Virendra Kumar v. Sumintra Arjun

• Jurisdiction: Fiji
• Court: High Court (Fiji)
• Judgment Date: 18 June 2019
• Docket Number: Civil Action No. HBC 198 of 1990
• Date: 18 June 2019
• Counsel: Mr. W. Pillay of Gordon & Co. for the Plaintiffs,Mr. N. Nand of Vijay Naidu & Associates for the Defendant

IN THE HIGH COURT OF FIJI

AT LAUTOKA

CIVIL JURISDICTION

Civil Action No. HBC 198 of 1990

Between:

Virendra Kumar and Shalendra Kumar both sons of Ami Chand Prasad as the Executors of Ami Chand Prasad (son of Baijnath Prasad (late of Drasa, Lautoka and as the Ultimate Executors and Trustees of the Estate of Baijnath Prasad (son of Sheo Raj) late of Drasa, Lautoka.

Plaintiffs

v.

Sumintra Arjun widow and executrix/trustee of the estate of Arjun.

Defendant

Trial Dates : 15 & 16 April 2014

Date of Judgement : 18 June 2019

Appearances:

Mr. W. Pillay of Gordon & Co. for the Plaintiffs

Mr. N. Nand of Vijay Naidu & Associates for the Defendant

JUDGEMENT

INTRODUCTION

1. Earlier, I delivered an oral judgement in this case in Court. I also handed down an unedited written judgement last month. This is the final edited version. My reasons remain the same.

2. The action was filed twenty nine years ago and the matter has had a rather chequered history. Throughout this judgement, I make references to one Ami Chand Prasad and one Ami Chand. These are two different gentlemen. They were not related, as far as I am aware. Both are now deceased.

3. Ami Chand Prasad died in June 1990. He was the plaintiffs' father.

4. Ami Chand died on 01 November 2009. He was a registered Surveyor. At all material times, he worked for a firm of surveyors called Harrison Grierson Partners (“HGP”).

5. In the mid 1980's, HGP was engaged by six individuals to survey and partition a large piece of freehold land which they co-owned as tenants in common. The land in question is legally described as Lot 4 on DP No. 1442 situated at Drasa in the District of Ba. It is all comprised in Certificate of Title 7706 (“the land/CT 7706”). CT 7706 was 1378 acres, 2 roods, and 17 perches in size1. It was Ami Chand who supervised the partitioning of this land into six new titles.

6. The partitioning of CT 7006 saw the inclusion of a portion of land comprising 45 acres into the defendant's large share of 308 acres. The plaintiffs were allotted a smaller share. They claim a beneficial entitlement to the 45 acres in question.

THE PLAINTIFFS

7. The plaintiffs describe themselves as the “ultimate current executors and trustees” of the estate of Baijnath Prasad (“Baiju”). They assumed these roles following the death of their father, Ami Chand Prasad, in June 19902.

8. Ami Chand Prasad was one of the two original executor/trustees of the Baiju estate. He was the son of Baiju. The other co-executor/trustee was Hans Raji. She was Baiju's widow and grandmother of the plaintiffs.

THE DEFENDANT

9. The original defendant, Arjun, was the nephew of the late Jaganath Prasad (“Jaganath”). Arjun died on 30 May 2009. The current defendant, Sumintra Arjun, is the widow and the executrix and trustee of the estate of Arjun, and ultimately, the executor/trustee of the estate of Jaganath.

FAMILY

10. As I have said, CT 7006 was co-owned by six persons. They were Baiju, Jaganath, Ramsamujh Prasad, Buchunnu, Ramsuchit and Chakra Prasad3. Ramsuchit, Chakra Prasad, Jaganath and Baiju were brothers. Their sisters were married to Ramsamujh and Buchunnu. These men each held 1/6 undivided share in CT 7706. There was nothing memorialised on CT 7706 to indicate whether the six men were joint-tenants or tenants in common. Applying section 34 of the Land Transfer Act, they are deemed to be tenants in common4.

PARTITIONING OF CT 7706

11. In April 1983, the decision was made to partition CT 7706 into six lots. When talks of partitioning began, Baiju and Jaganath had already passed on5. The personal representatives of their respective estates were involved in the decision.

12. The partitioning of CT 7006 was completed on 09 July 1986. Six new lots were carved out of the land, each with a separate title, and each title under the names of all the six men. Later, each one of them was allotted a particular lot over which he was given legal title severally in his own name, after relinquishing, by transfer (“partial transfer”), his interest in each of the other newly created titles.

13. The Baiju estate was allotted a plot in the name of its trustees. This lot is comprised in Certificate of Title 248436 (“CT 24843”). CT 24843 has a total acreage of 186 square meters. The estate of Jaganath was allotted Certificate of Title 24535 (“CT 24535”). This plot has a total acreage of 308 acres.

WHAT IS THIS CASE ABOUT?

14. As I have said, at the heart of this case, is some 45 acres of prime agricultural freehold land (“45 acres”). This 45 acres is included in the defendant's CT 24535.

15. The plaintiffs seek the following relief:

• (a) A declaration that the defendant holds 45 acres as Trustee or as constructive trustee for Baiju estate.

