Prasad v Kumar [2015] FJHC 165; Civil Action 197 of 2013 (10 March 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. 197 of 2013

IN THE MATTER
of an application for partition proceedings under Section 119 of the Property Law Act, Cap. 130.

BETWEEN:

SUMAN LATA PRASAD
of 3/17 Tui Road, Papatoetoe, Muanikau, Auckland, New Zealand, Nurse.
Plaintiff

AND:

DINESH KUMAR
of 18 Holden Place, Papatoetoe, Muanikau, Auckland, New Zealand, Businessman.
Defendant

Appearance : Mr Singh S. of Shelvin Singh Lawyers for the Plaintiff

Mr Chand A. of Diven Prasad Lawyers for the Defendant

Date of Judgment : 10 March 2015

JUDGMENT

[1] The Plaintiff filed amended originating summons on 15 August 2013 and sought the following orders pursuant to Section 119 of the Property Law Act, (Cap 130):

"A. An Order that the Defendant to provide an account of all rental monies collected by him from the property comprised in Certificate of Title No. 9088 from 1 September 2005 to date.

B. An Order that the Defendant pay the Plaintiff half share of all the rental monies collected by him from 1 September 2005 to date.

C. An Order that within 14 days of the making of the Order herein, the Defendant lodge the duplicate Certificate of Title No. 9088 in Court.

D. An Order that the property comprised in Certificate of Title No. 9088 be valued and the cost of the valuation be shared equally by the Plaintiff and the Defendant.

E. An Order that the property comprised in Certificate of Title No. 9088 be sold by the Plaintiff by tender to the highest tenderer and in the event the Defendant refuses to execute the instrument of Transfer, the Acting Chief Registrar of the High Court execute the said instrument of Transport and all other documents in place of the Defendant.

F. An Order that all sale proceeds be deposited in Court.

G. An Order that after deduction of costs, the net proceeds of sale to be shared equally between the parties.

H. Until the sale of the said property, all further rental monies be collected by the Defendant and be paid in Court.

I. Such further or other relief as seems just and equitable to this Honorable Court.

J. Costs of this action".

[2] Background

2.1 The Defendant and the Plaintiff were married on 28 July 1989 and separated on 1 October 2005 and was divorced on 31 October 2007 by the Order of Auckland Family Court, (Annexure marked 'A' to the Affidavit in Support dated 16 May 2013) and the Final Orders were made on 14 March 2012, (Annexure 'B'). The said facts are not disputed by the Defendant.

2.2 The Plaintiff is registered as joint proprietor with the Defendant of all the property comprised in Certificate of Title 9088 on Deposited Plan No. 2168; situated at Lot 19, Bhindi Street, Samabula, Suva.

2.3 The joint ownership of the said property was acquired by the Plaintiff on 6 March 1992 (Annexure marked 'D') and a Mortgage was executed in favour of Home Finance Company Limited by both the parties on 6/8/1992 in a sum of $39,880.00 (Annexure marked 'E').

2.4 The Plaintiff stated until the migration to New Zealand had taken place in the year 2000, the Plaintiff and the Defendant with their children stayed in the said property.

2.5 The Plaintiff stated the property consists of 2 Flats, Flat No. 1 is rented out for $350.00 and Flat No. 2 is rented out for $300.00.

2.6 The Plaintiff alleged since migration to New Zealand the Defendant collected all the rent money and deposited it in his Bank account in Fiji and failed to provide the account of rent collected and failed to pay her the rightful share of the rental proceeds collected. As such there is a need to dispose the property.

2.7 The Defendant agrees both of them migrated to New Zealand in the year 2000 and the joint loan was obtained from the Home Finance and the Defendant was paying $600.00 and the Plaintiff was paying $200.00 towards the loan repayment monthly. The Defendant stated the deposited money was paid by him to the previous owner in addition to the loan obtained from his FNPF. However, the Plaintiff in her Affidavit in Reply dated 16 January 2014 had stated she too used her FNPF money to make the deposit for the purchase.

2.8 The Plaintiff admitted in her affidavit, she was paying $200 for the Mortgage and she met the bills for groceries, house girl expenses, water and FEA charges.

2.9 The Plaintiff denied that $26.430.00 was paid for the alleged caretaker.

2.10 Receipts tendered are in the name of one Raj Rakesh and not in the name of the Defendant, the Plaintiff stated.

2.11 The Plaintiff stated that the Defendant was collecting rental monies and paying the city rates and no account forwarded on the rental monies collected.

