he did) without all six parties signature the plan would not have been approved. And also when the major plan was prepared by the surveyor that was also signed by six parties (all the trustees of all the parties) including Ami Chand and his mother. That is six titles were made after everybody agreed that the areas shown were perfect. Copy of all this plans can be obtained from Registrar of Titles in Suva.
I still agree to give Ami Chand (now deceased or his sons 45 acres or even more provided they pay price for it. I would not like to evict them for they have their house built on it. If not, I agree to give them their house site free of charge because they should use their cane contract in the estate of Baij Nath that is lot 2. They did not use that area for cane farm as Tenants but they used as freehold landlord. Therefore since the land now is legally subdivide and they have their price of share as Lot 2, so there is no reason why they cannot use their cane contracts from Lot 1 and Lot 2.
The witness who could prove that the agreement in the meeting that 60 acres be exchanged with 15 acres are Vinay Kumar only. All the others are dead and Ram Suchit is living but disabled who would not be able to explain the truth.
Another thing was that when the scheme plan was made and three sections were shown in Part 1, Ami Chand son of Baij Nath did not agree. He made the surveyors to change the scheme plan. They did not appreciate the idea but had to do it and asked Ami Chand to put all the pegs with his own hand and he did. Then the surveyors worked with those pegs. He told them the surveyors worked with these pegs. He told them that we should have fair share of cultivatable land and do not worry about the hill. The area could be small or large so they worked according to his instruction because Ami Chand was the only one available on the site. I lived in Sigatoka and Narend Prasad in Canada. Therefore how can Ami Chand or his executors say the subdivision is wrong. Ami Chand, the surveyor can prove that the scheme plan was altered because of Ami Chand the Trustee of Baij Nath. Secondly what right Ami Chand’s sons have on the estate of Baij Nath. Baij Nath did not appoint Biren Prasad and Salen Prasad as his trustees and Executors. They could be trustees and Executors of Ami Chand. Property of Baij has given a share out of his estate to Ami Chand by his last will.
Now I have given you a fair picture from the beginning to the end. You can put it on your own way and rearrange if necessary. Give the lawyer what he needs and not the whole story. Ring me if you cannot follow any ...
In the map enclosed, our area is marked in heavy dark. The lots 1,2 and 3 are shown in little circles. The parts one and two in red for you to follow.
That agreement on a piece of paper should not have any value. Because it is not registered and does not even make clear why I should give 45 acres to Ami Chand. Does not say it is a part of estate of Baij Nath. Most of the wordings are in short hardly visible. Actually that part of land is the most valuable .... in the whole property. It is the frontage, close to the road, electricity and water and if subdivide into residential lots it will value more than all our property. Therefore the property of that value should produce in proper agreement if it is to be given away.
Anyway when we are making a separate Title for 45 acres tell the surveyors to make it longer taking Johnson’s margin and shouldn’t touch the estate the estate of Badri Prasad’s 15 acres which we suppose to give free of charge. We don’t have to bother about Kaushilia’s contract. That can’t be missed out for we don’t want to make it wider to loose better part along the roadside. If we were to give away, we just have to think of 45 acres, wherever it makes up.
I think that is almost all for the moment. Wish you all the best.
If you want to see the agreement of subdivision of Title 2006 signed by six shareholders, tell .... To see in one of the large enclosures in the drawer of my room and make photocopy. It is definitely true.
Taji
(Sgd)
Endnotes
1 A certified true copy of CT 7706 was tendered through PW1 Virendra Kumar +and marked “PEX02”.
[2] Probate No. 25896 was tendered in evidence and marked PEX 01.
[3] As confirmed in chief by PW1.
[4] Section 34 says:
Co-ownership
34.-(1) Subject to the provisions of any law for the time being in force relating to trusts and to the provisions of Part XV, unless the contrary intention is expressed in the instrument of title, where two or more persons are registered as proprietors of any estate or interest in land subject to the provisions of this Act, they shall be deemed to be entitled to the same as tenants in common, and on the death of any one of such proprietors there shall be no right of survivorship in the other or others and the share of such deceased proprietor shall pass to his personal representative.
(2) Where two or more person are entitled as tenants in common to any estate or interest in land subject to the provisions of this Act, they shall unless the contrary intention is expressed in the instrument of title, be deemed to hold the same in undivided equal shares.
[5] According to PW1. Baiju died in 1976. Thereafter, by his last will and testament, Baiju’s son Ami Chand Prasad and his widow Hans Raji, were
appointed executors and trustees of his estate. Hans Raji later passed away in June 1985. Upon her death, Ami Chand Prasad became
the sole executor/trustee of the Baiju estate. Ami Chand Prasad died five years after Hans Raju on 11 June 1990. Upon Ami Chand
Prasad’s death, the plaintiffs who are his sons, became executors and trustees of the Ami Chand Prasad estate. Also, the plaintiffs,
thereupon, became the ultimate executors of the Baiju estate.
[6] A certified true copy of CT 24843 was tendered in evidence and marked PEX 03.
[7] upon the defendant’s summons dated 01 December 1998.
[8] tendered by PW1 and marked PEX 07.
