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Prasad v Prasad [2023] FJHC 799; HBC165.2018 (19 October 2023)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No. HBC 165 of 2018


BETWEEN: UMLESH PRASAD of Nasasa Road, Nakaulevu, Navua, Taxi Driver.
PLAINTIFF


AND: HIRENDRA PRASAD alias HIREND PRASAD of Nasasa Road, Nakaulevu, Navua, Driver as the ADMINISTRATOR OF THE ESTATE OF NARAYAN PRASAD of Nasasa Road, Nakaulevu, Navua and in his personal capacity.
DEFENDANT


BEFORE: Hon. Mr Justice Vishwa Datt Sharma


COUNSEL: Mr. Naidu R. for the Plaintiff
Mr. Chand A. for the Defendant


Date of Judgment: Thursday 19th October, 2023 @ 9.30am


JUDGMENT


[Entitlement to share, Registration of Beneficiaries Name on Title, Subdivision, injunction to Restrain, Extension of Caveat, Accounts, Damages, Interests and costs]


On the outset it is to be noted that he Plaintiff had not pursued his claim under paragraph 18-22 of the Statement of Claim i.e. The Alternative Cause of Action. This was relayed to the court during the Trial on 02nd February, 2022.Therefore, there was no need to address court on the issue within the Pre-Trial Conference minutes ‘whether the Deed of Family Arrangement dated 03rd November 2005 was contrary to Section 6(1) of the Succession, Probate and Administration Act, and if so, should the deed be set aside?

Introduction

[1] The Plaintiff filed a Writ coupled with the Statement of Claim and sought for the following orders against the Defendant:

[2] The Defendant filed his Statement of Defence together with a Counterclaim to the Plaintiff’s claim and pleaded as follows:

Oral Evidence


[3] The Plaintiff called 3 witnesses whilst the Defendant called 2 witnesses in these

PW1 Umlesh Prasad (Plaintiff)

PW2 Arvind Prasad

PW3 Kesar Kumar

DW1 Hirendra Prasad

DW2 Rohini Lata


[4] The oral evidence of the witnesses is not paraphrased in my judgment since it was recorded both on the court file and in the court recordings and can be accessed. However, all consideration was given to the entire evidence given during the trial.

[5] The parties to the proceedings furnished court with their respective written submissions.

Plaintiff’s Case


[6] The Plaintiff’s case is that the only asset of the late Narayan Prasad’s Estate is a 7 acres freehold land comprised in the Certificate of Title No. 35157 situated at Nasasa road, Nakaulevu, Navua.

[7] On 03rd November 2005, Kamla Wati, the 3 sons and the 4 daughters entered into a Deed of Family Arrangement prepared by Solicitor Mr. Suresh Chandra.

[8] The Defendant as the Administrator of the Estate of Narayan Prasad has to the current not completed the Administration and the disposition of the Estate since the grant of Letters of Administration De-Bonis non grant on 10th November 2011, some 12 years has lapsed.

[9] The Defendant refuses to comply with the Deed of Family Arrangement dated 03rd November 2005.

[10] The Plaintiff is asking court for an order that the land be distributed amongst the heirs in accordance with the Deed of Family Arrangement dated 03rd November 2005.

[11] Certificate of Title No. 35157 contains 2 hectares six thousand six hundred and seventy five square meters which converted into acres is 6,591 acres.

[12] The Plaintiff is entitled to 5993 square meters under the Deed of Family Arrangement dated 03rd November 2005.

Defendant’s Contention


[13] However, the Defendant’s contention is that-

Determination


[14] The Plaintiff and the Defendant are brothers, the lawful children of the Deceased, Narayan Prasad. They are beneficiaries of the Estate of Narayan Prasad.

[15] The case concerns the distribution of the Estate of the late Narayan Prasad as to who gets what share and what section of the land owned by Narayan Prasad. The only asset of the Estate is a 7 acres freehold land comprised in Certificate of Title No. 35157 situated at Nasasa Road, Nakaulevu, Navua.

[16] Narayan Prasad died intestate on 01st January 2005. At the time of his death, the deceased Narayan Prasad, was the owner of a substantial freehold land comprised in the Certificate of Title No. 35157, having an area of 2.6675 hectares situated in Nasasa, Nakaulevu, Navua.

[17] On 11th of August 2005, Letters of Administration in the Estate of Narayan Prasad was granted to his said wife, Kamla Wati.

[18] It is not in dispute that the Plaintiff is one of the beneficiaries of the Deceased’s Estate of Narayan Prasad, being an equal beneficiary to 6 other beneficiaries, out of these 6 beneficiaries, 2 are his brothers and 4 are his sisters namely; Hirendra Prasad alias Harend Prasad, Mohini Lata, Rohini Lata, Prem Lata, Suman Lata and Yogesh Prasad accordingly.

[19] After the demise of Deceased Narayan Prasad, his widow Kamla Wati as the intended Administratrix of the Estate of Narayan Prasad and Yogesh Prasad, Rohini Lata, Mohini Lata, Suman Lata and Pram Lata, the Plaintiff and the Defendant entered into a Deed of Family arrangement dated 03rd November, 2005 and agreed upon the terms and conditions and matters as enumerated therein accordingly.

