Lal v Lal [2002] FJHC 39; Hbc0395j.2001s (8 March 2002)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 395 OF 2001S

Between:

NIRAJ SANJAY LAL
(f/n Moti Lal)
Plaintiff

and

MOTI LAL
(f/n Samaru)
Defendant

E. Veretawatini for the Plaintiff
Ms. V. Lal for the Defendant

JUDGMENT

These are proceedings for possession brought by the registered proprietor of a native lease No. 4/14/4679 Vatukalou (part of) at Tailevu under the provisions of Section 169 of the Land Transfer Act (Cap 131).

A sad feature of these proceedings is that the Defendant is the Plaintiff’s father.

It is not disputed that the previous registered owner of the land was the Plaintiff’s grandfather and that the land was transferred by the grandfather to the Plaintiff on 2 October 1996 (see Exhibit A to the supporting affidavit filed on 28 September 2001).

The Defence which is set out in detail in an affidavit filed on 27 December 2001 is that the grandfather invited the Defendant to live on the land at about the time the Defendant married the grandfather’s daughter. The Defendant says that the grandfather promised to leave the land to him and his wife when he died. Relying on this promise he moved on to the land about 28 years ago and has been living there ever since. In support of the claim that a promise was made to him by the grandfather the Defendant exhibited a copy of the grandfather’s will dated 11 December 1978 (Exhibit A).

Attempting to discharge the onus which by Section 172 rests upon the Defendant Ms. Lal pointed to the various improvements to the property which had been carried out by the Defendant over the years. She also referred to the fact that the Defendant had been paying the rent for the property to the NLTB.

In my opinion neither of these circumstances is capable of amounting to a right to remain on the land although they might possibly found some form of counterclaim under the provisions of the proviso to Section 172 of the Act.

Ms. Lal did not advance any form of estoppel and it is hard to see how such a submission could have been successfully argued given that the Plaintiff’s will was succeeded by the death of his daughter, the Defendant’s wife, and the transfer of the land to the Plaintiff which had the effect of nullifying the will, as long ago as 1996. When I expressed some sympathy for the Defendant’s predicament I was told from the Bar without objection from Ms. Lal that the defendant had remarried and that the relationship between his second wife and the Plaintiff was poor. An unfortunate but not unprecedented state of affairs.

This property belongs to the Plaintiff. He has a right to the sole occupation of it. While one might have expected the Plaintiff to have reach some form of accommodation with his father this is not a Court which has the jurisdiction to suspend legal entitlements on the grounds of sympathy. I do however have a discretion to impose such terms as I think proper upon the making of an order for possession. At the very least the Plaintiff should be required to give his elderly father sufficient time to make alternative arrangements.

There will be an order for possession in favour of the Plaintiff to take effect on 6 September 2002.

M.D. Scott
Judge

8 March 2002