[9] as cited with authority by Simon Brown QC of the Queen’s Bench Division of the High Court in Excelerate Technology Ltd -v- Cumberbatch [2015] EWHC B1.His Honour Judge Simon Brown QC referred to the following dissenting speech of Lord Pearce in the House of Lords in Onassis v Vergottis [1968] 2 Lloyds Rep 403 at p 431 as a useful guideline for judges when assessing credibility.
[10] In Onassis, Pearce LJ started by saying that assessing credibility is not just about assessing demeanour – that is – whether a witness appears to be telling the truth.
”Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be.
[11] Pearce LJ went on to say that the starting point is whether a witness is truthful or untruthful. Having considered that, the Court must still keep an open mind to the possibility that a truthful witness may be telling less than the truth on an issue. By the same token, an untruthful witness may yet be speaking the truth on any other particular issue.
Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person telling something less than the truth on this issue, or though an untruthful person, telling the truth on this issue?
[12] Pearce LJ warns that, though a truthful person may tell the truth as he sees it, his recollection of events however may be influenced by various other factors such as to reduce its reliability.
Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by over much discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred.
[13] He said as follows:
“. . . Faced with a conflict of evidence on an issue substantially effecting the outcome of an action, often knowing that a decision this way or that will have momentous consequences on the parties’ lives or fortunes, how can and should the judge set about his task of resolving it ? How is he to resolve which witness is honest and which dishonest, which reliable and which unreliable? . . .
The normal first step in resolving issues of primary fact is, I feel sure, to add to what is common ground between the parties (which the pleadings in the action should have identified, but often do not) such facts as are shown to be incontrovertible. In many cases, letters or minutes written well before there was any breath of dispute between the parties may throw a very clear light on their knowledge and intentions at a particular time. In other cases, evidence of tyre marks, debris or where vehicles ended up may be crucial. To attach importance to matters such as these, which are independent of human recollection, is so obvious and standard a practice, and in some cases so inevitable, that no prolonged discussion is called for. It is nonetheless worth bearing in mind, when vexatious conflicts of oral testimony arise, that these fall to be judged against the background not only of what the parties agree to have happened but also of what plainly did happen, even though the parties do not agree.
[14] (see New South Wales Supreme Court in Parveen Varma v Gautam Varma & Ors [2010] NSWSC 786); Clune v Collins Angus & Robertson Publishers Pty Limited [1992] FCA 503; (1992) 25 IPR 246, at 253).
[15] Arden LJ in Wetton (as Liquidator of Mumtaz Properties) v. Ahmed and others [2011] EWCA Civ. 61 said:
11. ......The judge should consider what other independent evidence would be available to support the witness. Such evidence would generally be documentary but it could be other oral evidence, for example, if the issue was whether a defendant was an employee, the judge would naturally consider whether there were any PAYE records or evidence, such as evidence in texts or e-mails, in which the defendant seeks or is given instructions as to how he should carry out work. This may be particularly important in cases where the witness is from a culture or way of life with which the judge may not be familiar. These situations can present particular dangers and difficulties to a judge.
14. In my judgment, contemporaneous written documentation is of the very greatest importance in assessing credibility. Moreover, it can be significant not only where it is present and the oral evidence can then be checked against it. It can also be significant if written documentation is absent. For instance, if the judge is satisfied that certain contemporaneous documentation is likely to have existed were the oral evidence correct, and that the party adducing oral evidence is responsible for its non-production, then the documentation may be conspicuous by its absence and the judge may be able to draw inferences from its absence.
[16]Note: DW1 did try to refer to a copy of a 1954 Agreement purportedly on this subject, but I disallowed the Agreement for reasons I state in
the Ruling. Even if I had allowed the 1954 document, I would not give much weight to it, if at all if it did not reflect the actual
instructions given to the Surveyors in the 1980s.
[17] The evidence is clear that the Baiju family has been in continuous uninterrupted possession of the said 45 acres for a long time.
In cross-examination, PW1 was referred to some old photographs which are exhibited in his affidavit sworn in support of his injunction application in 1990:
| Q. | You filed affidavit in support of injunction and photographs in 1990. |
| A. | Yes |
| Q. | Prior to moving to Lot 1? |
| A. | We always resided there. |
| Q. | Your father and family, before residing on Lot 1. |
| A. | Our grandfather lived there |
| Q. | Your father resided at Johnson Road, about 1 km from main Johnson Road. |
| A. | Same answer. My father was born there |
| Q. | Your father moved to current place on or about 1970s. |
| A. | No. |
| Q. | I put to you that when your father moved to that site, he only had a tick timber and corrugated iron house as per your affidavit. |
| A. | Page 1 of structure (?) ....part of photo is my grandfather’s. |
| Q. | That was the only structure there when instructions were given to the Surveyors in 1984. |
| A. | My father’s house is on the second page photographs, middle photo built in 1966. |
| Q. | I put to you these structures came after 1970. |
| A. | Not true. |
The affidavit (which was tendered and marked PEX 6) referred to above deposes inter alia as follows at paragraphs 8 and 9:
DW1, in chief, said as follows:
| |
| A. | Yes. I have had a look at the Affidavit of Virendra Kumar (PEX6) |
| Q. | Please refer to photos |
| A. | 1st photo on G1. This corrugated iron building was the only building when the titles were issued in 1986. All others were built after
1986 without our knowledge. |
| Q. | When was that house built? |
| A. | Corrugated iron roof originally built in Koro which is 1 km from main Johnson Road. Subsequently moved to bigger property in late
60s or early 70s. |
| Q. | Lot 1 – disputed area of 45 acres in here |
| A. | Best part of Lot 1 is area already farmed by owners of Lot 2. 60 acres is hardly arable. |
[18] They plead as follows:
....such possession and occupation of the said 45 acres of land were continued by Baijnath Prasad’s Executor and Trustee, the said Hans Raji and Ami Chand Prasad.