2.12 The water bills and FEA bill payments was on the electricity used by the Defendant and not the Plaintiff.

[3] When the matter was taken up for hearing on 8 September 2014, Mr Singh counsel for the Plaintiff stated that the affidavit evidence filed in this case by the Defendant on 2/5/2014, 4/7/2014 and 23/10/2013 should be disregarded since an application was made to convert this action into Writ Action. Mr Chand counsel for the Defendant stated he is not calling the Defendant as a witness. The option of calling the Defendant as a witness is with the counsel for the Defendant and the affidavit evidence before me cannot be disregarded. As such proper weightage for the affidavit evidence will be given and this court cannot disregard the affidavits filed by the Defendant. The Plaintiff's application to disregard the affidavits of the Defendant was refused.

[4] The Plaintiff was called to give evidence and she stated:

4.1 She is living in New Zealand and working as a registered nurse. The contents of the affidavit dated 4/7/2013 was confirmed and tendered marked as 'A' in the evidence. The contents of her affidavit dated 16 January 2014 was confirmed and tendered marked as 'B'.

4.2 The witness tendered a Bank Statement of Westpac Bank and stated $600 deposit was the rent. No share of the rent was given to her. Bank Statement and the covering letter was tendered marked 'C'. The mortgage of the property was discharged on 6/8/2001. Notice was served on the Defendant to disclose the documents and the Defendant failed and the rent monies were withdrawn whenever he travelled to Fiji. The notice issued to the Defendant's solicitors was tendered as Exhibit 'D'. No rent monies were paid to her although she requested for same.

4.3 The witness stated she did not know there was a caretaker. In 2005, she passed the property and saw a few people in the compound, kava roots were scattered on the ground and she stated there was a business. She further stated if there was any repair needed, it was because people were living there and she cannot take the responsibility for monies spent for the repairs.

4.4 The Plaintiff had paid the city rates with rental income and for the electricity and water had been paid on usage and the Plaintiff is not responsible, for such payments.

4.5 Referring to last 3 documents of the affidavit of the Defendant dated 24 June 2014, (Part of Annexure marked 'B') FEA bill due was $9.88; Water bill $4.29; FEA bill for January to April $50.75. In the affidavit, the Defendant stated he was paying $40.00 for Water and $130 for FEA per month which statement contradicts the amount stated in the bills. The witness stated property should be advertised and she should get 50% share of the sale proceeds and the 50% of the rental monies collected.

4.6 The Plaintiff tendered the Order of the New Zealand case as Exhibit 'E' and Fiji property was not settled in the Divorce proceedings.

4.7 The Plaintiff stated she wants to bid for the property after advertising and need 50% of the rental money collected by the Defendant. The Defendant should pay interest on share of the rental money.

4.8 The Plaintiff under cross-examination stated she had not failed in her duty to look after the property since she was in New Zealand and she was not allowed to enter the property when she came to Fiji. Rent payment was proved by providing the Bank Statements. She admitted by the documents marked Exhibit 'C' she assumes it's the rental income deposited and the Defendant must be having the rental agreement and she does not have a copy of the rental agreement.

4.9 The witness admitted she had not tendered any evidence to prove she was not allowed to access the property by the Defendant and stated that she had not contributed for maintenance and the Plaintiff maintained the property and if renovation was not done, property would have been deteriorated and the value would have reduced. She stated that she may be wrong by stating that there is a business carrying out in the property only she saw the kava roots on the compound.

4.10 On re-examination, the witness stated she had to look after the children who were with her and had to work as a nurse and she did not find time to get at the tenancy agreement. She further stated that she is the person who can give evidence pertaining to the rental income.

4.11 The Plaintiff's counsel moved the court to call a witness from Westpac Bank and the court granted leave and Steven Beddoes Manager, Westpac Main Branch was testified:

(a) He stated the Defendant Dinesh Kumar now living in Auckland maintained an account at Nabua Branch of Westpac Bank. Account was opened on 8/2/2002 and closed in 2008 with a debit balance of 0.91cents. On 1 January 2008, Dinesh Kumar had withdrawn $338.92. Account was opened by transferring money from a savings passbook account and the monies were withdrawn on paper at the counter or by the debit card. First withdrawal was on 17/10/2002.

(b) The witness stated there were withdrawals on 19/3/2002 to 6/8/2002 $600 per month, but on the same day on each month (Exhibit 'F') few deposits were also made over $1000 to $4000 sometimes. Under cross-examination, he stated that he is not in a position to say whether rent monies were deposited to the account.

[5] Consideration of the evidence

5.1 The Plaintiff Suman Lata Prasad and the Manager of Westpac Bank, Steven Beddoes were testified before this court. On analyzing the evidence, I find that the Plaintiff failed to prove in balance of probabilities the subject property was rented and there was a rental income. It is only the Plaintiff's oral evidence, which was not substantiated by any document and/or there was no other evidence to support the Plaintiff's version. It is further noted that Beddoes who had testified before this court could not confirm the deposits made to the account was rental income, and I find there were other deposits and withdrawals made to the account and the Plaintiff fails.

