Devi v Prakash [2022] FJHC 143; HBC125.2016 (23 March 2022)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

Civil Action No. 125 of 2016

IN THE MATTER of an application by TARA DEVI as administrtarix in the Estate of NARENDRA PRAKASH late of Suva, Executive Officer, deceased, Intestate

AND

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

______________________________________

BETWEEN: TARA DEVI also known as TARA DEVI PRAKASH of Rakiraki in the Republic of Fiji, Domestic Duties as Administrtarix in the Estate of NARENDRA PRAKASH late of Suva, Executive Officer, deceased, Intestate.

PLAINTIFF

AND: ALLAN RAJENDRA PRAKASH and ROHITENDRA PRAKASH of 10a Brinkburn Street South Hill Omaru 9400 New Zealand and Unit 9 14 Rondell Avenue, Footscray West Melbourne Australia, respectively as Administrators and Trustees in the Estate of GHURHU PRASAD also known as GHURAHU PRASAD late of Suva, Businessman, deceased, Testate

DEFENDANTS
Counsel : Plaintiff: Mr S. Fatiaki
: Defendants: Mr J. Savou
Date of Hearing : 17.2.2022
Date of Judgment : 23.3.2022

INTRODUCTION

1. Plaintiff filed originating summons in terms of Section 119 of Property Law Act 1971 sale of a commercial premises(The Property) belonging to an estate of late Ghurhu Prasad. Plaintiff is administratix of her late husband, who was executor of the estate of late Ghurhu Prasad. He was also one sixth undivided share holder of the Property. Plaintiff is seeking an order to compel Administrators or trustees to estate of late Ghurhu Prasad to buy out her husband’s share of the Property. According to last will of late Ghurhu Prasad, the Property ‘be retained within the family for the sake of posterity’. In the said last will Plaintiff’s late husband was bequeathed one sixth undivided share of the Property along with apartments 3 and 13 absolutely. So the rental from these two flats are being collected by Plaintiff and previously collected by her late husband. Plaintiff seeks to compel Defendants to purchase her husband’s share, as Administrators of estate or sell the Property. Administrators stated that they along with Plaintiff had previously explored sale of the Property but had to abandoned it due to not sufficient funds being recovered from sale for distribution due of tax obligations from such sale and other disbursements. This fact was not denied by Plaintiff, hence a sale is not ordered as Plaintiff could not prove that there are sufficient funds for distribution after deductions for tax obligations.

FACTS AND ANALYSIS

2. This is an application by way of originating summons seeking following orders;
   
   1. “An Order restraining the Defendants by themselves and/or their servants and/or agents and/or howsoever from and/or in any manner or form howsoever from interfering, demanding rent and evicting the Plaintiff's tenants that are in occupation of flats 3 and 13 situated at 12 High Street on Certificate of Title No. 6336 being Lot 2 on Deposited Plan No. 854;
      
   2. An Order that the Defendants as Administrators and Trustees in the Estate of Ghurhu Prasad buy-out the Plaintiff's one-sixth share in Certificate of Title No. 6336 being Lot 2 on Deposited Plan No. 854 at the current market value;
      
   3. Alternatively an Order that all that land and building comprised in Certificate of Title No. 6336 being Lot 2 on Deposited Plan No. 854 be sold by tender and;
      • (i) That the advertisement and sale of the said property comprised in Certificate of Title No. 6336 and the tender process be conducted by Solicitors, Messrs. Sherani & Co of Suva;
      • (ii) The Deputy Registrar of the High Court of Fiji at Suva do execute all instruments of Transfer and all other necessary documents pertaining to the sale of the said property comprised in Certificate of Title No. 6336;
      • (iii) Costs of this application and the legal costs on the sale of the said property be paid out of^-the sale proceeds and the balance sale proceeds be divided equally between the beneficiaries in the Estate of Ghurhu Prasad.”
        
