Nand v Mohan [1987] FJLawRp 22; [1987] 33 FLR 15 (20 February 1987)

[1987] 33 FLR 15

IN THE SUPREME COURT OF FIJI

AMBIKA NAND

v.

BRIJ MOHAN

[SUPREME COURT - Cullinan J - 20 February 1987]

CIVIL JURISDICTION

Executors and Administrators - Probate granted to son in 1971 estate left in will amongst five - assignments to defendant of share by three other beneficiaries - plaintiff retained one–fifth share - principal asset farming land - plaintiff, aware of rights, took no steps to enforce them - April 1982 plaintiff issued writ claiming account, new trustee distribution of the estate and damages for breach of trust - By lapse of time defendant placed in a situation in which it was not reasonable for him to be placed - had kept no separate accounts - order for accounts, new trustee, damages refused - distribution ordered having regard to value of the estate on date of death plus interest - total sum calculated - observations on effect of delay in asking for and acquiescence in failure to provide accounts.

S. D. Sahu Khan for the Plaintiff
K. C Chaganlal for the Defendant

Ambika Nand (plaintiff) brought his action against Brij Mohan (defendant ) seeking an order for account from the defendant his brother in relation to administration of the estate of their father Kali Din deceased, the appointment of a new trustee, distribution of the estate and damages for breach of trust. The brothers were aged 50 and 58 years respectively.

Kali Din (Din) farmed at Asi Asi as a tenant on 40 acres acquired in 1930. He had ten children 7 sons and 3 daughters. In 1960 that land was set aside as a native reserve. Din continued to live there but acquired a lease of 19 acres of native land at Tagi Tagi. The family built two houses there in 1965 when the defendant and his brother Hira Lal came to stay on the land, each building and occupy a house thereon. About then the plaintiff left the house at Asi Asi and took up residence at Lautoka. Din remained on the land at Asi Asi, visiting Tagi Tagi only occasionally.

On 3 August 1970 Din died appointing the defendant his sole executor and trustee. His bequeathed all his property -

"unto my sons Brij Mohan

Ambika Nand and Raj

Kishor and my wife

Jeetan ....and Vinod

Lal (a grandson) in

equal shares or share alike absolutely."

On 11 November 1972 the defendant's mother Jeetan assigned her share in the estate by deed to the defendant for $200 to be paid 5 years later. She apparently waived the debt later. Similarly Raj Kishor on 5 February 1973 assigned his share on condition that defendant would indemnify him from any estate liabilities. So also on 18 April 1973 Vinod Lal assigned his share on the same condition of indemnity for the sum $100 forthwith and $100 after two years.

Hira Lal farmed 3 acres of the land for 5 years after the death of Din. Defendant took proceedings against Hira and after a consent Judgment in 1976 Hira Lal left the land.

This left only the plaintiff and defendant as entitled under the Will. Defendant had filed the statement required pursuant to section 28 of the Estate and Gift Duties Ordinance (Cap. 178). It indicated that the gross value of the estate was $3979.41, debts were $1290.22, leaving a net value of $2689.19 Defendant's testimony established that arrears of rent to the Native Land Trust Board and other expenses totalled $600. On 4 August 1978 defendant's Solicitors wrote to the plaintiff's Solicitors giving certain figures which calculated plaintiff's one-fifth's share in the estate to be $417.82, which defendant would pay plaintiff if he renounced his share in the estate. On 7 April 1981 the plaintiff replied, refusing to accept that figure, and asking for accounts and requesting that the estate be wound up. There was no reply. On 17 March 1982 plaintiff's Solicitors wrote to the defendant again complaining of the defendant's conduct:

".....there was a tractor and two dwelling houses you have been utilising for your own benefit"

There was reference also to proceeds of the cane farming and a complaint that the defendant had threatened to evict the plaintiff. Again, accounts were sought including an account of money received from the Fiji Sugar Corporation.

Thereafter there followed correspondence, the plaintiff seeking, the defendant failing to provide, accounts.

The history of the affair was traced in the judgment. The defendant always remained on the property with his family and cultivated the land, brought more acreage into with production, did all work and received all the proceeds from the sugar crop and certain other less important crops. He did not provide any figures or details of income or expenditure. In fact he kept no separate account of the estate's finance.

Plaintiff meanwhile left his wife and children in two houses on the land and went to live in Lautoka. He had come back about 1971 for a period variously estimated from 5 months to two years.

The defendant considered the plaintiff had taken no interest in the farm. The learned trial judge accepted this as correct.

The Judge examined the evidence relating to the beneficiaries assigning their shares. He found nothing which could be criticised in these transactions. He considered the matter should be dealt with without the defendant having to yield possession of the land.

He decided that the (uncontradicted) figures (referred to in the letter of 4 August 1978) should he accepted as a fair value of the plaintiffs one-fifth share, viz $417.82. He examined authorities bearing upon the delay by the plaintiff is seeking accounts when he was aware of his rights.

Held: In the assignments by the mother and Vinod Lal, there was nothing in the deeds themselves or the evidence which in any way tainted the transaction. Accordingly the defendant stood possessed of four-fifths of the estate.

The defendant having farmed the land for 21 years taken entrepreneurial risks and owning four-fifths of the estate ought not to be dispossessed, or his work or occupancy disturbed.

