Devi v Sharma [2022] FJHC 43; HBC343.2020 (14 February 2022)

In the High Court of Fiji
At Suva
Civil Jurisdiction

Civil Action No. HBC 343 of 2020
Sunila Devi
Plaintiff
v
Rakesh Kumar Sharma
Defendant

Counsel: Mr Shelvin Singh for the plaintiff

Mr G. O’Driscoll for the defendant
Date of hearing: 2^nd December,2021
Date of Judgment: 14^th February,2022

Judgment

1. The plaintiff, in her originating summons , seeks the following reliefs:
   1. An Order that the property comprised in Native Lease No. 22851 being Stage 4 Lot 119 as shown Lot 9 on SO. 1671 be valued and the cost of the valuation be shared equally between the Plaintiff and the Defendant.
   2. An order that the property comprised in Native Lease No. 22851 being Stage 4 Lot 119 as shown Lot 9 on SO 1671 be sold by the Plaintiff by way of tender to the highest tenderer.
   100. The tender for the sale of the property be advertised at least once in the two newspapers being published in Fiji.
   4. An Order that all sale proceeds be deposited in Court.
   5. An Order that after deduction of costs, the net proceeds of sale to be shared equally between the parties.
   6. An Order that the Defendant pay to the Plaintiff half of all rentals collected by him from the property by him from the property.
      
2. The plaintiff, in her supporting affidavit states that she is the administratrix of the estate of her late husband Mohan Kumar Sharma. Mohan Kumar Sharma owned the property in Native Lease No. 22851, Tacirua Plains Subdivision, Stage 4, Lot 119 as shown Lot 9 on SO 1671 . The defendant, her brother-in-law resided on the property with them. On 14 December, 2012, she executed a transfer of one half share to the defendant. The plaintiff states that on 26 March, 2013, the defendant improperly transferred the whole property to himself. The transfer was rectified in Civil Action no 214 of 2016. The Court declined her application for sale of the property, as she had not stated why the property could not be partitioned.
   
3. The plaintiff seeks an order that the property be sold by tender and the proceeds divided between the parties. Both parties to agree on a Valuer and the property listed with a registered real estate agent for 3 months.
   
4. On 14^th October,2021, I directed the defendant to file affidavit in opposition on 28^th October,2021, and the plaintiff, her reply on 11^th November,2021. The hearing was fixed for 2^nd December,2021, .
   
5. The defendant did not file affidavit in opposition.
   

The determination

6. This application for sale of property is made under section 119 of the Property Law Act.
   
7. At the hearing, Mr Driscoll, counsel for the defendant submitted that this application is an abuse of process and res judicata, as the matter has been decided by Seneviratne J in Sunila Devi v Rakesh Kumar Sharma and The Registrar of Titles, Civil Action no 214 of 2016.
   
8. Mr Singh, counsel for the plaintiff in reply referred to the following excerpts from the judgment in Sunila Devi v Rakesh Kumar Sharma and The Registrar of Titles:

Paragraph 11:

In this matter the plaintiff nothing is stated in the affidavit in support of the plaintiff why this property cannot be partitioned... The plaintiff cannot ask for a sale as of a right. She must first satisfy the court that there are sufficient grounds for the court to make such an order.

Paragraph 12:

In this case the extent of the land is 474 square meters and it is reasonable for the plaintiff to say that this property cannot practically be divided into two allotments. The learned counsel in his submissions mentioned that there is a house on the property and ask the court how to divide the house. I am not in a position to advice the parties on that but they must first make an effort to see whether it can be divided into two allotments. Failing which the parties can always seek an appropriate order from the court.

9. In my view, clearly the matter of sale of the property was not decided in the above case. On the contrary, Seneviratne J declined to make an order as “the plaintiff had not stated why this property cannot be partitioned”. He further stated that “they must first make an effort to see whether it can be divided into two allotments” and concluded that: “Failing which the parties can always seek an appropriate order from the court”.(emphasis added)
   
10. Section 119 of the Property Law Act titled “In action for partition court may direct land to be sold” provides that :
    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 other circumstance, 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.
    4. On directing any such sale or valuation to be made, the court may give also all necessary or proper consequential directions.(emphasis added, underlining mine)
       
11. In Thomas v Estate of Eliza Miller, [ 1996] 42 FLR 268 (12 December 1996) the defendants had not advanced any good reason as to why an order for sale of the flat should not be made. The estate was small. Pathik J citing Middleton J in Morris v Morris, (1917) 12 OWN. 80 81 said “Sale Sale as an alternative for partitionuite appropriate when a para partition cannot be made."
    
12. In the pthe present case, the defendant has not provided any reason as to why an order for sale should not be made. He has not controverted the plaintiff’s averment that the partition of the property is impossible as there is a house on the land and it would be impracticable to divide half the house and half the land.
    
13. I note that the extent of the land, as stated in the lease is 474 sq meters.
    
14. Jessel, M.R in Gilbert v. Smith, [1879] UKLawRpCh 35; (1879) 11 Ch.D. 78 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.(emphasis added)

15. Accordingly, I give directions for the sale of the properties as stated below.
16. The claim by the plaintiff for half of all rentals collected by the defendant from the property by him is unsubstantiated and is declined.
    
17. Orders
    • (i) The property in Native Lease No. 22851 being Stage 4 Lot 119 as shown Lot 9 on SO. 1671 shall be sold on a valuation to be obtained mutually. The cost of the valuation to be shared by the plaintiff and defendant or borne by the plaintiff and deducted from the sale
    • (ii) On receipt of the Valuation Report, the plaintiff or its duly authorized agent shall advertise the property for sale by written tender in two issues of a newspaper in Fiji.
    • (iii) The parties are at liberty to appoint an independent real estate agent to sell the property.
    • (iv) The tender shall be opened in the presence of the defendant. The sale shall be to the highest tenderer.
    • (v) On the tender being accepted, all necessary documents including the document of transfer shall forthwith be prepared by the plaintiff's solicitors, who shall forward same to the solicitor for the defendant for execution and hold same until the purchaser of property is in a position to settle.
    • (vi) On settlement, the plaintiffs' solicitors shall immediately pay into Court the settlement moneys and furnish an account of disbursements and all costs incurred in the sale of the property with documentary evidence of expenses incurred.
    • (vii) In the event the defendant does not co-operate with the transfer of the property, the Chief Registrar or his nominee is appointed to sign the execution of the transfer papers.
    • (viii) The claim of the plaintiff for half of rentals collected by the defendant from the property is declined.
    • (ix) Liberty to parties to apply generally regarding the sale.
    • (x) I make no order as to costs.
      

A.L.B. Brito-Mutunayagam

JUDGE

14^th February, 2022