3. Most of the relevant facts of this originating summons are not disputed.
   
4. Plaintiff is widow and administrtrix of the Estate of her late husband Narendra Prakash who expired on 5.2.1999.
   
5. Late Narendra Prakash was a beneficiary to one –sixth share of his father’s estate. His late father’s estate included a property comprised in CT 6336 (the Property)
6. In the last will of Late Narendra Prakash’s father, stated inter alia,

‘I devise and give to my following children my Certificate of Title No 6336 together with the three-strey apartment building erected thereon as follows:

(a) (i) Rajendra Prakash of Canada, Researcher one sixth (1/6) share in C.T 6336 together with apartment number 1 and 11 absolutely.

(ii) Arun Prakash of 12 High Street, Toorak, Suva, Account one sixth share in CT 6336 together with apartment numbers 2 and 12 absolutely.

(iii) Naredra Prakash of Fiji Sugar Corporation, Latotka, Executive Officer one –sixth (1/6) share in C.T. 6336 together with apartment numbers 3 and 13 absolutely.

(iv) Rohitendra Prakash of 12 High Street, Toorak Suva, Student one-sixth (1/6) share in CT 6336 together with apartment nibers 6 and 7 absolutely.......

(b) I direct that

(i) The income from the two bulk sore-rooms and five single rooms in the basement from the property on CT 6336 to my Trustee upon trust as follows:

(1) to pay rates and taxes levied on the property.

(2) maintenance and upkeep of the exterior and common areas of the apartment building and its surroundings.

(ii) Any surplus from the income derived under clause 5(b) (i) of this my will to be divided equally among my said six children.

(iii) Each of my six children named under clause 5(a) of this my will shall be solely liable for the maintence and upkeep of their respective apartments except for the repairs of a structural or the like nature.

(c) I direct that the income derived from the already rented apartments on CT 6336 be vested into the names for the six respective beneficiaries from the 1^st day of the month following my death.

7. Further in the said last will stated

“It is my wish that my property on CT6336 be retained within the family for the sake of posterity.”

8. So while bequeathing this property testator of last will did not wish the Property to be sold in public auction. This position was accepted by all beneficiaries including Plaintiff’s late husband.
   
9. Said Narendar Prakash, obtained the probate and acted as executor of last will, till he died and presently Defendants are administrators of the estate of late Ghurhu Prasad.
   
10. Late Narendra Prasad, who was the husband of Plaintiff, had not taken any step to sell this property and distribute proceeds. This was done in terms of the last will, as testator desired the Property to be within family.
    
11. Late Ghuru Prasad died on 06.01.1982 and nearly four decades have passed since then and the Property still remains part of estate of late Ghurhu Prasad.
    
12. Defendants are presently the trustees and administrators, of the Property after the death of executor named in the last will in 1999. The executive appointed in the last will was husband of Plaintiff and he was the executor of last will for more than fifteen years and there is no evidence of any beneficiary seeking sale of the Property or their respective shares, during that time period.
    
13. After death of Plaintiff’s husband in 1999, Plaintiff is seeking to sell her late husband’s share of property. It is not clear as to when Plaintiff first informed her intention to sell the share of her late husband.
    
14. The written correspondence regarding this are recent.
    
15. It is clear from this originating summons, she wants to sell that and she had given reasons for sale. These reasons are valid reasons. Since they are financial reasons these facts are undisputed.
    
16. Plaintiff had also obtained a valuation of the Property for this action.
    
17. According to last will of late Ghuru Prasad, wished that the Property should remain within the family. This was late Ghuru Prasad’s wish in last will. This does not mean that property cannot be sold outside the family. It only indicate that all reasonable efforts should be taken to keep the Property within the family, as it was the wish of the testator.
    
18. A testor’s wish should always be honoured but it cannot lead to stalemate situation or absurd outcome, or waste of the Property.
    
19. According to Plaintiff, she had asked present Administrators of the estate of late Ghuru Prasad to purchase her share. These requests were through phone conversations.
    
20. According to affidavit in opposition Defendants state the Property remained part of the estate of late Ghuru Prasad due to;
    
    1. Undivided shares of beneficiaries were not transferred to respective beneficiaries due to pragmatic issues as they live abroad and this was a mutual agreement of all beneficiaries.
    2. Late Narendra Prakash had not paid rates for the Property from the rental proceeds in terms of last will, when he died. There was not even transmission by death not registered till 2007.
       
