Singh v Singh [2013] FJHC 39; HBC129.2011 (7 February 2013)

IN THE HIGH COURT OF FIJI
[CIVIL JURISDICTION]
AT LAUTOKA CIVIL ACTION NO: HBC 129/2011

BETWEEN:

GURDEV SINGH
PLAINTIFF

AND:

MALKIT SINGH
DEFENDANT

Counsel:
Plaintiff : Mr Peter Lowing
Defendant : Mr D Naidu

Date of Hearing : 12 November 2012
Written-submissions : 26 Nov. 2012 and 10 Jan. 2013 (By Defendant)
14 December 2012 (By Plaintiff)

JUDGEMENT

1. The plaintiff, by his writ of summons dated 28 March 2011, filed this action against the defendant seeking principally an order for administration of the leasehold property in Lease No 26589 situated at No 25 Yasawa Street, Lutoka in the estates of Pritam Singh and Bachni; and, a declaration that the defendant had failed in his duty as a trustee of the estate of Bachni.
   
2. The two party-litigants are brothers; and, the late Mr Pritam Singh and the late Mrs Bachni were their parents, who died in October 1960 and June 2000 respectively.
   
3. The defendant refuted that the plaintiff was entitled to the reliefs sought. The defendant specifically stated that there was no estate either of Pritam Singh or Bachni to be administered. He further relied on the fact that the claims were statute-barred under the Limitation Act and that the estates of Pritam Singh and Bachni were already wound-up.
   
4. The trial proceeded on the issues as formulated by the parties in the pre-Trial Minutes dated 14 March 2012.
   
5. The plaintiff gave evidence on his own behalf and relied on documents in the Agreed Bundle of Documents (ABOD) and closed the case. The defendant did not give evidence; nor, did he call any witnesses on his behalf. Learned counsel for the defendant, however, made a submission on 'non-suit' after closing his case. Both parties filed written-submissions at the close of the proceedings.
   
6. Mr Pritam Singh had left a Last Will dated 23 May 1946, having appointed Mrs Bachni, his wife, as the sole executrix and the trustee of the estate. Mrs Bachni, the plaintiff, the defendant and four other surviving children were the beneficiaries of the Last Will. The probate in respect of the testate property was granted to Mrs Bachni on 17 May 1961.The leasehold land in Lease No 26859, which forms the subject matter of this action, was an item of the properties subject to the Last Will.
   
7. Mr Pyara Singh, another brother of the plaintiff and the defendant, on authority of a Power of Attorney granted by Mrs Bachni transferred the Lease 'in consideration of the sum of $ 163,000.00 (One Hundred and Sixty Three Thousand Dollars) to be paid to [him] by Bachni (daughter of Santa) of Lautoka, widow, [ ... ] to the said Bachni all [his] estate and interest ..., by Exhibit-5 marked and produced by the plaintiff. The circumstances, the basis and the very manner of such a transfer are unclear. This transfer dated 10 August 1984 was, however, registered by the Registrar of Titles on 03 April 1985 under Memorial No 221785.
   
8. The Lease was subsequently transferred in the name of the defendant by Mrs Bachni for a consideration of an amount of $ 500.00 only on 16 January 1997. This transfer, too, was registered by the Registrar of Titles on 04 March 1997 under Memorial No 420681 as borne-out by Exhibit-4 marked and produced by the plaintiff.
   
9. The plaintiff, both in his pleadings and in the evidence, has only presented the above facts in seeking 'an order for the administration of the real and personal property of the estate of Pritam Singh and estate of Bachni in particularly [sic] leasehold land known as Lot 1, Section 14 comprised in Lease No: 26859 situated at 25 Yasawa Street, Lautoka with all necessary directions to the Registrar of Titles' under paragraph 21.1 of the statement of claim dated 25 March 2011.
   
10. The plaintiff, on his own showing by documents Exhibits-4 and 5, established that the leasehold property ceased to be the property subject to trusteeship of Bachni with its transfer on 04 March 1997. Mrs Bachni, too, died testate in 2000 after appointing the defendant as her sole executrix and trustee. The probate was granted to the defendant on 12 September 2000, which, however, did not encompass the leasehold property in issue in this case.
    
11. There were no complaints as regards the administration of the property under the Last Will of Pritam Singh before or after the death Bachni. No allegations of fraud, in any event, are pleaded or presented by way of evidence to challenge succession of the defendant to the leasehold property.
    
12. The defendant applied for 'non-suit' only after informing court that he would not call the defendant or any other witness on his behalf. I am, in the circumstances, inclined to consider the case of the plaintiff on its merits rather than approaching it on the basis of 'non-suit' on applicable legal principles.
    
13. Upon consideration of the pleadings and the evidence, I hold that the plaintiff has not disclosed a cause of action against the defendant. I further hold that the plaintiff's action is misconceived in law and in fact.
    
14. I, accordingly, dismiss the action with costs.
    

Priyantha Nāwāna
Judge

High Court
Lautoka
Republic of Fiji Islands
07 February 2013