IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION	
	
Civil Action No. HBC 28 of 2012	
		
	IN THE MATTER of an application under section 169 of the Land Transfer Act (Cap 131) for an Order for Immediate Vacant Possession.
	
BETWEEN	:	SHIU KUARI aka SAKUNTALA, Sigatoka, Businesswoman.
PLAINTIFF

AND	:	ARUNA DEVI JEET of Sigatoka, Market Vendor, P.O Box 1340, Sigatoka.
DEFENDANT

Before	:	Master Anare Tuilevuka.	
			
Appearances	:	Mr. R. Chaudhary of Gordon & Chaudhary for the Plaintiff.	
	:	Mr. Sharma of SS Law for the Defendant	
			
Date of Hearing	:	07 June 2012	
Date of Ruling	:	Friday 10 August 2012	

RULING

INTRODUCTION

1.	Shiu Kuari (aka Sakuntala), a businesswoman of Sigatoka, seeks an Order of the Court against Aruna Devi Jeet (“Aruna Devi”), the defendant, to show cause why an Order for immediate vacant possession of the property comprised in Certificate of Title No. 10534 being Lot 54 on DP 2456 situated in Sigatoka should not be made against her (Aruna Devi). The application is made pursuant to section 169 of the Land Transfer Act (Cap 132).

2.	A copy of the Notice to Quit prepared by Gordon & Chaudhary Lawyers dated 09 December 2011 is annexed to Sakuntala’s Affidavit. This Notice was served on Jeet on 12 December 2011 giving her a month’s notice to quit the property.

3.	Section 169 of the Land Transfer Act (Cap 131) states as follows:

“The following persons may summon any person in possession of land to appear before a judge in chambers to show cause why the person summoned should not give up possession to the applicant:-

(a)	the last registered proprietor of the land;

(b)	a lessor with power to re-enter where the lessee or tenant is in arrear for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;

(c)	a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.”

4.	Sakuntala is the last registered proprietor of the property in question. A copy of Certificate of Title No. 10534 is annexed to her affidavit in support of the application. With her proprietorship over the property being established by Sakuntala, and, also, by that, her locus to apply under section 169, the onus then shifts to Aruna Devi under section 172 of the Land Transfer Act to show cause as to why vacant possession should not be given. Section 172 states as follows:

If the person summoned appears he may show cause why he refuses to give possession of such land and, if he proves to the satisfaction of the judge a right to the possession of the land, the judge shall dismiss the summons with costs against the proprietor, mortgagee or lessor or he may make any order and impose any terms he may think fit.

5.	In order to prove to the satisfaction of this court a right to possession of the land, all that is required of Aruna Devi under section 172 is to demonstrate by affidavit evidence some right to possession which would preclude the granting of an order for possession under section 169. This does not mean that she has to prove conclusively a right to remain in possession. Rather, it is enough that she shows some tangible evidence establishing a right or at least supporting an arguable case for such a right (see Morris Hedstrom Limited v. Liaquat Ali (Action No. 153/87 at p2).

ANALYSIS

6.	After considering the material in all affidavits filed for and on behalf of both parties and the submissions of both counsel, I conclude that Aruna Devi has succeeded in convincing this Court of some tangible evidence supporting an arguable case for her to remain in possession.The facts which are common ground between the parties and on which I base the above conclusion are as follows:

(i)	the plaintiff, Sakuntala, is the defendant's (Aruna Devi's) mother in law. Aruna Devi's husband, the late Indar Jeet, who died in November 2009, was the son of Sakuntala.

(ii)	the property in question still vests in the estate of one Baljit (deceased) and is yet to be fully distributed in accordance with his last will. Baljit was the husband of Sakuntala and father of Indar Jeet. He died on 03 March 2007. Constructed on the property is a double story building with a shop (Shop No. 2) on the ground floor. The shop is actually being occupied by Aruna Devi and her two sons (Sakuntala's grandsons) Antash Atul Jeet and Anshak Aadrash Jeet who are both minors. Aruna Devi has always resided at the shop from the time she married into this family.

