IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 298 OF 2006

BETWEEN:

BRIJ LAL as Administrator of the Estate of DAYA RAM
Plaintiffs

AND:

PHUL MATI as Executrix and Trustee of the Estate of GOBARDHAN & SURUJ BASI, JAI SHREE LAL, ARVIND LAL & SURUJ LAL all Executrix/Executors of the Estate of MOTI LAL & SHIU PRASAD
Defendants

Mr. S. Chand for Plaintiffs
Mr. R.P. Singh for Defendants

Date of Hearing: 11th & 12th December 2008
Date of Judgment: 30th January 2009

JUDGMENT

Background:

[1]	One Ram Singh was registered proprietor of freehold land comprised in Certificate of Title 9854. The area was 34 acres 3 roods and 26 perches. Just over two acres was taken for road reserve. In 1962 a transmission by death was registered in favour of three of his sons namely Gobardhan, Ram Rattan and Moti Lal. In 1969 they transferred the land to Gobardhan, Ram Rattan, Moti Lal and another brother Shiu Prasad. Therefore four persons became tenants in common of this title CT 9854.

[2]	At the centre of the storm in this case is a memorandum of terms of sale which I shall henceforth refer to as the agreement. It is dated 19th September 1983. It shows Gobardhan, Moti Lal, Shiu Prasad and the Public Trustee as Administrator in the estate of Ram Rattan as vendors and Daya Ram son of Hari Charan as the purchaser.

[3]	All the parties to the agreement with the exception of the Public Trustee are now deceased. The defendants are the trustees in the estates of first three named vendors namely Gobardhan, Moti Lal and Shiu Prasad.

Claim and defence:

[4]	Brij Lal the plaintiff is the administrator in the estate of Daya Ram the purchaser. Daya Ram was his brother. They are both sons of Hari Charan. The plaintiff is seeking specific performance of the 1983 agreement. The defendants state that Gobardhan’s signature was forged so the agreement was unenforceable. Further they say that the court should refuse specific performance on grounds of excessive delay and abandonment by plaintiff of his rights under the contract. 

[5]	Daya Ram was not married but he had a common law wife according to the plaintiff. He had no children. His parents I believe pre-deceased him. Therefore all his brothers and sisters would have equal share in his estate and if the court holds that the agreement was enforceable then they would all be entitled to shares in the land contrary to what the plaintiff believed. He stated that he did not want to give any brother or sister of Daya Ram any share. He said he built the house and that probably is his excuse for this ill conceived attitude and belief that none of the other siblings are entitled to any share in the deceased brother’s estate.

Issue 1 - Whether the Claim is barred by the Limitation Act Cap 35?

[6]	The agreement was made in 1983. This action was filed in 2006. As a general rule the claims based on contract must be brought within six years of the date of contract. However Section 4(7) of the Act excludes the six year period for actions where specific performance, injunction or other equitable relief are sought.

Issue 2 - Is Gobardhan’s signature a forgery?

[7]	The sale and purchase agreement was executed in 1983. There is a presumption of due execution in case of private documents over 20 years old if document is produced from proper custody: Section 13 of Civil Evidence Act 2002. The proper custody of a document means its deposit with a person and a place where it might naturally and reasonably be expected to be found. The purchaser would obviously be a person who is expected to keep a contract for sale of land.

[8]	The plaintiff told the court that he brought the parties to the agreement in his truck to Munro Leys who are solicitors in Suva. He further stated that his brother Daya Ram first spoke to Chatur Singh who it is common knowledge was a solicitor with Munro Leys and is now deceased. According to him the fourth brother Ram Rattan had passed away and his wife Suruj Mati did not want to sign anything.

[9]	Brij Lal’s evidence is material in the sense that he has placed Gobardhan in the office of Munro Leys where the agreement was purportedly signed. Further in agreed bundle of documents there is a letter written by Messrs Munro Leys & Co. and sent to the Public Trustees stating that they were enclosing a transfer. It goes on to say that "All the parties have now executed the enclosed transfer which the writer has witnessed …" It sought that Public Trustee sign the transfer as Administrator in the estate of Ram Rattan.

[10]	The Public Trustees referred the transfer to the widow for her instruction.

[11]	The defendant testified that her father had not told her about the agreement and she was unaware of it until 2006 when Brij Lal brought it to her and tried to get her to sign a transfer. She had been married in 1980 and she moved to Koronivia where she lived in 1983. So the father is unlikely to tell her everything. Further there is evidence that Daya Ram had been living on the land prior to the agreement and it is likely the parties wished to regularize his occupation and provide him a measure of security by this agreement.

[12]	The fact that no one has witnessed the agreement does not render the agreement a forgery. There is no requirement in law that such agreements have to be witnessed. There is no evidence that Gobardhan was not of sound mind and capacity. All the defendant is saying is that because she was not aware of the agreement, it is a forgery.

[13]	I find that Gobardhan did sign the agreement on the basis of Brij Lal’s evidence and on strength of letter written by Munro Leys.

Issue 3 – Should court refuse specific performance due to delay?

