Wati v Chand [2011] FJHC 68; Civil Action 291.2008 (17 February 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. 291 of 2008

IN THE MATTER
of Land Transfer Act 131 and under Section 169 of the Land Transfer Act, Cap 131.

BETWEEN:

BIMLA WATI
(father's name Ram Adhar)
as the Administratrix in the Estate of Shiv Narayan alias Shiu narayan
(son of Latchmi Narayan) late of Mead Road, Tamavua, Suva, Deceased, Intestate
Plaintiff

AND:

PREM CHAND
(son of Shiv Nrayan alias Shiu Narayan)
of Volavola Road, Tamavua, Suva, Unemployed.
Defendant

Before: Master Anare Tuilevuka
Solicitors: Maharaj Chandra & Associates
Patel Sharma Lawyers for the Defendant
Date of Ruling: 17th February 2011

RULING

[1]. Before me is a summons for ejectment filed by the plaintiffs on 03rd September 2008 under section 169 of the Land Transfer Act (Cap 131) seeking an order that the defendant do show course why an Order for immediate vacant possession of CT. 16819, Lot 40 on D.P. No. 3971 should not be made against the defendant.

[2]. The application is supported by the affidavit of Bimla Wati sworn on 2nd September 2008.

[3]. Wati is the administratrix of the estate of Shiv Narayan alias Shiu Narayan who died on 12th September 2002. A copy of probate No. 46980 is annexed to her affidavit confirming her status as Administratrix of the estate of Narayan. A copy of CT. 16819 is also annexed to Wati's affidavit confirming that the property in question was transmitted to her by death on 10th July 2008 as administratrix. The document also confirms that Shiu Narayan was the registered proprietor.

[4]. It appears that Wati passed away just 13 days after she filed her section 169 application. And so, on 04th February 2009, letters of Administration De Bonis Non was granted to one Bhag Chand aka Vijay Chand who – pursuant to that grant- then filed an ex-parte Motion on 09th February 2009 to be substituted as plaintiff. Order in terms of that application was granted by Master Udit in Chambers on 01st April 2009. The affidavit in Opposition of Prem Chand was filed on 18th May 2009.

[5]. However, Bhag/Vijay Chand has not filed or placed before me any copy of CT 16819 to establish that the property has been transmitted to him by the death of Wati or pursuant to the grant of Letters of Administration De Bonis Non to him.

[6]. Section 169 of the Land Transfer Act (Cap 131) states as follows:

Ejectors

169. The following persons may summon any person in possession of land to appear before a judge in chambers to show cause why the person summoned should not give up possession to the applicant:-

(a) the last registered proprietor of the land;

(b) a lessor with power to re-enter where the lessee or tenant is in arrear for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;

(c) a lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.

[7]. Frankly, in light of my observation in paragraph [5] above, I am not convinced that Bhag yet falls into either of the three limbs of section 169. For that reason – I am reluctant to grant order in terms of the section 169 application.

[8]. But- even apart from the above, I would still have refused to grant order in terms of the application for the following reasons:

• (i) Section 172 provides that if the person summoned appears to show cause why he refuses to give vacant possession, and if he proves to the satisfaction of the court a right to possession, the court shall dismiss the summons with costs against the proprietor.
  
• (ii) I am convinced that Prem Chand has shown cause pursuant to section 172 based on the following.
  
  • (a) the Will pursuant to which Bhag Chand will administer the estate is not before me.
    
  • (b) and yet, as Prem Chand highlights in his affidavit, when Bhag Chand applied for letters of administration (de bonis non), he named Prem Chand "one of the other persons entitled as beneficiaries of the estate of the deceased".
    
  • (c) Prem Chand after all is a surviving issue of Shiv Narayan aka Shiu Narayan and is a brother of Bhag Chand.
    
  • (d) Prem Chand also has lived on the property for a good number of years and had built his house on CT. 16819 which recently valued at $75,000 and has lived thereon for many years.
    

[9] In the final, I refuse to grant order in terms of the application. I award costs to the defendant against the plaintiff in the sum of $350-00 (three hundred and fifty dollars only) to be paid in 21 days.

Anare Tuilevuka
Master

At Suva
17th of February 2011.