Subhan v Subhan [2023] FJHC 143; HBC274.2021 (28 February 2023)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 274 of 2021

IN THE MATTER of an application for partition proceedings under Section 119(2) of the Property Law Act Cap 130

BETWEEN: MOHAMMED ALTAAF SUBHAN of Talasiga Street, Samabula, Manager Digital & Channel Management Support.

PLAINTIFF

AND: RAZIA MEHNAAZ SUBHAN of Talasiga Street, Samabula, Businessman.

RESPONDENT

Counsel : Plaintiff: Mr. A. Nand
: Respondent: Ms. Sharma A.

Date of Hearing : 1.11.2022
Date of Judgment : 28.2.2023

JUDGMENT

INTRODUCTION

1. Applicant (Plaintiff) instituted this action by way of originating summons on 16.12.2021 against Respondent (Defendant). Defendant did not file any affidavit in opposition. Plaintiff and Defendants are presently the co-owners to property described in CT 26694 along with its permanent fixtures on it. They are also siblings, and the land and permanent structure on that belonged to their late parents and both of them inherited the property comprised in CT 26694 in equal shares. Defendant sought long adjournments to obtain finance to purchase the remaining half of the property, belonging to Plaintiff, but this did not eventuate. Having failed to do so Defendant is opposing this application on point of law only and had filed written submissions on the issue whether Section 119(2) of Property Law Act can be resorted for a sale of a land by common tenant, without seeking partition of the same. The answer to said question is matter of interpretation Section 119 of Property Law Act 1971, which comprised two distinct actions which are mutually exclusive. They are sale of a property under co- ownership and partition of a property under co ownership. These are two distinct causes of action contained in the section 119 of Property Law Act 1971. Defendant never sought partition of their ancestral house and land.
   

ANALYSIS

2. Defendant and Plaintiff are siblings who are equal share owners of the property comprised in CT 26694 and permanent fixtures on it.(the Property).
3. Plaintiff sought an order in terms of Section 119(2) of Property Law Act 1971, for sale of the Property to end common tenancy to it and obtain value for his share.
4. Defendant did not object to the sale but wanted to purchase Plaintiff’s half share and both of them did not have an issue as to the valuation produced two years ago.
5. Defendant sought several adjournments stating finances were delayed due to requirements of the lender and also business downturn from pandemic recovery phase of businesses.
6. Having failed to obtain finance to purchase plaintiff’s share, Defendant is objecting to Plaintiff’s application of sale of the Property on a point of law only. According to Defendant, Plaintiff cannot bring an action for sale of co-owned property, without seeking partition of the same.
7. Whether Applicant has a right to bring this Action under Section 119 (2) of the Property Law Act 1971 is the only issue raised by Defendant as she had not filed an affidavit in opposition despite this action being instituted in 2021.
8. The application is for sale of the land in terms of Section 119(2) of Property Act 1971 can be made despite other tenants in common objecting to such sale, if the court is satisfied that sale of the land would ‘benefit the parties interested’.

Section 119 of Property Law Act 1971 states:

“119.- (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.

(5) Any person may maintain such action as aforesaid against any one or more of the parties interested without serving the other or others, and it shall not be competent to any defendant in the action to object for want of parties; and at the hearing of the cause the court may direct such inquiries as to the nature of the land and the persons interested therein, and other matters, as it thinks necessary or proper, with a view to an order for partition or sale being made on further considerations:

Provided that all persons who, if this Act had not been enacted, would have been necessary parties to the action shall be served with notice of the decree or order on the hearing, and, after that notice, shall be bound by the proceedings as if they had originally been parties to the action, and shall be deemed parties to the action, and all such persons may have liberty to attend the proceedings, and any such person may, within a time limited by rules of court, apply to the court to add to the decree or order.

(6) On any sale under the provisions of this section, the court may allow any of the parties interested in the land to bid at the sale, on such terms as the court deems reasonable as to non-payment of deposit, or as to setting off or accounting for the purchase money or any part thereof instead of paying the same, or as to any other matters.”(emphasis added)

9. High Court decision of Thomas v Estate of Eliza Miller [1996] FJHC 168 (decided on 12 December 1996) the same objection was taken and this was rejected considering English Law and analogous provisions. In that decision, Pathik J 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". (emphasis added)

10. Defendant in the written submission stated that Thomas (supra) related to an apartment, hence could not be divided , but that was not the ratio of the said case decided by Justice Pathik, after discussion of relevant law. The issue was the same objection as in this case whether an action for sale can be made without seeking partition of the property and court held otherwise. So ratio of the case is not dependant on subject matter in that case. Nature of the property is relevant to exercise discretion.
11. Section 119(2) of Property Law Act 1971, does not create a right to a co- owner for a sale. It only grants a co-owner to seek such an order from court. The power granted to the court in terms of Section 119(2) of Property Law Act 1971, is discretionary. Hence the exercise of that depend on various factors. Some of such factors are given and nature of the property is one such factor but this is not an exhaustive list of factors as they can be ‘any other circumstances’. As there is no affidavit in opposition filed the relevant facts are not disputed.
12. In this instance Defendant had not objected to sale of the Property even before institution of this action she had consented to a sale and also valuation was obtained for the Property. Both parties had no issue with the valuation and sale price.
13. Plaintiff has sought sale of the Property through a letter of 29.11.2021 annexed as ‘C’ to the affidavit in support sought sale of the property.
14. Plaintiff in her letter of 10.12.2021 annexed as ‘D’ to affidavit in support, stated:
    

‘There was absolutely no need for Mr. Mohammed Altaaf to go to a law firm and get this kind of letter issues when I have agreed that I will be buying off his share. I guess your client has not or has failed to disclose all the information to your firm when giving instructions. .....’

