Vallabh v Patel [1995] FJHC 48; Hbc0322j.94s (8 March 1995)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 0322 OF 1994

Between:

ILAXI KISHORE LAL VALLABH
d/o Kishore Raja
Plaintiff

- and -

RATILAL VALLABH PATEL
s/o Vallabh
Defendant

Mr. T. Savu for Plaintiff
Mr. S. Sharma for Defendant

JUDGMENT

This is an application under Section 169 of Land Transfter Act (Cap. 131) seeking an order for vacant possession of a flat located in a multi-storey block of flats at 196 Toorak Road in Suva and occupied by the defendant as a monthly tenant for the last 26 years.

More particularly the application is brought pursuant to Section 169(1)(c) which provides:

"(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."

In this case it is not suggested either that the defendant is a "lessee" of the premises under a written lease or that the term of the lease has expired. What is deposed by the plaintiff is:

"(1) THAT I am one of the registered owners of the property ... and am duly authorised to bring this action on behalf of the remaining owners; and

(5) THAT I am informed and verily believe that my solicitors duly served upon the defendant a valid notice to quit."

The defendant for his part in seeking to show cause against the summons filed an affidavit in which he deposed inter alia:

"(3) THAT save for the fact that the Plaintiff is one of the registered proprietors ... the rest of paragraph 1 is denied and by way of further reply I say that I am informed and verily believe that some of the proprietors do not have knowledge of Plaintiff's action. The Plaintiff's action is without any consent from other proprietors;

(5) THAT ... although I am paying rent on a monthly basis I have been authorised by the said other proprietors to stay on the said premises as long as I live on account of my old age;

(7) THAT ... I am advised and verify that the notice (to quit) is irregular, defective and null and void."

From the above it is clear that the defendant is not only challenging the plaintiff's authority to act on behalf of other registered proprietors of the land but also the legality of the 'notice to quit' and, although counsel for the plaintiff appeared to suggest that the onus of proving these issues rested with the defendant, I am satisfied however that both matters relate directly to the plaintiff's 'locus' to institute the present proceedings.

In this latter regard I note that a "lessor" is defined in the Act as: 'the proprietor of the land leased' so that where the land leased is registered in the name of several persons, such as in the present case, then each of them is in my view, "a lessor", for the purposes of giving a notice under Section 169(1)(c) and a notice which fails to include all the names of the registered proprietors must be considered defective. A fortiori where the nature of the registered proprietors' interests in the land is one of "undivided tenants in common".

In Kanji Jogia v. Bhagwandas Hargovind 12 F.L.R. 180 Hammett P.J. in rejecting a 'notice to quit' given by only 2 of 3 owners who were tenants in common in an action for summary possession said at p.183;

"The notice of termination ... clearly states that the solicitors concerned gave this notice on the instructions of the first and second plaintiffs alone. There is no evidence that they had authority or that the first and second plaintiffs had any authority to give any notice of termination on behalf of the third lessor."

In this case although the 'notice to quit' is given on behalf of 3 named registered owners of the property including the plaintiff, a cursory examination of the relevant Certificate of Title indicates that their respective interest in the property is to 'one undivided sixth share' each, which accounts for only half of the property.

The other 'undivided half share' of the property appears to be held by Diwari, Dayaram Nagin and Aswin Lal alias Aswin Singh, the children and executors of one Hargovind Bhagwan. In this latter case their interest was registered in May 1969 which is some 23 odd years before the plaintiff acquired hers.

That being the nature of the ownership of the property, in the absence of any evidence that the plaintiff had the authority of the registered owners of the other half of the property to institute the present proceedings, I have no hesitation in holding that the 'notice to quit' given on behalf of only 3 of the 6 registered proprietors is not a 'legal notice to quit' in terms of Section 89 of the Property Law Act and is therefore incapable of terminating the defendant's tenancy.

Needless to say the fact that the plaintiff's ownership is to an "undivided" share of the property and is of relatively recent origin, makes it all the more incumbent on her to obtain the consent and authority of all the other registered owners of the property before instituting the present proceedings and the absence of an affidavit in reply from the other 'longer-established' co-owners of the property given the sworn assertions in the defendant's affidavit and despite leave having been granted, lends some credence to the defendant's claims.

In the circumstances I am firmly of the view that this application must fail in limine. The plaintiff's summons is dismissed with costs to the defendant to be taxed if not agreed.

(D.V. Fatiaki)
JUDGE

At Suva,
8th March, 1995.

HBC0322J.94S