    100. Plaintiff had collected rentals from properties other than apartment 3 and 13 and these monies were not returned to the estate of late Ghurhu Prasad’s estate.
         
21. Plaintiff in affidavit in reply stated that she had collected rentals worth $2,850 and she should return the same immediately as there was no need of court order to do so. No such orders were sought in originating summons and this is an afterthought.
    
22. There was no authorization to spend that money by the administrators of the property so it should be returned in full. Plaintiff alleges that she had spent money to obtain valuation of the Property for this action, money belonging to the estate cannot be done unless authorized by Administrators.
    
23. There was no authorization for such thing as this money belongs to estate. As this action was filed nearly one year after collection of rentals for months of August, September, October, 2020 money should have returned to the Administrators even before this action was instituted.
    
24. Plaintiff had not only used money belonging to estate without any authority of Administrators but also instituted this action in June, 2021 and now seeks court order to return the money collected from the Property which she collected with authority from Administrators pursuant to an email of 29.7.2020 which specifically authorized her only to collect July and August 2020 rentals from the flats that were ‘listed’.
    
25. There was no need to make any order of the court as this money belongs to estate and it should be returned to estate forthwith, by Plaintiff.
    
26. Defendants in the affidavit in opposition had stated sale of the Property will not benefit beneficiaries, as payment of Taxes etc will leave them very little to share among themselves.
    
27. It further stated this attempt to sale was done with the concurrence of Plaintiff and she was aware of the unviability of such an endeavour.
    
28. Plaintiff had not replied to this issue and ignored it. This is a main issue before I order a sale and Plaintiff should have replied it fully with tax liabilities etc on such a sale and what will be left for estate for distribution. Without such facts it is not possible to order a sale of the Property at this time. The court needs to consider benefit to all beneficiaries from a sale.
    
29. In Thomas v Estate of Eliza Miller [1996] FJHC 203; [1996] 42 FLR 268 (12 December 1996) held,

“I agree with Mr. Gago's submission that in s. 119(1), (2) and (3) provision is made for three separate kinds of action which can be maintained in relation to any property. I reject the defendants' contention that land can only be sold on a court order if there is "an action for partition and not otherwise", and therefore that an application under s. 119(2) must be based on an "action for partition".

In England under the old law the Court had no power to decree sale instead of partition until the Partition Act, 1868 when the court was given power to order a sale. The views of the holders of the greater share prevailed, unless the minority could prove to the Court that their view was the most beneficial. Rules were laid down for the guidance of the Court which are similar to the provisions under our section 119(1), (2) & (3). In all these cases the Court had a discretion.

Where a large estate had to be divided among a few people, the expense was not heavy; but many cases have occurred where a small estate has been given (generally by Will), as in the case before me, to a very large number of persons, some of whom cannot be found, and in these cases the expenses were out of all proportion to the value of the estate. This produced numerous inconveniences and absurdities such as for example a house which was partitioned by actually building a wall up the middle (Turner v Morgan [1803] EngR 490; (1803) 8 Ves 143, Lord Eldon LC). This led to the passing of the Partition Act 1868 (31 & 32 Vict. C. 40) and the Partition Act 1876 under which the Court was given jurisdiction to order a sale of the property and distribution of the proceeds in lieu of making an order for partition. But since the Law of Property Act, 1925 the necessity for sale by the Court no longer exists in England, since, whenever several persons share land beneficially, it is now vested in trustees on trust for sale. Hence the Partition Acts no longer enable the Court to order a sale in a partition action but an action for partition can apparently still be brought, if occasion arises.

This is not a partition action. The subject matter of this application is not based on 119(1) which requires the court to direct a sale of the land and a distribution of the proceeds but there the applicant's interest has to be "one moiety" before that can be done. A "moiety" is defined in Atu (supra) to mean "a half". Therefore no action for partition of land and subsequent sale can be brought by an applicant where interest in the property is below one-half of the total interests in land. Such is the case here.

Here the Plaintiff is neither applying for a partition nor a distribution of the proceeds. The word "partition" is described in Halsbury 1st Ed. Vol 21 at p. 810 as:

"The legal term 'partition' is applied to the division of land tenements and hereditaments belonging to co-owners and the allotment among them of the parts so as to put an end to community of ownership between some or all of them."

