Sharma v Sharma [2016] FJHC 577; HBC116.2013 (28 June 2016)

IN THE HIGH COURT OF FIJI AT LAUTOKA APPELLATE JURISDICTION
			Civil Action No. 116 of 2013
BETWEEN	:	LEELA DEVI SHARMA, ATEN SHARMA, ASHIKA SHARMA, AMIT SHARMA all of Togobula, Nadroga.
		Appellants
AND	:	VEENA KIRAN SHARMA of Navutu, Sigatoka, School Teacher.
		Respondent
Appearances	:	Ms. Vasiti for Applicant
		Respondents in Person
Date of Hearing	:	04 December 2014

R U L I N G

INTRODUCTION

1. Vinod Sharma (“Vinod”) and Som Kishore Sharma (“Som”)are both now deceased. They were brothers. Their father’s name was Ashwani Kumar Sharma (“Ashwani”). Their mother’s name was Lila Wati Sharma (“Lila”).Ashwani had predeceased both sons and his wife, Lila.
2. Crown Lease No. 3991 was leased by Ashwani. Under his Last Will & Testament, Ashwanihad bestowed the lease to Lila and also to his two sons,Vinod and Som.
3. Vinod was the executor of the Ashwani-estate.At some point after his appointment as executor of the estate, Vinod would grant a mortgage over Crown Lease No. 3991 to his wife, Vivita Nacewa (“Nacewa”).At some point in time also, Nacewa would exercise her power of sale as mortgagee and sell the land to her daughter, Veena Kiran.
4. Apparently, upon becoming registered proprietor of the land, Veena would enter into a tenancy agreement with the defendants, who were then residing on the land. The defendants are the surviving spouse and children of Som.
5. When the defendants fell into arrears on their rental, VeenaKiran filed eviction proceedings under section 169 of the Land Transfer Act (Cap 131). The section 169 application was heard by the Master.
   

THE MASTER’S RULING

6. The Master had made the following findings:-
   
   • (i) that Veena Kiran Sharma was the last registered proprietor of the property having gained ownership through a mortgagee sale in October 2011.
   • (ii) the defendants were residing on the property at the time of the mortgagee sale.
   • (iii) the plaintiff entered into a tenancy agreement with the defendants, according to which the defendants had to pay bond of $500 and a monthly rent of $250.
   • (iv) the defendant had defaulted in their monthly payment and are in rental arrears of $2,000.
   • (v) as a result, the plaintiff served a notice to vacate on 21 February 2013.
     

7. Although the defendants/intended appellants appeared at first to deny Veena Kiran’s proprietorship, the Master observed that their counsel was not able to explain the ground, let alone adduce any evidence to challenge Kiran’s proprietorship^[1]. Counsel did concede though that the property was acquired by Veena Kiran through a mortgagee sale^[2].

8. The Master was satisfied that Veena Kiran Sharma was the last registered proprietor as evidenced by a certified true copy of Crown Lease No. 3991. The defendants were tenants and were in arrears of rent by $2,000. He thereby granted Order in Terms of the application.
9. It appears to me that at some point after the Master had handed down his ruling, the intended appellants then instructed a solicitor to file a claim in the High Court seeking inter-alia a declaration that the mortgage and the transfer were fraudulent and on that basis, they also seek a “cancellation of the transfer”.

APPLICATION NOW BEFORE ME

10. Before me is a Summonsdated 10 June 2014 seeking leave for enlargement of time to appeal and to serve appeal of the Master’s decision which was handed down on 20 May 2014. As I have said, the intended appellantsalso seekleave to adduce fresh evidence.
11. Following are the specific orders which the intended appellant seeks:
    
    • (i) that the Appellants/Applicants be given enlargement of time to appeal and serve the appeal if enlargement of time is required.
    • (ii) that execution of Order sealed the 2^nd day of June, 2014 against the A
    • (iii) that Appellants/Applicants be given leave to adduce evidence that Crown Lease No. 3991 was leased by Ashwani Kumar Sharma who bestowed it under his will to his wife, and his two sons the Respondent’s father and 1^st Appellant’s husband and 2^nd to 3^rd Appellant’s father and that the Appellants have filed High Court proceedings alleging fraud in Respondent’s father as Executor of Ashwani’s Kumar Sharma’s Estate purportedly mortgaging the Estate property to his wife who then sold it by mortgagee sale to her daughter the Respondent and that declarations are sought therein to cancel said fraudulent mortgage and transfer.

(iv) such further or other Orders as the honourable Court may determine.

(v) costs of this application be in the cause.

12. The application is supported by an affidavit of Amit Sharma sworn on 10 June 2014.

FRESH EVIDENCE SOUGHT TO BE ADDUCED

13. As stated above, the intended appellant wishes to adduce evidence on appeal to establish that both the mortgage and the transfer were carried out fraudulently.
14. It appears that the intended appellants have already instituted proceedings in the High Court alleging fraud. The allegations are that Vinod acted fraudulently in giving a mortgage over the estate land to his wife Vivita Nacewa. It is also alleged that Nacewa then committed another act of fraud in the manner in which she had sold the land to her daughter, purportedly under a mortgagee sale.
15. In their pending claim, the intended appellants are seekinginter aliaa declaration that the mortgage and the transfer were fraudulent and on that basis, they are seeking a cancellation of the transfer.

