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Singh v Singh [2017] FJHC 716; HBC224.2016 (27 September 2017)

IN THE HIGH COURT OF FIJI

CIVIL JURISDICTION

Action No. HBC 224 of 2016

IN THE MATTER of an application under section 169 of the Land Transfer Act 1971

for an order for immediate vacant possession.

And

IN THE MATTER of section 119 of the Property Law Act 1971.

And

IN THE MATTER of section 5 of the Succession, Probate and Administration Act.

_________________________________

BETWEEN

CHANDARA PRAKASH SINGH of 2162 John Still Dr, Sacramento, CA 958323, USA,

Retired, as Trustee IN THE ESTATE OF CHANDAR PAL SINGH.

PLAINITFF

AND

VIJAY PRAKASH SINGH of 1 Nakauvadra Rd, Delainavesi, Lami, Fiji,

Taxi Proprietor.

FIRST DEFENDANT

AND

SATENDRA PRAKASH SINGH of 1 Nakauvadra Rd, Delainavesi, Lami, Fiji,

Bus Driver.

SECOND DEFENDANT

Counsel : Mr A. Nand for the plaintiff.

Ms V. Tokavou for the 1^st defendant.

Ms N. Karan for the 2^nd defendant.

Date of Hearing : 31^st August, 2017

Date of Judgment : 27^th September, 2017

JUDGMENT

[1] The plaintiff instituted these proceedings by Originating Summons seeking the following reliefs;

(a) An order under section 169 of the Land Transfer Act 1970 to give immediate possession of the land and premises comprised in Certificate of Title No. 11834 of Lot 17 on DP No. 2010 “Qamu” (part of) and containing twenty seven perches and four-tenth of a perch, and occupied by the 1^st and 2^nd defendants.
(b) An order under section 119 of the Property Law Act for sale of the property comprised in Certificate of Title No. 11834 of Lot 17 on DP No. 2010 “Qamu” (part of) and containing twenty seven perches and four-tenth of a perch.
(c) An order under section 119 of the Property Law Act for sale of the property comprised in Certificate of Title No. 22363 on DP No. 480 “Luvuluvu” and containing seven acres, one rood and twenty eight perches.
(d) An order for distribution of the property and sharing of proceeds according to the entitlement of each beneficiary in terms of Property Law Act and Succession, Probate and Administration Act.
(e) That before the distribution of proceeds the solicitors’ costs and other legitimate costs or expenses be deducted.
(f) Costs of this action.

[2] At the hearing both defendants informed court that they have no objection in granting the order prayed for in paragraph (c) above.

[3] The plaintiff came to court seeking the above orders in the capacity of the administrator of the estate Chandar Pal Singh, to have the 1^st and 2^nd defendants who are in occupation of the property comprised in Certificate of Title No. 11834 of Lot 17 on DP No. 2010 “Qamu” (part of), evicted to facilitated the administration of the estate. Chandar Pal Singh is the father of the plaintiff and the 1^st and 2^nd defendants.

[4] The first defendant in his affidavit in response averred that he has been living on this property for the last 21 years, one of the beneficiaries of the estate of Chander Pal Singh is now deceased and he and the other beneficiaries are entitled to this property in equal shares. From the averments of his own affidavit it is clear that the 1^st defendant admits that each beneficiary of the estate is entitled to 1/9^th share of the property.

[5] The 2^nd defendant in his affidavit in response states that for the last 31 years he has been maintaining this property spending $2000 - $3000 a year and number of beneficiaries are objecting to the sale and distribution of this property and tendered a letter written by one of the beneficiaries, Saras Wati Lal who is a resident of New Zealand where it is stated that she is not ready to let the house which her father worked hard to make for them. She may be correct but she and the defendants forget for a moment that they are not the only children of their father. They cannot deprive the other beneficiaries of their right in the estate.

[6] The grounds averred in the affidavits in response of the defendants are not sufficient for the court not to grant the reliefs prayed for in the originating summons. Under no circumstance any of the beneficiaries can stay the administrator from administering the estate of the deceased.

[7] Spending for the maintenance of the estate property does not make them entitled to keep the entire property for themselves to the detriment of the other beneficiaries of the estate. If they have spent for the maintenance of the state property they can claim such amounts from the administrator before the proceeds of the sale is distributed among the beneficiaries.

