Nur v Begum [2009] FJHC 175; HBC278.2007L (21 August 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 278 of 2007L

IN THE MATTER of KHADIM ALI,
son of Arbi Mohammed Hanif aka Mohammed Hanif late of Wailailai, Ba, Fiji,
Farmer and Taxi Proprietor, Deceased, Testate

BETWEEN:

FAZAL NUR
aka FAZAN NUR daughter of Samudar Khan
previously of Wailailai, Ba, Fiji, but now of Hornsby,
Sydney, Australia, Domestic Duties as the sole Executrix
and Trustee of the Estate of KHADIM ALI
Plaintiff

AND:

MEHARNUMA BEGUM
daughter of Khadim Ali of 23 Newington Road, Henderson,
Auckland, New Zealand, engaged in domestic duties
Defendant

FINAL JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr. V Mishra for the Plaintiff
Mr. Ram Krishna for the Defendant

Solicitors: Mishra Prakash & Associates for the Plaintiff
Messrs Krishna & Co. for the Defendant

Date of Hearing: Judgment on the papers.
Date of Judgment: 21 August 2009

INTRODUCTION

[1] This is one of those unfortunate disputes between close family members. The Defendant is the daughter of the Plaintiff. It is a dispute over a block of vacant land that was left by her father in his will. The Plaintiff wants the land transferred to her during her life time on payment of $1,000 to her daughter. Her daughter did not agree so the matter is now before the Court for decision.

THE FACTS

[2] The facts of this case are not in dispute. The Plaintiff’s husband (who is the Defendant’s father) died in November 2000 leaving a will in which he appointed his wife as sole executor and trustee and bequeathed all of his estate to his wife for her life and on her death to his four children and his two brothers equally.

[3] The only property of value is a vacant block of land described in Certificate of Title 7095, being Lot 74 on DP 1203 in Ba containing an area of 25.73 perches.

[4] There are six beneficiaries other than the mother. Five of them have denounced their interest in the subject property in favour of the mother. Only the Defendant did not, so the only beneficiaries left are the mother and her daughter.

[5] The property is valued at $18,000.

[6] These proceedings commenced by way of Originating Summons filed on 12 September 2007 in which the mother sought an order that she be at liberty to transfer the subject property to herself upon payment of $1,000 to her daughter, the Defendant.

[7] There were delays in the early life of this case such as service of the court documents in Australia where the Defendant now lives but nothing of significance happened until 17 October 2008. The Defendant appeared in person on that day. Legal issues were raised as to the propriety of a consent order being made in the terms of the Summons so the Court allowed Counsel to file submissions on the law. The matter was adjourned to 29 July 2009 for hearing. On 29 July 2009 Counsel sought more time to file submissions which were done by 17 August 2009. I was to deliver my judgment on notice. This is the judgment delivered today.

REASONS FOR JUDGMENT

[8] This judgment in my opinion does not require reference to case law.

[9] Counsel for the Defendant referred me to the case of Ahmed v Ibrahim [2000] FCA 81 in which the Court said that a beneficiary is entitled to his day in court irrespective of the size of his inheritance. I do not disagree.

[10] However, I disagree with his submission that the children and brother beneficiaries cannot transfer their contingent interests by deeds of renunciation in favour of the mother, the Plaintiff. Their intentions are clear and I will give effect to those intentions despite the technical shortcomings which Defence Counsel alleges the deeds have.

[11] The nemo dat rule which Counsel seems to suggest prevents the beneficiaries from transferring their interests, with respect, is a special rule that applies to transfer of property for valuable consideration and which involve a third party. This is not the case here.

[12] The passage from paragraph 617 of Vol 16 Halsbury Laws of England, 3rd edition, cited by Counsel is too general a statement to be of assistance.

[13] In my mind there is nothing unjust or unlawful for any of the children to say to their mother: "I know my father wanted me to have a share of the land on your death. But I am not interested in it and out of love and affection to you, I will let you have my share now whilst you are alive." The law should, in my view, give effect to such noble intentions and not be distracted by technical arguments. I think this is such trite law that no case authority is needed. The same applies to the other beneficiaries.

[14] Having formed that view therefore the mother no longer has a life interest by virtue of the transfers by deeds of renunciation. That would effectively give the mother an interest capable of being registered now as proprietor, subject only to her daughter’s contingent interest.

[15] Now the daughter does not want to let go of her interest in the property. There is also hostility between her and one of her brothers because of this matter it seems.

[16] Counsel for the mother says that his client is responsible for the administration of her husband’s estate and it must be brought to finality as soon as possible. I agree, especially when the estate is relatively small in value and if the dispute is allowed to go on, legal costs may well exceed the value of the estate and none of the intended beneficiaries benefit.

[17] The Defendant has complained that there has been no proper accounting but no evidence is given to support this bare allegation so I am not prepared to delay this matter any further. She may bring other proceedings if she so wishes. This judgment does not in any way preclude her from doing so.

[18] Counsel for the mother submitted that the way he arrived at the sum of $1,000 was to take into account the costs of administration of the estate and take that away from the value of the parties’ shares in the property. I agree with that approach but disagree with his assessment of his client’s share. I am of the view that the mother’s share is 5/6th because 5 of the 6 contingent interests have now been transferred to her. The daughter will only get a 6th share on the death of her mother. Her share, if one accepts the value of the property as $18,000, which I do as there is no other evidence to the contrary, is $3,000. This is of course assuming that the property will be sold at that price. In the current climate it is difficult to assess. On the other hand, the property may increase in value over the years. However, this Court cannot speculate on any of those outcomes. The costs of administration of the estate should be taken out of the estate. In the circumstances therefore I think the sum of $2,000 is a fairer sum to be paid to the Defendant. She can invent it as she sees fit.

[19] I do not think that there is any basis for an award of damages or interest.

COSTS

[20] There is no basis for indemnity costs either. I have taken these costs into account as part of the costs of administration of the estate and therefore make no order as to costs.

THE ORDERS

[21] I therefore make the following Orders:

1. The Plaintiff shall pay to the Defendant the sum of $2,000 within 28 days.
   
2. On receiving such payment, the Defendant shall sign all papers and documents denouncing her interest in the land described in Certificate of Title 7095, being Lot 74 on DP 1203 in Ba containing an area of 25.73 perches and which will enable the Plaintiff to be registered as proprietor in her own right.
   
3. If the Defendant is unable or unwilling to sign such papers and documents within 21 days of being requested by the Plaintiff or her solicitors, then the Deputy Registrar of the High Court at Lautoka shall sign those papers on her behalf.
   
4. There is no order as to costs.
   

Sosefo Inoke
Judge