By his delay the plaintiff had put the defendant in a situation in which it would not have been reasonable to place him, if the remedy as to accounts was afterwards to he asserted.

The value of one-fifth of the estate on 24 November 1971 when probate was granted was $417.82. The plaintiff should have that sum plus interest which was calculated to he approximately $800. These sums should he awarded to plaintiff in distribution of the estate as representing his one-fifth share.

Judgment for the plaintiff for $1,278.10.

Other claims in the writ viz. for accounts, for the appointment of a new trustee in place of defendant and damages for breach of trust dismissed.

Cases referred to:

(1) In re Pauling's Settlement Trust, Young husband & Ors. v. Coutts & Co. [1963] EWCA Civ 5; (1963) 3 WLR 742; (1962) 1 WLR 86.

(2) In re Page, Jones v. Morgan (1893) 12 Ch. 304

(3) In re Cross-Harston v. Tension [1882] UKLawRpCh 8; (1881) 20 Ch. D. 109.

(4) Lindsay Petroleum Co. v. Hurd & Ors [1874] UKLawRpPC 1; (1874) L.R. 5 P.C. 221.

(5) Emile Erlanger & Ors v. New Sombrero Phosphate Company & Ors (1878) 3 App. Cas. 1218.

(6) Rochfoucauld v. Boustead [1896] UKLawRpCh 180; (1897) 1 Ch. 196

(7) Freeman v. Fairlie [1812] EngR 490; (1812) 3 Mer. 43; 36 E.R. 12.

(8) Pearse v. Green [1819] EngR 773; (1819) 1 J & W 135; 37 E.R. 327.

(9) Regal (Hastings) Ltd v. Gulliverand Others [1942] UKHL 1; (1942) 1 All E.R. 378, (1967) 2 A.C. 134.

(10) Keech v. Sandford [1729] EngR 361; (1726) 25 E.R. 233.

(11) Re Jarvis Edge v. Jarvis (1958) 2 All E.R. 336.

(12) Clegg v. Edmondson (1857) 8 DC G.M.G. 787; [1857] EngR 375; 44 E.R. 593

(13) Coles v. Trecothick (1804) 9 Ves. Jun. 243; 32 E.R. 5 92

CULLINAN J.:

JUDGMENT

The plaintiff and the defendant are brothers aged 50 and 58 years respectively. Their late father Kali Din farmed at Asi Asi where he was a tenant on which he had acquired in 1930. He had ten children seven sons and three daughters. In 1960 the land which Kali Din farmed was set aside as a native reserve. then acquired a lease of another piece of land over 19 acres of native land Tagi. Kali Din was apparently given some time to move on to the new land, and the family eventually built two houses there in 1965, when the defendant and his brother Hira Lal came to stay on the land each building and occupying a house thereon. About that time the plaintiff had left the home at Asi Asi and had taken up residence in Lautoka. Kali Din apparently remained on the land at Asi Asi visited the land at Tagi Tagi only occasionally.

Kali Din died testate on 3rd August 1970. appointing the defendant his sole executor and trustee under his will. Only three of the testator's children became beneficiaries under the will. Kali Din bequeathed all his properties "unto my sons Brij Mohan, Ambika Nand and Raj Kishor and my wife Jeetan ... and Vinod Lal (a grandson)...in equal shares or share and share alike absolutely''. The defendant obtained probate of the will on the 24th November 1971.

After his father's death the defendant stayed on the land at Tagi Tagi with his brother Hira Lal and cultivated it. The land had been mortgaged to the Fiji Development Bank since 1966, at the testator's death the mortgage debt amounted to $1,250.22, the land the fixtures being at $1,802 and $1,452 respectively, that is, a total of $3,252. The Bank in the exercise mortgagee's power of sale put out tenders for the sale of the land on the very same day that the testator died. The defendant managed to persuade the Bank not to sell the land, and undertook personal responsibility for the debt. On the 11th November 1972 the defendant's mother assigned her share in the estate of the deceased by deed to the defendant for the consideration of $200, to be paid five years later. Jeetan apparently subsequently waived payment of the said amount. On the 5th February 1973 Raj Kishor similarly assigned to share to the defendant, on the consideration that the defendant indemnifies him in the matter of any liabilities arising from the estate. Again, on the 18th April of that year Vinod Lal also assigned his share to the defendant, on the same consideration of indemnity and on the payment of $100 forthwith and the promise to pay another $100 after two years, the recitals in the two latter deeds of assignment noted that the estate of their father "was and is under debt to the Fiji Development Bank and whereas the first beneficiary (the defendant) is working on the estate land and is paying the said debt by the proceeds of cane produced by him", and that Raj Kishor and Vinod Lal resided at Nadi and Tamavua, Suva, respectively "and is unable to help in farming the estate land and is desirous of giving up his share in the estate for the benefit of the first beneficiary."

As for Hira Lal, he planted some cane on the farm at Tagi Tagi; he also had a goat farm and was also apparently a bottle collector. He occupied a total of three acres on the farm for over five years after the death of the father, when the defendant took out court proceedings for his eviction, due to the fact that Hira Lal was not a beneficiary under the will. In any event the litigation was successful and after a consent judgment in 1976 Hira Lal left the farm.

