Rasheed v Khan [2011] FJHC 468; HBC191.2008 (12 August 2011)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 191 of 2008

BETWEEN:

ABDUL RASHEED & WASAL KHAN
[Plaintiffs]

AND:

ASLAM KHAN
[Defendant]

Counsel: No appearance for the Plaintiffs.
Mr. Afzal Khan for the Defendant.

Date of Judgment: 12th August, 2011

JUDGMENT

1. This is the plaintiff's summons for the defendant do show cause why he should not give immediate vacant possession of the land comprised in the CT. No 11820 Lot 1 on DP 2973.
   
2. This is a Section 169 application under the Land Transfer Act.
   
3. The main ground on which the relief is sought is that the plaintiffs as the trustees of the property in question are entitled to vacant possession of the land occupied by the defendant.
   
4. In support of the summons the plaintiffs file an affidavit.
   
5. The facts of the affidavit can be summarized as follows:
   
6. The plaintiffs are the trustees of the estate of Halima, who was the registered proprietor of the land comprised in Certificate of Title No. 11820, Lot 1 on DP 2973 situated at Waidra, Baulevu, Nausori.
   
7. It is deposed that the defendant has unlawfully constructed two dwellings on the said land without the consent of the executors and trustees.
   
8. The defendant was issued a notice to vacate the property but the defendant has not done so. The plaintiffs state that the defendant has no right to remain in the property.
   
9. In response to the plaintiffs' affidavit the defendant Aslam Khan has filed an affidavit.
   
10. The defendant admits that the plaintiffs are the executors and trustees of the Estate of Halima. The plaintiff further admits that the estate of Halima is the registered proprietor of Certificate of Title No. 11820 Lot 1 on DP 2973.
    
11. According to the defendant, his father died intestate leaving the mother and 13 children including him. All other children except the defendant renounced their shares to their mother.
    
12. The plaintiff admits that he put up a dwelling on the land in dispute. He further stated that it was done with the consent of his parents when they were alive.
    
13. The defendant's position is that the plaintiffs' have no legal right to remove him from the said property; as the defendant holds 1/13 undivided share in the estate.
    
14. Therefore, the defendant moves that the plaintiffs' case be dismissed.
    
15. In reply to the defendant's affidavit the plaintiffs' filed another affidavit.
    
16. The plaintiffs state that subsequent to the Last Will dated 6.05.2011 and the probate granted on 14.9.2005, the defendant holds no interest on the estate, and therefore the defendant must be ordered to vacate the property forthwith.
    
17. In this action the defendant claims rights as a beneficiary to the estate.
    
18. The document 'A' annexed to the affidavit of Abdul Rasheed shows that Sattar Khan alias Abdul Satar became the proprietor of the land in dispute pursuant to the Transfer No. 93286.
    
19. The said Sattar Khan was the father of the defendant.
    
20. According to the defendant's affidavit Sattar Khan died intestate leaving 13 children including the defendant and the widow Halima.
    
21. Therefore it is clear that upon the death of Sattar Khan his property should be divided among the 13 children and the widow under the Succession probate and Administration Act.
    
22. The document 'B' annexed to the affidavit of the defendant shows that except the defendant all the other children of Sattar Khan have renounced their shares to their mother Halima.
    
23. The Last Will of Haleema and the Probate referred to by the plaintiffs in their affidavit in reply cannot do away with the defendant's share entitlement under the Succession, Probate and Administration Act, because, the defendant inherited his rights upon the death of Sattar Khan.
    
24. The property of an intestate dying on or after the date of the said Act shall be distributed in accordance with the provisions of the Act.
    
25. Section 6(1)(c )reads:
    

'if the intestate leaves issues, the surviving wife or husband shall, in addition to the interests taken under paragraph (a), take one third only of the residuary estate absolutely, and the issue shall take per stripes and not per capita the remaining two-third of the residuary estate absolutely.'

26. The fact that this property was owned by Sattar Khan and he died intestate leaving the widow Haleema and 13 children is not challenged by the plaintiffs.
    
27. Therefore, in light of the Section 6(1) (c) of the Succession Probate and Administration Act the defendant is entitled to a 1/39 share of the land.
    
28. It could be noted that said Haleema though prepared a last will could only deal with her share entitlement of 1/3 upon the death of Sattar Khan and remaining 12/39 shares of the children. The defendant's 1/39 share remains intact, because the defendant had never renounced his beneficial interest in his father's estate.
    
29. It is axiomatic that under Section 169 of Land Transfer Act the registered proprietor of the land is entitled to summons the defendant to show cause why he should not give up the vacant possession to the plaintiff.
    
30. Under Section 172 of the Act, the onus is on the defendant to satisfy the court that he has a right to the possession of the land.
    
31. The defendant must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under Section 169 of the procedure.
    
32. In the present action the defendant maintains that he is entitled to remain in possession by virtue of intestate succession.
    
33. The plaintiffs have not rebutted the defendant's position.
    
34. The affidavit evidence before me clearly established that the defendant became entitled to a 1/39 share of the property upon the death of his father Sattar Khan.
    
35. Therefore on the evidence before me I find that the defendant has shown cause as to why he should remain in possession which satisfies the requirement of Section 172 of the Land Transfer Act.
    
36. Therefore, as empowered under Section 172 of the Act, I dismiss the plaintiffs' summons with taxed costs to the defendant if not agreed.
    

Pradeep Hettiarachchi

JUDGE

12.8.11