IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 181 of 2009

BETWEEN:

RAJESHWAR PRASAD aka RAJESHWAR of Tokotoko, Navua, Businessman.
Plaintiff

AND:

JAISHREE LAL of Tokotoko, Navua, Businessman.
1st Defendant

AND:

PRAVEEN KUMAR, PANKAJ KUMAR and PRADEEP KUMAR all of Tokotoko, Navua, Shop Keeper, School Teacher and Policeman respectively as Executors and Administrators of the Estate of DEV KUMAR, Deceased.
2nd Defendants

Appearance : Mr O'Driscoll of O'Driscoll & Co. Barristers and Solicitors for the Plaintiff
Mr Chandra A of M. C Lawyers, Barristers and Solicitors for the Defendants

Date of Judgment: 24 March 2015

JUDGMENT

[1]	The Plaintiff filed the Writ of Summons on 29 June 2009 claiming the following reliefs in the Statement of Claim:

(i)	A Declaration that the Plaintiff is an owner of one undivided one third share in the property comprised and described in Certificate of title No. 37343 and described as Lot 2 on DP No. 9347 covering an area of 1881 square meters a little more or less.

(ii)	An order that the 1st Defendant transfer the aforesaid; portion of Certificate of Title No. 37343 to the Plaintiff forthwith.

(iii)	The costs and other reliefs and orders as this court deems fit.

Background

[2]	The Plaintiff was a beneficiary of his mother's estate, late Ram Dulari who died on 16 June 1993.

[3]	The 1st Defendant also a beneficiary of the deceased Ram Dulari and is the current registered proprietor of Certificate of Title 37343.

[4]	The 2nd Defendants were the Executors and Trustees of the Estate of Dev Kumar and he died on 6 October 1997.

[5]	The Certificate of Title 37343 is in the name of the 1st Defendant as the Registered Owner and the Plaintiff claims one third share of the said property.

[6]	Pursuant to Clause 7 of the Will of Dev Kumar, CT 37343 (Lot 2 in DP as 9347) was transferred to the 1st Defendant.

[7]	The Plaintiff's claim is that CT 37343 is the title which was purchased by the deceased Ram Dulari pursuant to the Sale Agreement dated 8 June 1973.

[8]	On the other hand, the 1st Defendant states the said Lot 2 was transferred to him under Clause 7 of the Will of Dev Kumar and the 2nd Defendants too state that the 1st Defendant is entitled to Lot in DP 9347 in terms of the Last Will of Dev Kumar and the purported agreement dated 18 June 1973 under the Plaintiff claims one third share was not known to the First Defendant or the 2nd named Defendants until the present claim of the Plaintiff.

[9]	The Defendants claim that the transfer of Lot 2 was carried out under Clause 7 of the Will of Dev Kumar and there was no perpetrate fraud in this case by the 1st Defendant and he holds an indefeasible title in his name.

[10]	Evidence

The following witnesses were testified in this case:

(1)	Rajeshwar Prasad, the Plaintiff

(2)	Jaishree Lal – 1st Defendant

(3)	Praveen Kumar – 1st named 2nd Defendant

(4)	Pradeep Kumar – 3rd named 2nd Defendant.

10.1	Evidence – Rajeshwar Prasad

Ram Dulari was his mother cousin of deceased Dev Kumar and agreement dated 8 June 1973 was entered between the parties for the purchase of half an acre (80 perches) on CT8629 Lot 36 at Navua from the deceased Deo Kumar ('P1'). 

'P1' inter-alia states:

(a)	The purchase price is $1.00 which was paid;

(b)	The vacant possession of the land to be given to Ram Dulari on execution of the Agreement;

(c)	The title of the said land shall be given to the purchaser as soon as practicable and also costs of the sub-division of the half an acre shall be borne by the purchaser, Ram Dulari;
 
(d)	The agreement also states a plan was annexed to this agreement which refers in the Schedule to the agreement (site of which is delineated and colored) which was not annexed to the agreement.

10.2	The witness stated that Dev Kumar was his cousin and Certificate of Title No. 8629 was shown to him ('P2') which states the extent is 6 acres and 3 roods. In the memorial of CT 8629 states caveat was being lodged by Ram Dulari (No. 228339) on 23 September 1985. The endorsement states its only pertaining to 2 roods of the attached plan. The witness stated this was to protect the Sales Agreement.

