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Khanum v Kumar [2022] FJHC 108; HBC405.2019 (4 March 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No. HBC 405 of 2019

IN THE MATTER of the Property Law Act [Cap 130], Section 119

AND

IN THE MATTER of an application for sale and transfer of the property comprised in Crown Lease No. 3652


BETWEEN:


PRAMINA YASHMIN KHANUM
PLAINTIFF


AND:


AJYANT KUMAR

DEFENDANT


BEFORE:
M. Javed Mansoor, J


COUNSEL:
Ms. S. Kant for the plaintiff
Mr. D. Kumar for the defendant
DATE OF HEARING:
17 February 2022


DATE OF JUDGMENT:
4 March 2022


JUDGMENT


PROPERTY LAW Sale of property – Whether circumstances apt to order sale – Section 119 (2) & (3) Property Law Act 1971


The following decisions are referred to in this judgment:


  1. Sokimi Atu v Emily Atu [1983] FJLawRp 3; [1983] 29 FLR 100 (25 January 1983).
  2. Thomas v Estate of Eliza Miller [1996] FJHC 168; HBC 0136j.94s (12 December 1996)
  1. Kumar v Kumar [2021] FJHC 50; HBC 398.2019 (28 January 2021)
  1. By originating summons filed on 26 November 2019, the plaintiff sought orders for the property comprised in crown lease No. 3652 and described as lot 7 section 30 on plan number R. 1767 to be sold to the highest tenderer, and for the proceeds of sale to be shared equally between the parties in accordance with section 119 (2) & (3) of the Property Law Act 1971.
  2. The property was jointly purchased by the plaintiff’s husband, Virendra, and his brother, the defendant. Their names were registered with the registrar of titles on 6 March 1987. The two brothers owned undivided half shares.
  3. Virendra died on 17 January 2012. The plaintiff acquired co-ownership to the property through the last will and testament of her husband. The instrument was executed on 28 July 2008. The plaintiff and the defendant are the registered proprietors of the subject property which is 28 perches in extent. There is no dispute regarding ownership.
  4. The plaintiff says that due to conflicts with the defendant she no longer wishes to reside on the property, and asks the court to direct a sale of the property.
  5. The defendant opposes the application saying inter alia that he has no other place to relocate if the property is sold. He says at his age he is unable to obtain a mortgage facility to purchase another house.
  6. The plaintiff’s application is in terms of section 119 (2) & (3) of the Property Law Act 1971 (Act).
  7. Section 119 (1), (2) & (3) of the Act states:

“(1) Where in an action for partition the party or parties interested, 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 the parties interested or presumptively interested therein, or of the absence or disability of any of those parties, or of any circumstances, a sale of the land would be for the benefit of the parties interested.


(3) The court may also, if 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”.