• (b) defendant, by conduct, created equitable interest or equitable estate or charge in favour of Baiju estate or by doctrine of estoppel, created

• (c) defendant to have a survey carried out and Survey Plan be registered with Registrar of Titles as to enable transfer or vesting of the 45 acres unto plaintiffs as Trustee of Baiju estate and plaintiffs to bear all legal costs

• (d) defendant then to execute transfer to plaintiffs.

16. In their statement of claim, the plaintiffs plead at paragraph 13 that Arjun executed a “deed” in 1982. This deed was purportedly made immediately prior to the partitioning of CT 7006. It is claimed that, by the said deed, Arjun undertook to hold the 45 acres in question in his title, on trust, for the Baiju estate.

17. That deed is the basis of the plaintiffs' claim to a beneficial entitlement to the 45 acres in question.

18. In the alternative, the plaintiffs plead that Arjun, by conduct, created an equitable interest or equitable estate or charge in favour of the Baiju estate or by the doctrine of estoppel. This is premised on the promissory aspect of the same “arrangement”, and the detriment purportedly suffered by the plaintiff in reliance on the promise.

19. The statement of defence was filed in November 1990. At paragraph 3, the defendant simply “admits to the contents of paragraphs (5), (6), (7) and (8) of the claim”. At paragraph 4, the defendant asserts that the six co-owners of CT 7006 had agreed that each of them “would get his one sixth share wherever possible and subject to the nature and type of the land involved”.

20. The defendant refutes the alleged “arrangement”, let alone, that Arjun did promise to return the 45 acres to the estate of Baiju or to its trustees.

21. Both aspects of the plaintiffs' claim turn ultimately on the question - whether or not Arjun and Ami Chand Prasad did enter into an arrangement over the 45 acres and if so, what was the nature of the arrangement.

HISTORY OF PROCEEDINGS

22. The plaintiffs filed their statement of claim after the late Arjun (defendant's father) placed an advertisement in the Fiji Times on 08 September 1988 for the sale of CT 24535. As I have said, CT 24535 includes the 45 acres in question.

23. Following the advertisement, on 19 September 1988, Ami Chand Prasad (plaintiffs' father) caused a caveat to be placed on the CT 24535. This stopped Arjun from proceeding with any of the offers on CT 24535.

24. On 30 July 1990, Mr. Justice Saunders granted the plaintiffs an interim injunction to restrain Arjun from disposing of CT 24535 until the issues in this case are resolved. However, this interim injunction was dissolved by Mr. Justice Lyons on 11 December 1998 on an application by a Mr. Atma Arjun who was then the lawful attorney of the late Arjun.

25. Barely a month later, on 15 January 1999, Mr. Justice Madraiwiwi struck out the plaintiffs' claim altogether for want of prosecution7. On 11 February 1999, Vuataki Law filed a Motion to restore the action on the cause list and to renew the interim injunction. However, this application was dismissed by Madraiwiwi J on 23 July 1999.

26. Seven years later, on 10 July 2006, Gordon & Co filed a Notice of Change of Solicitors to act for the plaintiffs. About ten months later, on 16 May 2007, they filed a summons to restore the action and renew the interim injunction.

27. On 07 May 2008, Mr. Justice Finnigan reinstated the plaintiffs' action on the cause list. He also ordered that the interim injunction be “renewed”.

28. On 30 May 2009, Arjun, the original defendant, passed away. On 24 May 2009, an application was filed to substitute Sumintra (Arjun's widow and current defendant) as defendant. Order in terms of substitution was granted by Justice Fernando on 07 June 2010.

SURVEY OF THE 45 ACRES

29. This action was originally set for trial on the 05 and 06 December 2011 before Mr. Justice Fernando. However, the trial was vacated on 05 December on Vijay Naidu & Associates' application.

30. Before vacating the trial, Fernando J observed that there was no survey plan to demarcate the boundaries of the 45 acres.

31. The plaintiffs were, all along, relying on a sketch plan marked “AC1” which is annexed to an affidavit of Ami Chand filed on 16 May 2007.

32. With the consent of both counsel, and probably, because the plaintiffs' possession of the 45 acres has never been an issue of fact, Fernando J ordered the Director Surveyor, Western to survey the said 45 acres.

33. The survey was duly carried out in August 2012 by Surveyors in the Department of Lands and Mineral Resources. An affidavit of Kesho Sharma8 sworn on 06 September 2012 attaches a copy of the relevant Survey Report. Sharma is a Senior Technical Assistant Survey based at the Department's Lautoka office. Virendra Kumar (PW1) referred to this report in his evidence in chief to highlight the extent of his family's occupation and cultivation of the 45 acres in question.

TRIAL

34. The trial finally happened over two days on 15 and 16 April 2014 before me. The plaintiff called the following witnesses:

• (i) PW1 Virendra Kumar (who gave evidence on 15 and 16 April 2014)

• (ii) PW2 John Krishna (gave evidence on 16 April 2014)

35. The defendant only called one Pradeep Kumar (DW1). He gave evidence on 16 April 2014.

ONUS

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