10.3	The witness stated the Caveat No. 228339 was executed by his mother placing her left thumb impression which was certified by WM Scott and Co. Solicitors. The transfer of 80 perches land from CT8629 was never effected. The Caveat No. 228339 was marked as Exhibit 'P3'.

10.4	After Ram Dulari's demise, the Plaintiff was one of the Executor/Trustee. Other Executor Trustee was Jaishree Lal the 1st Defendant of this case. Probate was marked as 'P4' together with the Will of Ram Dulari. The witness stated the property was not sub divided and he was in possession since 1973 and his brother stays in the house and he did not give a share. Certificate of Title No. 28566 was produced marked as Exhibit 'P5'. In reference to previous titles on left hand corner it states CT28168, 8629 and 6630. CT8629 (P2) is part of this property witness stated.

10.5	In 28566 (P5) memorial it states partial transferred to Jai Shree Lal, the 1st Defendant. The memorial does not refer to the caveat of Ram Dulari. On 7 May 1998, Probate was issued to Praveen Kumar, Pankaj Kumar and Pradeep Kumar appointing as the Executors/Trustees of the Estate of the deceased Dev Kumar. Last Will was attached on page 2, it states 5 square chains to be given to the 1st Defendant Jaishree Lal. The property is the same property contracted by the Plaintiff's mother he stated. Transmission by death No. 456002 was executed by the Trustees on 6 October 1997 (Part of Exhibit 'P6').

10.6	The said Trustees of Dev Kumar had executed partial transfer to the Defendant on CT285266 Lot 2 in DP 937 in terms of the Last Will of Dev Kumar. Exhibit (P7) tendering Plan 9347 the Plaintiff stated the Lot 2 marked is the same land which was contracted by his mother (Exhibit 'P8'). CT8629 became part of this document. The Plaintiff also referred to CT37343 dated 15 December 2006 (Exhibit 'P9') and stated having found the transfer was effected he met the 1st Defendant and asked him how they did the transaction. He had asked the witness Plaintiff to see a lawyer. The witness thereafter sent the letter dated 25 February 2009 through his lawyer (Exhibit 'P10') and claimed his share. He further stated he was living in this property from 1973 to 1986. He also stated his other brother too has a share. He doesn't know how his brother's name (the Defendant) came in to Dev Kumar's Will. He claimed his share to be valued and be given to him.

10.7	Under cross examination, the Plaintiff stated he was aware of the Agreement of his mother in 1973 (P1) and he had a copy since then. He stated he does not know why his name was not in the Will of Dev Kumar which was made in 1996. At the time of the death of his mother Ram Dulari, she was living in the subject land. He admitted that he cannot find a link from CT8629 to Partial Transfer effected on 8 November 2006. Lot 2 in 9347 is the same land contracted by his mother, witness stated. He believed his brother will distribute the estate. The Defendant stated he had not taken any legal advice until 2009. His position is that he derives a share from the Agreement (P1) when his mother died, value of the land would have been $100,000.00.

The witness stated Dev Kumar is his cousin and he does not know why he didn't make him a beneficiary in Dev Kumar's Will. The Will was executed 23 years after the Agreement P1. He does not have the Plan annexed to P1. He did not pay any monies to the sub-division or gave any notice for the sub-division. He had not taken action for performance of the Agreement P1.

10.8	During re-examination, the Plaintiff sated Lot 2 in P9 is the same land. In the year 2000, the property was offered $100,000.00. He was not named in Dev Kumar's Will. Because of trust he did not take any action against his brother, witness stated.

[11]	Defence Evidence 

The 1st Defendant Jaishree Lal in his evidence stated:

11.1	He was staying in the land since 1972. The Plaintiff is his brother and Dev Kumar was his cousin. 2nd named Defendants are sons of Dev Kumar. In P7 the Last Will, he was named as a beneficiary and Dev Kumar died in 1996. Distribution of the Estate of Dev Kumar was done by the 2nd named Defendants. P9 was shown to the witness and he stated Lot 2 in 9347 belongs to him and the concrete house there was built by him. His parents were living in the wooden house. He stated that Dev Kumar did not tell that he will be given the property and he was not aware of the Agreement marked P1 which states his mother bought the property. His mother's Will included the Gold and the monies which were distributed. One lawyer arranged the shares for him and his brothers. In the year 1972 or 1973, he put up the concrete house. He never knew portion of the property goes to the Plaintiff. The witness stated he came to know about the Agreement the day when the Plaintiff gave evidence. He stated he has 5 children, 4 migrated and one is living with him. He came to the property first and the wooden house too was constructed by him. His father was running a shop in Navua town.