[19] As pleaded by the plaintiffs in their statement of claim and which the defendant admits to in his statement of defence.
[20] This means also, for example, that there is no concept of trespass between tenants in common (Jacobs v Seward [1872] UKLawRpHL 10; (1872) LR 5 HL 464 at 472 as referred to by Blackburne LJ French v Barcham [2008] EWHC 1505; [2009] 1 WLR 1124).
[21]The examination in chief on this point went like this:
| Q. | How CT 7006 subdivided? |
| A. | 6 parties instructed surveyors. Harrison Grierson to carry out. |
| | 1/6 of 1378 acres 2 roods 17 perches. |
| Q. | Were there instructions to surveyors? |
| A. | To mark and survey whole area into 6 equal shares. |
| Q. | How did parties agree to subdivide? |
| A. | Arrangement – Lot 1 230 acres. Lot 2 230 acres. Because we farmed on Lot 2 and lived on Lot 1, we decided to do a land swap.
So ours, 230 acres less 45 acres. So Lot 2 would have 45 acres more. |
[22] PW1 said as follows:
| A. | As far as I am aware, instructions to divide into six equal shares. |
| Q. | How do you know when to not there? |
| A. | Having looked at what transpired over the decades, it was quite obvious they would not have come to agreement. They talked and talked
and talked and eventuated (sic) |
| Q. | That statement was made not out of knowledge. |
| A. | It is not out of knowledge. |
| Q. | I put to you, initially, when instructions put to Surveyors, Surveyors were asked to demarcate into 6 lots. |
| A. | Lots to be equal shares. |
| Q. | But you were not there when the instructions were given to the Surveyors. |
[23] PW1 said:
| A. | The instructions were to take out 6 lots |
| Q. | When? You have not led the Survey Plans in Court. |
| A. | No. |
| Q. | I put to you when 6 Lots taken out, Ami Chand was offered to take Lot 1 at a meeting. That is DP 5619 and DP 5620. How many Lots were
taken out of DP 5620? |
| A. | 3 Lots |
| Q. | Lot 1 transferred to Arjun? |
| A. | Yes. |
| Q. | Lot 2 transferred to? |
| A. | Ami Chand Prasad |
| Q. | I say that the meetings, Ami Chand Prasad was offered to take Lot 1 on DP 5620. |
| A. | I cannot recall. There were several hundreds of meetings before agreement was reached. I was not present on any meeting. I did accompany
my father to some meetings but I did not wait outside. |
| Q. | Your father was offered Lot 1? |
| A. | I do not recall. |
| Q. | You agree Arjun was not residing there? |
| A. | He never resided there. The late Jaganath Prasad did reside there. |
| Q. | Your father did not opt to take Lot 1? |
| A. | As far as I know, he did not opt to take the whole of Lot 1 but only a portion of Lot 1. |
| Q. | I put to you your father opted to take Lot 2. |
| A. | Yes. |
| Q. | Reason he opted for Lot 2 because there were no sitting tenants on Lot 2. It was vacant land. |
| A. | It had 3 sugar cane contracts of which beneficiaries of Baijnath Prasad were there and still there. |
| Q. | When he opted to take Lot 2, no sitting tenants on Lot 2. |
| A. | Beneficiaries on the land. |
| Q. | I put to you in Lot 1, there were persons residing who were not relatives of your or your extended family. |
| A. | Not my extended family, but relatives of Jahkri Prasad. |
| Q. | At the time, on Lot 1, there were persons other than beneficiaries residing on Lot 1? They had no beneficial interest on the land. |
| A. | They were beneficiaries of Jakhri Prasad. |
| Q. | The people who live there, were given Notice to Vacate by the late Arjun. |
| A. | I am aware that the late Arjun gave Notices to the beneficiaries of the late Jakhri. |
| Q. | Because of the fact that there were others sitting on Lot 1, your father opted to take Lot 2 as he did not want to engage in eviction
proceedings from Lot 1. |
| A. | I do not know. |
| Q. | How come you do not know? |
| A. | My father’s thinking – I do not know. The fact is, there were people occupying Lot 1. That I know. We were living alongside
the road. We were the first settlers. Then others came. They cultivated. |
| Q. | Your father would have taken Lot 1? |
| A. | The people concerned who were the registered proprietors of CT 7006 decided to buy land for the family. No one built houses with intention
to have concrete buildings taken away. We had land. We farmed Lot 2. Lot 2 is our day to day income. |
[24] The Certificate of Death No. 71098 (PEX 04) records Ami Chand’s date of death as 01st November 2009.