As a result of the deeds of assignment, the plaintiff and the defendant then became the only two beneficiaries under the will. The defendant as executor has filed as Administrator's Statement pursuant to section 28 of the Estate & Gift Duties Ordinance Cap. 178 (1967 Ed.) which at the time was a statutory requirement. The Statement indicated that the gross value of $3,979.41. total debts amounted to $1,290.22 giving a net value of $2,689.19. The defendant testified however that arrears of rent in the amount of $400 approximately were owed to the Native Land Trust Board ("NLTB") and testamentary expenses amounted another $200. On the 4^th August 1978 the defendant's solicitors wrote to the plaintiff at "Motor Spares Company, Lautoka". The letter reads in part as follows:

"Your mother and other brothers have already received their shares from client and have renounced their shares in favour of our client. Our client has asked you to come to settle your share but you do not come. The estate was proved at a net value of $2,689.13.

After the Probate was proved at that value it was found that Kali Din owed arrears of rent in the sum of $400.00 which Brij Mohan paid subsequently.

The costs of probate was $200.00 which was paid by our client. Thus the real value was $2,089.13.

Your one-fifth share works out to $417.82 which our client is prepared to prepared to pay to you in consideration of your renouncing your share in his favour."

There was no reply to that letter, that is, not until the 7th April 1981, when the plaintiff's solicitors (not the present solicitors) wrote to the defendant's solicitors as follows. The letter in part reads as follows:

"We have been handed your letter dated the 4th day of August 1978 addressed our client with instructions to reply.

Our client is not agreeable at all to your client's offer in the sum of $417.82.

We have instructions to ask for accounts in the above Estate and furthermore to wind the said Estate with our client's share properly accounted for.

Our client further disputes payment of the sum of $400.00 (Four Hundred Dollars) stated in your letter.

Therefore we have instructions to demand full Estate accounts and accordingly we hereby request you as Solicitors for the executor of the said Estate to require your client to supply the necessary accounts to us on behalf of our said client."

The above reference to the payment of $400, presumably of rent to the NLTB, was not clarified in the evidence. It seems in the least unrealistic to contest payment of rent to a landlord eleven years after the event. In any event the defendant's solicitor did not apparently reply to that letter and approximately a year later on the 17^th March 1982, the plaintiff's present solicitors wrote to the defendant himself. The letter refers to the death of the testator and continues

"... ever since then you as the sole executor and trustee have been managing the estate which includes inter alia, a cane farm. Despite our clients requests an despite your promises you have up to date either refused and/or neglected to supply to our client full accounts as to the monies received from the Fiji Sugar Corporation for the cane proceeds. There was a tractor and two dwelling houses and you have been utilising the same for your sole use and benefit. Quite clearly you are in breach of trust as our client had an equal share together with you and three others in the said estate To make things worse you have been threatening to evict our client from the estate properties where he is lawfully entitled to stay without any interference or objection from you or for that matter anyone else.

Our client is very disturbed at the manner in which the whole estate is being managed and therefore we are, in the circumstances instructed to demand from you which we hereby do a full and proper accounts with respect to the estate properties including the monies recovered from the Fiji Sugar Corporation and a full statement of the estate chattels."

The letter then indicated that litigation would commenced in default of reply within 14 days. The defendant's solicitors replied on the 30^th March 1982, enclosing with the reply a copy of the Administrator's Statement. The letter, which explained the basis of the figure of $417.82 offered by the defendant to the plaintiff, in part reads as follows:

"Your client did nothing all these years to work the farm. In fact he has been living in Lautoka since 1966 except for a short period in 1971. His wife and children occupy 2 Tin and Timber houses and a bure all these and he pays maintenance to his wife under Court Order.

The use of the estate houses by his wife and children all these years on his behalf means he has received much more benefit under the estate, than the value of his share in the estate.

Our client feels that he kept up the estate farm and paid his father's debts by his exertion with no contribution from your client and your client has no right to ask for accounts of monies earned by his sole exertion.

The other beneficiaries have assigned their shares in the estate since a long time and your client is aware of the fact.

In fact, your client by his conduct has acquiesced to our client working the farm all those years and is in any case guilty of laches."

In the following month the defendant issued the writ. The writ described the estate as compromising of the native lease, a Fordson Major Tractor together with two dwelling houses and two kitchens. It avers that the land is "covered under sugar cane contract with the Fiji Sugar Corporation ("FSC"), that since 1970 approximately the defendant has been receiving the cane proceeds from the FSC under that contract and that to-date despite numerous requests and demands by the plaintiff the defendant refused and or neglected and continues to refuse to supply any account to the plaintiff in respect of the said estate. The plaintiff alleges that the defendant has been utilising and that he is thus in breach of trust. The plaintiff then seeks an account from the defendant, the appointment of a new trustee in his place, distribution of the estate, and finally damages in respect of breach of trust.