5.2 The bank statement marked 'C' with the covering letter dated 13/01/2005 (Tendered as part of the Exhibit 'C') supposed to have been received by the Plaintiff at her residence in New Zealand addressed to the Defendant. On perusal of the said statement, I find the account starts with a credit balance of $9767.73 on 21 October 2005. There were two deposits one $350.00 on 4 November 2005 and another of $250.00 on 17 November 2005. There was one deposit of $350.00 on 2 December 2005 and another of $250.00 on 22 December 2005. Only on this statement, without any supporting documents, this court cannot infer these were rental income. The Plaintiff's submission fails.

5.3 The Plaintiff stated when she visited the property she was never allowed inside the property and did not see any caretaker. If so it is surprising to note that being joint owner of the property, she should got assistance from the law enforcing authority to inspect or used any other legal means. Merely stating that she was not allowed to the property cannot be considered by this court in the Plaintiff's favour. In addition, question arises if she was passing the property and when she saw kava roots that were in the compound, why she did not make further inquiries to find out what was the business? The Plaintiff's imagination without any material evidence cannot be considered by this court. The Plaintiff's submission fails. The Plaintiff's statement that she was the wife of the Defendant until 2007, and to consider the said statement to the court for the receipt of rental money has no merits.

5.4 Accordingly, I conclude the Plaintiff failed to prove in balance of probabilities that the property was given on rent and the rental income was received by the Defendant. As such the Plaintiff's claim on rental income fails.

5.5 I also state that the Plaintiff admitted in her evidence the property was maintained by the Defendant.

[6] Now I deal with the other issues raised by the Plaintiff. The originating summons was filed by the Plaintiff pursuant to Section 119 of the Land Transfer Act Cap 130.

"Section 119 states:

119 – (1) Where in an action for partition the party or parties interest, individually or collectively, to the extent of one moiety or upwards in the land to which the action relates requests the court to direct a sale of the land and a distribution of the proceeds, instead of a division of the land between or among the parties interested, the court shall, unless it sees good reason to the contrary, direct a sale accordingly.

(2) The court may, if it thinks fit, on the request of any party interested, and notwithstanding the dissent or disability of any other party, direct a sale in any case where it appears to the court that, by reason of the nature of the land, or of the number of parties interested or presumptively interested therein, or of the absence or disability of any of those parties, or of any other circumstances, a sale of the land would be for the benefit of the parties interested.

(3) The court may also, it thinks fit, on the request of any party interested, direct that the land be sold, unless the other parties interested, or some of them, undertake to purchase the share of the party requesting a sale, and, on such an undertaking being given, may direct a valuation of the share of the party requesting a sale.

(4) On directing any such sale or valuation to be made, the court may give also all necessary or proper consequential directions.

(5) Any person may maintain such action as aforesaid against any one or more of the parties interested without serving the others, and it shall not be competent to any defendant in the action to object for want of parties; and at the hearing of the cause the court may direct such inquiries as to the nature of the land and the persons interested therein, and other matters, as it thinks necessary or property, with a view to an order for partition or sale being made on further considerations.

Provided that all persons who, if this Act had not been enacted, would have been necessary parties to the action shall be served with notice of the decree or order on the hearing and, after that notice, shall be bound by the proceedings as if they had originally been parties to the action, and shall be deemed parties to the action, and all such persons may have liberty to attend the proceedings, and any such person may, within a time limited by rules of court, apply to the court to add to the decree or order.

(6) On any sale under the provisions of this section, the court may allow any of the parties interested in the land to bid at the sale, on such terms as the court deems reasonable as to non-payment of deposit, or as to settling off or accounting for the purchase money or any part thereof instead of paying the same, or as to any other matters.

In pursuant to Section 119, the Plaintiff in her Statement of Claim inter-alia prays to dispose the property by tender. On the other hand, the Defendant too is agreeable to sell the property and he is willing to purchase the Defendant's share on the market value less all the expenses amounting to 50% share.

[7] As stated in Section 119 there is no reason to prevent the sale of the property by this court. The parties are divorced and living in New Zealand. The Plaintiff is not in a position to look after the property.

In case of Atu vs. Atu [1983] FLR 100 Fiji Supreme Court stated:

".............unless the court sees good reasons to the contrary, it is mandatory to direct the sale of the property, since the Plaintiff's interest in the property is not less than one moiety".