(iii)	the late Baljit did bequeath to the late Indar Jeet a life interest in the property and thereafter, to his grandsons - Antash and Anshak - absolutely in equal shares.

(iv)	before Indar Jeet passed on, he had opposed the probate application of the two persons who were named executor/trustees under the Baljit Will (namely Anis Shabnam and Uma Abdul). Jeet in fact lodged a caveat which prevented the grant which then precipitated an application by Shabnam and Abdul in the High Court in Suva (Probate Action No. 46096). The parties (Shabnam, Abdul and Jeet) however later settled their differences vide a Consent Order in Probate Action No. 46096 (a document which they called "Deed Withdrawing Caveat on Grant of Probate"). The terms of this Consent Order reassured Jeet – amongst other things - that the estate would be preserved if he withdrew his caveat and that it would – in due course be distributed according to the Baljit Will.

(v)	on that assurance, Jeet subsequently withdrew his caveat. The probate was then granted. And Shabnam and Abdul thereafter lodged a transmission by death at the Titles Office in favor of Sakuntala (as per the terms of the Consent Order).

(vi)	Indar Jeet, as noted, has since passed on. A rift however began to develop between Jeet's widow, Aruna Devi (the defendant in this case), and his mother, Sakuntala (the plaintiff). This rift appears to have been fueled by their differing views as to how the utility bills and rates over the estate property are to be settled. 

(vii)	at paragraph 7 of Gyaneshwar Ram's affidavit (filed for Sakuntala), Ram deposes as follows:

That the Deed Withdrawing Grant Caveat on Grant of Probate dated 8th day of August, 2009, clearly provided for the tenants of the estate property to pay rates and utility bills and the Defendant is not doing so. Further, the Defendant, as said earlier, has no legal and or equitable right to the subject property.

(viii)	Aruna Devi deposes at paragraphs 19 and 20 of her affidavit that:

…in the Last Will and Testament of Baljit, it was noted that Shop 2 and the residence that I am currently residing at, will go the late Baljit's grandson upon the death of Indar Jeet and I am the lawful mother and guardian of the two grandchildren of the late Baljit and further wish to state that even in the deed executed between the parties does not indicate that I have to pay rent for the property or even my late husband Indar Jeet.

.the reason why I do not pay rent is because the house was given to my late husband by my father in law and in his Last Will and Testament………..

REASONS

7.	Based on the above facts, my reason for finding that Aruna Devi has an arguable case to remain in possession are as follows:

(i)	Aruna Devi's sons stand to inherit the property in question absolutely in equal shares. The children have every right to be in occupation of the property that is to be their inheritance.

(ii)	as the children's natural mother, and surviving natural parent, who actually resides with and looks after them, Aruna Devi is the children's natural guardian.

(iii)	the term "guardian" or "natural guardian"as it applies in this context, denotes Devi's parental right and duty in respect of the welfare and upbringing of her children.

(for a more detailed discussion into the concept of "parenthood" and/or "guardianship", see Khan v Ministry of Health [2012] FJHC 1038; Civil Action 49 & 50 of 2004 (27 April 2012) as per Master Robinson). 

(iv)	because the children cannot be removed from the property by virtue of their right of inheritance over the property, and because Devi cannot be separated from the children by virtue of her special role as their mother and guardian, Devi has every right to remain in possession of the property – at least for the children's sake and – undoubtedly – which is also their wish.

(v)	the issue about how the utilities costs should be shared is a valid one – but not enough to warrant an eviction order from this court against Devi.

ORDERS

8.	I dismiss the plaintiff's application with costs in favour of the defendant which I summarily assess at $1,500 (one thousand five hundred dollars only) to be settled within 28 days.

Master Tuilevuka

At Lautoka
10 August 2012