Janif, In re Estate of [2015] FJHC 91; HPP54.2014 (13 February 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HPP 54 of 2014

In the Estate MOHAMMED JANIF late of Drekenikelo, Nausori in Fiji, Mechanic, Deceased, Testate.

BEFORE: Master Vishwa Datt Sharma

COUNSEL: Mr. Kunal Singh for the Plaintiff (Applicant)

Date of Hearing: 20th January, 2015
Date of Ruling: 13th February, 2015

RULING

1. INTRODUCTION
   

1. This is an application under Section 23 of the Trustees Act [Cap 65] by the Plaintiff (applicant) for Sale of a Trust Property.
   
2. The Plaintiff is the lawful wife of the deceased Mohammed Janif, late of Drekenikelo, Nausori who worked in his capacity as a Mechanic, and died testate on 13th September, 2012.
   
3. A grant of probate was issued to the Plaintiff (applicant) on 05th February, 2013.
   
4. As per the Deceased's last Will and Testament, the late Mr Janif appointed his wife Shamshun Nisha as the sole executrix and trustee. He devised and bequeathed his estate to the Plaintiff (applicant) for lifetime use only and upon her demise unto his two (2) daughters namely Fazia Farzana and Siddiqa Shabreen Nisha in equal shares and shares alike. The estate comprises of a residential dwelling which is presently occupied by the Plaintiff (applicant) and her younger daughter Siddiqa Shabreen Nisha. This daughter is also a beneficiary in the deceased's Will and is handicapped.
   
5. The elder daughter namely Fazia Farzana who resides overseas has renounced her shares in the property in favour of the plaintiff (applicant).
   

2. THE APPLICATION
   

6. The Plaintiff (applicant) instituted this application by way of an Ex-Parte Notice of Motion with a supporting affidavit dated 05th November, 2014.

7. The application sought FOR AN ORDER that the Executrix in the Estate of Mohammed Janif be allowed to sell the property described as CT 26466 to Rosivela Vulawalu Naisau as per the sale and purchase agreement dated 21st October, 2014 for the benefit of the Plaintiff (applicant) SHAMSHUN NISHA and SIDDIQA SHABREEN NISHA (as beneficiaries).

C. THE LAW
8. Sections 23, 24 and 85 of the Trustees Act [Cap 65] states as follows-

PART IV-GENERAL POWERS OF TRUSTEES

Powers to sell, exchange, partition, postpone, lease, etc.

s.23.-(1) Subject to the provisions of this section, every trustee, in respect of any property for the time being vested in him, may-

(a) sell the property;

(b) dispose of the property by way of exchange for other property in Fiji of a like nature and a like or better tenure, or, where the property vested in him consists of an undivided share, concur in the partition of the property in which the share is held and give or take any property by way of equality of exchange or partition;

(c) -------;

(d) let or sublet the property at a reasonable rent for any term not exceeding one year, or from year to year, or for a weekly, monthly or other like tenancy or at will;

(e) --------;

(4) Where the property subject to a trust includes land, the trustee shall exercise the power conferred by the provisions of this section to sell the land, if so required in writing by the person or all of the persons at the time beneficially entitled to an interest in possession under the trust of the land.

Duration of trust or power to sell

s.24.-(1) Where the instrument creating a trust to sell property or a power to sell property does not expressly limit the duration of the trust or power, then, notwithstanding any lapse of time or that all of the beneficiaries are absolutely entitled to the property in fee simple or full ownership in possession and are not under any disability, the trustee may sell the property; but in all other respects the authority conferred by the provisions of this section is subject to any restrictions to which the trust or power created by the instrument is subject to an order of any court restraining any such sale.

DIVISION 3-JURISDICTION TO MAKE OTHER ORDERS

Power of Court to authorise dealings with trust property

s.85.-(1) Where, in the opinion of the Court, any sale, lease, mortgage, surrender, release or other disposition, or any purchase, investment, acquisition, retention, expenditure or other dealing, transaction, act or thing, is expedient in the management or administration of any property vested in a trustee, or would be in the best interests of the persons or the majority of the persons beneficially interested under the trust, but it is inexpedient or difficult or impracticable to effect the disposition, dealing, transaction, act or thing without the assistance of the Court, or the same cannot be effected by reason of the absence of any power for that purpose vested in the trustee by the trust instrument (if any) or by law, the Court may by order confer upon the trustee, either generally or in any particular instance, the necessary power for that purpose, on such terms and subject to such provisions and conditions (if any) as the Court may think fit, and may direct in what manner any money authorised to be expended, and the costs of any dealing, transaction, act or thing, are to be paid or borne, and as to the incidence thereof between capital and income.

(2) ---------------;

(3) An order may be made under the provisions of this section notwithstanding anything to the contrary contained or expressed in the instrument (if any) creating the trust.

(4) An application to the Court under the provisions of this section may be made by the trustees or by any of them, or by any person beneficially interested under the trust..

4. SUBMISSIONS BY THE PLAINTIFF'S (applicant) COUNSEL
   

9. The Counsel representing the Plaintiff (applicant) filed and furnished court with written submissions in support of this application.

10. He submitted that the general powers of the trustee as to the sale of the Trust property is stipulated in terms of section 23(1) (a) of the Trustees Act [Cap 65]. Further powers and restrictions to the absolute discretion to sell the trust property is stipulated in terms of section 24 of the Trustees Act [Cap65].

11. He further added that section 24 of the Trustees Act [Cap 65] restricts the absolute power of a Trustee to sell the Trust property when one or the entire beneficiaries are disabled. In this case the youngest daughter of the deceased namely SIDDIQA SHABREEN NISHA who is one of the beneficiaries is handicapped and or disabled.