[8] On behalf of the defendants an objection was taken to the maintainability of these proceedings on the ground that since the plaintiff is not the owner of the property in question he has no locus standi to institute these proceedings.

[9] Section 9 of the Succession, Probate and Administration Act provides as follows:

Upon the grant of probate or administration, all property of which a deceased person dies possessed, or entitled to, in Fiji shall, as from the death of such person, pass to and become vested in the executor to whom probate has been granted, or administrator for all the estate and interest of the deceased therein, in the manner following, that is to say-

(a) on testacy or on partial intestacy, in the executor or administrator with the will annexed; and
(b) on intestacy, in the administrator.

[10] In view of the above provisions the plaintiff, as the duly appointed administrator of the estate, not only entitled but also duty bound to administer the estate without any delay.

[11] Section 119 of the Property Law Act provides:

(1) Where in an action for partition the party or parties interested, individually or collectively, to the extent of one moiety or upwards in the land to which the action relates requests the court to direct a sale of the land and a distribution of the proceeds, instead of a division of the land between or among the parties interested, the court shall, unless it sees good reason to the contrary, direct a sale accordingly.
(2) The court may, if it thinks fit, on the request of any party interested, and notwithstanding the dissent or disability of any other party, direct a sale in any case where it appears to the court that, by reason of the nature of the land, or of the number of the parties interested or presumptively interested therein, or of the absence or disability of any of those parties, or of any other circumstance, a sale of the land would be for the benefit of the parties interested.
(3) The court may also, if it thinks fit, on the request of any party interested, direct that the land be sold, unless the other parties interested, or some of them, undertake to purchase the share of the party requesting a sale, and, on such an undertaking being given, may direct a valuation of the share of the party requesting a sale.
(4) On directing any such sale or valuation to be made, the court may give also all necessary or proper consequential directions.
(5) Any person may maintain such action as aforesaid against any one or more of the parties interested without serving the other or others, and it shall not be competent to any defendant in the action to object for want of parties; and at the hearing of the cause the court may direct such inquiries as to the nature of the land and the persons interested therein, and other matters, as it thinks necessary or proper, with a view to an order for partition or sale being made on further considerations:

Provided that all persons who, if this Act had not been enacted, would have been necessary parties to the action shall be served with notice of the decree or order on the hearing, and, after that notice, shall be bound by the proceedings as if they had originally been parties to the action, and shall be deemed parties to the action, and all such persons may have liberty to attend the proceedings, and any such person may, within a time limited by rules of court, apply to the court to add to the decree or order.

(6) On any sale under the provisions of this section, the court may allow any of the parties interested in the land to bid at the sale, on such terms as the court deems reasonable as to non-payment of deposit, or as to setting off or accounting for the purchase money or any part thereof instead of paying the same, or as to any other matters.

[12] The extent of the land in question is 27.4 perches. If this land is divided among all the beneficiaries, each of them will be entitled only to 3.04 perches. If there is going to be an allocation for access roads within the land the extent each of the beneficiaries will receive will be less than 3 perches. It is therefore, not practicable to divide this property and allocate shares to the beneficiaries. The only alternative available to the plaintiff, who is the administrator of the estate, is to sell the property and distribute the proceeds of the sale among the beneficiaries after deducting the expenses incurred by him in the process.

[13] For these reasons the court makes the following orders.

ORDERS

1. The defendants are ordered to give immediate possession of the land and premises comprised in Certificate of Title No. 11834 of Lot 17 on DP No. 2010 “Qamu” (part of) and containing twenty seven perches and four-tenth of a perch, and occupied by the 1^st and 2^nd defendants.
2. The plaintiff, as the administrator is entitled to sell the property comprised in Certificate of Title No. 11834 of Lot 17 on DP No. 2010 “Qamu” (part of) and containing twenty seven perches and four-tenth of a perch and the property comprised in Certificate of Title No. 22363 on DP No. 480 “Luvuluvu” and containing seven acres, one rood and twenty eight perches.
3. The plaintiff is ordered, in the event of sale of these properties to distribute the proceeds of the sale according to the entitlement of each beneficiary in terms of Property Law Act and Succession, Probate and Administration Act.
4. The plaintiff is entitled to recover the legitimate expenses together with solicitors’ costs, incurred for the sale of these properties before the distribution of proceeds of the sale.
5. The defendants are ordered to pay the plaintiff $2000 as costs of this action.
   

Lyone Seneviratne

JUDGE

27^th September, 2017