It would appear from the plaintiff's evidence that he took up residence in Lautoka in 1965/66, as his father had already acquired the land at Tagi Tagi before they departed for Lautoka. He worked with his father he said on "another piece of land", presumably a reference to the land at Asi Asi, but he apparently had no wish to work in the land at Tagi Tagi. It seems that he came on the land at Tagi Tagi somewhere around 1971/72. He said that he stayed two years on the land. The defendant puts it at five months. The plaintiff's own witness Hans Raj an elderly neighbour, aged 71 years, residing some two miles distant from the land at Tagi Tagi, said that the plaintiff stayed on the land for one year or six months, when he went to reside in Lautoka, but when pressed in the matter Hans Raj acknowledged that it was possible that the plaintiff has stayed at Tagi Tagi up to two years.

Before leaving the farm at Tagi Tagi the plaintiff had entered into a de facto relationship with a lady in Lautoka. When he left the farm and went to reside Lautoka, where he has a house, he left his wife and five children behind on the farm and lived with the other lady at Lautoka. He has another child by that relationship. Six to nine months after he had returned to Lautoka, his wife took out maintenance proceedings against him and he agreed to pay her $40 a month from his salary ($50 per week). His wife and five children continued to live on the farm.

The plaintiff testified that he wanted to work on the farm, but the defendant would not allow him to do so. Meanwhile his children had apparently worked on the farm. He had made a request of his brother many times he said. His evidence continues:

"When I was leaving I said, `Give me my share of land so that I can cultivate'. He was giving me $200 but he didn't allow me to work on the farm. I told him I did want the $200. I asked him on a number of occasions to work. I asked from Lautoka."

He agreed that had his wife and children not resided at the farm he would have been required to pay an extra $60 a month by way of rent, that is, since 1972.

The Administrator's Statement filed by the defendant indicates that both houses built by Hira Lal and him were constructed of wood and iron, measuring 18'x 20' and 15'x 14', of second hand and new materials, there being attached to each house kitchen with corrugated iron roof measuring 10'x 12'. Each house and kitchen we valued at the average of $725. The defendant testified that the plaintiff came to the farm first in 1971/72. He arrived with his family in a truck, which contained so timber and roofing iron. He left his wife and five children with the defendant, leaving also the building materials, and returned to Lautoka by the same truck that very same day. The defendant testified that he had his own wife and five children to look after, but that he also looked after the plaintiff s wife and children, the plaintiff's wife being his wife's sister.

With the help of other village people, the plaintiff's wife built a house ten chains away from the defendant's house, but the former house was unfortunately destroyed by hurricane "Bebe" in 1972. The defendant and his family then came to assist t plaintiff's wife and family to build another house. He found that the plaintiff had arrived there, and the latter stayed thereafter on the land for some four to five months. The kitchen attached to Hira Lal's house was damaged by the hurricane and Hira Lal and the plaintiff took materials from the damaged kitchen and us them to build the plaintiffs' house. Thereafter during the four to five months that stayed, the plaintiff worked as a cane cutter (in substitution for another cane cutter), that is, as a member of a cane cutting gang which went around cutting cane various farms. The defendant pointed out that the plaintiff did not cut any cane the estate farm. He testified that the plaintiff came to see his family only once twice a year. The family live rent-free on an area of about a quarter of an acre, it corrugated iron and timber house, and a thatched bure in which the plaintiff's son, the latter's wife and two children reside. None of the family cultivate the land work elsewhere.

The defendant testified that there was not any bullock to work on the farm, and he had bought a pair of bullocks. He planted sugar cane and other small vegetable crops for his own consumption and he also used to buy a truck load of e.g. water-melons or pineapples and resell them. Although the farm consists of over 19 acres only 9 or 10 acres thereof are arable, the remainder being either hilly or boggy Ian. When Kali Din died, only 5 acres were cultivated at that stage. The quota on the FSC cane contract was 41 tons at the time: indeed in 1970 only 13 tons had been produced on the farm. The defendant obtained a new cane contract, the quota allocated therein being 261 tons. In 1982 he produced 340 tons, in 1983 as a result of drought the production fell to 115 tons. Thereafter he expected the return to be in the amount of 250 - 300 tons per year. This was due to the fact that he now has 10 acres under cultivation, having actually bulldozed part of the land to make it arable. He had been assisted by his own sons and indeed the plaintiff's sons, when it came to harvest time, but he had paid the plaintiff's sons every time they had worked on the farm.

The defendant admitted that he had not kept any separate account in respect of the estate. Indeed he. operated only the one bank account. He admitted that though he and his family had resided on the estate since his father's death in 1970, he had not paid any rent in respect thereof: he had however worked the farm on a full time basis. He acknowledged that he had received statements from the FSC regularly three times every year since 1971: he stated that he would produce them if called upon to do so. He said that it was he who had made the first approach in the matter in 1978, when he instructed his solicitors to write to the plaintiff offering him the amount of $417.82. He said that he had not been asked for any accounts in the matter until the letter from the plaintiff's solicitors in 1981. He had looked for some documents at the time, but was unable to find them. He denied that he obtained "substantial" income from the farm, as the farm only produced some 50-90 tons of sugar cane per year for the first five to six years and he had to pay rent of $111 per annum also to the NLTB. He did not own any other land. He had purchased a second-hand truck for $5,000 by way of loan from the Westpac Bank. The truck was in his name. He had given the security of the estate land in order to obtain the loan. He had bought it to haul cane to the mill: had he not done so he would have been obliged to hire a truck for that purpose. He had also hauled goods in the truck for the Government for sometime, and in one year at least he had hauled cane for other farmers, for which of course he had been paid. The loan on the truck was still unpaid however. Indeed Westpac Bank retains all the cane sugar proceeds and he lives on the proceeds of the hire of the truck and the selling of vegetables. He also bought a plough in his own name. When it was pointed out to him that the estate was paying interest on the loan for the truck he observed "Since 1970 I am working on the farm to pay".