11.2	During the cross-examination, the 1st Defendant stated in 1971, he was working as a bar man and getting $75.00 a week. His father was running a shop in Navua and living there. The 1st Defendant moved into the land in 1971 or 1972. He knew it was belonging to Dev Kumar. Dev Kumar was his father's sister's son, he owned the land. The witness moved into the house in 1971 or 1972. He first built the wooden house and then the concrete house. Apart from the job he was getting income from farming and did not take a loan. The Plaintiff and the other brother did not help him to renovate the house. Parents moved (after the witness) in to the wooden house in 1980's. At the time he moved in he was married and was around 25 years and his elder son was 1 year. He had spent $6,000.00 to $7,000.00 to build the house (concrete one). It took about 1 year. He was not aware that he was made an executor in his mother's Will and she had left 1/3 of the property to each brother. He said he went to Scott & Co. Lawyers and they did the probate of his mother. He never signed any papers in 1993 and he did not go to the office of Scott and Company. He received about $7,000.00 as his share and his sisters were given $2,000.00 each. He cannot remember exact amounts. He denied his mother purchased the land. Dev Kumar had a land 16 of 17 Acres. After 9 years of Dev Kumar's death, he got the title to the land. He denied he went to his sister in law Sarojini's place and offered her $20,000.00. He knows that the case started in 2009 and he knew about the Agreement 5 years back. In evidence in chief he stated he saw P1 today because he was confused.

11.3	In re-examination the witness he confirmed Dev Kumar never told him, the land was sold to his mother. He got 4 sovereigns and $7,000 to $9,000 from my mother's estate. He knew about P1 when he got notice of this case. He left school in 1963 and started working as a labourer. His father was also a labourer at that time and did not have a shop. All were living in the shop until 1971. Father sold the shop in 1980's. There was cash $39,000.00 in the bank after selling the shop. That was the money divided. He had good relationship with father and mother. They knew the land was not in his name but the parents did not stop building the houses.

[12]	The Defence called the 2nd witness 1st named Defendant and he stated:

12.1	He and his two brothers were appointed as joint trustees of their father's (Dev Kumar) Will (Part of Exhibit P6) is father's Will. After the father's death they went to Munro Leys Lawyers who had the Will and they took action to obtain the probate. Procedure was followed and advertised, no one made any claims. Probate was granted on 7 May 1998 (Part of P6). It was mentioned in the Will, the 1st Defendant to be given 5 square chains of the land. The witness and his brothers decided to give the portion of land where 1st Defendant was living. He is not aware who built the houses. In 2009 only the Plaintiff showed his interest through his lawyer. The Plaintiff was living in Navua not far away and he did not know whether the 1st Defendant was in the land in 1973. All the properties were distributed as per the Will.

12.2	Under cross examination, the witness stated he did not know Ram Dulari in the year 1972 or 1973 (witness was 30 years when he was giving evidence). Sathi Prasad was married to Ram Dulari he knew. He can remember only 1st Defendant was living on the land. He was shown P7 Plan and said he and his brothers gave instructions to prepare the Plan. The 1st Defendant got Lot 2. The Plaintiff never came to him. In 1996, land was amalgamated and drawn a plan and CT8629 is included in the Plan. He recognized his father's signature in P1.

12.3	On re-examination, witness stated that referring to P1, that the 1st Defendant stays there. According to P1, cost of sub-division was to be paid by Ram Dulari, it was not paid. CT8629 is part of the plan 28556.

[13]	The Defence also testified Pradeep Kumar the 3rd named Defendant and stated:

13.1	His evidence was similar to the evidence of Praveen Kumar. In addition, he stated the 1st Defendant had built the houses. In 1973 to 1977 the father and mother of the Plaintiff and the 1st Defendant lived in Navua Town. They owned a shop and they came to the property in 1980's.