OBSERVATIONS

16. Undoubtedly, the very evidence of fraud which the intended appellants are seeking to adduce in this application will also be crucial in their pending writ action against VeenaKiran.
17. There are two allegations involved here:
    
    • (i) the first is the allegation that the mortgage given by Vinod to his spouse, Vivita Nacewa, was a fraudulent mortgage designed to defeat the interests of the intended appellants as beneficiaries in the estate of Ashwani.
    • (ii) the second is the allegation that the mortgagee sale by Vivita to her daughter Veena Kiran was exercised fraudulently.
      
18. The intended appellants are not challenging the finding that they ever entered into a tenancy agreement with Veena Kiran. One wonders why they would enter into that tenancy agreement if they would also challenge her proprietorship.
19. The question I ask is whether or not the pendency of the intended appellant’s civil claim is enough to sustain a right to possession for the time being in the defendants.
20. The Fiji Court of Appeal inDinesh Jamnadas Lalji and Anor v Honson LimitedF.C.A. Civ. App. 22/85as perMishra J.A. said:
    

“At the hearing, the appellants’ main submission was that, as proceedings relating to the same matter were already before the Supreme Court, the application should be dismissed. The learned Judge, quite correctly in our view, held that existence of such proceedings was, by itself, not a cause sufficient to resist an application under section 169 of the Land Transfer Act.&;8221; (emphasis added).

21. Al Muthusami s/o Ram Swamy v Nausori Town Council (Civ. App. No. 23/86 F.C.A.) /b>) Mishra J.A. expressed the same view as above in the following words:
    

“.....that mere institution of proceedings by Writ did not by itself shut out a claim under section 169 of the LandTransferAct in a r case. It was for the appe appellant to show, on affidavit evidence, some right to remain in possession which would make the granting of an order under section 169 procedure improper.”

Although the defendant has alleged fraud, and which is also the subject matter of the said action instituted by the defendant, there are no complicated questions of fact to be iigated. The procedure uure under s 169 is most appropriate hOn thin this aspect in Ram Narayan s/o Durga Prasad v Moti Ram s/o Ram Charan (Civ. App. No. 16/83 FCA) Gould J.P. said:

“... the summary procedure has been provided in the LandTransferAct and, where the issues involved are straight forward, and particularly where there are no complicated issues of fact, a litigant is entitled to have his application decided in that way.”

(my emphasis)

22. Clearly, from these authorities, the pendency of related Writ proceedings is not – by itself – sufficient to shut out a section 169 claim.
23. The factors which a Court must take into account in considering whether or not to grant leave to appeal out of tre were set out by the Hono Honourable Chief Justice in McCaig v Manu [2012] FJSC 18; CBV0002.2012 (27 August 2012) as follows:
    
    • (i) the reason for the failure to file within time&#/l0;<
    • (ii) the length of elay.
    • (iii) whether there is a ground of justg thellate court's co's consideration.
    • (iv) where thes beestantial delay, nonetheless is there a ground of appeal that wiobably ably succesuccesucceed?
    • (v) if time iarged, will the RespoRespondent be unfairly prejudiced?
      >
24. Guided by the above, I am of iew the same reasoningoning in Dinesh Jamnadas Lalji and Anor (supra) and Muthusami(supra)is/are ground enough to reject the intended appellants’ application for leave to appeal out of time. In saying this, I am particularly influenced by the fact that they already have a civil action on foot in which the allegation of fraud will be tried out. Having said that, I think the allegation of fraud will better tried out in that pending civil action than it can ever be before a court sitting as an appellate one. Fraud, after all, is a triable issue.
25. I am also influenced by the fact that the allegations of fraud are against those persons, one of whom is deceased, who were not parties in the section 169 matter.
26. On the same token, the intended appellants will suffer absolutely no prejudice if I decline both applications for leave to appeal out of time and for leave to adduce further evidence because, as I have said above, the same evidence will take centre stage in the trial of the pending civil action. Furthermore, there is nothing in the decision of the Master that can possibly estopp the intended appellants from pursuing any aspect of their civil claim.
    

CONCLUSION

27. Application dismissed. Costs to the Respondent, VeenaKiran, which I summarily assess at $1,000 (one thousand dollars only).
    

.............................

Anare Tuilevuka

JUDGE

Lautoka

28 June 2016

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^[1]The Master had noted as follows in his ruling:

4. The defendants appear to deny the plaintiff's proprietorship of the property. Mr. Vula counsel for the defendants submitted there had been some unusual transactions taken place according to endorsement sheet. However, he was unable to explain what the unusual transactions were. At hearing, I for the purpose of clarification asked Mr. Vula whether he is really denying the plaintiff's ownership in the property. He was evasive and could not give a straightforward answer to my question.

^[2]TheMaster had observed:

5.The defendants had entered into a tenancy agreement with the plaintiff. All material averments in the plaintiff's affidavit in support are denied by the defendants. It will be noted that mere denials are not sufficient to rebut the assertion taken in the affidavit in support. However, the defendants admit that the property was later transferred by Mortgagee Sale Veena Kiran Sharma (the plaintiff) on 22 March 2012 under TMS No. 756800 (vide para 5 (e) of the defendants' affidavit in response).