Kutti v Ibrahim [2020] FJHC 914; HBC118.2019 (6 November 2020)

IN THE HIGH COURT OF FIJI
IN THE WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

Civil Action No. HBC 118 of 2019

BETWEEN : AFROZ KUTTI of 3-19 Landscape Road, Papatoetoe, Auckland, the

administrator of the estate of IYOOB aka IYOOB KUTTI aka AYUB KUTTI of Lomolomo, Lautoka.

PLAINTIFF

A N D : IBRAHIM of Lomolomo, Lautoka as Trustee of the estate of ABRAN

aka AVARAN aka AVRAN.

DEFENDANT

Appearances : (Ms) Arthi Swamy for the plaintiff
Mr Zoyab Mohammed for the defendant

Hearing : Monday, 31^st August, 2020 at 9.00 am.

Decision : Friday, 06^th November, 2020 at 9.00 am.

D E C I S I O N

[A] INTRODUCTION

(01) The matter before me stems from an application filed by the plaintiff seeking the grant of the following orders;

(a) THAT the defendant execute all papers, notes, plans and memorandums to transfer the plaintiff’s interest in the Estate of Abran aka Avaran aka Avran pursuant to the last Will and Testament of the deceased and grant of Letters of Administration De Bonis Non with Will No. 55676 comprised in State Lease No. 21490 being known as Lot 3 on ND 5028 part of Lomaloma, Kubunasarava and Togoloa Tiri.

(b) THAT the defendant takes all action that is required to transfer State Lease No. 21490 being known as Lot 3 on ND 5028 part of Lomaloma, Kubunasarava and Togoloa Tiri unto the plaintiff.

(c) In the event the Defendant fails or refuses to execute any or all papers for the transfer to transfer Lease No. 21490 being known as Lot 3 on ND 5028 part of Lomaloma, Kubunasarava and Togoloa Tiri unto the plaintiff, the Deputy Registrar of the High Court be permitted to execute such papers in place of the defendant.

(d) Costs on client solicitor indemnity basis.

(e) Any further or other order as this Honourable Court may deem fit, in the circumstances.

On the following grounds;

(1) THAT the plaintiff is the administrator and the beneficiary in the Estate of Iyoob

aka Iyoob Kutti aka Ayub Kutti by virtue of Letters of Administration No. 61652 granted by the High Court of Fiji on the 27^th of February, 2018.

(2) THAT the defendant is the Trustee in the Estate of Abran aka Avaran aka Avran. The late Abran was the father of Iyoob aka Iyoob aka Iyoob Kutti aka Ayub Kutti and my grandfather.

(3) THAT the Estate of Iyoob aka Iyoob Kutti aka Ayub Kutti is entitled to one undivided fifth share in the Estate of Abran aka Avaran aka Avran as per the last Will and testament of Abran dated the 6^th of January, 1970.

(4) THAT Estate of Abran aka Avaran aka Avran predominantly comprises of land comprised in State Lease No. 21490 being known as Lot 3 on ND 5028 part of Lomaloma, Kubunasarava and Togoloa Tiri (formerly CT’s 10661, 742 (hereinafter referred as the “said property”).

(5) THAT the Estate of Abran aka Avaran aka Avran has not been distributed till to-date even though the grant in the Estate was issued on the 14^th of September, 2017.

(6) THAT the defendant as the Trustee in the Estate of Abran aka Avaran aka Avran is obliged to distribute the said property however the defendant has refused to do the same.

(7) THAT the defendant is bound to distribute the Estate of Abran aka Avaran aka Avran pursuant to the Letters of Administration in Estate of Abran aka Avaran aka Avran and also in terms of his last Will and Testament of Abran dated the 6^th of January, 1970.

(8) THAT the original application for consent to a transfer and transfer documents duly executed by plaintiff were forwarded to the defendant’s Solicitors for execution by the defendant.
(9) THAT the defendant has failed to execute the same and has not responded to the

letters issued by the Solicitors of defendant.

(10) THAT in breach of his duty the defendant has refused to transfer the plaintiff’s entitlement to the plaintiff as required.

(02) The application was made by “Originating Summons” dated 13^th May, 2019 and supported by an affidavit sworn by the plaintiff on the 9^th May, 2019.

(03) The application was opposed. An affidavit in Opposition sworn on 11-06-2019 by one “Abdul Karim” (the son of the defendant), by virtue of the powers vested in him under the purported Power of Attorney No. 57797, registered on 30-08-2016 was filed. The plaintiff filed an affidavit in reply sworn on 04-07-2019.

[B] The preliminary objection

(04) At the commencement of the hearing before the court, Counsel for the plaintiff raised a preliminary objection to the affidavit of Abdul Karim, the son of the defendant, sworn on 11-06-2019.

(05) Counsel for the plaintiff submitted that;

(A) The deponent ‘Abdul Karim’ has no authority to depose an affidavit on behalf of the defendant Ibrahim, the Trustee of the Estate of Abran aka Avaran aka Avran.

(B) Under the Power of Attorney No. 57797, the deponent could not depose an affidavit on behalf of the defendant, ‘Ibrahim’ the Trustee of the estate of ‘Abran aka Avaran aka Avran’.

(C) The affidavit in opposition sworn by Abdul Karim is in breach of Section 50(5) of the Trustees Act, Cap 60.

(06) In the written ruling dated 18.09.2020, this court upheld the preliminary objections. The court held that the affidavit in opposition sworn by Abdul Karim is in breach of Section 50 (5) of the Trustees Act, Cap 60.

(07) The affidavit in opposition filed by Abdul Karim sworn on 11.06.2019 was accordingly expunged from the court record on 18.09.2020. Therefore, there is no opposition to the application filed by the plaintiff.