[20] However, Suman Lata and Prem Lata as beneficiaries of the Estate renounced their shares in favour of Kamla Wati, Hirendra Prasad, Yogesh Prasad and Umlesh Prasad.

[21] Subsequent to Narayan Prasad’s demise, his wife Kamla Wati also took demise on 12th January 2011.

[22] The Defendant, subsequently applied for a grant of Letters of Administration, which was granted to him on 10th November 2011 for him to fully administer the Deceased’s Estate of Narayan Prasad.

[23] The Defendant was confirmed in his role as the Administrator of the Estate for some 10 years and 04 months now. The performance of his duties as the Administrator has been subject of significant contention and dispute.

[24] The relationship of the Plaintiff and the Defendant is not just a family relationship. The Plaintiff is younger then the Defendant and the Plaintiff and 5 other beneficiaries put him into a relationship with them as a fiduciary.

[25] The Defendant as the Administrator of Deceased’s Estate of Narayan Prasad has fiduciary duties which are imposed under the Law. A Fiduciary Duty is one of the highest duties. A Fiduciary is a person put in a position of Trust and is expected to be loyal to the person to whom he or she owes the fiduciary duty. The Fiduciary Duty holds fiduciaries to attentive and honest conduct and behavior. The Administrator of the Estate has the duty to make decisions that benefit the entire Estate. There is a high degree of Care; diligence, personal and fiduciary obligation involved in the administration of the Estate. The personal Representative is obligated to act as a prudent person in the care and management of the Estate and to act in a manner consistent with the Will and not in conflict with any applicable Estate administration Laws or house of Intestacy. The personal Representative is barred from self-dealing. The personal representative may not gain any personal benefit from serving as Executor or Administrator except as otherwise provided by the Will or by relevant law.

[26] Narayan Prasad died intestate. Therefore, his Estate property is to be distributed according to the rules set out under Section 6 (1) of Succession, probate and Administration Act.

[27] However, in the present case the situation is different. Why?

[28] After the demise of Narayan Prasad, all the beneficiaries entered into a Deed of Family Arrangement dated 03rd November 2005.

[29] All parties to the 2005 Deed of Family Arrangement that is, the Defendant, Kamla Wati, Yogesh Prasad, Mohini Lata, Rohini Lata and the Plaintiff elected to act pursuant to the deed and build and occupy that portion of the land allocated to them under the deed except Yogesh Prasad who continues to live with his wife elsewhere. Once they elected to take that portion of land allocated to them and reside on it, they are bound by their decision.

[30] Once they agreed to act in accordance with the Deed they cannot go back on their own words and simply say the plaintiff is not entitled to the parent’s house and 5993m2 land. This position is further strengthened by the fact that the Defendant (and all other siblings) did not take any objection to the Plaintiff having the parent’s house with 5883m2 land surrounding the house after the death of their mother Kamla Wati in 2011.

[31] With regards to the principle of approbating and reprobating this Honour Brown- Wilkinson in Express Newspaper plc, v News (UK) Ltd, [1990] 1 WLR 1320 observed at pp. 1329, para F-G:

“There is a principle of law of general application that it is not possible to approbate and reprobate. This means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance.”


[32] The Plaintiff objected to the Plaintiff’s share for the first time when his solicitors wrote to Naidu Lawyers on 6 July 2018. (Exhibit D3) after service of the Writ on the Defendant, stating that the Plaintiff breached clause 6 of the deed. In that he did not look after and take care of Kamla Wati’s daily needs. A month prior to this, the Defendant’s solicitors wrote to all the beneficiaries, including the Plaintiff advising that the administrator wishes to engage the surveyor, carry out the survey of the land and obtain separate titles for separate beneficiaries in equal shares.

[33] The Defendant cannot approve and reject the Deed at the same time. He has taken his share of the house and land allocated to him under the 2005 Deed and therefore must accept the whole of the Deed of settlement. He cannot “approbate the Deed by accepting the benefit in confers to him and at the same time reprobate it, by denying the effect of its other terms, in particulars clause 7 which award the parent’s house and 5993m2 land to the plaintiff.

[34] The Defendant’s primary obligation in the circumstances is therefore to see and ensure that the terms laid out in the 2005 Deed of Family Arrangement are carried out accordingly. The Defendant had to adhere to the terms of this Deed entered into by the beneficiaries.

[35] Further, the Defendant as the Administrator of the Deceased’s Estate of Narayan Prasad, holds a fiduciary duty to act loyally and faithfully for the benefit of all the beneficiaries.

[36] Clauses 5, 6 and 7 of the Deed of Family Arrangement dated 03 November 2005 are relevant for the purposes of these proceedings. These clauses state as follows:

“5. That the said KAMLA WATI of the first part shall continue to occupy and own portion of the said Estate property and comprised on Certificate of Title No: 35157 with an area of Five Thousand Nine Hundred and Ninety Three meter square more particularly described in the schedule hereto during her life time.


