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Raj v Puran [1996] FJHC 128; Hbc0049j.95b (5 July 1996)

IN THE HIGH COURT OF FIJI
At Labasa
Civil Jurisdiction

CIVIL ACTION NO. 0049 OF 1995

Between:

NIRMALA RAJ
d/o Bans Raj
Plaintiff

- and -

PURAN
s/o Asha Ram
Defendant

Mr. A. Kohli for Plaintiff
Mr. M. Sadiq for Defendant

JUDGMENT

This is an application for vacant possession of a property comprised of both Crown and Native land at Labasa which was originally leased to Bans Raj and which was later transferred to his wife Indra Wati after he died sometime in 1984. The land in question is comprised in two separate title documents namely, Crown Lease No. 5588 and Native Lease Ref. No. 4/9/6439 and is presently occupied by the defendant who was legally married to Indra Wati in 1986.

Indra Wati died testate in May 1994 and in terms of her last will and testament dated 10th February 1994, she appointed her daughter Nirmala Raj (the applicant) to be the sole Executrix and Trustee of her estate. Also in terms of her will Indra Wati left all her worldly property to the three (3) children of her first marriage "... in equal shares, share and share alike absolutely for their own use and benefit." No provision was made in the will for the benefit of the defendant, her legal husband of 8 years up to the time of her death, but equally, the defendant has not been expressly excluded as he could have been.

The applicant claims as the sole executrix and trustee of the Estate of Indra Wati her late mother and as the last registered proprietor. On the 2nd of March, 1995 her solicitors gave the defendant a written Notice to Quit which notice expired after a month.

It is noteworthy that the applicant is married and employed, and has an address in Suva where she has been living for the past 10 years, since 1986. Similarly it is common ground that the other beneficiaries of the Estate namely, Saras Raj and Ajay Raj, are no longer in Labasa and are living in Suva (since 1991), and in Canada (date unknown), respectively. In the circumstances it is not at all surprising that the defendant denies the sincerity of the applicant's claim that she and her sister desire to return to and occupy the land in Labasa.

In this latter regard it is noteworthy that the applicant does not depose to any authority to swear any affidavit on behalf of her sister. Furthermore on the face of the title documents the Crown lease is due to expire in 1998 and the Native Lease in 2001.

At the hearing of the application learned counsel for the defendant raised a preliminary argument that the plaintiff's application was 'statute-barred' in so far as the necessary written consents of the Director of Lands and the N.L.T.B. had not been obtained prior to the institution of the action. Learned counsel for the plaintiff whilst conceding that no consents were obtained nevertheless submits that none is required in terms of Section 13 of the Crown Lands Act or Section 12 of the Native Land Trust Act.

With all due regard to the argument of learned counsel for the defendant I cannot agree. In my view the matter is settled by the judgment of this court when it rejected an identical argument in Nagin v. Yee Fong Gau and Ram Gulam Sharma Labasa Civil Action No. 93 of 1987. So much then for the preliminary argument.

The defendant in seeking to show a right to occupy the land deposes to having incurred considerable expenses in farming the land; in extending and electrifying the house; and in repaying a bank mortgage. He also deposes that his late wife Indra Wati:

"... during her life time had always assured me that she would leave all the property to me ..." and "because of her assurance I have spent a lot of money on the said property and worked hard to pay off the debt to the Bank."

In the light of the above learned counsel for the defendant submits that the defendant has at the very least raised a triable issue as to whether or not the facts or circumstances of the defendant's occupation and expenditure are capable of giving rise to some form of promissory or proprietary estoppel such as to entitle him to an 'equity' similar to that which was recognised in the judgment of the Privy Council in Sheila Maharaj v. Jai Chand (1986) 32 F.L.R. 119.

In all the circumstances I am satisfied that the defendant has raised a prima facie right to possession of the land which he has occupied for the past 10 years, and accordingly, the application is dismissed.

(D.V. Fatiaki)
JUDGE

At Suva,
5th July, 1996.

HBC0049J.95B