Prasad v Prasad [1996] FJHC 46; Hbc0266j.96s (30 August 1996)

Fiji Islands - Hari Prasad v Shiri Prasad - Pacific Law Materials

IN THE HIGHT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 266 OF 1996

IN THE MATTER
of an Application for possession of land under
Section 169 of the Land Transfer Act, 1971.

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HARI PRASAD
s/o Ram Dulm Dulare
Plaintiff

AND:

SHIRI PRASAD
s/o Ram Dulare
Defendant

Mr. H. M. Patel for the Plaintiff
Mr. M. Narsey for the Defendant

This is the Plaintiff's Summons for the Defendant to show cause why he should not give up vacant possession to the Plaintiff of one room in the dwelling house situate at 33 Nacara Road, Vatuwaqa, Suva and comprised in Crown Lease No. 1648, Lot 22, Muanivatu Sub-division.

This is a section 169 application under the Land Transfer Act Cap. 131.

The main ground on which the relief is t is that the Plaintiff as the registered proprietor of thef the property in question is entitled to vacant possession of the room occupied by the defendant. The defendant who is the Plaintiff's brother is living there permanently rent free. Because he is a nuisance in the premises and he neglected or refused to carry out all necessary repairs he has been given a notice to quit.

In opposhe application the defendant says that he is one of the beneficiaries in the estate of his his late father Ram Dulare pursuant to his Will. The father died on 22 January 1973 and Probate of the said Will was granted on 9 May 1973 to the Plaintiff. Under Clause 4 of the said Will he claims to have a "life interest" in the said property. He says that a similar action (being civil action No. 477/81) was brought against him by the Plaintiff but was withdrawn because there also he claimed to have a life interest. To protect his interest the defendant has lodged a caveat against the title to the land.

The defendant also argues the consent of the Director of Lands to institute an action against him was obtained in 19in 1993 for an action contemplated then and not for the present action.

The defendant says that because he has a valid and enforceable life interest under the said Will hea 'valid defence to this this action' and asks that the action be dismissed with costs.

Mr. Narsey for the defendant submits the defendant has an equitable proprietary interest in the prhe property which is sufficient for section 172 of the Land Transfer Act. He says that the Will has created that proprietary interest and it "cannot be defaced". He says that, as required, the defendant has shown cause and therefore the Plaintiff's Summons should be dismissed with costs.

Mr. Patel argues that s1>'prevails' as against the provision in the Will. He cited the case of BRUCE DUNCAN NCAN GRAINGER LAWLOR v TIMOCI DUAIBE 22 FLR 134 (a 1976 judgment of TUIVAGA J now Chief Justice) and doubted whether in the present case equity will protect him because of the provision in the Will. He told the Court that the provision in the Will 'means nothing'.

There is no doubt under s169 the Plaintiff who is the registered proprietor of the said land is entitled toed to summon the defendant. But under s172 of the Act the onus is on the defendant to satisfy the court that he has a right to the possession of the land. The defendant must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under s169 procedure.

The defendant maintains that he is entitled to remain in possession because of item 4 of the said Will which provides:

4. I FURTHER DIRECT that my Executor shall allow my following children the ushe use and occupation of one room each in the house erected upon Crown Lease No. 1648 for so long as they may wish to live there or until their death BUT in no circumstances, shall they or any one of them be entitled to any share or shares should they or anyone of them decide to live elsewhere:-

(1) RAM NARAYAN, (2) DEO NARAYAN,

(3) SUMINTRA WATI, (4) SHIU PRASAD,

(5) SHIRI PRASAD, (6) RAM ADHAR

(7) CHANDRIKA PRASAD, (8) DHINESH PRASAD

It is clear that a life interest has been created unhe Will. On this aspect Halsb. 4th Ed. Vol. 50 parag. 555 s555 states:

"..... prima facie a gift of th or of the free use and occupation of a house or land is a is a gift of the rents and profits, at all events during the donee's life, and prima facie the donee under such a gift need not personally reside in the house or on the land, ....."

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> It is further stated in Halsb. ibid at parag. 545, "a testator is to give such estate as he t he thinks fit, consistently with law .... and the intended extent of the benefit can be known only from the words in which it is given".

The interest of the Defendant is stated thus under the said item 4: "for so longhey may wish to live there here or until their death" but they are not entitled to any share "should they or anyone of them decide to live elsewhere". This aspect of "reduction or extension of interest" is dealt with by Halsb. ibid at parag. 546 as follows:-

"An interest apparently in fee simple in real estate, ornterest in personal estate,tate, may be made subject to defeasance, or may, in the context of the whole will, be reduced to a life interest. Similarly, a life interest may be extended to an absolute interest, or may be reduced by the context to an estate until remarriage or other event."

Mr. Patel referred the Court to the case of DUAIBE (supra) but I find that that cs of no assistance to him ahim as the present case is not one of "licence", But even in the case of 'licence' as compared to the provision in a Will, the Court in DUAIBE (supra) held:

"Although there was noence upon which an actual tenancy could be inferred, the dehe defendant did have a licence to remain on the land. This licence was not a bare licence but one protected by equity as there had been a contract made in 1962 to allow him to remain. The plaintiff was therefore, estopped from resiling from the compromise reached in the Magistrate's Court."

This is a stronger case tUAIBE and equity will come into play and protect the defendant in so far as his equitable rble right in the property is concerned. I agree with Mr. Narsey in this regard.

On the evidence before me I find that the defendant has shown cause as to why he should remn possession which fulfils fils the requirements of s172 of the Act.

Section 172 empowers the Court to dismiss the summons if the persmmoned has shown cause, or make any order it may think fit. fit. The words of the section are "or he may make any order and impose any terms he may think fit". It is therefore open to the Court to order a full trial before a Court but I do not propose to do so on the facts of this case as it involves other beneficiaries under the Will of the deceased. However, it is pertinent to note what GOULD V.P had to say in Fiji Court of Appeal in AZMAT ALI and MOHAMMED JALIL s/o Mohammed Hanif (Action No. 44/82 cyclostyled judgment at p.8) on the Court's powers in these matters irrespective of whether 'cause' has been shown or not. There GOULD V.P. says:

"It is not enough to show a possible f right to possession. That That is an acceptable statement as far as it goes, but the section continues that if the person summoned does show cause the judge shall dismiss the summons; but then are added the very wide words "or he may make any order and impose any terms he may think fit". These words must apply, though the person appearing has failed to satisfy the judge, and indeed are often applied when the judge decides that an open court hearing is required. We read the section as empowering the judge to make any order that justice and the circumstances require. There is accordingly nothing in section 172 which requires an automatic order for possession unless "cause" is immediately shown". (underlining mine).

In the outcome, on the evidence, I am satisfied that the defendant has shown to remain in possession. Ton. Therefore, as empowered under s172 of the Act, I dismiss the summons with costs to the defendant to be taxed if not agreed.

D. Pathik
JUDGE

At Suva
30 August 1996

Hbc0266j.96s