6. That UMLESH PRASAD one of the said Beneficiaries of the second part shall continue to live with the said Kamla Wati of the first art on the said Estate property comprised in Certificate of Title No: 35157 free of rent but to meet the said Kamla Wati’s daily needs including medical expenses during her life time.


7. That UMLESH PRASAD one of the said Beneficiaries of the second part subject to clauses (5) and (6) above shall upon the death of the said Kamla Wati of the first part shall continue to occupy and to own the said Estate property mentioned in clause (5) above.”


[37] There has been no challenges by the defendant to clause 5 in that Kamla Wati continued to occupy and own an area of 5993 square meter of land on the estate property [on which her house was constructed (parents’ house)] during her life time.

[38] There has been no challenge by the defendant to clause 6 in that Umlesh Prasad continued to live with Kamla Wati in the parents’ house free of rent during the lifetime of Kamla Wati.

[39] Pursuant to clause 7 of the deed, the plaintiff shall continue to occupy and to own Kamla Wati’s portion of the estate property upon Kamla Wati’s death subject to him meeting Kamla Wati’s daily needs including medical expenses. The bone of contention is whether Umlesh Prasad met the daily needs of Kamla Wati including medical expenses during her lifetime.

[40] The Defendant’s case is that Umlesh Prasad did not meet Kamla Wati’s daily needs and medical expenses therefore he is not entitled to the benefit or consideration given to him under clause 7 of the 2005 Deed.

[41] Firstly, the Deed does not define the term “daily needs”. One can reasonably assume “daily needs” mean the basic needs for human survival such as food, water, air and shelter. If any one of these basic needs is not met, then humans cannot survive. Neither the Defendant nor his witness gave evidence on what they understood by the term “daily needs” and that Umlesh Prasad thereby failed to meet those “daily needs”. The Defendant also made suggestions that Kamla Wati died after complaining about severe gastritis and that her gastritis worsened after she ate tin fish and that this only led to the fact that her diet was not looked after, no medical consultations were taken by the Doctors, her daily needs and medical were not catered for by the plaintiff which led to Kamla Wati’s death.

[42] I have analyzed this issue of daily needs and medical consultations of Kamla Wati in terms of the totality of evidence. I find that there is insufficient or no conclusive or reliable evidence before this court to prove and establish on the balance of probabilities the fact that Kamla Wati died because she was not fed properly.

[43] The Plaintiff gave evidence that he lived with his mother until her death which is not disputed. He said he looked after his mother’s daily needs and medical expenses, he bought everything for her, he took her everywhere, his wife would buy clothes for her, him and his wife used to take her to Calia to her sisters place, they took her out on Sundays and they provided her with everything in terms of food essentials.

[44] According to the Plaintiff, his mother was not bedridden. She was “fit and fine”. She did not suffer from any health condition. PW2 Arvind Prasad said Kamla Wati was in good health, she was fine. She had a heart attack on the day she died. A day before her death she told PW2 she ate tinned fish and her gastritis was severe.

[45] PW2 Arvind Prasad in his evidence confirmed that the plaintiff was a good son, he never ill-treated his mother, he was never harsh or rude to his mother and that he took good care of her.

[46] PW3 Kesar Kumar said he never heard of the plaintiff ill-treating his mother. He said the plaintiff was a good son and that he took very good care of his mother. On the other hand, PW3 Kesar in cross examination told court that the defendant Hiren came and attended the mother’s funeral and lifted the coffin but he could not recall if the Defendant Hiren was in USA or Fiji during the 6 months and 1 year after funeral rituals of her mother Kamla Wati.

[47] The Defendant in his evidence in Court confirmed that he agreed that his brother was taking care of some medicine but not up to par. The Defendant further agreed in cross examination that his mother was not suffering from any sickness, she was not dependent on tablets or medication, she did not have any medical condition and that she was never admitted to the hospital.

[48] I have borne in mind the Plaintiff’s, [PW!] Umlesh Prasad’s evidence together with PW2 Arvind Prasad’s, PW3 Kesar Kumar’s and the Defendant [DW1] Hirendra Prasad’s evidence hereinabove and have given a very careful consideration to the same.

[49] The Defendant failed to show by any cogent and reliable evidence that the Plaintiff did not meet Kamla Wati’s daily needs; his mother was a sickly person; his mother’s condition was such that she took tablets regularly and that the Plaintiff did not provide it for her; his mother’s condition was such that she took tablets regularly and that the plaintiff did not provide it for her; and his mother’s condition was such that she required regular medical attention/treatment which the plaintiff did not pay or provide for.

[50] Therefore, I find that the Defendant was unable to establish and/or make a case against the Plaintiff that the Plaintiff in fact breached clause 7 of the 2005 Deed of Family Arrangement.

[51] Secondly, in terms of Defendant’s contention that the actual size of the land is more than what is distributed in the Deed and that in absence of the distribution, of whole of the Estate property, the deed becomes Null and Void and should be distributed in terms of the Succession Probate and administration Act.

