Dass v Subamma [2003] FJHC 304; HBC0246J.2001s (22 July 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0246 OF 2001

Between:

NARAIN DASS
f/n Ram Dass
Plaintiff

and

SUBAMMA
f/n Ram Dass
Defendant

Ms. D. Singh for the Plaintiff
Mr. K. Muaror for the defendant

JUDGMENT

This is a s169 application for vacant possession.

By originating summons filed 8 June 2001 the plaintiff seeks immediate vacant possession of the ‘premises’ located at Calia, Navua erected on land described and comprised in Certificate of Title No. 22604 Lot 1. DP 4867 (the ‘land’) of which the plaintiff is the registered proprietor as executor and trustee. The defendant is in occupation of the said residential premises.

In support of his application the plaintiff has filed an affidavit.

He deposes that he is the registered proprietor of the property by virtue of his executorship in the estate of Ram Dass under Probate No. 28852. The defendant who is the sister of the Plaintiff has been occupying the premises on the said property since 1995. Notice was served on the defendant on 17 August 2000 but to date she has failed to vacate the premises.

The defendant in her affidavit in Reply stated that she does not have to vacate the subject premises as she is a beneficiary under her father’s Will, in that as per clause 3(a) of the Will dated 28 August 1979 she is entitled to a portion of the land, that is, 4 chains.

Consideration of the issue

The affidavit evidence before me is that the defendant is occupying the plaintiff’s ‘wooden’ house erected on a portion of the unsubdivided land which is the estate property. The plaintiff wants her to vacate under the provisions of s169 of the Land Transfer Act Cap. 131. As executor and trustee he is by transmission of death registered as the proprietor of the land.

From the affidavit evidence before me the plaintiff is the owner of the premises (dwelling house) and it is allegedly being unlawfully occupied by the defendant who is his sister. It appears that she has not herself built a house of her own on the land although it is unsubdivided at present.

No doubt, under the terms of the Will the defendant is entitled to a piece of the land but the plaintiff as executor has not completed his duty by distribution of the estate property to whoever are the beneficiaries. The defendant is a beneficiary. The plaintiff as executor has not subdivided the land to enable him to allocate a portion of the land to which she is entitled.

The defendant is occupying the premises, although it does not belong to her, with the assertion that she is entitled to a portion of the land.

The question arises whether she is entitled to forcefully occupy the plaintiff’s premises of which he is the owner?

The issue for the Court’s determination under s169 is for the defendant to show cause why she should not give possession of the premises erected on the land belonging to the plaintiff who is also the executor of the estate and one who is entitled to administer the estate and make distribution to the beneficiaries under the Will of the deceased one of whom is the defendant.

The fact that she is entitled to a portion of the land does not entitle the defendant to forcefully remain in the premises.

She was allowed to stay there because she was finding it difficult to find a place to live but she was to pay rent and maintain the house and keep the same in good condition. She did not do any of these things but instead keeps the premises in a dilapidated condition.

The evidence before the Court is that in these proceedings the plaintiff attempted to administer the Estate by engaging surveyors to subdivide the Estate land but his efforts have been hampered by the defendant. The other beneficiaries are awaiting the administration of the estate fully so that they can have their share but because the defendant is the stumbling block no finality is reached in regard to distribution.

Conclusion

On the affidavit evidence before me and considering the submissions made by both counsel I find that the defendant has not shown cause under s172 of the Land Transfer Act Cap. 131 as to why she should not give vacant possession of the premises owned by the plaintiff who is also the executor for the estate of his father.

The defendant’s hindrance towards subdivision of the land to enable the plaintiff to allocate to beneficiaries their respective shares will not help the defendant in getting her share quickly. I suggest that she co-operate with the plaintiff in the ‘survey’ of the land otherwise the court cannot do anything for her. She has no right to be in the premises.

For the above reasons it is ordered that the defendant give immediate vacant possession of the premises with execution stayed until 31 August 2003. I award costs against the defendant in the sum of $250.00 to be paid to plaintiff’s solicitor within 14 days of this judgment.

D. Pathik
Judge

At Suva
22 July 2003