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Kumar v Gounder [2025] FJHC 789; HBC309.2019 (22 December 2025)

IN THE HIGH COURT OF FIJI

AT LAUTOKA

CIVIL JURISDICTION

HBC 309 of 2019

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BETWEEN:

ABHINESH KUMAR of 2 Victoria Parade, Darlington 5047, South Australia, Customer

Service Supervisor as the Administrator & Trustee of the Estate of PERUMAL aka

PERUMAL SWAMY GOUNDER late of 26928 1231^st Place, South East, Kent Washington

98030, United States of America, Deceased, Intestate.

PLAINTIFF

A N D:

KOKILAMMA GOUNDER of Waimalika, Sabeto as Executrix & Trustee of the Estate of

Muthu Gounder.

FIRST DEFENDANT

AND:

THE i – TAUKEI LANDS TRUST BOARD formerly known as the Native Land Trust

Board, a statutory body created under the i-Taukei, Land Trust act, Cap 134, having its

registered office at 431 Victoria Parade, Suva.

SECOND DEFENDANT

Appearances: Mr. S. Gosai for the Plaintiff
Ms. Sharma A. for the First Defendant
Mr. Rasiga M. for the Second Defendant

Date of Hearing: 09 October 2024

Date of Judgement: 22 December 2025

J U D G M E N T

INTRODUCTION

1. The original writ of summons and statement of claim in this matter was filed on 28 November 2019 by Permal Gounder and Abhinesh Kumar as joint plaintiffs. On 30 November 2022, an amended writ of summons was filed pursuant to leave granted by the Master on 25 November 2022. In this amended process, Permal Gounder was removed as a plaintiff on account of his death. The statement of claim was left unamended at this time.
   
2. However, on 15 March 2024, at some point after the trial had begun, the statement of claim was amended by consent. The amendment was made when it became clear that the plaintiff was pursuing an equitable claim which he had not pleaded. I did grant $2,000 costs in favor of the Legal Aid Commission and $300 in favor of the i-TLTB. However, even with the amendment, the claim has areas that would benefit from a clearer and more precise articulation.
   

THE TRIAL

3. At the trial, the following witnesses gave evidence for the plaintiff in the order stated below:
   

4. The following witnesses gave evidence for the defendant:
   

BACKGROUND

5. The parties are all closely related. Abhinesh, the plaintiff, is the personal representative of the estate of his father, the late Perumal Samy Gounder (“Perumal”).
   
6. The first defendant, Kokilamma, is the surviving spouse of the late Muthusamy Gounder (“Muthu”).
   
7. Perumal and Muthu were brothers. They had two older brothers namely Govindsamy Gounder (“Govindsamy” - deceased) and Jagannath (also deceased). There are also two sisters in the family namely one Muniratnam and another whose name I do not know.
   
8. The dispute in this case is over a house. This house is erected on a piece of i-TLTB residential land situated in Waimalika, Sabeto, Nadi (“property”). On 19 September 1981, the i-TLTB granted an Approval Notice to Lease (“Approval Notice”) over this property to Govindsamy for a term of fifty (50) years.
   
9. Below I set out the undisputed chronology of events and dealings over the Approval Notice in question:
   

10. Kokilamma is the current holder of the Approval Notice in question. She acquired it by devolvement from Muthu’s the estate. As stated above, Muthu had acquired the property in 2012 by way of a transfer out of love and affection from his sister-in-law, Adiamma, who is the surviving spouse of Govindsamy.
    
11. The property is over an acre in size.
    

THE PLAINTIFF’S CASE

12. The present dispute is brought by the estate of Perumal. As stated, Abhinesh is one of Perumal’s surviving children and the personal representative of his estate. Below is the account upon which Abhinesh bases his case.
    

13. Abhinesh’s claim rests on four points.
    

14. Abhinesh asserts that Perumal’s entitlement has now devolved upon the beneficiaries of Perumal’s estate. Abhinesh asks this Court to recognize and enforce Perumal’s estate’s claim in the property.
    