[52] The Defendant gave evidence and it is undisputed that Narayan Prasad sold 5 Lots and these lots do not form part of the Certificate of Title No. 35157. These 5 lots were sold from the head title and therefore the Certificate of Title no. 35157 was issued on 25th July 2003. Before the parties entered into the Deed of Family Arrangement in 2005.

[53] The Certificate of Title no. 35157 contain 2 hectares 6 thousand 6 hundred and seventy five square meters which converted to 6.5991 acres [Exhibit P3 refers]. The Plaintiff is entitled to 5993meter squares under the 2005 Deed of Family Arrangement which comes to 1.481 acres.

[54] From 2.6675 hectares [6.591 acres], Kamla Wati sold 520.19 acres to Diwakar Prasad in 2007 leaving a balance area at 6.070 acres which currently exists and this is reflected in the manner in which the land is apportioned and allocated to the beneficiaries under the 2005 Deed of Family Arrangement as follows-

Sub Total 4.5 acres


Total 6 acres.


[55] Therefore, the fact of the matter is that no one should receive anything less than what is stated in the 2005 Deed of Family Arrangement.

Breach of Fiduciary Duty by the Defendant


[56] However, on the other hand, the Plaintiff claims that the Defendant has breached his fiduciary duty towards the plaintiff.

[57] I note at paragraph 15 of the Plaintiff’s Statement of Claim, the Plaintiff pleaded as follows:

“15. The defendant owes a fiduciary duty to the plaintiff in that he as the administrator has been entrusted with the assets of the deceased Narayan Prasad’s estate and the power to administer the estate for the benefit of the estate. The defendant has breached the said duty.


Particulars


(1) The defendant as the administrator of the Estate of Narayan Prasad has failed and/or neglected and/or refused to complete the administration of the said Estate by subdividing the said land comprised in Certificate of Title No: 35157 and issuing separate titles for the benefit of the beneficiaries of the said Estate and transferring it to the respective beneficiaries.

(2) Failing to register the name of the plaintiff (and all other beneficiaries) on Certificate of Title No: 35157

(3) Refusing and failing to inform the plaintiff of the expected date of distribution of the deceased’s property comprised in Certificate of Title No: 35157

(4) Openly refusing to distribute the estate property and holding the estate property indefinitely since January 2011.

(5) Excessive delay in the administration of the deceased’s estate as mentioned above.

(6) Refusing to give the plaintiff any information in relation to the operation of the deceased’s estate for the plaintiff to effectively monitor the administration of estate property.

(7) Threatening to evict the plaintiff and his family from the estate property comprised in Certificate of Title No: 35157.

(8) Openly stating an intention to sell the estate property to the detriment of the plaintiff.

(9) Delaying distribution of the estate property comprised in Certificate of Title No: 35157 so as to use part of the estate property on a rental basis to generate income for his own use and benefit when the estate administration is incomplete.

[58] The evidence before this Court reveals that:

[59] The Defendant is in a position of conflict of interest and duty. It is in his interest to say that he does not agree with the Deed of family arrangement dated 3 November 2005 and that he will not follow it. He has in very clear terms said in his evidence that he does not want to follow the Deed of family arrangement dated 03 November 2005.

[60] However, it is his duty not to do so. As an administrator he is bound by the Deed of family arrangement dated 03 November 2005, he must respect it and comply with it. It demonstrates that the defendant is failing to pursue the interest of the plaintiff.

[61] In his failure to comply with the 2005 Deed of Family arrangement dated 03rd November 2005 and to carry out the disposition of the Estate Property as enumerated in the Deed is a clear indication of the fact that the Defendant is clearly in breach of his fiduciary duties.

[62] The Defendant wanted to alter the terms of the Deed of family arrangement made on 03 November 2005. In his capacity as the Administrator of the Deceased’s Estate, the evidence is that he instructed his solicitors to prepare the second and third Deed of family settlement in 2018 (Exhibit P14 and P15 respectively) which not only benefitted him and Yogesh Prasad rather deprived the Plaintiff of his beneficial Rights and entitlement under the 2005 Deed of Family arrangement. He acted contrary to clause 7 of the 2005 Deed of family arrangement. The defendant is using his powers to his own benefit and to deprive the Plaintiff of his legal entitlement. We respectfully submit that the second and third Deed of family settlement of 2018 is rather unconscionable and tainted with fraud.

[63] A fiduciary must not profit from his or her position as a fiduciary. There is unchallenged evidence that the Defendant is making profit out of the Estate property by taking bigger share of the land and by pressing to sell the Plaintiff’s share of land and the parents’ house and stating in court the sale proceeds will be divided amongst all the beneficiaries. Where persons in a fiduciary position act in bad faith, the court interferes: Klug v Klug [1918] 2 Ch 67; bad faith amounts to maladministration. The Defendant’s conduct amounts to maladministration (known by its Latin name devastavit) wherein:

[64] The Defendant in his capacity as the administrator has acted as administrator in serious beaches of his duties for personal gain. The failure to distribute the Estate of Narayan Prasad after the death of the wife in 2011 is one. There is unchallenged evidence that the defendant had neglected or refused to distribute the Estate to the beneficiaries. The other is an attempt to defraud the Plaintiff of his entitlement under the 2005 Deed of Family arrangement by arranging and participating in the settlements by preparing the second and third Deed of family settlement in 2018, which if put into effect, would have distributed the Estate in a manner which would have been contrary to the 2005 Deed of family arrangement. The second and third Deeds simply were ineffective attempts to alter the 2005 deed contrary to the intentions of the Plaintiff and Kamla Wati who were parties to that deed.