12. That because of the restrictions imposed by section 24 of the Trustees Act [Cap 65] as to the absolute power of the Trustee to sell the Trust property in such circumstances that the beneficiary is handicapped and or disabled and that the Plaintiff (applicant) cannot exercise her sole discretion to sell the Trust property which would appear in the best interest of the beneficiaries and the estate in its entirety, that, it has prompted the Plaintiff (applicant) to file this application and seek a court order instead.
13. He stated that this court is empowered in terms of section 85 of the Trustees Act [Cap 65] to use its discretion and grant the orders sought for in the application.

5. CONSIDERATION OF THE APPLICATION
   

14. The powers of this court to deal with the Trust properties are stipulated in terms of section 85 of the Trustees Act [Cap 65].

15. The Plaintiff (applicant) in her supporting affidavit stated that after the demise of her lawful husband, Mohammed Janif on 13th September, 2012, upon an application to court obtained a Grant of Probate in his Estate in terms of the deceased's WILL on 05th February, 2013. The Plaintiff (applicant) was given the lifetime interest in the deceased's Estate and after her demise for the absolute use and benefit of the two (2) children namely Fazia Farzana and Siddiqa Shabreen Nisha in equal shares and shares alike.

16. The elder daughter Fazia Farzana being one of the two beneficiaries together with the applicant in the deceased's Estate and married overseas, had renounced and relinquished all her interest and Estate in the said estate property absolutely to her mother Shamshun Nisha.
17. Further, it became evident that the younger daughter Siddiqa Shabreen Nisha is a minor and has not attained the age of majority, thus unable to renounce her rights and the entitlement in the deceased's Estate like the elder sister in terms of the law. Further she is also handicapped or a disabled person as ascertained from the Plaintiff's affidavit in support and the Counsel's written submissions file in Court.

18. It is also noted in terms of the Plaintiff's (applicant's) supporting affidavit that after the demise of her husband, she had no source of income and faced with financial constraints in order to support herself and the handicapped younger daughter namely SIDDIQA SHABREEN NISHA. She relied for support and the assistance from the elder daughter residing overseas.

19. That the Plaintiff (applicant) has entered into a sale and purchase agreement awaiting the sale and transaction of the property in anticipation of a court order.

20. I have cited the sale and purchase agreement executed by the Plaintiff (applicant) as the vendor and Rosivela Vulawalu Naisau as the purchaser in the agreed sum of $192,000.

21. It is noted that the trust property under the estate is free of all and encumbrances.

22. The Plaintiff's (applicant's) intention to sell the said property under Trust is for the following reasons-

(a) That the residential property is too big and they can relocate in a smaller house which she intends to buy in the near future;

(b) That both the Plaintiff and the younger daughter have medical conditions;

(c) That she is faced with financial constraints and wishes to overcome this constraint by the sale of the trust property; and

(d) That she has the sole responsibility of the day to day welfare and care of the younger handicapped and or disabled child.

23. I have very carefully perused the Law in terms of sections 23 and 24 of the Trustees Act [Cap 65] under which this application has been made coupled with the powers vested in me in terms of section 85 of the Trustees Act [Cap 65] to deal with applications relating to the Trust property whereby Trustees and or Executor (ix) are restricted by Law to sell the Trust property in cases of disability of beneficiaries as is applicable in this particular case.

24. The powers conferred upon me in terms of section 85 of the Trustees Act (Cap 65) are specific and discretionary in nature.

25. Taking into consideration the nature of the application before me and the powers vested in me in terms of section 85 of the Trustees Act [Cap 65], I grant the orders in terms of the Ex-Parte Motion 'that the Executrix in the Estate of Mohammed Janif is allowed to sell the Trust property described as CT 26466 to Rosivela Vulawalu Naisau as per the executed sale and purchase agreement dated the 21st October, 2014 for the benefit of beneficiaries SHAMSHUN NISHA and SIDDIQA SHABREEN NISHA respectively.

26. This court has borne in mind the medical condition of the beneficiary SIDDIQA SHABREEN NISHA and the fact that she is also a minor and therefore has a duty in terms of its discretion under the prescribed Law to further safeguard her interest after the sale of the Trust Property in terms of her welfare and care.

27. Accordingly, I further make an order that out of the proceeds of the sale from the Trust property a sum of $50,000-00 to be deposited into SIDDIQA SHABREEN NISHA's fixed account at one of the financial Institution for her absolute use.

28. The plaintiff (applicant) is hereby directed to open up a new account for SIDDIQA SHABREEN NISHA if there is none in existence or operation with the financial Institutions.

29. Evidence as to the compliance of this order (at paragraph 26) must be furnished with the High Court Civil Registry after carrying out the necessities.

F. ORDERS

30. The Orders are therefore as follows:

(i) The plaintiff (applicant) is allowed to sell the Trust property comprising of a residential property on CT 26466 to Rosivela Vulawalu Naisau in terms of the executed sale and purchase agreement dated 21st October, 2014 for the benefit of the beneficiaries SHAMSHUN NISHA and SIDDIQA SHABREEN NISHA respectively.

(ii) The plaintiff (applicant) to deposit a sum of $50,000-00 from the sale of the Trust property into the fixed account of SIDDIQA SHABREEN NISHA for her absolute use.

(iii) The plaintiff (applicant) is directed to necessitate opening a new account if there is none in existence and operation.

(iv) Evidence as to the money deposited into the account of SIDDIQA SHABREEN NISHA be furnished to the court upon compliance of the court orders.

(v) Orders accordingly.

Dated at Suva this 13th day of February, 2015

VISHWA DATT SHARMA
Acting Master of the High Court

Suva