[25] Ami Chand (Surveyor) deposed as follows:
| 5. | That when I went to the field, that is physically onto the land, to carry out the survey process and to mark out the rough boundaries
that will demarcate the respective shares and boundaries of each shareholder it was found Ami Chand Prasad and Hans Raji and their
extended families with their houses, dwellings, stores and cane farms were residing on about 45 acres of that part of the land which
was to form part of the share that was to go to and be within the boundaries of the share of Arjun the defendant herein. |
| 6. | That these families were immediate relatives and extended families and beneficiaries of the Estate of Baij Nath Prasad and also the
immediate relatives and extended families of Ami Chand Prasad and Hans Raji. |
[26] Ami Chand had deposed as follows:
| 10. | That Arjun was aware and agreed that if this 45 acres went to him and Ami Chand Prasad and Hans Raji and their extended families with
their houses, dwellings, stores and cane farms had to be relocated great harm, hardship, inconvenience and expense would be suffered
and incurred by the Estate of Baij Nath Prasad and Ami Chand Prasad and Hans Raji and their extended families |
| 11. | That it was also agreed and accepted by Arjun that if a separate title in respect of that 45 acres of land was to issue to Ami Chand
Prasad and Hans Raji as Executors and Trustees of the Estate of Baij Nath Prasad in addition to another separate title of another
185 acres of land so as to give the Estate of Baij Nath Prasad a total of 230 acres as it was entitled to additional survey and legal
costs would be incurred unnecessarily. |
[27] As Chand deposes:
| 7. | That the late Baijnath was an equal one sixth shareholders and/or owner and/or registered proprietor of Certificate of Title Number
7006. He died before Certificate of Title Number 7006 was decided to be subdivided. He was represented in the subdivision by his
Executors and Trustees Ami Chand Prasad and Hans Raji who were his son and wife respectively. His one sixth share was to go to his
Executors and Trustees. |
| 8. | That if an equal subdivision of Certificate of Title Number 7006 was to be done it would give each of the six shareholders approximately
230 acres or 95 hectares of land each respectively. |
[28] As Chand deposes at paragraph 12:
| 12. | That then in my presence Arjun and Ami Chand Prasad agreed that the area that comprised the 45 acres where Ami Chand Prasad and Hans
Raji and their extended families with their houses, dwelling, stores and cane farms were residing and occupying would continue and
remain and be shown as being part of Lot 1 on the survey plan which was the lot that was going to be issued to Arjun and that a separate
certificate of title would issue for lot 1 on the name of Arjun and that Arjun would hold that 45 acres where Ami Chand Prasad and
Hans Raji and their extended families with their houses, dwellings, stores and cane farms were residing and occupying as Trustee
for Ami Chand Prasad and Hans Raji who were the Executors and Trustees of the Estate of Baij Nath Prasad at the time. Arjun specifically
in my presence agreed and declared and assured Ami Chand Prasad that he would not transfer, mortgage, charge or encumber the certificate
of title for lot 1 when issued to him without first transferring the said 45 acres where Ami Chand Prasad and Hans Raji and their
extended families with their houses, dwellings, stores and cane farms were residing and occupying. In my presence it was agreed that
Arjun would execute a relevant transfer document and other necessary documents to issue a separate certificate of title and vest
the said 45 acres unto Ami Chand Prasad and Hans Raji as the Executors and Trustees of the Estate of Baij Nath Prasad and with all
the costs of survey, transfer and subdivision to be borne by the Estate of Baij Nath Prasad and/or Ami Chand Prasad and Hans Raji.
|
[29] As Chand deposes at paragraph 13:
| 13. | That based on the above representations and promise and assurance Ami Chand Prasad and Hans Raji on behalf of the Estate of Baij Nath
Prasad agreed to vary and varied their instructions to Harrison & Grierson & Partners and me and the Registrar of Surveys
to give effect to the agreement between Arjun and Ami Chand Prasad and Hans Raji as Executors and Trustees of the Estate of Baij
Nath Prasad. |
| 18. | That the survey pegs and marks on the said land and the survey plans were amended and changed and varied pursuant to the above representations,
agreements, promises and arrangements. |
| 19. | That thereafter new separate certificates of title were issued to Arjun for Lot 1 on Deposited Plan Number 5620 and to Ami Chand Prasad
and Hans Raji as Executors and Trustees of the Estate of Baij Nath Prasad for Lot 2 on Deposited Plan Number 5620. Lot 1 included
the 45 acres where Ami Chand Prasad and Hans Raji and their extended families with their houses, dwellings, stores and cane farms
were residing and occupying which Arjun held as Trustee for Ami Chand Prasad and Hans Raji as Executors and Trustees of the Estate
of Baij Nath Prasad plus an additional 45 acres which was cut out from Lot 2 which belonged to Ami Chand Prasad and Hans Raji as
executors and Trustees of the Estate of Baij Nath Prasad. |
[30] The examination in chief of DW1 on this point went as follows:
| Q. | You know how subdivision was conducted? |
| A. | Original Agreement was drawn up in 1954. The land was acquired in 1946. It took years to pay it off. |
| Q. | You refer to the original Agreement in 1954. Did you ever come across this document? |
| A. | Yes. |
| Q. | Did you have the original of that Agreement? |
| A. | Yes. I have seen a copy of that Agreement. I do not think I have seen Agreement (original) |
| Q. | Would you recognise it? |
| A. | Yes |
[31] He said as follows:
| Q. | Have a look at this document (your father’s letter to you). Can you tell us what the letter says as per the agreement about
the land? |
| A. | Lot 1,2 and 3 were sub-divided. Lot 1 has 70 to 80 acres more than others. None of the 6 lots is anywhere near the 1/6 estimate. Strangely,
if you add up all lots, total is short by 33 acres of 1378 acres. I do not why this is so. My father was to get Lot 3. Pleading by Mr. Naren Prasad that because Ram Kirpal and wife already farming at .... They had option to take that Lot. My father moved to Sigatoka. He had no intention of Drasa. Baijnath, majority of his farm in Lot 1. Many squatters in Lot 1. Baijnath opted to take Lot 2. He happily took Lot 2 knowing Lot 1 had bigger acreage but least amount of fertile land...... |
[32] DW1 said as follows:
| Q. | At meeting, agreed land had to be split up into 2 parts and into 6 parts? |
| A. | One part was to be between the three brothers. The other part was to be between the 3 brothers in law. There is a creek running through
the middle of the land. There is a road also. The stream is the demarcation line between the two divisions. Shareholders all agreed
that it would be impractical to divide the land by two at 50% and further divide 1/3 each because there were flat areas, a lot of
vacant hilly lands. None of shareholders had intention of relocating and moving families. Families were supposed to remain in areas
they were cultivating. When....”who should get what”, if one gets 5 acres of fertile land, 20 to 30 acres of hilly land. |
| Q. | Explain |
| A. | 4-5 acres of flat land vs hilly land. More productivity on flat land. Subdivision went amicably....East side was to be given to sisters
(brothers in law). The west side to be given to brothers. During sub-division, brothers side, Lots 1, 2 and 3, subject of this case.
Lot 1 closest to main road. Lot 2, middle. Lot 3, north end. Lot 3 had wife of late Kirpal. Lot 2 vacant small portion farmed by
Baijnath family. Lot 1 had the most sitting squatters, Farmed by Baijnath children. 15 acre portion of Lot 1 farmed by Rameshwar
Prasad was to come to Lot 1. Sisters were already charging rent on that Lot. They assumed dwellings of that Lot on brothers side
of creek. That caused a problem. Problem being, they did not want to resettle. Offer made for that 15 acres of flat land that would
fall on Lot 1. Sisters side agreed to give up 60 acres of hilly side for 15 acres of flat land on brother’s side. That cause
problem as Lot 1 would have lots of land compared to Lot 2. Lot had best amount of land...... |
[33] PW1 was referred to paragraph 13 of the statement of claim in cross-examination. When asked why he has not produced the Deed pleaded therein, PW1 replied as follows:
| A. | ....we knew there was a Deed written by both parties and late Arjun at the Surveyor’s Office. It was in writing. We knew it
existed. We did not have it handy. However, at later stage, we got it out of Harrison & Grierson, Auckland Office. That is where
all the files were kept. We knew there was a written Agreement. There was Agreement made in presence of some witnesses. It was on
a Plan. However....... That is why we sought injunction and went looking for Agreement. That is why we did not file Agreement with
injunction application. |
| Q. | Have a look at “AC1”of Ami Chand Affidavit – the writing on Survey Plan. It is not a Deed. |
| A. | It is not a Deed. |
| Q. | You did not have that in your possession when you instructed lawyers? |
| A. | I did not have it. |
| Q. | Yet, you gave instructions as per paragraph 13 of Statement of Claim that there existed a Deed. |
| A. | We believed there was a Deed. |
| Q. | You did not have the document with you. |
| A. | We did not have the document. |
| Q. | The document that you knew existed was not a Deed. |
| A. | Without going into the legalities, for me it was a Deed. |
| Q. | Look at that document again, Surveyor’s Instructions, you would agree that there was no specific date on the “Deed”? |
| A. | We maintain ...sometime in 1984. |
| Q. | Is there a date on this document that you refer to as the “Deed”? |
| A. | I cannot see date on Deed. But all the conversations led to this agreement. |
[34] DW1 was cross-examined as follows:
| Q. | Arrangement with regards to Lot 1 and Lot 2 initially, when Lots sub-divided. Who was allotted Lot 1? |
| A. | Allocation did not take place till acreage determined. There was no haggling as to who got what lot. My dad thought it would be better
for him to get Lot 3. He asked to opt out of that as Kirpal family already farming that. My dad spoke to Ami Chand to take Lot 1
as Ami Chand Prasad cane contracts on Lot 1. Baiju was cunning. He opted for Lot 2 as it had least amount of issues with squatters.
My father said –“yes...Ok.. I will take Lot 1”. After 1987, my father and I left Fiji and went to New Zealand.