The defendant testified that it was not true that the plaintiff has asked him to work on the farm and that he (the defendant) had refused. In cross-examination in particular he said:

"I told him, 'you come and work the farm with me. The farm owes $2,000 and together we can pay off the debt'. He replied that it was not his debt and he refused to come and work on the farm so I continued working."

There is of course a direct issue of credibility here. The plaintiff's evidence as to the exact year in which he came on the land is somewhat vague and contradictory. At one stage he said that he came on the land three to four years after his father's death. Nonetheless he testified that his wife had instituted maintenance proceedings in 1972, that is, after he had left the farm. His own witness Hans Raj mentioned, as I have said, a period of six months to one year. The only matter in which the defendant was shaken in cross-examination is the question of his willingness or reluctance to produce accounts. But his evidence as to the fact that the plaintiff stayed on the farm some four to five months was not subjected to cross-examination. When asked what he did on the farm, the plaintiff' replied, "I used to work as a labourer - I used to cut cane". I cannot see that he could possibly spend two years, or even five months for that matter, assisted no doubt by others, cutting cane on five acres. I am not satisfied therefore that he ever worked on the estate land. Again it was his evidence that he left the farm because "he got a better job in Lautoka", that is, as a driver employed now by Lautoka General Transport. When questioned by the Court in the matter he said, "I have always been a driver even when I moved on to land (at Tagi Tagi)".

I do not accept the plaintiff's evidence that the defendant refused to allow him work on the farm. The balance of the evidence points to the fact that the plaintiff did not wish to work on the farm, that he had formed this de facto relationship in Lautoka and that he found it convenient to decline any offer of settlement and deposit his wife and five children in the care of his brother and sister-in-law on the farm at Tagi Tagi. I am quite satisfied that he took no interest whatsoever in the future of the farm. This is illustrated by the fact that he had no idea as to what was the outstanding debt on the farm. When asked whether he had ever bothered to find out, he said that at that time the debt was $500, which of course was incorrect. When asked what he had done about the debt he simply said "I did nothing". When ask if he knew how the land had been saved from sale by FDB he answered, "Brij Mohan must have paid the money". That, if any thing, illustrates his complete lack of interest in the matter.

It seems to me that all along the plaintiff would have wished to obtain a portion of the land for his family, but he did not wish to work it, nor indeed did he wish to shoulder any responsibility in respect of the debt upon the land. Nonetheless, in view of his particular marital situation, it was convenient for him to retain a claim to his father's estate and thus a claim to the occupation of a portion thereof, even if a very tiny portion, by his wife and children, while he retained resident elsewhere. I consider that the implication is not to be resisted that for those reasons he chose ignore the offer of $417.82 made to him in 1978, and that it was only in 1981, 10 years after probate, that he^-sought accounts in the matter, when it seems that the production of sugar c on the farm had increased enormously, the defendant having negotiated a new cane contract 1979.

I am indebted to both Counsel for the number of authorities which they have placed before me. The learned Counsel for the plaintiff Mr Sahu Khan has informed the Court that it conceded that the limitation Act has no application. I presume that that is a reference to the provisions of section 9(1) of the Limitation Act Cap. 35 which in part reads as follows:

"9. - (1) No period of limitation prescribed by the provisions of this Act shall apply to an action by a beneficiary under a trust, being an action -......

(b) to recover from the trustee, trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to his use."

Mr Sahu Khan has referred to the case of In re Paulings Settlement Trusts, Younghusband & Ors. v. Coutts & Co., (1) at p.746 where in the head note of the decision by the Court of Appeal a dictum of Wilberforce J. in the court below reads: "There being an express statutory provision, providing a period of limitation for the providing a period of limitation for the plaintiff's claims, there is no room for the equitable doctrine of laches". Wilberforce J. was there (at p. 115) referring to the proviso to section 19(2) of the Limitation Act 1939 (repeated in section 9(2) of Cap. 35). In effect the learned Judge was saying in that case that because the particular future interest in the trust property had not fallen into possession, the statutory period of six years had not started to run: that being the case the question of laches simply did not arise. That is not the case here however, as in respect of the present application no period of limitation is prescribed (see the case of In re Page Jones v. Morgan ⁽²⁾ per North J. at pp. 308/309).

In the case of In re Cross Harston v. Tension⁽³⁾ at p. 121 Baggallay L.J. in delivering the judgment of the Court of Appeal referred to

"the recognised doctrine of equity that as between the trustee and the cestui que trust no time will operate as a bar to the equitable claim of the latter in respect of a breach of an express trust".