[65] The Defendant in his evidence told the court that he will sell the house occupied by the Plaintiff (parent’s house) if the Plaintiff did not take 1000m2 land offered to him. As an Administrator he is adamant to give the Plaintiff only 1000m2 land and the parent’s house. This court does bear in mind the powers to sell by an Administrator.

[66] It is evident that he Defendant lives in the USA. He could quietly sell the parent’s house and abscond with the funds leaving the Plaintiff without any recourse.

[67] Therefore, it is utmost importance that an injunction be granted restraining the defendant from selling the parents’ house and the caveat be extended until the Defendant completes the administration of the Deceased’s Estate, which the Plaintiff can uplift at the appropriate time, at the request of the Defendant’s solicitors, to enable administration of the Deceased’s Estate to be completed.

[68] The Defendants counterclaim for the Plaintiff to either receive 1000m2 land together with the parent’s house or for him to agree for the parents’ house to be sold is motivated entirely by self-interest. It will be noted that the Defendant was granted the Letters of Administration De Bonis Non on 10th November 2011 and to the current he has failed to complete the administration together with the disposition of the assets to the beneficiaries in the Deceased’s Estate.

[69] The freehold land in question is 6.591 acres in acreage. It is fair to suggest, in the absence of a Will, that Narayan Prasad would have desired that upon his death the land be subdivided and partitioned into 3 equal shares for his 3 sons minus the ¼ acre to each of the 2 daughters who reside in the estate land. If the scheme being proposed by the Defendant at the trial, which is also set out at paragraph 19 of his counterclaim is to be allowed for the final distribution of the Estate, the Defendant and Yogesh Prasad would stand to gain some three quarter acre each or so of the freehold land to which the Plaintiff is beneficially entitled. The 5993 square meter land to which the Plaintiff is beneficially entitled to is actually pursuant to the 2005 Deed of Family Arrangement. The effect of the orders which the Defendant seeks at paragraph 19 of his counterclaim will effectively deprive and disentitle the Plaintiff from a proprietary freehold interest in the 5993m2 land will escalate in years to come.

[70] I have observed the dilemma of the Defendant whilst giving evidence in court. The body language showed to court whilst answering Questions put to him that he had a dislike for the Plaintiff for one reason or the other best known to him.

[71] The Defendant being in the position of a fiduciary must conduct himself honestly and fairly, he must not put his personal interest before the Estate duty required of him, and must not profit from his position as a fiduciary or engage in self-dealing.

[72] The Defendant in this case is a beneficiary of the Deceased’s Estate and also serves as the Administrator of the Estate. Since grant of Letters of Administration De-Bonis non on 10th November 2011, he has failed to complete the administration of the Deceased’s Estate. His intention all along has been to vary and/or amend the share entitlements of the beneficiaries of the Estate for the reasons best known to him.

[73] The Defendant is taking undue advantage of his position and using the Administration of the Estate to his own benefit and is advancing his own interest to claim a larger area of land in the Deceased’s Estate and is giving the Plaintiff a smaller area of land.

[74] The Defendant as the Administrator is objecting to the Plaintiff from receiving his share and entitlement of land which is 5993 meter square allocated to him under the Deed of family arrangement dated 03 November 2005. The Defendant is failing in his duty to treat a beneficiary to the Estate, i.e. the Plaintiff with due regard to his respective rights and entitlement to the Estate property.

[75] The Plaintiff also claims an equitable interest in his parents’ house in the Estate through proprietary estoppel. In claiming equitable interest the plaintiff pleads at paragraph 10 of the statement of claim as follows;

“The Plaintiff has also expanded time, labour and money to develop and upgrade the house owned by the deceased and Kamla Wati (mentioned in clauses (5), (6) and (7) of the deed of family arrangement) in which he also resided with his family, on the said estate property comprised in Certificate of Title No: 35157 in the expectation induced and/or encouraged by Kamla Wati and/or on the assurance and promises made by Kamla Wati that he and his family would be allowed to permanently remain on the said land and in the same house which he and his family had been residing in with Kamla Wati all along.”


[76] The Plaintiff is seeking the equity of proprietary estoppel has endeavored to establish a type of interest in the house and land owned by the plaintiff’s parents with reliance being placed on a representation and having acted on the representation have consequently suffered a detriment.