[14]	Mr. Singh submitted even if I hold that Gobardhan had signed the agreement, the court should still in the exercise of its discretion, refuse specific performance because of the delay on part of the plaintiff in bringing these proceedings. The plaintiff with such delay should be considered to have abandoned his rights under the contract he submitted.

[15]	This type of defence is foreshadowed by Section 26 of the Limitation Act Cap 35. Section 26 provides "Nothing in this Act shall affect any equitable jurisdiction to refuse relief on the ground of acquiescence or otherwise". The words ‘acquiescence or otherwise’ are wide enough to include any conduct which would lead a court of equity to refuse relief on ground of laches. The writ in this action was filed on 11th July 2006, about 22 years and 10 months after date of execution of the agreement. That is a very long time.

[16]	However, Daya Ram the purchaser died a year after the date of agreement on December 1984. The plaintiff obtained a grant close to 10 years later and then waited for 12 years before filing this action.

[17]	The plaintiff had migrated in 1988. Once he migrated, his brother Dharamvir and his children, one of them being Rocky Parmesh Charan, moved onto the property. Rocky Parmesh Charan is still in occupation of the land or at least part of it. Some children of Jai Ram, another brother of the plaintiff, also occupy the land. Jai Ram lives in the USA but his children live in a house on the land. They were allowed to live on the land by the defendant since 2005. She only consulted other tenants in common of the property and not the plaintiff. In 2005 she was not aware of the agreement and therefore did not know that Daya Ram had an interest in the land. She told the court that her mother asked Rocky Parmesh Charan to pay to live on the land but there was no response. 

[18]	However there was a house on the land. It is a concrete house so its existence must have been obvious to the first defendant.

[19]	In the agreement time was made the essence of the contract and if the purchaser defaulted in payment of purchase money or in observance of any term, then the vendor could rescind the contract. There is no evidence that any term was breached or any evidence that the contract was rescinded. In any event rescission was unlikely in any event as the defendant was unaware of the contract. How can one rescind a contract one is not aware of?

[20]	Mr. Singh in the true tradition of the bar referred to Williams v. Greatrex – (1956) 3 ALL ER 705 where the English Court of Appeal held that the purchaser was entitled to specific performance even though there was a delay of a ten years because time was not made the essence of this agreement and the purchaser had an equity in the land. Lord Denning with his usual clarity stated that "as long as the purchaser remained in possession under a contract which entitled him to be there, he had an equity which the courts would protect".

[21]	The modern approach to defences of laches and acquiescence was considered by Mummery LJ in Patel v. Shah – (2005) Times 2nd March where after looking at previous authorities he stated that:

"In my view the more modern approach should not require an inquiry as to whether the circumstances can be fitted within the confines of a preconceived formula derived from earlier cases. The inquiry should require a broad approach, directed to ascertaining whether it would in all the circumstances be unconscionable for a party to be permitted to assert his beneficial right. No doubt the circumstances which gave rise to a particular result in the decided cases are relevant to the question whether or not it would be conscionable or unconscionable for the relief to be asserted, but each case has to be decided on its facts applying the broad approach." 

Analysis:

[22]	The plaintiff has his agreement. Daya Ram the deceased brother had lived on the land and began construction of a house which was later completed by the plaintiff. The plaintiff may have migrated but he left behind persons to occupy the property whether ex-gratia or on rent it does not matter. They are the family of plaintiff’s brother Dharamvir. These people were occupying the property on behalf of the plaintiff. Rocky Parmesh Charan told the court that the plaintiff sent money from the USA and he does maintenance. He also confirmed that the plaintiff stayed with him during his visits to Fiji. There could be no abandonment in these circumstances. One does not carry out maintenance on abandoned properties.

[23]	The children of Jai Ram another brother of Daya Ram also occupy the land. They have the right to occupy the land as their father is a beneficiary in the estate of Daya Ram. They can protect their interest by lodging a caveat.

[24]	One matter of concern in this case is the attitude displayed by the plaintiff that he will sell the property and give no shares to any of his siblings. I believe he said this seriously. A trustee has the power to sell. The plaintiff lives in the USA. He could sell and abscond with the funds leaving other beneficiaries without any recourse to recovery of their share.

[25]	The plaintiff had further not stated his correct address on the writ either giving his address as Waila, Nausori. Therefore it is of utmost importance that the beneficiaries in the estate of Daya Ram in their own interest seriously consider lodging caveats against the title if at all possible.

Conclusion and Orders:

[26]	I find that Gobardhan did execute the contract. I further hold that the estate of Daya Ram had not by its conduct done anything which is equivalent to a release of claims against the land. Accordingly I declare that the plaintiff is entitled to Lot 1 on Deposited Plan 5472 having an area of 1716 square meters. I grant the order for specific performance and order the defendants to execute the necessary documents for transfer of the property to the estate of Daya Ram within seven (7) days of presentation of such documents.

[27]	I allow costs on the basis that the plaintiff was resident of Fiji. He failed to disclose his USA address and therefore any airfares and incidental expenses are not allowed. I fix costs summarily in the sum of $2,000.00.

[Jiten Singh]
JUDGE

At Suva
30th January 2009