  1. In Thomas v Estate of Eliza Miller[1], the High Court of Fiji agreed with the submission that section 119 (1), (2) and (3) contemplated separate types of action.
  2. Section 119 (1) of the Act concerns court orders for sale in an action for partition. The plaintiff did not make an application for partition. The defendant opposed partition of the property.
  3. The court is vested with the discretion to order the sale of a property, if it thinks fit, on the request of any party interested notwithstanding the dissent of any other party in the situations contemplated in section 119 (2) of the Act. Under section 119 (3), the court’s broad discretion to order a sale of the property is affected only if another party undertakes to purchase the share of the party requesting a sale.
  4. As with any matter on which court is called upon to exercise discretion, each case must rest on its own facts. The decision as to whether or not court should exercise its discretion must be made judicially. In making that decision, an overall consideration of the evidence is necessary. Court must have regard to all the circumstances of the case. In applications such as this, the evidence is by way of affidavits.
  5. As registered proprietors, the parties in this case have an interest in the property. Neither party is prevented from purchasing the share of the other party. Section 119 (3) makes provision where a party undertakes to purchase the share of an interested person. In this case, the parties have not shown an interest in purchasing the share of the other.
  6. Joint ownership of property leaves open the possibility that one or several owners may wish to put an end to co-ownership. There is nothing unusual in that. If a sale is ordered, both parties would have to forego their joint rights. A party or the parties may suffer some hardship as a result of ending their joint ownership. Hardship is what the defendant claims will visit him and his wife if the plaintiff is granted the reliefs prayed for in the originating summons.
  7. In Kumar v Kumar[2], Amaratunga J said that when parties have equal interests in the property, one party cannot deprive the benefits of the other party through a sale without sufficient and cogent reasons. What I understand from this is that the court will not unreasonably exercise its discretion under section 119 of the Act.
  8. The plaintiff’s reasons for seeking orders for sale of the property are stated in her affidavit.
  9. The plaintiff averred that her solicitors sent the defendant a letter dated 30 April 2019 stating that the plaintiff wished to sell her share of the property, and requested the appointment of an independent valuer with costs to be borne equally by the parties. The defendant was requested to respond within seven days if he wished to purchase the property. Failure to do so, the letter stated, would result in court orders being sought for the sale of the property.
  10. As a result of conflicts with the defendant, the plaintiff said she obtained an interim domestic violence restraining order on 1 May 2019. She averred that she was subject to insults and humiliation by the defendant. As a result of the defendant’s conduct, the plaintiff says she cannot peacefully enjoy her property.
  11. Parties submitted that the hearing into the plaintiff’s domestic violence complaint was concluded, and the magistrate’s ruling is pending.
  12. The plaintiff stated that her solicitors again offered to sell her share to the defendant by letter dated 16 October 2019. The letter stated that the property was valued at $360,000. The defendant was put on notice that failure to respond within seven days would lead to legal action to obtain orders for the sale of the property.
  13. The plaintiff averred that the defendant did not respond to letters dated 30 April 2019 and 16 October 2019. The defendant admitted the receipt of the two letters. He explained that he did not respond to these as he did not have the funds to purchase the plaintiff’s share.
  14. The defendant declared there was an agreement between him and his brother at the time of purchase that they would not sell the property. They had purchased the land to build a house and live in it. He has been residing on the property for 26 years.
  15. He says he spent more than his brother, Virendra, in making payment for the land and in building his house. This was because he was in employment at Visama Rice Mills. He tendered a statement from the Fiji National Provident Fund confirming that he received a lump sum retirement payment of $16,442.17 on 10 March 2012. That sum, he said, was spent to renovate his house.
  16. The defendant says that the plaintiff has done nothing for the house, but has only inherited the property by way of marriage.
  17. The defendant denied that there were conflicts between him and the plaintiff. Counsel for the defendant, Mr. Kumar pointed out that the application for a domestic violence restraining order was made by the plaintiff a day after his client was sent letter dated 30 April 2019. He suggested that the application for the restraining order was made for the purpose of showing that the parties could not peacefully live together on the property sought to be sold.
  18. The plaintiff’s letter dated 30 April 2019 shows a tense relationship between the parties. The letter states that the plaintiff is an occupant of a single bedroom concrete house, while the defendant is in occupation of a four bedroom house. Under the heading, “Rental income”, the letter states: “According to our client you have been generating rental income from the said property and solely benefitting from the rental income. Our client is entitled for 50% share from the said income. Our instructions are to demand from you to provide to us the statement of account of the rental income and 50% income from which you have taken for the periods of 21 September 2017 till 30 April 2019”.

The letter was not replied by the defendant. There is no reference to the matter of rental income in the defendant’s affidavit in opposition.