The land was unattended to. We have no income from that land. Most squatters and tenants leases expired. Pine trees stolen by people
on land. No one charged. We try to sell but hindered by Court Orders and caveats. I came to Fiji 20 to 25 times. A lot of costs. My father has said in letter already that he had never agreed to give 45 acres to Ami
Chand Prasad and not to estate of Baiju. He agreed to give 45 acres for consideration. |
[35] In cross-examination, DW1 said:
| Q. | Letter says, 45 acres of land is to be sold to Ami Chand Prasad. |
| A. | Yes. |
| Q. | He agrees to sell to Ami Chand Prasad. |
| A. | Not only to him. |
| Q. | What your father says in the letter is not in the Statement of Defence |
| A. | I agree. |
| Q. | Let us go to the letter. Paragraphs 1 to 4. |
| A. | Reads paragraph 1 to 4. |
| Short Break between 10.30 a.m. to 11.00 a.m. | |
| Q. | Paragraph 2. Reference to “small note”. Was that piece of paper attached to the letter? |
| A. | Not sure if attached. I may have misled lawyers that “Agreement” attached to letter. It may have been a note or diagram.
If note attached to letter, my father would not have written note on letter. |
| Q. | Look at last page of DEX 7. |
| A. | Yes. |
| Q. | Small note there. |
| A. | Yes. |
| Q. | Reads notes. “I Arjun agree that as soon as survey is finished, will proceed with further sub-division of Lot 1 and transfer 45 acres to
Ami Chand. Boundaries to be finalised in fielding course of survey” |
| A. | Yes. |
| Q. | Same reference in father’s letter. |
| A. | He repeated the whole thing. |
| Q. | Same contents in last page. |
| A. | Yes. |
| Q. | Your father has signed. |
| A. | I have never seen original of note. He signed. It appears to be my father’s signature but need original. My father, in letter,
has not written “attached note”. |
| Q. | The last page is part of your exhibits |
| A. | Yes. |
| Q. | Your father’s letter, at page 11, says: “I Arjun ......” |
| A. | Yes. |
| Q. | Note says the same thing. |
| A. | Yes. |
| Q. | Besides the note, your father says ...... |
| A. | I can only confirm if I see original of my father’s signature. |
| Q. | At page 11 of your father’s letter, he asks Surveyor to make a small note and “we both sign”. |
| A. | Yes. |
| Q. | So he wrote a piece of paper |
| A. | Yes. Same words. |
| Q. | You have read letter? |
| A. | Yes. |
| Q. | “We ask Ami Chand to make small note and we later sign” |
| A. | Yes. Letter says he signed note. He does not deny signing note. My father was grade 11 Senior Cambridge Educated. |
| Q. | Did he sign a plan or piece of paper? You testified that in his letter, he does not deny signing note. |
| A. | No |
| Q. | Go back to last page of letter (Plan with Note). Something else is written beside that note. |
| A. | Yes. |
| Q. | Your father wrote it? |
| A. | No. That is my handwriting. |
| Q. | What have you written? |
| A. | This was written after sub-division. 45 acres to be for consideration. |
| Q. | Were you there when it was written? |
| A. | No. I have a bit of doubt that this attachment was with letter. This piece of note given to me as another paper. I would have jotted
this myself. I was not present when original note written. |
| Q. | Back to note: “I Arjun agree......”. This was written and signed before sub-division? |
| A. | Not sure. |
| Q. | “...as soon as survey finished...” |
| A. | If I say “yes”...I contradict myself. |
| Q. | So it was written before survey finished and titles issued. |
| A. | Yes. |
| Q. | Before survey finished, safe to assume your father executed as trustee of Jaganath estate |
| A. | Yes. Ami Chand Prasad would have executed as executor/trustee of estate of Baiju |
| Q. | In CT 7006, 2nd page, 3rd ......your father is registered on title as executor/trustee of estate of Jaganath over one undivided 1/6 share. |
| A. | Yes |
| Q. | On same title, the late Ami Chand Prasad is registered proprietor of 1/6 share of estate of Baiju Prasad. |
| A. | Yes. |
| Q. | This before survey finalised. |
| A. | After survey finalised. |
| Q. | When new titles issued? |
| A. | July 1986. |
| Q. | Look at date – 24 July 1980 when your father executor. |
| A. | Yes – he held as executor/trustee before trustee finalised. |
| Q. | Transmission By Death..not transfer |
| A. | O.K |
| Q. | From your answers, late Arjun’s portion of land not given to him before survey finalised. |
| A. | Yes |
| Q. | Late Ami Chand Prasad’s name not registered on separate title for estate of Baiju before survey finalised. |
| A. | Yes |
| Q. | Before survey finalised, Arjun and Ami Chand acting as executor and trustees of their respective estates? |
| A. | Yes |
| Q. | Last page of letter – “I Arjun......”. Does not say anything about costs. |
| A. | No costs. No price. |
| Q. | Does not say anything about Ami Chand Prasad paying Arjun consideration for the 45 acres. |
| A. | Does not say so. |
| Q. | Page 11 of letter, paragraph 2, your father says: “We asked Surveyor.....and we both signed”. That is – he and Ami Chand Prasad. |
| A. | “We” could be a reference to Ami Chand the surveyor or Ami Chand our cousin. |
| Q. | “We asked Surveyor Ami Chand” |
| A. | Yes. ...When I read letter, I did not look at it as issue of construction as it is now. |
| Q. | Last page of letter (read). He is talking about discussions with Ami Chand. |
| A. | Yes. It may be a reference to Ami Chand the surveyor rather than Ami Chand Prasad the plaintiffs ‘father. |
| Q. | I put to you it means Arjun and Ami Chand Prasad, Executor and Trustee of the estate of Baiju. |
| A. | We should verify signatures..... |
| Q. | Terms of little note. What was signed on last page. This is not a registered agreement. |
| A. | No. Father knew. |
| Q. | See page 13 of letter. Last paragraph. “That Agreement.....” |
| A. | O.K |
| Q. | ...... |
| A. | He educated to Senior Cambridge |
| Q. | He says that agreement was on a piece of paper |
| Objection from Mr. Nand | |
| Q. | You agree it is an Agreement |
| A. | Depends on legal argument. |
| Q. | He is educated. He says “Agreement” |
| A. | He says “Agreement”. |
| Q. | Because it is safe to assume this was agreement |
| A. | According to my father, its not a contractual agreement. |
| Q. | I am talking about what he has written |
| A. | He says “Agreement” |
| Q. | Safe to say that in your father’s mind, it was an Agreement. |
| A. | I do not know what was on my father’s mind |
| Q. | I put to you that in his mind, it was an Agreement on a piece of paper |
| A. | No. He is denying that it is an Agreement |
| Q. | Your father has signed “Agreement”. See pages 10 to 11 of the letter. “Why can’t I sell 45 acres to you”.