13.2	He confirmed under cross examination, P5 – 28566 CT8629 is included. It relates to P8 28566. Lot 2 is the 1st Defendant's land. The Plaintiff never came to them in 1994. He was not a beneficiary of the estate.

[14]	Analysis, Conclusions and Determinations

14.1	Before analyzing the evidence, at the outset I have to deal with the Agreement signed between the deceased, Ram Dulari and Dev Kumar on 8 June 1973 (P1). There is no dispute with regard to the land which was the same land on CT8629 (P2) now owned by the 1st Defendant on CT37343 (P9). This was established through the evidence in balance of probabilities. However, the 1st Defendant in his Statement of Defence in paragraphs 5(e) and 5(f) and the 2nd named Defendant's Statement of Defence in paragraphs 6(e) and 6(f) pleads purported Agreement is statute barred for its lack of discovery and or enforceability and that the Agreement is void for uncertainty. The whole evidence of this case based on the agreement made between the late Dev Kumar and Ram Dulari.

In addition to the pleading in the Statement of Defence at the pre trial conference minutes, the issue of the agreement being raised as issue No. 1 for determination:

"1.	What effect does an agreement dated 8 June 1973 between Ram Dulari and Dev Kumar have on this matter?"

14.2	Considering the above circumstance, I take this issue as the preliminary issue in this case. The enforceability of agreement dated 8 June 1973 shall determine the fate of this case.

14.3	The Section 4(1) (a) and (b) of the Limitation Act States:

"Limitation of actions of contract and tort and certain other actions

4 – (1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say –

(a)	actions founded on simple contract or on tort;
(b)	actions to enforce a recognizance;
(c)	…………………………..
(d)	………………………….."

In this case, the Plaintiff admitted in his evidence that the agreement dated 8 June 1973 was in his possession since 1973. It is evident the Plaintiff's late mother had not taken any steps to get the property transferred in her name within the 6 years before 7 June 1979 pursuant to Section 4(1) (a) and/or 4(1) (b). She failed to take any action until her death in 1999 except for the caveat registered in 1986. There is no evidence before me that there was any request by the said deceased Ram Dulari to the deceased Dev Kumar to enforce the said agreement. Ram Dulari's Last Will dated 27 May 1993 (Part of P4) did not state with regard to the rights (if any) on CT8629 should be distributed among the sons of the deceased, the Plaintiff, 1st Defendant and their brother Laleshwar. Even if it was specifically stated by the time Last Will was written the agreement dated 8 June 1973 was statute barred and her rights on the said agreement were extinguished. The Plaintiff had the possession of the agreement and he was one of the Trustees under the Probate (Part of P4) issued on 16 June 1993. The Plaintiff had not taken any steps to enforce the agreement once he was appointed as one of the joint trustees of the said Ram Dulari's estate, although he was in the possession of the Agreement made between Dev Kumar and Ram Dulari.

On the other hand, it was revealed in the evidence that Dev Kumar died on 6 October 1997and he had executed his Last Will on 25 April 1996. The Will was executed after the death of Ram Dulari on 16 June 1993. The inference this court can draw is when Dev Kumar executed his Last Will on 24 April 1994, he had not taken any note of the agreement entered on 8 June 1973 because it was time barred. The Plaintiff too in his evidence failed to establish that he had met Dev Kumar and showed him the agreement and asked him to transfer the property and further failed to establish that there was any undertaking by the deceased Dev Kumar that he will abide by the agreement if so the limitation period would have been avoided for the performance of the said agreement dated 8 June 1973. Accordingly, I determine that the agreement dated 8 June 1973 is statute barred in terms of Section 4(1) (a) and 4(1) (b) of the Limitation Act (Cap 34).

I specifically state that the evidence placed before me did not establish any fraud perpetrated by the 1st and 2nd named Defendants and this court concludes there is no proof of a fraud.

Accordingly, I hold the Plaintiff failed to establish his claim.

[15]	Orders of the court:

1.	The Plaintiff's claim dismissed.

2.	The Plaintiff is ordered to pay cost of $1,500,00 to the 1st Defendant and total cost of $1,500 to the 2nd named Defendants summarily assessed.

Delivered at Suva this 24th March 2015.

…………………………
C. KOTIGALAGE
JUDGE