In the High Court of Fiji
At Suva
Civil Jurisdiction

Civil Action No. HBC 49 of 2019

Shahadat Khan
Appellant
v

Abdul Rasheed
Wasal Khan
Respondents

                                   Counsel:                 	Mr Sunil Kumar for the appellant
      	Ms T. Tuitoga for the respondents
                                   Date of hearing:       	9th November,2020 
                                   Date of Judgment:    	1st  February,2022

Judgment

1.	This is an appeal from a  judgment of the Acting Master of 4th May,2020.

2.	The respondents, as  executors and trustees in the estate of Halima, (estate) filed summons under section 169 of  the Land Transfer Act for vacant possession of the premises contained in CT 11820, “in particular block B pursuant to paragraph 5 a) of the Will..”.

3.	The supporting affidavit filed by the  second respondent stated that the blocks marked as “A”, “B”, “B1”, “C2” and  “C3” in the Will belong to Munaff Khan, a beneficiary. Khan permitted the appellant to stay in  block “B” as a caretaker and assist the respondents  in managing the affairs of the estate. The appellant neither pays rent nor maintains the property. Khan instructed the respondents to evict the appellant. He has refused to vacate. In terms of the Will, “C2”, “C3”, “E” and  “E1” are the appellant’s share .

4.	The appellant, in his affidavit in opposition stated that he is a beneficiary of the estate. He has an undivided share. In terms of the Will, “C2”, “C3”, “E” and  “E1” are in his name. The blocks have to be sub divided and assigned separate titles. No separate certificates of title  have been issued. The plaintiffs are not registered as proprietors and have no power to evict a beneficiary He has established his right of occupation and possession.

5.	The second respondent in his reply stated that the testatrix clearly demarcated the various portions to be allocated to the beneficiaries in the sketch plan attached to the Will. The house occupied by the appellant belongs to Khan. The appellant has no legal right to occupy the premises in block A. The dwelling was built by his parents and extended by Khan,

6.	The Acting Master ordered the defendant to give vacant possession  of block A on the ground that the appellant had not shown a right to possession.  The Will demarcated the portions of land to be allocated to the beneficiaries. It was held further that the defendant has beneficial interest in “C2”, “C3”, “E” and  “E1” The Judgment states that an amendment was  made that block B in the summons  read as block A.

7.	On 23rd June,2020, the appellant filed an application for stay of the Judgment with his supporting affidavit stating that he is a beneficiary in the estate and none of the lots have been issued  separate certificates of title.

8.	The appellant appeals on the following grounds of appeal:
i.	The Learned Trial Magistrate erred in law and in fact in failing to act judiciously by 	delivering ruling which is contrary to the affidavit evidence given in court and which has 	seriously prejudiced the Plaintiff/Appellant as it appeared that Acting Master appeared to have come to court with closed mind; see case Pettit v Dunkey [1971] 1 NSWLR 376 CA.
ii.	That the learned Master erred in law and in facts by making the order that the Plaintiffs are granted possession of the property described in the summons when the Plaintiff does not fall within paragraph a, b & c of section 169 of the Land Transfer Act Cap 131.
iii.	That the learned Acting Master erred in law and in acts in failing to consider that here was serious dispute of facts and Originating Summons procedure was not suitable in terms of Order 28 Rule 5 (3) of the High Court Rules 1988, it required cross-examination of the deponents on their affidavits there is various un authenticated documents annexed to the affidavit in support of 169 Application.
iv.	That the learned Acting Master erred in law and in facts by failing to consider the Affidavit  filed in opposition to the section 169 application in particular annexure “SK2”authoring to carry out development referred in paragraph 38 of the affidavit and its annexure “SK4” spending amounting to the sum of $400,000.00.
v.	That the learned Acting Master erred in law and in facts in making order an order against the beneficiary named in will when there is no registered proprietor registered in the memorials kept by the Register of Titles nor there are separate titles issued to any beneficiaries nor is survey plain approved by the Local Authorities.
vi.	That the learned Acting Master erred in law and in fact in failing to consider that the Notice to Quit was defective as Notice to quit only refers o the Certificate of Title No.11820 Lot 1 only, area is 15 acres as per Certificate of Title annexed to the application does not specify Block “A” hence the Acting Master was bias in making order as described in her judgment. 
vii.	That the learned Acting Master erred in law and in facts of being bias in her hearing of Application which has seriously prejudice the Appellant and order made by the Acting Master is not known to section 169 Application as last registered memorial does not talk about Block A and is so unreasonable that no reasonable court would have made.
viii.	That Appellant/Plaintiff reserves the right to add, alter and or amend his grounds of appeal upon receipt of the learned Acting Master’s notes and the exhibit. 

The determination
9.	The first question of law that I have to consider, as urged in the second ground of appeal, is whether the respondent was entitled to make the application under section 169.

10.	Section 169 provides that “the last registered proprietor” may summon a person in possession of land to show cause why he should not give up possession.

11.	The term "proprietor" is defined as "the registered proprietor of land, or of any estate or interest therein".

12.	In my judgment, the respondents as executors and trustees were entitled to file summons.

13.	The central issue in this appeal is whether the respondents are entitled to seek eviction of the appellant, admittedly, a beneficiary in the estate.

14.	 It is not in dispute that the estate property has not been sub divided and certificates of title have not been issued to the beneficiaries. 

15.	The appellant, as a beneficiary is entitled to a share in the estate property, which constitutes a right to be in possession of the land.

16.	In my view, the appellant has a right to be in possession of the estate property.

17.	In my judgment, the appellant has shown cause why he should not give vacant possession to the respondents in terms of section 172 of the Land Transfer Act.

18.	In the light of my conclusion, I do not find it necessary to consider the other grounds of appeal. The appeal succeeds

19.	Orders
a.	The appeal is allowed.
b.	The Judgment of the Acting Master is set aside.
c.	The respondents shall pay the appellant costs summarily assessed in a sum of $1500.

A.L.B. Brito-Mutunayagam 
                                                                  JUDGE
                                                          1st February, 2022