DEFENDANTS’ CASE

15. Kokilamma relies on the following version of events to support her case:
    

16. The i-TLTB maintains that the Approval Notice relating to the land was originally issued to Govindsamy in 1981. Its records disclose nothing to indicate that Ponsamy ever held any legal or equitable interest in the land, whether before or after the 1981 Notice.
    
17. The case of both defendants might be broken down as follows:
    

ISSUE

18. The threshold issue is, whether or not Ponsamy did possess a proprietary interest in the 6,000 square meters of land described above (see paragraph 12 (iii)). The onus lies squarely on Abhinesh to establish that he did.
    
19. Once he establishes that, Abhinesh must then demonstrate that Govindsamy and Jagannath obtained title either by way of devolvement from Ponsamy’s estate, or, in the alternative, that their acquisition was secured solely through Ponsamy’s assistance, influence, or patronage.
    
20. Finally, Abhinesh must satisfy the Court that Ponsamy gave the land or facilitated its acquisition upon the clear expectation and mutual understanding that Govindsamy and Jagannath would hold the property not for their sole benefit, but on trust all his children.
    

WAS PONSAMY EVER THE HOLDER OF ANY PRIOR INTEREST IN THE LAND?

21. There is no documentary evidence available to establish that Ponsamy was the first member of the family to enter into any formal arrangement with the i-TLTB over the 6,000 square meters of land in question.
    
22. Relying on i-TLTB records, DW3 testified in chief and under cross-examination that the earliest Approval Notices were issued to Govindsamy in respect of his land, and to Jaganath in respect of his. He said that a Provisional Approval Notice for a Residential B type lease was issued to Govindsamy for fifty years with effect from 01 April 1981. This is subject to survey. DW3 said that to the best of his knowledge, an Agreement for Lease is being prepared over the same land in favor of Kokilamma. The size of the land is 0.4047 hectares which is just a little over an acre.
    
23. In cross-examination, DW3 said he was not aware if a lease or an Approval Notice ever existed over the same piece of land prior to the Approval Notice issued on 01 April 1981 in favor of Govindsamy.
    
24. Abhinesh concedes.
    
25. Having said that, it is common ground that there are two dwelling houses standing on the property. One of these was occupied by Permal before he emigrated to Canada. This is the house over which his estate claims an equitable interest in this case.
    
26. The second house was occupied by Muthu. It is the current residence of Kokilamma.
    
27. Abhinesh’s evidence is that Permal constructed his dwelling house in or about the 1950s and that some twenty-years or so thereafter, in or about the 1970s, Muthu built his.
    
28. The evidence of DW1 in chief is as follows:
    

DID GOVINDSAMY & JAGANNATH OBTAIN TITLE EITHER BY WAY OF DEVOLVEMENT FROM PONSAMY’S ESTATE OR, IN THE ALTERNATIVE, THAT THEIR ACQUISITION WAS SECURED SOLELY THROUGH PONSAMY’S ASSISTANCE, INFLUENCE, OR PATRONAGE.

29. Again, there is no evidence that Ponsamy once held the legal title to the land. Therefore, he could not have passed it to Govindsamy and Jaganath, for nemo dat quod non habet, no one can transfer what they do not possess. That said, Abhinesh may nonetheless contend that Ponsamy acted as the principal figure in facilitating Govindsamy’s and Jaganath’s respective acquisitions.
    
30. For example, Abhinesh could establish that Ponsamy actually bore the whole or a substantial part of the financial burden of securing the Approval Notices, and that Ponsamy did so in contemplation of a family arrangement under which all his children would share in the land.
    
31. Such a case theory would furnish a sound basis for an equitable claim. However, no direct evidence was adduced to establish this.
    

DID PONSAMY GIVE THE LAND OR FACILITATE ITS ACQUISITION ON THE MUTUAL UNDERSTANDING THAT GOVINDSAMY AND JAGANNATH WOULD THEREAFTER HOLD THE PROPERTY ON TRUST FOR THE BENEFIT OF ALL SIBLINGS ENTITLED TO THE ESTATE?

32. While there is no direct evidence that Ponsamy was the predecessor in interest to the land in question, or that he conveyed it to Govindsamy and Jaganath in equal shares to hold on trust for the benefit of all his heirs, there is only a marginal indication that he may have had some interest in the land. In saying this, I refer to the following.
    