[77] The Plaintiff was born in Rovandrau Road, Nakaulevu, Navua and had been living there from birth. The Plaintiff moved with his family to his parents’ house in Nasasa to live with his mother in 2005 after the death of his father on 01 January 2005. The very pertinent aspect of evidence of the plaintiff was when he stated this:

[78] The evidence of PW 2 Arvind Prasad and PW3 Kesar Kumar supported the position taken by the plaintiff. According to PW 2 the plaintiff’s father Narayan Prasad had built a small house. It was a lean to house with 2 roofs made up of cement and tin. It had 2 rooms and a verandah. There was no terrace. The plaintiff made a lot of changes to the house after Narayan Prasad’s death. There has been a big extension. The plaintiff built a porch, there are 4 extra bedrooms now, kitchen has been extended, the plaintiff has built a toilet and bathroom.

[79] The evidence of PW 3 Kesar Kumar was that he helped Narayan Prasad construct his house in Nasasa. It was not a god house, about 30 x 20 feet in size. It was about 2 or 3 rooms but not in a good condition. It was a cement house with roofing iron. The plaintiff built the house after he began residing in the house. The plaintiff renovated and extended the house. There has been a lot of changes to the house. It has a big terrace, porch new sink, new toilet with tiles, new kitchen.

[80] There are 3 key components of proprietary estoppel claim:

(Mohammed v Gomez and others [2019] UKP C 46 [para 24] citing Thorner v Major [2009] UKHL 18]


[81] The evidence that the Plaintiff was encouraged by his mother to build and develop the house is clear. The mother in explicit terms told the plaintiff the house would be his upon her death and he should develop the land and extend the property. Those were the precise words used by the mother.

[82] The Plaintiff relied on his mother’s encouragement to his detriment. The Plaintiff spent money and improved the house by extending the house, renovating and developing it which he said he would not have done [if his mother had not built up an expectation in his mind]. The plaintiff incurred expenditure.

[83] There is undisputed evidence showing that the representation made to the Plaintiff that the parents’ house would belong to him (i.e. that is he would inherit the house) influenced his judgment, thus he decided to develop the building, extending and renovating it.

[84] The evidence herein establishes that

[85] The Defendant gave evidence, and it is undisputed that Narayan Prasad sold 5 lots and these lots do not form part of Certificate of Title No: 35157. These 5 lots were sold from the head title and thereafter Certificate of Title No: 35157 was issued on 25 July 2003.

[86] The Certificate of Title No: 35157 contain 2 hectares six thousand six hundred and seventy five square meters which converted into acres is 6.591 acres (Exhibit P3 is a copy of Certificate of Title No: 35157). The plaintiff is entitled to 5993 meter squares under the 2005 Deed of Family Arrangement which comes to 1.481 acres.

[87] From 2.6675 hectares (6.591 acres) Kamla Wati sold 520.19 acres to Diwakar Prasad in 2007. This is evidenced by the sale and purchase agreement dated 16 February 2007 (Exhibit P16) and the two receipts (Exhibit P17) leaving the balance area as 6.070 acres which currently exists and this is reflected in the manner in which the land is apportioned and allocated to the beneficiaries under the 2005 Deed which is as follows:

Plaintiff – 2 Acres approx.

Yogesh – 2 acres approx.

Mohini – ¼ acre

Rohini – ¼ acre

4.5 acre

Defendant 1.5 acre approx.

Total 6 acres


[88] Hence no one should receive anything less than what is stated in the 2005 Deed.

[89] I have observed the dilemma of all the witnesses who testified in this case.

[90] I find that the Plaintiff and his witnesses are credible witnesses. Therefore, I accept the Plaintiff and his witness’s evidence as evidence of truth over that of the Defendant and his witnesses for the following reasons:

[91] The Counsel representing the Defendant during the trial proper also objected to the admissibility of the email written by Amrit Chand Lawyers to Naidu Lawyers on 12th June2018 together with a Deed of Family Arrangement. The Deed claimed that it was sent for settlement purpose on a without prejudice basis (exhibit p15). The question that arises here for determination is whether the email and the deed are privileged.

[92] There is nothing on the email to show that it was written on a “without prejudice” basis for settlement purpose and the Defendant failed to establish at the trial that it was aimed at settlement.

[93] The Defendant has refused to comply with clause 7 of the 2005 Deed of Family Arrangement. Instead his solicitors have been writing to the plaintiffs solicitors to accept something less than his entitlement under clause 7 of the 2005 Deed of Family Arrangement. The Plaintiff did not participate in any way in the preparation of the third deed. There is no evidence that the plaintiff participated in any discussion to settle the matter or instructed his solicitors to settle on the terms proposed by the defendant or his solicitors.

[94] The Defendant cannot claim that Exhibit P15 is without prejudice. Also it was not labeled “without prejudice”.

[95] Therefore, the email of 12 June 2018 together with the Deed of Family Arrangement is admissible into evidence accordingly.