He continued on p. 121:

"........But the question remains whether. having regard to the nature of the breach of trust committed by (the trustee), and the subsequent conduct of the parties interested in asserting any claim in respect thereof, there has not been such an amount of acquiescence and laches on the part of the parties interested as to make it inequitable that relief should he given to them in the present action: for the doctrine, that where there is an express trust delay in seeking relief in respect of a breach of it is not material, does not apply to a case in which there has been acquiescence or gross laches on the part of the cestui que trust."

In the case of Lindsay Petroleum Co. v. Hurd & Ors⁽⁴⁾ in delivering the judgment of the Judicial Committee Sir Barnes Peacock observed at pp. 239/240 as follows:

"Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far relates to the remedy."

With regard to those dicta Lord Blackburn in delivering his judgment in the House of Lords in the case of Emile Erlanger & Ors. v. New Sombrero Phosphate Company & Ors⁽⁵⁾ at p.1279 had this to say:

"I have looked in vain for any authority which gives a more distinct and definite rule than this: and I think, from the nature of the inquiry, it must always be a question of more or less, depending on the degree of diligence which might reasonably he required. and the degree of change which has occurred whether the balance of justice or injustice is in favour of granting the remedy or withholding it. The determination of such a question must largely depend on the turn of mind of those who have to decide, and must therefore be subject to uncertainty: but that, I think, is inherent in the nature of the inquiry."

The above dicta from the Lindsay Petroleum⁽⁴⁾ case and the Erlanger⁽⁵⁾ case were quoted with approval by Lindley L.J. in delivering the judgment of the Court of Appeal in the leading case of Rochefoucauld v. Boustead⁽⁶⁾ at pp. 210/211.

Mr Sahu Khan refers to the old cases of Freeman v. Fairlie⁽⁷⁾ and Pearse v. Green⁽⁸⁾. In the latter case Plumer M.R. observed at p. 329 that:

"It is the first duty of an accounting party whether, an agent, or trustee, a receiver or an executor .... to be constantly ready with his accounts."

and further on

"... with agents or trustee, if they neglect to account properly, if they violate their duty, the Court, for the sake of compelling them to perform it, says that they ought to be charged with interest, on what they have retained."

"It is and must he understood to be, the bounden duty of an Executor, to keep clear and distinct accounts of the property which he himself is bound to administer: and I have not the slightest difficulty in saying that, if all these books were the books of a banking house in London, and an Executor thought proper to put the accounts of a testator's estate into his banking books, he shall not be allowed to tell me, the cestui que trust, that I have no right to see his original accounts of my property."

Mr Sahu Khan has also referred to the following dicta of Lord Russell of Killowen in the case of Regal (Hastings) Ltd v. Gulliver and Others⁽⁹⁾ at pp. 144/145:

"The rule of equity which insists on those, who by use of a fiduciary position make a pro it, being liable to account for that profit, in no way depends on fraud, or absence of bona fides; or upon such questions or considerations as whether the profit would or should otherwise have gone to the plaintiff, or whether the profiteer was under a duty to obtain the source of the profit for the plaintiff, or whether the plaintiff has in fact been damaged or benefited by his action, the liability arises from the mere fact of a profit having, in the stated circumstances, been made. The profiteer, however honest and well-intentioned, cannot escape the risk of being called upon to account."

The learned Law Lord then went on to cite the leading case of Keech v. Sandford⁽¹⁰⁾ as "an illustration of the strictness of this rule of equity in this regard, and of how far the rule is independent of these outside considerations."

The case of Regal (Hastings) Ltd⁽⁹⁾ was referred to by Upjohn J. in delivering his judgment in the case of Re Jarvis, Edge v. Jarvis ⁽¹¹⁾. The facts of that case bear strong degree of similarity to those of the present case. The parties to that action were sisters, the defendant being 10 years older than the plaintiff. They were appointed joint executrices and trustees under their father's will. Under the will their late father gave to them his business as a tobacconist newsagent and confectioner at his shop in London, including the existing lease and the right to renewal or extension thereof. When their father died in 1941, the premises had in fact been damaged in 1940 by a bomb during the War, and for some three years thereafter no real business was carried on there, that is, until the premises were restored in 1944 by the defendant. The defendant had a separate business at another shop nearby, at which indeed she had employed the plaintiff as an assistant for some periods, and had also given free accommodation. The plaintiff took absolutely no interest in the administration of her late father's estate, or indeed the conduct of his business. The defendant assumed responsibility for that business paying off all debts, and in particular arrears of rent, in respect of which judgment had been obtained against both plaintiff and the defendant. Ultimately, in May 1944 the defendant gained a new tenancy in her own name, on substantially the same terms as the former tenancy, and in that year she re-opened the shop and managed it as a joint business with her other shop. In 1951, without apparently any previous claim or indeed a letter before action, the plaintiff filed a writ.

Upjohn J. considered that two questions arose, the first of those concerning the new lease in respect of which the defendant was, on the authority of Keech v. Sandford ⁽¹⁰⁾, clearly constructive trustee. Upjohn J. could not regard the delay, from January 1945 apparently, up u 1951, as sufficient to defeat the plaintiff's claim and held that "there must be an enquiry as to what rent, if any, year by year, ought to be charged to the defendant in respect of her beneficial occupation" of the premises. The second question, as Upjohn J. observed, was as to the position in regard to the business carried on at the shop by the defendant. In this respect he observed at p. 341:

"Throughout all this time the plaintiff was fully aware of her rights but took, I am fully satisfied on the evidence, no step to assert them or to make any claim all until the issue of the writ."