33. Firstly, Abhinesh asserts that the house was built by his father, Perumal, in the 1950s. Kokilamma, by contrast, contends that Ponsamy erected it at an earlier period.
    
34. Under cross-examination by Mr. Gosai, Kokilamma appears to confirm that Ponsamy had settled on the land first before the land was acquired by his children:
    

35. Asked if she actually saw the father-in-law build the house, Kokilamma said:
    

36. Whether one accepts Abhinesh’s or Kokilamma’s account, both recognize an entitlement antecedent to the Approval Notices.
    
37. Secondly, Perumal’s occupation of the house in question was never an issue for Govindsamy or Muthu. Taken together with the fact that Jaganath also allowed certain siblings to build on his land, it seems plausible that there was in fact a family arrangement of the sort alleged.
    
38. Thirdly, it appears that Govindsamy never demanded any rental payment Perumal or Muthu. All he required was that Perumal and Muthu settle the i-TLTB annual levies.
    
39. Fourthly, it appears that the family had occupied the land for decades before Govindsamy and Jaganath acquired their respective Approval Notices in 1981. On this note, it is common ground that all the siblings were born on the land. Abhinesh maintains that his father, Perumal, was born on the land, and that he himself was also born there. I have no reason to doubt this, and I accept it as fact. According to Ponsamy’s Death Certificate^[3], Perumal was born on 22 December 1935 and Govindsamy was born on 25 February 1930 while Jagannathan was born on 01 June 1934.
    

Comments

40. Given the paucity of evidence, the issue is whether the Court may properly infer and find that Ponsamy did hold an interest in the land which he conveyed to Govindsamy and Jaganath to hold on trust for all his heirs. It is tempting to speculate that certain material evidence is, for one reason or another, absent from the i-TLTB files upon which DW3 based his testimony. Mr. Gosai did not press the point in his cross-examination. As this is a matter concerning land, I must decline to proceed on conjecture. I am reluctant to “supply” an equitable entitlement in the circumstances of this case.

GENERAL

41. Abhinesh confines his claim to the house. He claims that Perumal built the house in the 1950s. He may advance an alternative equitable claim on the basis that Perumal expended his own funds to construct the house in reliance upon an assurance given by Govindsamy. There is no clear evidence to establish that Perumal actually built the house out of his own funds.
    
42. Notably, as stated above, Ponsamy died in 1950 at the age of 42. With that in mind, I do note that there is a factual tension in Abhinesh’s account.
    
43. According to Abhinesh, Perumal constructed the first house in the 1950s. Perumal would have been in his early twenties at the time. Yet , he also maintains that Perumal and all his siblings, both elder and younger, were born on the land.
    
44. This inconsistency raises the question:
    

If Perumal himself built the first house, in which dwelling were the siblings raised?

45. The inconsistency strengthens Kokilamma’s version that the house was built by Ponsamy. While that may imply that Ponsamy did hold an equitable interest in the land during his lifetime, in the absence of official records to confirm the nature of that interest, I cannot conclude that Ponsamy did convey to Govindsamy and Jaganath any estate upon which Perumal might hinge an equitable claim.
    
46. In my view, Govindsamy and Jaganath were, in their own right, the first to hold Approval Notices over their land.
    
47. Flowing from that, I accept Kokilamma’s evidence that Adiamma’s act to transfer the Approval Notice to Muthu on 07 September 2012 was occasioned by the fact that Muthu had, alone, personally shouldered the i-TLTB rental burden for many years.
    
48. In addition, I accept Kokilamma’s evidence that the estate of Perumal has never contributed towards the payment of land rentals to the i-TLTB. When Perumal emigrated to Canada, he left behind a house infested with termites, requiring Shalen to spend money to repair it before it could be made habitable.
    

CONCLUSION

49. For all the reasons stated above, I find that the plaintiff has failed to prove his claim on the balance of probabilities. Accordingly, I dismiss the claim with costs to the first and second defendants which I summarily assess at $1,000 – 00 each (one thousand dollars only).
    

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Anare Tuilevuka

JUDGE

22 December 2025