[96] The Defendant in his evidence told the court that the Deed of Family arrangement dated 03 November 2005 was not explained to him by the lawyer Mr. Suresh Chandra who drafted the Deed and that he received his copy of the documents after sometime. An objection was raised on the ground that the Defendant did not plead in his statement of Defence and counterclaim that the Deed was not explained to him or that he did not understand the nature and effect of the deed. In cross-examination the Defendant said he was not sure whether he was present or not at that moment when Mr. Suresh Chandra explained the deed to everyone i.e. his 2 brother, 4 sisters and mother. He admitted Suresh Chandra gave a copy of the deed to everyone at the same time.

[97] The importance which the law ascribes to the act of signing a legal document may be readily discerned from the decision of the High Court of Australia in Wilton v Farnworth [1948] HCA 20; (1948) 76 CLR 646 which stated:

“Where a man signs a document knowing that it is a legal documents relating to an interest which he has in property, he is in general bound by the act of signature. He may not trouble to inform himself of the contents of the document, but that fact does not deprive the party with whom he deals of the rights which the documents gives to him. In the absence of fraud or some other of the special circumstances of the character mentioned, a man cannot escape the consequences of signing a document nu saying, and proving, that he did not understand it. Unless he was prepared to take the chance of being bound by the terms of the document, whatever they might be, it was for him to protect himself by abstaining from signing the documents until he understood it and was satisfied with it. Any weakening of these principles would make chaos of ever-day business transactions.”


[98] A plea of non- est factum is not lightly allowed when a person of full age and capacity has signed a written document embodying contractual terms: Fiji Development Bank v Raqona (1984) 30FLR 151. The general rule is that a party of full age and understanding is bound by his/her signature to a document whether he/she reads or understands it or not: Mary Maraia Peterson Hewitt and Another v Habib Bank Ltd, Civil Appeal No. ABU 7 of 2004.

[99] This is clearly opposite to the present case. The Plaintiff did not take any issue with the deed since he signed it in 2005. All parties to the Deed have acted pursuant to the Deed in the sense that they have been allocated a section of the land on the Estate which they have continued to occupy and reside on save for the Defendant who migrated to the USA in 2014.

[100] The Defendant has not been deprived of his legal rights under the Deed.

[101] The Deed carries the signature of the Plaintiff, the Defendant, Kamla Wati, Yogesh Prasad, Rohini Lata, Mohini Lata, Suman Lata and Prem Lata. The attestation clause states the contents of the Deed was first read and explained to them in the Hindustani language by Mr. Suresh Chandra. The Defendant did not challenge the fact in his evidence.

[102] The Defendant is deemed to be familiar with the obligations under the Deed. There is no plausible reason to believe that Mr. Suresh Chandra did not explain the Deed to him and that he did not understand what document he was signing and his obligations thereunder. The Defendant is bound by his signature.

[103] If the Defendant’s case was that he did not understand what he had signed, he was obliged to plead it together with the material facts and circumstances surrounding the signing of the Deed. However, he did not do so.

[104] Therefore, the Defendant is not permitted to approbate and reprobate. He cannot say at one time that a transaction is valid and thereby obtain some advantage and then turn around and say it is void for the purposes of securing some other advantage. He cannot say the Deed he signed was not explained to him and hence he will not follow it but then he continues to own the land which was given to him and separately allocated to him under the Deed on which he resided until he migrated to USA.

[105] The Defendant filed his Counterclaim and sought for the orders therein as enumerated at paragraph 2 hereinabove of my Judgment.

[106] The orders for distribution sought in the counterclaim enumerated at (i-iv) is contrary to the Deed of Family Arrangement dated 03 November 2005. The Defendant has not filed an action to set aside the Deed of Family Arrangement dated 03 November 2005. The Deed of Family Arrangement dated 03 November is a valid and binding deed and the Estate must be distributed in accordance with the Deed. The Deed stipulates the intention of all the parties to the Deed. The Defendant has not challenged the Deed in his counterclaim. The parties have acted in accordance with the Deed since 2005. The Defendant cannot approbate and reprobate. The Defendant cannot now unilaterally say that he will give the Plaintiff no more than 1000m2 of land and the parents’ house. The Defendant being the administrator of his father’s Estate thinks he can impose on the Plaintiff his own conditions on how he wants the Estate land to be distributed amongst the beneficiaries. He thinks he is the boss and the Plaintiff has to listen to his dictates. It is simple –he can’t. This is unlawful.

[107] For the reasons stated hereinabove, the Defendant’s counterclaim fails and is accordingly dismissed.

In Conclusion


Compliance with the 2005 Deed


[108] There was no challenge by the Defendant to clauses 5 and 6 of the 2005 Deed of Family Arrangement.

[109] In terms of clause 7 of the 2005 Deed, the Defendant was unable to make a case against the Plaintiff that the Plaintiff breached clause 7 of the 2005 Deed when he failed to provide Kamla Wati with her daily need and medical expenses during her lifetime.

Breach of Fiduciary Duty as an Administrator


[110] The Defendant was entrusted with the Assets of the Deceased’s Estate of Narayan Prasad and the power as an Administrator appointed on 10th November 2011 to complete the administration and disposition of the Estate of Narayan Prasad.