The principles applying in relation to a business are quite different from those applying in the case of a specific asset, such as a renewed lease. The principle was stated in Clegg v. Edmondson (12). There Knight Bruce, L.J., said (ibid., at p.604):

"A mine which a man works is in the nature of a trade carried on by him. It requires his time, care, attention and skill to be bestowed on it, besides the possible expenditure an risk of capital, nor can any degree of science, foresight and examination afford a sure guarantee against sudden losses, disappointments and reverses. In such cases a man having an adverse claim in equity on the ground of constructive trust should pursue it promptly, and not by equity words merely. He should show himself in good time willing to participate in possible loss as well as profit, not play a game in which he alone risk nothing.

That was the case of a mine, which may be regarded as an exceptionally hazardous undertaking, and the delay which was held to be fatal in that case was ten years, i.e. four more than here: but the principle as stated is of general application.

The plaintiff is seeking to say that the defendant has been a trustee for her of one moiety of this highly successful business, although she has never been at risk for one penny. I have been referred to a number of text-books and authorities on this question of laches, acquiescence and delay, but I forbear from referring to them, for in this realm of law case depends so much on its own facts that the citation of other cases having some points of similarity and some of difference does not really assist. I do not overlook the circumstance that the plaintiff has said that she could not afford a solicitor: but I have to try to do justice to both sides. In my judgment, in the whole of the circumstances of this case in relation to the business, the plaintiff, by waiting until 1951, not been sufficiently prompt in asking her remedy, and this part of action fails."

It seems to me that the "beneficial occupation" of the particular premises in case of Jarvis (l1) must comprise two elements, firstly, the benefit gained from occupation thereof in the conduct of the particular business at the premises, and secondly the benefit gained from the occupation thereof as a residence. With regard to the first element, it seems to me, that that is submersed in the conduct of business itself, as one must take into account the rent paid for the premises to the landlord calculating the general profit or loss sustained by the business. I observe in event, that the order by Upjohn J. in the matter indicates that in any particular year no rent might be charged to the defendant at all.

As to the beneficial occupation of the land in the present case, that is, for the pur-pose of residing there, I have no difficulty. The two remaining beneficiaries under the will, the plaintiff and the defendant, and both their families, have resided there for almost the same length of time. As I have said earlier, the plaintiff conceded that in the matter of maintenance, if he had not been in the position to accommodate his family on the estate land, he would have been obliged to pay another $60 per month as maintenance, that is, from 1972. If then the plaintiff were asked to account to estate for the occupation of the land by his family, he would, on his own evidence have to bring in a sum of, I calculate, at least $10,800: considering the increase in rents since 1972, that sum might well be doubled. The same of course applies to defendant and to his family.

I appreciate of course that the plaintiff's family are but occupying one-quarter of an acre of the land for the purpose of residence thereon: the defendant's family are hardly occupying very much more. With regard to the conduct of the business of the farm however, the defendant is occupying over 19 acres, but that factor, as I see it is a matter which must be taken into account in the conduct of the business as a whole. For example, the defendant is required to pay an annual rent to NLTB. Then there are the expenses which the defendant must incur in the running of the farm. I quite appreciate that it is possible for the defendant to approach the FSC and obtain from them records of every payment made to him since the death of his father. That would but largely account for the revenue of the farm however. The question remains as to what were the defendant's outgoings in respect of the matters legion connected with the day to day running of any farm, many of them casual or sporadic in nature and perhaps not r readily susceptible to the task of record. Quite obviously to put the defendant to the task of producing such accounts from as far hack as 1970 would be a monumental, if not impossible task. I appreciate that no matter how difficult the task, if the defendant is required by the Court to produce such accounts, he would nonetheless be obliged to do so. The question remains however as to whether, in all the circumstances, I should call upon him to do so.

As I observed earlier, the plaintiff made no enquiry in the matter of accounts until some 10 years had elapsed since probate, and then again over two and one half years after he had been requested to accept a specific sum in payment of his share of the estate. In view of the evidence which I have earlier detailed. I am quite satisfied that the plaintiff was fully aware of his rights in the matter but took no steps to assert them until 1981, and then, in view of his regular, if infrequent, visits to his family on the farm, apparently only when the conduct of the business of the estate by the defendant had seemingly begun to prosper. As Knight Bruce L.J. observed,

"a man having an adverse claim in equity on the ground of constructive trust should pursue it promptly, and not by empty words merely. He should show himself in good time willing to participate in possible loss as well as profit, not play a game in which he alone risks nothing."

By his delay the plaintiff has put the defendant "in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted". In all the circumstances, in view of the plaintiff's laches and apparent acquiescence up to 1981, I think the balance of justice is in favour of withholding the remedy, and I decline to order the defendant to produce accounts.