Is it correct that the terms/words of small note are the instructions to Surveyor? |
| A. | Not. Cannot assume that. I am not sure. My father said it took many years to get everyone to agree to Scheme Plan. Ami Chand Prasad
was the last to sign on Scheme Plan.......he told me he did not place value on paper. Not contractual agreement. |
| .................................................... | |
| Q. | Refer to page 13 of Letter where your father says: “Now I have given you a fair picture...” |
| A. | Lots of things in his story is irrelevant. |
| Q. | You would say things to suit your case. |
| A. | Yes. |
| Q. | Refer to page 11 of your father’s letter. “We asked Surveyor....”. Would not your father have asked Surveyor to record his intention of selling as well as the price if that was in fact the arrangement? |
| A. | Yes. |
| Q. | If he was selling, he would ask Surveyor to put price on note. |
| A. | There would have been a whole contract. |
| Q. | He would have asked surveyor to put price if that was the arrangement. |
| A. | Conversely, he could have put “Free of Charge”. |
| Q. | You agree price not written. But Arjun has signed a note. |
| A. | Agree price not written. |
| Q. | But in letter, he said: “We both asked surveyor for small note and we both sign”. |
| A. | Yes. |
| Q. | Page 12 of Letter. Look at paragraph 2: “I still agree......” |
| A. | Reads |
[36] DW1 also said as follows in cross-examination:
| Q. | Refer page 13 of your father’s letter, line 4: “Ami Chand, the Surveyor .......” |
| A. | Reads |
| Q. | So if Ami Chand (Surveyor) was to give evidence, he would assist Court in deciding alteration of Scheme Plan. |
| A. | Yes. |
| Q. | It would also assist us |
| A. | Yes |
| Q. | If Surveyor had given evidence, his evidence would assist us |
| A. | Yes |
[37] DW1, in cross-examination, said as follows:
| Q. | Your father agreed to give house site for free. |
| A. | Yes. House site. Not the full 45 acres. |
| Q. | Ami Chand and family had built houses on it. |
| A. | Yes. |
| Q. | Houses built by the late Baiju Prasad. |
| A. | One house. |
| Q. | I put to you that the houses there were built by the late Baiju Prasad |
| A. | Only one house was there before the subdivision. Not homes. |
| Q. | In your father’s letter, page 9, he says: “the houses were built by Baijnath”. |
| A. | Reads |
| Q. | He says Baijnath built house on Lot 1 where it is now |
| A. | Yes |
| Q. | Was Baijnath alive in 1986? |
| A. | I need to check on that. |
| Q. | He was not alive in 1986. He died in February 1976. You agree Baiju house on Lot 1 before Lot subdivided. |
| A. | Yes. |
[38] DW1 was cross-examined as follows:
| Q. | Reason why your father did not ......agreement is because the 45 acres is the most valuable part. |
| A. | Absolutely. He did not .....Agreement. He has not sold land yet. |
| Q. | Your father understood that the 45 acres is the most valuable...more valuable than the rest of the land. Refer to his letter (to the
part marked **) |
| A. | Yes |
| Q. | That is the reason he did not transfer to Baiju estate free of charge |
| A. | There was never an agreement to transfer free of charge |
| Q. | Refer to page 13 of letter beginning with the words: “That Agreement a piece of paper ......” |
| A. | Reads |
| Q. | Because 45 acres is the most valuable, your father says he will give homes site free of charge |
| A. | Reads page 9: “I agree.....” |
| Q. | I put to you ...he has seen the value of the 45 acres...he is reneging |
| A. | No |
| Q. | Ruthless. He had agreed to transfer 45 acres to Baiju estate |
| A. | Yes. If Baiju estate will pay. |
| Q. | Paragraphs 16 and 17 of Statement of Claim ..... may I lead? |
| CT. | Ok |
| Q. | Your father specifically states, he will give 45 acres free of charge. Title came to him in 1986. |
| A. | Yes. |
| Q. | He advertised property 08 September 1988. |
| A. | Yes |
| Q. | Reads advertisement. |
| A. | I have not seen advertisement |
| Q. | Pillay Naidu & Associates have advertised on your father’s instructions. Following the advertisement, Ami Chand Prasad caused
a caveat to be placed on Lot 1 on 19 September 1988. |
| A. | Yes |
[39] PW1 said as follows in chief:
| Q. | What was the arrangement regarding 45 acres? |
| A. | Arjun to hold that on trust for us. And then to discharge to us once survey completed. 45 acres still with Arjun estate. But we still
occupying it to this day. |
| Q. | Arrangement between Arjun to hold 45 acres... |
| A. | My father and Arjun. 3rd party witness. His name is John Krishna JP. |
| Q. | Recall the terms? |