It is further stated in Halsbury that "the co-owners may be joint tenants, tenants in common or co-partners".

The application here is under s. 119(2) under which sale of land under the direction of the court may be ordered if such sale is considered by the court to be "for the benefit of the parties interested" for the said section 119(2) clearly specifies the circumstances under which the Court could make an Order for sale notwithstanding the dissent or disability of any other party provided that "the sale would be for the benefit of the parties concerned". In the definition of "land" is included "all estate and interests in land" (section 2 of the Act).

In any consideration of the issue in this case the court acts on evidence and decisions will have to be reached on the basis of the evidence. On the affidavit evidence the Plaintiff has proved and satisfied the Court that s. 119(2) is available to her.

In coming to this conclusion I have been persuaded by the observations made by Brooke J.A. in his judgment in Re Dibattista et al. and Menecola et al. (Ontario Court of Appeal 74 D.L.R. (4th) p. 569). There he refers to Cook v. Johnston (1970) 2 O.R. 1 (H.C.J.) where Grant J considered the question of when and in what circumstances the court may order a sale. I quote below what Grant J said in his judgment at pp. 1-2:

"In Morris v. Morris (1917) 12 O.W.N. 80 Middleton, J., in dealing with a similar matter stated at p. 81: "Sale as an alternative for partition is quite appropriate when a partition cannot be made."

In Gilbert v. Smith [1879] UKLawRpCh 35; (1879) 11 Ch.D. 78, Jessel, M.R., at p. 81 stated:

"The meaning of the Legislature was that when you see that the property is of such a character that it cannot be reasonably partitioned, then you are to take it as more beneficial to sell it and divide the money amongst the parties."

In Lalor v. Lalor (1883), 9 P.R. (Ont.) 455, Proudfoot. J., who was deciding whether partition or sale should be ordered, stated:

"I do not think any party has a right to insist on a sale; and it will not necessarily be ordered, unless the Court thinks it more advantageous for the parties interested."

In Ontario Power Co. v. Whattler (1904) 7 O.L.R. 198, Meredith C.J. reviewed the legislation in the Province giving jurisdiction to the Court to order a sale instead of partition. In reference to the form of such remedies then adopted by the Consolidated Rules, he stated at p. 203: “(emphasis added)”.

30. Plaintiff had not shown that sale of the Property at this moment will benefit the estate due to payment of taxes and other expenses. Plaintiff is also getting an income from the Property and the wish of the testator of last will was to keep the Property within the family.
    
31. Plaintiff also seeking an order to compel Administrators and Trustees to buy her share. For this plaintiff relied on Section 119(3) of Property Law Act 1971. This cannot be done in terms of the said provision it only allows other parties to buy the shares of property not the Estate to buy out shares from beneficiaries.
    
32. Section 119(3) of Property Law Act 1971 states,

“(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.”

33. The above provision can only direct other ‘parties interested’ to purchase if the court is ordering a sale as a pre requisite. In my mind this cannot compel Administrators to purchase the share of estate.
    
34. So the orders sought in originating summons under (3) are refused.

CONCLUSION

35. Plaintiff can collect rentals from Apartment 3 and 13 without any hindrance from Defendants. Request for sale of property is refused as Plaintiff had not shown benefit to all beneficiaries after payment of tax obligations and disbursements etc. The request to compel the administrators to purchase Plaintiff’s late husband’s share in the Property is refused. Considering circumstances of this case no cost orders.

FINAL ORDERS

1. Defendants are restricted by themselves and/or their servants and/or agents and/or howsoever from and/or in any manner or form howsoever from interfering, demanding rent and evicting the Plaintiff's tenants that are in occupation of flats 3 and 13 situated at 12 High Street on Certificate of Title No. 6336 being Lot 2 on Deposited Plan No.
2. Plaintiff’s request for sale of the Property is refused.

100. No order as to costs.
     

Dated at Suva this 23^rd day of March, 2022.

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

Justice Deepthi Amaratunga

High Court, Suva