Saiyub v Khan [2005] FJHC 602; HBF0363.2003 (11 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBF0363 OF 2003

BETWEEN:

ABDUL SAIYUB
PLAINTIFF

AND:

SHAIREN NISH KHAN
DEFENDANT

Mr H A Shah for the Plaintiff
Mr I Khan for the Defendant

Date of Hearing: 23 June 2005
Dates for Submissions: 7 July, 21 July and 28 July 2005
Date of Judgment: 11 August 2005

JUDGMENT OF FINNIGAN J

I have before me an originating summons filed on 23 October 2003. The Plaintiff seeks an order that an estate be wound up and an order that the Defendant be paid $16,000.00.

The Plaintiff is the sole surviving administrator of the estate of his father and the sole surviving trustee of the estate of his mother. The Defendant is the sole administratrix of the estate of one of the Plaintiff’s brothers. Through her deceased husband she is entitled to an interest in the estate of each of his parents, i.e. the ones administered by the Plaintiff. The Plaintiff says that she has abandoned the house of his deceased brother which is now wasting and that she has intimated to the Plaintiff that she wants to relinquish her interest in both the estates of the deceased parents in exchange for $20,000.00 He says that after payment of $4,000.00 by her on behalf of her late husband (agreed in a rearrangement of the father’s estate) to one of his sisters Nazbun /Nazbul Nisha, $16,000.00 would be payable to the Defendant.

The house stands on the land which is all the land in the mother’s estate, she having survived her husband. The Plaintiff has put in a valuation by a Consultant Valuer which values that land at $135,000.00. The Defendant denies that valuation although she does not have one of her own. She says it is worth $300,000.00 and that her husband’s house is worth $45,000.00, not $20,000.00. She denies that she abandoned that house and says she was “chanced out of it” by the Plaintiff. She says that according to her calculation her share of the estate of her in-laws is $155,500.00 allowing for the $4,000.00 payment to Nazbun/Nazbul Nisha. The generosity of her subjective valuation stops there. She offers to buy out all the other beneficiaries for $16,000.00.

In submissions, Counsel for the Defendant states that she is prepared for the distribution provided the estate property is subdivided and that she is given 2 ½ acres of land which she claims through her deceased husband.

This is not a matter that I can resolve on the evidence before me.

Clearly the Defendant is taking advantage of her situation to prevent a prompt and fair distribution of the estate of her parents in-law. She has no valuations, only a determination to be obstructive. She states no basis for her claim to 2 ½ acres of the land, a claim that is made in Counsel’s submissions.

Counsel for both parties have asked the Court to make an order for distribution of the estate under Section 41 of the Succession Probate and Administration Act, Cap 60. There is no evidence at all on which I would accommodate the Defendant’s desires. As administratrix of an intestate she has for disposal pursuant to the Act whatever assets her husband had at the time of his death which will include whatever he is to inherit from his parents after $4,000.00 has been paid by his estate to Nazbun/Nazbul Nisha. She has been put on notice that the Plaintiff values her husband’s share in the estate of his parents at $16,000.00. She has not produced any evidence to counter that. She has shown no inclination to get her own valuation.

In my opinion the Plaintiff is entitled to an order under Section 41 that the estates of his parents the wound up and the proceeds distributed. In the absence of evidence to the contrary the share payable to the Defendant’s late husband and thence to her will be $16,000.00. In as much as neither party has obtained a valuation of the house they can still consider getting one [or more likely two] or coming to a realistic agreement.

I therefore order that the estates of Abdul Aziz and Kulsum Nisha be wound up and/or administered by the Plaintiff. I also order that from these estates the sum of $16,000.00 be paid to the Defendant in full satisfaction of her late husband’s share in those estates, or such other figurethat may be proved to the Court to be either agreed between the Plaintiff and the Defendant or accepted by them after a formal valuation. These orders are made now but will become effective on 1 November 2005. The Defendant has until then to persuade the Plaintiff to agree to a higher figure. This matter will be called before me for appearance of both Counsel on 28 October 2005 and on that date I will make final orders.

The costs of this application will be paid by the Defendant personally by deduction from her share of the estate.

The Defendant’s husband in his mother’s will was left the house which he occupied with a surrounding area of ¼ of an acre. The other parts of his inheritance may well be what is set out clearly in her Counsel’s submissions. I cannot resolve that without evidence but in any case I expect the distribution will follow a normal course under the Succession Probate and Administration Act is applied to the facts of the case.

D.D. Finnigan
JUDGE

At Lautoka
11 August 2005