IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 207 of 2018

IN THE MATTER of part XXIV of 
the Land Transfer Act Cap 131
______________________________

RAJENDRA KUMAR aka RAJENDRA KUMAR JIWAN  of 134 Burnley Road, Dollis Hill, London, NW10 1 EH, Great Britain, Retired as the Administrator in the Estate of   RIJWANTI aka RAJWANTA aka RAJWANTA KUMARI aka RAJWANTI JIWAN late of 22 Westbourne Terrace Road, Little Venice, W.2 Great Britain, Domestic Duties, Deceased, Testate.
APPELLANT
(Original Plaintiff)

RONALD DUTT aka RONALD of Lot 1 Vuninokonoko, Navua in the Republic of Fiji, Occupation Unknown.
RESPONDENT
(Original Defendant)

BEFORE:		Hon. Mr Justice Vishwa Datt Sharma

COUNSELS:	Mr. Singh. K. 	 – for the Appellant     
	Ms. M. Pillay	 – Respondent (Plaintiff)
                			
Date of Decision:	21st January, 2021 @ 9.30 am

JUDGMENT
[Appeal – vacant possession – Section 169 of the Land Transfer Act]

A.	INTRODUCTION

[1]	The Plaintiff Rajendra Kumar AKA Rajendra Kumar Jiwan as the administrator of the Estate of Raj Wanti instituted these proceedings before the learned master of the High Court seeking an order against the defendant, Ronald Dutt for vacant possession. Pursuant to Section 169 of the Land Transfer Act. 

[2]	The Leaned master in her ruling of 14th February 2020 made the following orders:
i)	There are maters such as sub diving the property to ensure there is just and equitable of the beneficiaries in trust in the properties. These are maters that rightfully ought to be decided by way of a writ and not to be ascertained summarily. 
ii)	Accordingly, the originating summons dated 11th July 2018 is dismissed with cost in favour of the Defendant and assessed at $800.00. 
	iii)	The plaintiff is to pay the said cost in 14 days. 	

[3]	On 5th March 2020, the Appellant, Rajendra Kumar filed the notice of appeal and the grounds of appeal seeking to challenge the findings of the learned Master on the following grounds: 

i.	THAT the learned Acting Master erred in law and fact when she concluded and commented as follows: 

“The Respondent has been residing on the Property since Birth and it would be understandable that a person who thinks he owns the property would not keep receipts of expenditure done on the property.”

ii.	THAT the Learned Master erred in Law and fact when she took into account that a trustee could not evict a beneficiary. 

iii.	THAT the Learned Master erred in law and in fact when she concluded that this matter without any documents provided by the Respondent to Support his Claim. 

iv.	THAT the Learned Master erred in law and in fact when she failed to give any reasons as to why the Appellants summon for vacant possessions must fail. 

BACKGROUND TO THE SUBSTANTIVE CASE 

[4]	Raj Wanti took demise on 1ST of April 1981.

[5]	The deceased, Raj Wanti left behind a will bequeathing all real and personal property to her four sons namely Amika Kumar, Rajendra Kumar, Ravin Kumar and Narend Kumar respectively. The deceased had a condition inserted within her will directing its trustees to pay and divide the whole of her real and personal Estate equally between and amongst her four sons in equal shares as tenants in common absolutely. 

[6]	Then Plaintiff Rajendra Kumar was granted with Letters of Administration with will grant No. 60862 in the Estate of Raj Wanti on 29th September 2017. 

[7]	The Plaintiff in his capacity as the Administrator of Raj Wanti’s Estate registered the transmission of death on the certificate of title 8257 on 8th November 2017.

[8]	The Plaintiff in his capacity as the administrator of the deceased Raj Wanti’s Estate initiated the current substantive proceedings against the defendant Ronald Dutt seeking for an order for vacant possession pursuant to Section 169 of Land Transfer Act.

[9]	The Defendant Ronald Dutt is the son of Amika Kumar who is named as one of the four beneficiaries in the deceased Raj Wanti’s will 

[10]	The Defendant was granted with the grant of Probate No. 62314 in his father’s Estate on 24th July, 2018. Amika Kumar had bequeathed his real and personal Estate to the defendant and his children. 