The plaintiff remains a beneficiary in the estate, which must be distributed. Mr Sahu Khan at one stage informed the Court that the assignments by the other three beneficiaries were not contested, the only question being as to whether) the plaintiffs share in the estate was affected thereby. Mr Sahu Khan nonetheless points to one of the deeds, that executed by Raj Kishor and the defendant, which purports to indemnify Raj Kishor in respect of any liability arising out of the estate: Mr Sahu Khan submits that no liability arises against a beneficiary but against the estate itself. Generally speaking of course that is perfectly correct. Mr Chhaganlal has very properly referred to the old case of Coles v. Trecothick (13) at p. 596 where Eldon L.C. observed:

"Upon the question as to a purchase by a trustee from the cestui que trust I agree, the cestui que trust may deal with his trustee, so that the trustee may become purchaser of the estate. But, though permitted, it is a transaction of great delicacy, and which the Court will watch with the utmost diligence: so much, that it is very hazardous for a trustee to engage in such a transaction."

Here however the trustee is himself a cestui que trust. Raj Kishor was no doubt aware that his mother had, three months before that, assigned her share in the estate to the defendant for the consideration of a promise to pay $200 five years thereafter; no doubt he wished to see the family estate preserved, rather than sold and the proceeds divided, and knowing that he, a taxi driver residing at Nadi, could not tend to the farm, and not wishing to share in the responsibility undertaken by the defendant with the FDB, he decided presumably for those reasons to assign his share to the defendant, who had all along it seems depended on farming for his livelihood. While I agree with Mr Sahu Khan's observation, nonetheless it seems to me that Raj Kishor did receive some consideration from the deed, namely the extension of brotherly affection, the securing of the family estate and in particular family unity, which sadly, I must observe, was undermined from the start by a will which had but a divisive effect.

Again, I do not consider the monetary considerations in the other two deeds to be inadequate. The fact that the widow agreed to wait five years for the payment of the $200, and Vinod Lal two years for the payment of $100, serves but to emphasise the degree of risk which the defendant undertook at the outset. The assignments are by deed, so that no consideration was necessary, but in any event I have been anxious to scrutinise them, in the light of Lord Eldon's dicta above, as transactions "of great delicacy". I cannot see that there is anything in the deeds themselves, or in the evidence before me, which in anyway lends taint to the transactions. The particular beneficiaries clearly assigned their shares in the estate to the defendant, and in my judgment he stands seized of a four-fifths share in the estate.

Mr Chhaganlal suggested that the plaintiff should be awarded a one-fifth share of the estate as originally valued, that is $417.82, plus interest over the years: alternatively the estate could be valued, 50% of the value being deducted to represent the defendant's labours and risk-undertaking over the years, not to mention the fact that acreage under cultivation has doubled and production has increased enormously. Mr Chhaganlal submits that 50% would in the circumstances not be an arbitrary figure and that thereafter the plaintiff could be awarded one-fifth of the value thus reduced, that is, in effect, one-tenth of the present day value of the estate. Considering that the sugar cane quota alone, not to mention the value of the lease and buildings on the land, has increased over 600%, it seems to be that such distribution, apart from being artificial in the choice of the figure of 50%, would be more than generous to the plaintiff and in the result unfair to the defendant.

Mr Sahu Khan would reverse Mr Chhaganlal's first suggestion and submits in effect that instead, possession should be granted to the plaintiff, who would then pay the defendant four-fifths of the original value ($1,671 approximately) plus interest over the years, plus out of pocket expenses, plus "a reasonable sum of his efforts". The difficulties inherent in the calculation of the latter sum are quite apparent. Further, the suggestions as I see it, contemplates compensation of the plaintiff for his physical and mental labours: but how does one compensate him for the entrepreneurial risks which he undertook? And then I say why should the defendant, the only member of his family willing to undertake such risks, be now dispossessed the land which he has tilled for 21 years? It is suggested that the plaintiff, who all alone has shown no interests whatever in the land, will now cultivate it? It seems to me more realistic to suggest that, partly in an effort to pay off the defendant, he would immediately sell the land. Why then should not the beneficiary who owns 80% of the estate be not allowed to stay on the land?

Quite obviously the plaintiff is not entitled to one-fifth share in the present value of the estate without any deductions. For the reasons indicated earlier, it is clearly extremely difficult if not impossible to calculate the value of the deductions to be made from the present value of the estate. The only realistic solution of the question of distribution is, I consider, to adopt Mr Chhaganlal's first suggestion based on the original value of the estate. The contents of the Administrator's Statement, verified by statutory declaration, has not been challenged. Again, the executor's oath filed upon the application for probate in common form gave the gross and net value of the estate at $3,979.41 and $2,689.19 respectively. There is then the evidence of the defendant as to the deductions for rent and testamentary expenses. There is no evidence to the contrary, and I accept therefore that a one-fifth share in the value of the state on 24^th November 1971, when probate was granted was $417.82.

Clearly the plaintiff should have interest on that amount. In view of the fact that the value of the estate was proved no earlier than 24^th November 1971, as testamentary expenses had to be paid, and as distribution could not be effected before then. I consider that interest should run from the latter date. Currently the rate of interest is approximately 13.5% and I award the plaintiff interest at that rate from 24^th November 1971 on the sum of $417.82. I calculate that such interest amounts to $860 approximately. I therefore award the plaintiff the sum of $1,278 in distribution of the estate as representing his one-fifth share thereof. I give judgment to the plaintiff in that amount, but the other claims in the writ must be dismissed.

Partial judgment for the plaintiff.