| A. | Arjun would hold 45 acres and we give him 45 acres in exchange. As soon as title issued to late Arjun’s name, he would discharge
45 acres to us. |
| Q. | Who was to pay for costs of subdivision? |
| | Estate of Baijnath Prasad. I was present there physically. There is a document to record this. It is in one of the Plans signed by
late Arjun and my father. |
| Q. | If I was to show you this document...have you read it? |
| A. | I know of it. Yes. I would recognise the document. Signed by Kolinio of Harrison Grierson. |
| Q. | Based on this agreement, what were the instructions to surveyors? |
| A. | Lot 1 – will have 230 acres plus 45 acres. And we have 180 acres on Lot 2. Surveyor is Ami Chand. Now deceased. |
[40] PW1’s evidence on this point follows:
| Q. | Any documentation of this? |
| A. | Yes. |
| Q. | What documentation? |
| A. | It’s this document. Writing not clear. It’s a surveyed |
| Q. | You know who surveyed? |
| A. | Surveyed by ....... |
| Q. | Who prepared document? |
| A. | Mr. Chand of Harrison Grierson. |
| Q. | When prepared? |
| A. | After initial instruction to subdivide into 6 equal shares. |
| Q. | Why document prepared? |
| A. | So that both parties will have exact shares. |
| Q. | Which parties present when agreement made? |
| A. | Ami Chand, my father, and Arjun. Only they. Alongside with others. Also a JP who was negotiator. |
| Q. | JP? |
| A. | John Krishna. |
| Q. | How you know this? |
| A. | I was around and about. I was there when they talk about swapping land.... |
| Q. | Would you know what they agreed to? |
| A.. | Lot 2 Baiju to give 45 acres of land plus 5 acres for late Jaikri Prasad towards Lot 1 and Lot 1 on South East corner. |
[41] PW1’s evidence is as follows:
| | |
| A. | Can’t recall. |
| Q. | Swap and initial instruction to surveyor? |
| A. | New instructions relayed to surveyor by estate of Baiju and estate of Jaganath by late Ami Chand and Arjun. |
| Q. | Where was change of instruction noted? |
| A. | On Survey Plan |
| Q. | What Survey Plan? |
| A. | Annexed to Affidavit of Ami Chand. |
| Q. | Have a look at this document. Is it signed? |
| A. | Yes. Arjun and Ami Chan Prasad. |
| Q. | Anyone else witness? |
| A. | Yes. Witnessed. |
| Q. | What does content say? |
| A. | “I, Arjun, agree that as soon as survey finished, proceed with further subdivision to be finalised ......” |
| Q. | How do you know Arjun and Ami Chand Prasad signed? |
| A. | I am familiar with their signatures. |
| Q. | Is this document part of documents.....part of estate documents? |
| A. | Yes. |
| Q. | Wish to tender |
[42] PW1’s cross-examination on this point went as follows:
| Q. | I put to you that the defendant is willing to transfer 45 acres subject to payment of consideration. |
| A. | I deny that. A matter swap. Titles prove it. We gave it to him. We caused survey to that. And we transferred. Why should we pay? |
| Q. | Look at Transfer Document. No encumbrance registered on Lot 1. At the time transfer effected, he could have had registered a title
over his interest. |
| A. | This is covered by the affidavit of Ami Chand (Surveyor). |
| Q. | When transfer documents signed before lawyer, all six parties went before a solicitor to sign and execute transfer. |
| A. | Yes. But we stress and emphasise that before survey of Lot 1 and Lot 2, there was an agreement made. |
| Q. | He could have executed a Deed of Trust? |
| A. | We say there was an agreement....all this done on trust...... |
| What followed was some further cross-examination along the same line and then the following was put to PW1 | |
| Q. | The arrangement regarding the 45 acres was for your father to purchase from Arjun. The Agreement was for Ami Chand Prasad to purchase. |
| A. | Disagree. |
| Q. | I put to you that Arjun, at all material times, agreed to transfer 45 acres to Ami Chand – not to the estate – at a consideration. |
| A. | ........(response not clear on Court records) |
| Q. | Estate not mentioned in Survey Document |
| A. | Yes. |
| Q. | You agree, nowhere in any of the documents produced, no written document, in which an area of 45 acres was to have been transferred
by Arjun to estate. |
| A. | We stick to “Agreement/Deed”. |
| Q. | No other document. Sale & Purchase Agreement, or Trust |
| A. | No other document. |
[43] The Subdivision of Land Act of Fiji defines “sub-division” to include inter alia partition.
[44] Hepburn, Samantha 2001, Principles of Equity and Trusts, Cavendish Publishing, Sydney, N.S.W..
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