[11]	The Defendant at paragraph 7 of his affidavit in response to the Plaintiff’s originating summons states that his father Amika Kumar built a house on the said property and his family have been staying therein well before the defendants birth. The Defendant and his father have invested in the maintenance of the house in which they are currently residing. The Plaintiff is aware that Amika Kumar’s mother Raj Wanti has bequeathed her shares to all her children equally and the Plaintiff is very well aware of this. 

[12]	In Short, the Defendant was raising a Defence of Proprietary Estoppel in the substantive case. 

[13]	The Originating Summons was heard by the learned Master of the High Court who on 14th of February 2020 delivered her judgment making the following findings:

i)	There are maters such as sub diving the property to ensure there is just and equitable of the beneficiaries in trust in the properties. These are maters that rightfully ought to be decided by way of a writ and not to be ascertained summarily. 
ii)	Accordingly, the originating summons dated 11th July 2018 is dismissed with cost in favour of the Defendant and assessed at $800.00. 
	iii)	The plaintiff is to pay the said cost in 14 days. 	

[14]	The petitioner being dissatisfied with the learned Master’s Judgment has now filed an appeal against the Judgment.

[15]	Thus, the appeal matter currently before this court for hearing and determination accordingly. 
	
[16]	The appeal was scheduled for hearing on 18th of August 2020 and only the Plaintiff’s counsel turned up to court and marked his appearance. The Respondent’s counsel was nowhere to be seen, although the assigned hearing date of 18th of August 2020 was taken up by the instructed counsel Mr. Nand on behalf of the Respondent’s principal counsel. 

[17]	However, this court proceeded in the absence of the respondents counsel on oral submissions presented by the Appellant on the substantive appeal. 

[18]	Simultaneously, the Plaintiff furnished court with its written submission and the matter was adjourned for the judgment to be delivered on notice. 

[19]	On 3rd September 2020 the Respondent filed, a formal summons seeking for extension of time to file its written submission pursuant to Order 3 Rule 4 of the High Court Rules 1988.

[20]	The Appellant objected to the Respondents summons on the grounds of defectiveness of the application and that no rectification for err regularities was sought.

[21]	The court after hearing both counsels submission on the Respondent’s summons, informed parties that in the interim this court will accept the Respondents written submission on the face value and will deliver its decision on both pending matters, that is the substantive appeal and the Respondents summons seeking for extension of time altogether. 

DETERMINATION 

[22]	This court needs to deliver decisions on two [2] impending applications: 

Firstly, on the Respondents interlocutory summons seeking for extension of time to file its written submission; and

Secondly the substantive appeal filed by the appellant hearing. 

[23]	 It will be noted that the Respondent is the party to this proceedings. The Respondents counsel cited order 41 of the High Court Rules 1988 which provides the rules in terms of the filing of affidavits. The affidavit in support filed is deposed by the law clerk, Priya Darshani Devi and the annexures are witnessed by another counsel. 

[24]	 I do not find any defect with the law clerks affidavit nor do I find anything wrong with the deposed affidavit since it is in compliance with Order 41, Rule 4 of the High Court Rules 1988. Further, the contents of the affidavit was expressed in terms of the administrative facts only. As to the reason on the failure on the respondents counsel to appear at the hearing of the Appellant appeal on 15th of August 2020. 

[25]	 Accordingly, for the above reasons I will allow the written submissions filed by the respondents counsel. 

[26]	On the substantive appeal, the appellant has filed altogether four [4] grounds of appeal to be determined by this court as enumerated at paragraph 3 [i-iv] inclusive.

GROUND I

	“The Respondent has been residing on the Property since Birth and it would be understandable that a person who thinks he owns the property would not keep receipts of expenditure done on the property.”

[27]	On the first reading of the above ground, the conclusions that this court can draw herein is that the Respondent was raising the Defence of Proprietary Estoppel. 

The same appears in the respondents affidavit at Paragraph 7 filed on 24th of October 2020 wherein he states that “his father has built a house on the said property and his family have been staying therein well before his birth and continued to do so to the current. The Respondent and the father have invested in maintaining the house……… this was done with the consent of the Plaintiff’s mother who had bequeathed her shares to all her children in equal shares and the plaintiff is fully aware that he is living in  Amika Kumar’s share of the property”

[28]	The provisions of Section 169 – 172 of the Land Transfer Act provides the summary procedure seeking for an order for vacant possession. 