[111] The Defendant failed to and/or neglected and/or refused to complete the administration and disposition by not sub-dividing the Estate land Comprised in Certificate of Title No. 35157 and issuing separate Titles and transfer the land to the beneficiaries.

[112] The Defendant even failed and refused to comply with the terms of the 2005 Deed of Family Arrangement.

[113] The defendant acted in breach of the Fiduciary duty as an Administrator of the Estate of Narayan Prasad. The Defendant has not acted Bona Fides.

Proprietary/Promissory Estoppel


[114] The Plaintiff claimed an equitable interest in his parents’ house in the Estate through proprietary Estoppel. It is evident that the mother Kamla Wati told the Plaintiff that the house would be his upon her demise and that he should develop the land and extend the property.

[115] The Plaintiff spent money and improved the house by extension and renovated and developed it. The Plaintiff relied on the mother Kamla Wati’s assurance and there is compelling evidence that the Plaintiff developed and upgraded the house on this assurance and promise. Therefore, the Plaintiff has proved the requisites of the equitable Docrine of proprietary estoppel.

What area of land is Plaintiff entitled?


[116] It is undisputed that Narayan Prasad sold 5 lots and these lots do not form part of Certificate of Title No. 35157.

[117] The Plaintiff is entitled to 5993 square meters of land under the 2005 Deed of Family Arrangement. Hence. The Plaintiff gets 2 acres, Yogesh gets 2 acres, Mohini gets ¼ acres, Rohini gets ¼ acres and the Defendant gets 1.5 acres. The Total comes to 6 acres.

Approbation and Reprobation


[118] All parties to the 2005 Deed of Family Arrangement elected to act pursuant to the Deed, build and occupy that portion of the land allocated to them. They are bound by their decisions.
[119] They cannot go back on their words and say that the Plaintiff is not entitled to the parents’ house and 5993 square meters of land. The Defendant did not take any objection to the Plaintiff having the parents’ house with 5883 square meters of land surrounding the house after Kamla Wati’s demise in 2011.

[120] The Defendant cannot approve and reject the 2005 Deed (which he is rejecting now). He has taken his share under the 2005 Deed. He cannot approbate the 2005 Deed by accepting the benefit it confers to him and at the same time reprobate it by denying the effect of its other terms in particular clause 7 which award the parents’ house and 5993 square meters of land to the Plaintiff.

Credibility of witnesses


[121] The Plaintiff and his witnesses evidence is accepted as evidence of truth over that of the Defendant and his witnesses for the reasons cited at paragraph 79 of my Judgment hereinabove.

[122] The Plaintiff did not take any issues with the 2005 Deed since he signed it.

[123] The Defendant has not been deprived of his legal rights under the 2005 Deed.

[124] If the Defendant’s case was such that he did not understand what he had signed for, then he was obliged to plead it together with the material facts and circumstances surrounding the signing of the 2005 Deed.

Defendant’s Counter Claim


[125] The orders sought by the Defendant in his counterclaim (i-iv) inclusive is contrary to the 2005 Deed of Family Arrangement.

[126] The 2005 Deed is a valid and binding Deed and the Estate must be distributed in accordance with the 2005 Deed herein.

[127] The 2005 Deed stipulates the intention of all parties and the Defendant has not challenged the 2005 Deed in his counterclaim.

[128] The Defendant cannot now say that he will give the Plaintiff no more than 1000 square meters of land and the parents’ house.

[129] The Defendant’s counterclaim is accordingly dismissed.

Costs

[130] The court has an absolute and unfettered discretion to award or not to award costs. That discretion has to be exercised with reason and justice. Factors that will justify an award of increased costs include the urgency and complexity of the matter and the conduct of the unsuccessful party.

[131] This case was filed and commenced on 06th June 2018. Both counsels have made approximately 26 court appearances from 11th June 2018 to 11th February 2022. The Plaintiff also filed an application to extend the caveat which order was granted on 1th June 2018. The matter was initially listed for trial on 06 November 2019 which did not proceed. Instead the matter was refereed for mediation by consent of both parties on an application by the Defendant. The matter was then listed for trial on 05 May 2020 and 13 October 2020 and got adjourned on both occasions at the application of the Defendant. The matter was then finally heard on 02, 03 and 11 February 2022. The trial lasted for 3 days. The Plaintiff called 3 witness and the Defendant called 2 witness. Both parties to the proceedings furnished court with their respective written submissions. The

[132] Taking into consideration the conduct of the Defendant as the administrator, the court appearances, delays and adjournments, the Plaintiff is entitled to substantial costs summarily assessed at $6,500.

[133] The Defendant is personally held liable to pay the substantial costs of $6,500 to the Plaintiff and not the Estate. The reasons are as follows:

[134] Following are the orders of this court:

Orders


[135] Liability is entered against the Defendant on the Plaintiff’s claim and the following orders are accordingly made:

Dated at Suva this 19th day of October ,2023.


............................................................
VISHWA DATT SHARMA
JUDGE


Cc: Naidu Lawyers, Suva.
Amrit Chand Lawyers, Suva.


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