In the said case submission was that under Section 119 remedy is not available to the Plaintiff because she is a joint tenant and not a tenant in common entitled to a moiety or upwards of the property. However, the Supreme Court held it is not necessary to enter upon a description of joint tenancies and tenancies in common because the partition of land by the court is available to persons having concurrent interests whether jointly or in common in a property.

Applying the principles laid down in the said case of Atu vs. Atu, I conclude the property is jointly owned by the Plaintiff and the Defendant in this case and each party is entitled to 50% share of the property. In case of Sale, parties are entitled to 50% share of the sale proceeds.

[8] In this matter the property is maintained and occupied by the Defendant and he enjoys the possession of the property. The Plaintiff cannot enjoy the possession of the property or she does not derive any benefit of the property as such this court further concludes there is no reason to the contrary, to prevent direction to sell the property.

[9] Considering Section 119 (3), I also conclude that both parties should have the option to purchase the other party's share as directed by this court.

[10] Having concluded as above, now I consider as to whether the Defendant is entitled to recover his expenses from the sale proceeds or in case the Defendant purchases the property, such expenses could be deducted from the share entitled by the Plaintiff or in case the Plaintiff purchases the property the Plaintiff should pay for the expenses for maintaining the property.

10.1 There is no documentary evidence except for the annexure marked 'C' a Schedule of Expenses for the property. This statement was not supported by any documentary proof or the alleged caretaker did not give evidence in this case. As such, I conclude that the said expenditure of the sum of $26,430.00 is not established as such the Defendant's claim on this sum fails.

10.2 The Defendant also by annexure marked 'D' tendered receipts for expenses incurred for repair works from year 2000 totaling $6,978.73. I accept the expenditure on repairs was proved in balance of probabilities and agree that $6,978.73 as a reasonable expenditure for repair work. I also state that if the Plaintiff had not maintained the property for 10 years, (maintenance by the Defendant is admitted by the Plaintiff), the property would have been deteriorated and it won't fetch today's value. I conclude the Defendant is entitled for $6,978.73.

10.3 The Defendant also stated in his affidavit he had spent $6,978.73 as costs for travelling expenses to Fiji to see the renovation work. However, the Defendant had not substantiated the claim by giving particulars pertaining to such travel, failed to provide any receipts or travel itineraries and failed to establish the claim. As such I decline granting of his claim.

10.4 The Defendant failed to provide proof to substantiate the FEA bills amounting to $19,370.00 and the claim on the electricity payment is declined. Even if there is such payment the person who used the electricity facility should be responsible for such payment.

10.5 The Defendant had stated he had paid $5,960.00 as water usage charges which is not substantiated. I agree with the Plaintiff that water bills are issued in 3 months intervals and claiming $40.00 monthly is without any basis. In any event, the Defendant is liable for the usage and I decline the said claim.

10.6 The Defendant claimed city rates in the sum of $6,363.49 which is statutory payment supported by the document marked 'F' to the Defendant's affidavit. I accept the claim of the Defendant.

10.7 Accordingly, I determine the Defendant is entitled to reduce 50% for the following payments from the share of 50% of the sale proceeds of the Plaintiff or in alternative the Plaintiff is responsible for the payment detailed below:

(1) Repair works	- $ 6,978.73
(2) City rates	- $ 6,363.49
(The Plaintiff's Liability)	Total $13,342.22
50%	$ 6,671.11 ==========

[11] The Orders of the Court:

(1) Claims in paragraphs A and B of the amended originating summons are dismissed.

(2) The property comprised in Certificate of Title No. 9088 to be valued by a Registered Valuer within 30 days of this Judgment and the expenses for the valuation should be paid by the Plaintiff and the Defendant in equal shares. I further order the Solicitors for the Plaintiff and the Defendant in agreement should nominate the Valuer.

(3) Once the valuation is obtained, the property comprised in the Certificate of Title should be advertised in the two daily newspapers in Fiji calling for Tenders. Advertisement should state the names and addresses of the Solicitors for both parties and the Tenders should be forwarded in Duplicate to both Solicitors.

(4) Both Solicitors should inform their clients of the highest bid received and if the Plaintiff and the Defendant are interested they could have an open bid in the presence of both the Solicitors and the highest bidder shall have the option to purchase the property.

(5) If neither party is interested, the property should be offered to the highest bid received on the tenders and out of the sale proceeds firstly to make the payment of $6,671.11 to the Defendant and the remaining balance of the sale proceeds should be divided between the Plaintiff and the Defendant in equal shares.

(6) The advertisement cost, legal expenses pertaining to the sale should be deducted from the sale proceeds before distribution of the proceeds.

(7) Parties should bear their own costs in the present proceedings.

Delivered at Suva this 10th Day of March 2015

.........................
C. KOTIGALAGE
JUDGE