[29]	Summary proceedings under Sections 169, 171 and 172 of the Land Transfer Act has a two limb test. 

The first test is that the honours is on the plaintiff to satisfy to the court that he is the last registered proprietor or a lessor defined under Section 169 [a, b, c] of the Act and that the Defendant is in the possession of the land. 

Once the Plaintiff satisfies the first limb of the test, then the burden will shift on the Defendant to proof that he has a right to the possession of the land.

Pursuant to Section 172 of the Act, the defendant is not required to prove his title against the title of the plaintiff. This is not to say that the final or in incontrovertible proof of a right to remain in possession must be adduced. What is required herein is that some tangible evidence establishing a right or supporting and arguable case for such a right must be adduced.  

[30]	The learned Master in her judgment at paragraphs 7-11 delivered on 14th February 2020 has analyzed as to how the Defendant has acquired the beneficial interest and the status in the Deceased, Raj Wanti’s Estate. 

[31]	The Deceased, Raj Wanti left behind a will bequeathing all her real and personal Estate in equal shares as tenants in common to her four sons Amika Kumar, Rajendra Kumar, Ravin Kumar and Narend Kumar respectively.

[32]	Beneficiary, Amika Kumar took demise and thereafter the defendant obtained a grant of Probate No. 62314 in his Estate [annexure 1 in his affidavit response]. In terms of the law of Succession, Probate and Administration Act and after grant of probate in Amika Kumar’s Estate who is the father of the Defendant, that the Defendant has now acquired the beneficial interest and entitlement therefore is entitled to his father’s share in the Deceased Estate of Raj Wanti.   

[33]	Further, the Defendant claims to be residing on the property since his birth and prior to that his father Amika Kumar has been residing thereon and that they both have invested and maintained the property therein. 

[34]	For the above rationale, I find that the master has not erred in law and fact as claimed by the Appellant.

[35]	This Ground of Appeal accordingly fails. 

GROUND II

[36]	I have perused the learned Masters judgment delivered on 14th of February 2020.

[37]	I have failed to find anywhere in the contents of her judgment that the learned Master had taken into account that a trustee could not evict a beneficiary from any estate property as was not the case herein before the learned Master. 

[38]	I find that the learned master has not erred in law and in fact as claimed by the Appellant.

[39]	Therefore, this ground also fails. 

GROUND III

[40]	The learned Master in her judgment at paragraph 11 had clearly stated that “there are matters such as subdivision of the property to ensure that there is just and equitable division of the beneficiaries interest and entitlement in the estate property. There are matters that are rightfully ought to be decided by way of a writ and not to be ascertained summarily”. 

[41]	It was for the above reason that the Learned Master had concluded that the matter in the absence of any documentary evidence produced to the court by the Defendant in support of his claim in his defence ought to determine by way of a Writ action rather than by summarily disposal. 

[42]	Therefore, I find that the learned master had not erred in law and in fact as claimed by the Appellant.

[43]	This ground therefore fails. 

GROUND IV

[44]	At paragraph 13 of the learned Master’s judgment the following appears- “there are matters such as subdivision of the property to ensure there is just and equitable division of the beneficiaries interest in the property. There are matters that are rightfully ought to be decided by way of a writ and not to be ascertained summarily”.

[45]	I find that the Learned Master had given her reasons in terms of a just and equitable subdivisions of the Deceased property to the beneficiaries by the Plaintiff as the administrator in terms of the Deceased will. Further, she found that there were trible issues which needs to be dealt with by means of a Writ action rather than to be determined summarily. 

[46]	This ground therefore fails. 

IN CONCLUSION 

[47]	For the aforesaid rationale, the Appellant’s appeal is accordingly dismissed. 

[48]	There will be no order made as to costs against the Plaintiff since the appeal proceeded to Hearing in the absence of the Respondent, and filing of late written submission accordingly. 

FINAL ORDERS 

1.	The Appellants appeal is hereby dismissed.  

2.	There will be no order for costs against the Plaintiff accordingly. 

DATED at SUVA 	this 	21st   	day of   JANUARY, 	2021.

VISHWA DATT SHARMA
JUDGE
cc: KS Law, Suva
     Moharsh Pillai Lawyers, Suva