IN THE HIGH COURT OF FIJI
CIVIL JURISDICTION

CIVIL ACTION NO. 312 OF 1992

Between:

DINESH PRASAD
s/o Shambu Prasad
Plaintiff

- and -

RAJESH PRASAD
s/o Shambu Prasad
Defendant

Mr. G. Prasad for the plaintiff
Mr. Mohammed Khan for the defendant

ORDER

This is an application by the plaintiff under S.169 of the Land Transfer Act for the eviction of the defendant (who is his brother) from premises bearing no. 30 Kikau Street, Samabula, Suva described in Crown lease no. 1554 of which he is the registered lessee.

The property in question belonged to the mother of the plaintiff and defendant, Vidya Wati, who died on 10th April 1991 leaving a last will dated 20th June 1986 by which she bequested all her "real and personal property whatsoever and wheresoever situate" to the plaintiff. This will was proved by the plaintiff in the High Court on 16th January 1992 without objection from anybody. In pursuance of the probate the property in question was transferred to the plaintiff and registered on 27th February 1992.

The defendant has not taken any steps so far to challenge the validity of the last will. His present defence is that there were certain agreements to which he, the plaintiff and their mother were parties under which the plaintiff has been paid off a sum of $25,000.00 in lieu of his claims and shares in the mother's property. These agreements have been produced by the defendant. The agreement produced with the first affidavit dated 6th August 1986 appears to be handwritten and its validity has been challenged by the plaintiff. Another agreement dated 2nd October 1985, which is more formal and elaborate, has been annexed to the second affidavit of the defendant sworn in May 1993. It is remarkable that this agreement dated 2nd October 1985 is anterior to the last will of Vidya Wati dated 20th June 1986. It has to be realised that the plaintiff was not a party as such to the last will. He was the beneficiary. In any case the agreements relate to the plaintiff's claim in the family business known as S. Shambhu Prasad and Company.

It appears that the plaintiff was an employee of the said company at one time and was not paid any salary as such during that period and hence an arrangement appears to have been made among all three to settle his claims on that account. It is my view that those agreements do not impinge on the validity of the present title of the plaintiff to the property in question. 

The plaintiff's present title arises from the last will which was the free and voluntary act of Vidya Wati, who was the mother of both the plaintiff and defendant and owner of the property in question.

In the context of the many allegations made by the defendant it seems to me strange that he has so far not taken any steps to challenge the last will of the testratix on which the whole matter rests.

In this view of the matter I hold that the notice given to defendant by the plaintiff's solicitors by letter dated 6th March 1992 is valid and binding as at that date defendants' occupation of the premises had become unauthorised. No rent was being paid. He was at best a licensee. In the circumstances this notice given by the plaintiff to the defendant was sufficient. I therefore grant to the plaintiff an order for possession with costs to be taxed if not agreed. However I direct that writ of possession do not issue for 1 month from today.

M. D. Jesuratnam
JUDGE
At Suva
24th May 1993
HBC0312O.92S