(C) The affidavit in support

(08) Let me turn to the plaintiff’s affidavit in support. The plaintiff deposed;

3. THAT I am the administrator and the beneficiary in the estate of Iyoob aka Iyoob Kutti aka Ayub Kutti by virtue of Letters of Administration No. 61652 granted by the High Court of Fiji on the 27^th of February 2018. I annex hereto and mark, as Exhibit “A” is a copy of the grant of Letters of Administration No. 61652 in the Estate of Iyoob aka Iyoob Kutti aka Ayub Kutti.
   
4. THAT the Defendant is the Trustee in the Estate of Abran aka Avaran aka Avran. The late Abran was the father of Iyoob aka Iyoob Kutti aka Ayub Kutti and my grandfather. I annex hereto and mark, as Exhibit “B” is a copy of the grant of Letters of Administration De Bonis Non with Will No. 55676 issued in favor of the Defendant.
   
5. THAT the Estate of Iyoob aka Iyoob Kutti aka Ayub Kutti is entitled to one undivided fifth share in the Estate of Abrain aka Avaran aka Avaran as per the last will and testament of Abran dated the 6^th of January 1970.
   
6. THAT Estate of Abran aka Avran aka Avran predominantly comprises of land comprised in State Lease No. 21490 being known as lot 3 on ND 5028 part of Lomaloma, Kubunasarava and Togoloa Tiri formerly CT’s 10661, 7421 (hereinafter referred as the “said property”). (Annexed herein marked Exhibit “C” is a copy of the Crown Lease No. 21490.)
   
7. THAT the Estate of Abran aka Avaran aka Avran has not been distributed till to-date even though the grant in the Estate was issued on the 14^th of September 2017.
   
8. THAT I have been advised and I believe that the Defendant as the Trustee in the Estate of Abran aka Avaran aka Avran is obliged to distribute the said property however the defendant has refused to do then same.
   
9. THAT I am informed by my solicitors and believe that the Defendant ought to distribute the Estate of Abran aka Avaran aka Avran pursuant to the Letters of Administration in my grandfather’s Estate and also in terms of his last will and testament of Abran dated the 6^th of January 1970.
   
10. THAT I did instruct my solicitors to write to Ibrahim of Lomolomo, Lautoka who is a Trustee in the Estate of Abran aka Avran aka Avran to transfer equal shares to the beneficiaries according to the last will and testament of Abran dated the 6^th of January 1970. I annex hereto and mark, as Exhibit “D” is a copy of the letter dated 31^st July 2018.
    
11. THAT my solicitors received a letter from the Defendant’s solicitors confirming that he is willing to transfer equal shares to the beneficiaries of the Estate. I annex hereto and mark, as Exhibit “E” is a copy of the letter dated 10^th September 2018.
    
12. THAT my solicitors forwarded the Defendant’s solicitor with a copy of Letters of Administration in the Estate of Iyoob aka Iyoob Kutti which was requested by them. A copy of this letter dated 25^th September 2018 is annexed hereto and marked as Exhibit “F”.
    
13. THAT the original application for consent to a transfer and transfer documents duly executed by me were forwarded to the Defendant’s solicitors for execution by the Defendant. (I annex hereto and mark, as Exhibit “G” is a copy of the letter dated 16^th October 2018 together with copies of Application for Consent to a transfer and transfer documents).
    
14. THAT the Defendant has failed to execute the same and has not responded to the letters issued by my Solicitors.
    
15. THAT my Solicitors wrote a notice to the Defendant Solicitor and that till to date, we have not received the executed Application for Consent to a Transfer and Transfer Documents. (I annex hereto and mark, as Exhibit “H” is a copy of Notice dated 27^th February 2019).
    
16. THAT I have been advised by my Solicitors and I believe that there is no defence by the Defendant to the claim filed by me in this action, as the Defendant is obliged by the laws of Fiji to attend to the distribution of the said property to his earliest which he has failed to do till to date.
    

(D) Distribution of Estate

(09) Section 38 of the Succession, Probate and Administration Act Cap 60, empowers a devisee to apply to court for an order requiring the executor or an administrator to distribute the estate. Section 38 is in these terms;

Devisee or legatee may apply to court in certain cues

38. Subject to the provisions of section 37, if an executor who has obtained probate, or an administrator with the will annexed, after request in writing neglects or refuses to –

(a) execute a transfer of land devised to a devisee; or
(b) transfer, pay or deliver to the person entitled any bequest, legacy or residuary bequest,

Such devisee or person may apply for an order upon such executor or administrator to comply with such request, and the court may make such order as it thinks fit.

(10) The plaintiff is the administrator of the estate of late Iyoob aka Iyoob Kutti aka Ayub Kutti who was a beneficiary of the estate of Abran aka Avran aka Avran as per the last will and testament of Abran dated 06.01.1970 (exhibit B). The real property in the estate is land comprised in State Lease No. 21490 (Exhibit C). There are five equal share beneficiaries to the said land. One such beneficiary was Iyoob Kutti.

(11) There is unchallenged evidence that the defendant who is the executor and trustee of the estate of Abran has neglected or refused to distribute the estate to the beneficiaries.

(E) ORDERS

(01) It is ordered that as provided under the will and the testament of Abaran (the deceased), dated 06.01.1970, the defendant, Ibrahim as executor and the trustee in the estate of Abaran, do execute a document of transfer transferring to the plaintiff, Iyoob’s ¹∕5 interest in the estate of Abaran, i.e, State Lease No. 21490.

(02) Costs of this action to be paid from the estate.

.........................
Jude Nanayakkara
[Judge]

High Court - Lautoka
Friday, 6^th November, 2020