15. So, Defendant had agreed for a sale of the Property even before institution of this action and she had admitted that to Plaintiff’s solicitors.
16. In the text McHinde McMorland & Sim Land Law in New Zealand under heading “CONCURRENT INTERESTS IN LAND: ORDERS OF DIVISION OR SALE” stated,
    

“Thus, during the period the Property Law Act 1952 was in force, physical division remained available as of right under the Partition Acts, and the Court also had a discretion under s 140 of the Property Law Act 1952 to order sale of the land instead of division. If an application was brought under the Partition Acts, an order of partition still had to be made regardless of inconvenience, but usually in such cases an application was made not for division of the land but for sale and division of the proceeds. The Court had no jurisdiction to order co-owners to buy out the share of an owner wishing to sell, or to order a co-owner wishing to sell to do so to the other co-owners; such arrangements could be made only by agreement between the parties.”

17. By originating summons Plaintiff is not seeking partition, and Defendant had not sought such a thing either. So Defendant’s objection to the sale of the property is purely on the basis of legal contention, that action for sale cannot be instituted without seeking partition.
18. Action for partition is a separate action and that can also end common tenancy to a property but this action for partition is not a prerequisite to end common tenancy by sale of the property.
19. Halsbury's Laws of England (Vol 27)^[1]
    

“223. Modes of effecting partition of tenancies in common: in general.

Generally, in determining whether a sale was more beneficial than a partition, the court considered only the pecuniary results, disregarding matters of sentiment, and had regard to the interest of all parties interested as a whole; but it could and would order a sale where, in its discretion, it thought fit, unless the parties opposing a sale undertook to purchase the shares of those desiring sale.” [emphasis added]

20. In this instance Defendant who had sought adjournments on the basis of obtaining finance for the agreed price between them for the property is estopped from denying the right to sale of the Property.
21. Undisputed valuation has given a ‘sight analysis’ of the Property as follows
    

“The subject property forms an irregular shaped block having a road frontage of 15.54 meters....’

22. According to said valuation report, there is a permanent structure on the property, with car port and it comprised four bedroom accommodation with A/C in lounge area. The report further state that rental income for the property can be between $1,000 -2,000.
23. Defendant was willing to buy the property but unable to give an undertaking as to purchase of the property due to lack of finances after exploring it for some time.
24. The court cannot grant indefinite time and allow a party to abuse the process when there is a pending action and also potential income from the same property between $1000-2000, which is substantial income for the co-owners. There is no indication any amount being paid by occupied co-owner to the other.
25. Even before institution of this action by way of originating summons, Plaintiff had requested Defendant to purchase his share of the land and Defendant had agreed for the sale of Plaintiff’s shares to her, but she required some time to obtain finance. This cannot span indefinitely as Plaintiff is willing and requesting a sale to obtain value for his share.
26. Plaintiff as person who owns equal share can make such application in terms of Section 119(2) of Property Law Act 1971. This is an option available for co-owner. If Defendant wanted to partition the Property she could have made, such an application to court for the long time period lapsed since institution of this action.
27. This shows Defendant’s objection was nothing but a buying time. In the written submission of the Defendant had stated this property can be divided, if so why she did not make such an application is not explained. This shows Defendant is changing grounds to buy time.
28. Legal objections to this application is rejected for the reasons given. In my mind there is no reason to seek partition before invoking jurisdiction for a sale of the Property. In this instance Defendant had not only agreed to a sale before this action was filed, but also admitted that fact to solicitor of Plaintiff.
29. Plaintiff may seek to invoke discretion of, sale of co-owned land in terms of Section 119(2) of Property Act 1971. The paramount consideration to order sale is whether it would benefit parties interested in the Property.
30. The property to be sold has an area is irregular in shape consisting of one Rood and 17.3 perches including a substantial house with four bedrooms and a car port.
31. It is beneficial for both parties to sell the property on the evidence before me.
32. Defendant is given further three months to finalize her finances to purchase the Property, on the valuation already filed, if she is able to do so.
    

FINAL ORDERS.

1. The Property comprised in the Certificates of Title No 26694 known as Rairaiwaqa situate in the city of Suva being Lot 11 on DP 2189 (The Property)be sold .
2. Defendant is granted first option to purchase the same if not Plaintiff may purchase the same on the agreed sum between them based on valuation. For this time is granted till 1^st June 2023.
3. If neither party is in the position to purchase, the Property is to be sold to best price obtainable by either of the parties, to sell to an outsider, through a fresh valuation. The lowest price should be fresh valuation.
4. If the above is not successful the Property to be sold by public auction, after advertising the same in local papers at least twice on weekends on both local papers.
5. Parties are free to engage suitable person to conduct a sale and if there is no agreement Deputy Registrar is appointed for the said purpose of collecting tenders and opening them in transparent manner in front of the parties and or their solicitors. Lowest price is the fresh valuation obtained.
6. In the event any of the parties fail to execute the transfer Deputy Registrar, High Court, Suva is empowered to execute any transfer on behalf of such unwilling party.
7. Proceeds of the sale is used to pay all city rates for local government body and any outstanding utility bills and costs associated with the sale, (excluding any cost of this action).
5. The remaining proceeds of the said to be distributed equally among the two owners who are Plaintiff and Defendant.
6. No cost awarded for this action.
   

Dated at Suva this 28. 2. 2023.

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

Justice Deepthi Amaratunga

High Court, Suva

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^[1] Halsbury's Laws of England , Real Property and Registration (Volume 87 (2022)) 1. The Law of Real Property (4) Trusts of Land > (v) Co-ownership of Land > e. Tenancy in Common > (C) Determination of Tenancies in Common