  1. The court is not in a position to make findings whether or not the plaintiff’s claims of harassment by the defendant are true. Suffice to say, the evidence makes it doubtful the parties can peacefully co-exist on the property.
  2. The defendant stated that he does not have permanent employment. He says he is not in good health. He was unable to produce a medical report due to financial reasons. He said that he has only $260 in his bank account. In support of this, he tendered a statement of his joint account at the Bank of Baroda. The statement shows there were no transactions between January 2019 and 12 February 2020. The account appears not to have been operative during this period.
  3. In Sokimi Atu v Emily Atu[3], which was cited by the plaintiff, the parties – husband and wife – were living apart. The defendant in that case took the position that she has nowhere to go if the property was sold. The court said that the defendant had not advanced any good reason why an order for sale should not be made, and directed the sale of the property. That was an order made under section 119 (1) of the Act. However, the case is instructive. In that case, the defendant told court that she was unemployed. The High Court made the observation that that there was no acceptable reason for the defendant to remain unemployed.
  4. The defendant has had sufficient notice that the plaintiff intended to obtain court orders for the sale of the property if he was unwilling to purchase her share. Letters dated 30 April 2019 and 16 October 2019 make this clear. The second letter was sent several months after the application for the domestic violence restraining order was filed.
  5. Since the initial offer was made by the plaintiff to sell her share by letter dated 30 April 2019, matters appear not to have changed for the better. One party says, I cannot live with the other on the same property. The affidavits make it clear that the parties cannot resolve their disputes. An order that will allow the parties to part ways and find separate lodgings seems the most apt in the circumstances.
  6. The defendant averred in his affidavit in opposition that he was 63 years old and would soon reach 66 – the age of life expectancy in Fiji according to a World Bank report cited by the defendant – and that he wanted to live peacefully in his dying years. His counsel made submissions on the same lines. The court fails to see how a report on life expectancy can affect the interests of the parties to the land and the rights accorded to them by law. This contention is irrelevant.
  7. The evidence suggests that this is a fit case in which to exercise the court’s discretion to order a sale. An examination of previous decisions show that the courts in Fiji have not been hesitant to make orders for the sale of properties under section 119 of the Act. Orders will be made for the sale of the property under the guidelines given below subject to the consent of the director of lands.
  8. Mr. Sharma submitted that this application was bound to fail as the plaintiff had not obtained the consent of the director of lands prior to instituting this action. He did not refer the court to any provision which made it mandatory to have obtained such consent before filing this application. The sale can take place subject to the consent of the director of lands.
  9. The plaintiff has submitted a valuation report dated 28 June 2019. Although the plaintiff’s solicitors requested the appointment of an independent solicitor and for costs to be borne by both parties, there is no evidence that the defendant participated in the process. The valuation was obtained in June 2019. The property may have currently appreciated in value. The parties are free to obtain another valuation to fix the sale price.
  10. I have followed the helpful guidelines set out by Pathik J in Thomas v Estate of Eliza Miller with suitable modifications to be applicable to the sale of the property.
  11. Each party will bear own costs related to this action.

ORDER

  1. The property comprised in crown lease No. 3652 and descried as lot 7 section 30 in plan R. 1767 is to be sold to the highest tender subject to the consent of the director of lands.
  2. The parties are required to follow the directions given below:
    1. The valuation taken by the plaintiff is to be used as a base price.
    2. If the defendant desires another valuation to be taken, the solicitors of both parties must agree upon a valuer within 28 days of this judgment.
    1. The plaintiff’s solicitors must obtain the necessary approvals for sale.
    1. The property is to be advertised by the plaintiff’s solicitors in two newspapers in consultation with the defendant’s solicitors. Bids are to be opened in the presence of the respective solicitors.
    2. The parties must agree on a selling price not below the valuation.
    3. The plaintiff or the defendant may offer through their solicitors to purchase the half share of the other party.
    4. The chief registrar is to execute the conveyance if the defendant is uncooperative in transferring his share to the purchaser.
    5. The plaintiff’s solicitors must deposit settlement monies in court together with an account of sale related expenses.
    6. Sale related expenses must be agreed between the respective solicitors and be evidenced by documentation. The cost of the valuation already taken by the plaintiff is to be considered a sale related expense.
    7. Within two weeks after payment of settlement monies into court, each party shall be paid half of the settlement sum after deducting all expenses related to the sale.
  1. Parties may apply generally.

Delivered at Suva on this 4th day of March, 2022


M. Javed Mansoor
Judge


[1] [1996] FJHC 168; HBC 0136j.94s (12 December 1996)
[2] [2021] FJHC 50; HBC 398.2019 (28 January 2021)
[3] [1983] FJLawRp 3; [1983] 29 FLR 100 (25 January 1983)

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