Kaur v Singh [2000] FJLawRp 62; [2000] 1 FLR 219 (10 November 2000)

[2000] 1 FLR 219

IN THE HIGH COURT OF FIJI

KAMLESH KAUR

v

JAGENDRA KARAM SINGH

High Court Civil Jurisdiction
Prakash, J
10 November, 2000
HBC 0152/00L

Land Transfer Act Section 169 application - whether Notice to Quit needs to be personally served upon the tenant - whether service to agent is sufficient - whether equitable right of estoppel available to defendant - whether tenancy for life or monthly

This is an application by the Plaintiff under section 169 of the Land Transfer Act for the Defendant to show cause why he should not give possession to the plaintiff of the premises occupied by him. One of the two issues involved relates to the validity of the notice to quit which was not served personally to the Defendant but was served on his solicitors instead. The other issue is whether the Plaintiff was estopped from forcing the Defendant to give possession in light of the fact that he was led by the late husband of the Plaintiff to believe that he had a life tenancy.

HELD - (1) The notice to quit need not be served personally upon the tenant. It may be served upon his agent and when so served it is unnecessary to prove that it actually came to his knowledge; it is sufficient if the facts of the agency is established.

(2) This a monthly tenancy and if there was any tenancy for life or for a term exceeding one year there should have been a registered lease under section 54(1) of the Land Transfer Act. As such, there can be no right of estoppel.

Defendant has not shown cause why he should be allowed to remain on the land and is evicted.

Cases referred to in judgment
dist Vallabh Das Premjii v Vinod Lal & Ors (FCA Civil App 70/74)
appl Ganga Devi v Gurmel Singh & Anor (Civil App 37/82)
dist Maharaj v Chand [1986] 3 All ER 107
dist Lila Wati, Raj Pal & Madan Lal v Alitia Vakaraubula 40 FLR 107 13 July 1994
appl Subramani & Maria v Dharam Sheela & Ors ABU 56/81

Vipul Mishra for the Plaintiff
Samuel Ram for the Defendant

5 October 2000

JUDGMENT

Prakash, J

This is an application by the Plaintiff, via a Summons dated 9 April 2000 for the Defendant to show cause why he should not give up possession to the Plaintiff of the premises situated on the land contained in Certificate of Title Vol. 52 Folio 5115 being that piece of land known as "Nanukudrala" (part of) containing twenty three perches and half a perch situated in the District of Bulu in the Island of Viti Levu being occupied by him. The Summons is issued under Section 169 of the Land Transfer Act. There is no dispute that the summons complies with the provisions of section 170 of the relevant act.

Affidavits have been filed in support and in opposition. There is not much dispute with the material facts in issue. The Defendant has been a monthly tenant of the subject premises for some time. He was paying monthly rental of $330.00 for the down-stairs premises and $110.00 for the upstairs premises of the said building. By letter dated 4th December 1999 from the Plaintiff's solicitors the Defendant was informed that the rental will be increased to $475.00 per month for the downstairs portion (Pacific Travel Service) and $200.00/month for the upstairs portion (Computer Centre) from 1 January 2000. By letter dated 19 January 2000 the Defendant's solicitors S.K Ram, among other things, asked the Plaintiff to reconsider the rental increase due to past relation of the respective parties. In response the Plaintiff via her solicitors, issued a notice to quit dated 4 February 2000, giving the Defendant one month to vacate the premises or face eviction proceedings.

Defect in the Notice to Quit

Defence Counsel has questioned the validity of the notice to quit. It says it was not addressed to the defendant. It was served on the Defendant's solicitors on 5/2/2000. This is not denied. In his affidavit in response (para iv) the defendant states "that no notice was served on me." However, this is not the end of the matter. He does not state that he was not aware of the Notice, or that it was not brought to his attention by his solicitors. In paragraph (iii) of their affidavit he deposes: "I am advised by lawyers that the letter marked as Annexure "D" was received by his office. At that time my lawyers did not have any instructions to accept service of a notice of eviction on my behalf. Their instructions were to simply give the reply marked as annexure "C"". The Court finds these assertions rather surprising.

If a reply was to be received to the Annexure "C" in which the Defence Counsel asked for a reconsideration of the rental increase due to past relation; where was the response to be directed? Annexure "C" did not state that further correspondence on the matter was to be directed personally to the Defendant. In looking at the whole circumstances of the dealings between the parties the Court finds that the Defendant's solicitor was an agent of the Defendant. As stated in Halsbury's (4th Edition, Vol. 27 para 197:

"The notice to quit need not be served personally upon the tenant. It may be served upon his agent, and when so served it is unnecessary to prove that it actually came to his knowledge; it is sufficient if the fact of the agency is established. The spouse, or a member of the domestic staff, of the tenant at the tenant's dwelling house, whether this is on or off the demised premises, is an implied agent to receive a notice to quit, although the tenant can give evidence to rebut the implication. Apart from any question of agency, the fact that the notice has been delivered to the tenant's spouse or servant raises a strong presumption that it has reached the tenant, especially if an explanation of the notice was given when it was delivered. The presumption can only be rebutted by proof that the notice did not come to the tenant's knowledge at all."

The defendant has not rebutted such presumption. The case of Vallabh Das Premiji v Vinod Lal & Others (FCA Civil App 70/1974) is not relevant to the point in issue here. In that case the lack of proof of the date of service was in issue. As was suggested by the Court of Appeal in Ganga Dei v Gurmel Singh and Another (Civil App. 37 of 1982) we should not take too technical an approach to a Notice to Quit.

The issue of the Equitable right of the Defendant

The next issue raised on behalf of the Defendant was the question of estoppel. The basis of this is that the Defendant claims that he was called to be a tenant of the premises by Gurudayal Singh the late husband of the Plaintiff Executor and Trustee. He claims Mr. Singh was a good friend of his and they treated each other like brothers. He let him in as a tenant in the 1960's and told the Defendant he could be a tenant for as long as he wanted to be. He was led to believe that he had a lifetime tenancy. He further claimed he did all the repairs and renovations required. He also claims that the late Gurudayal Singh owed him a substantial amount for airline tickets.

The cases of Maharaj v Chand [1986] 3 All E.R. 107 (PC), and Lila Wati and Others v Alitia Vakaraubula 40 FLR 107 were cited in support of an equity arising. The case of Maharaj v Chand concerned a purely personal right arising out of a promissory or equitable estoppel between a man and his de facto spouse. In Lila Wati & Others the case also involved a relationship of husband and wife where the wife had established an equitable right to remain on the property.

This case involves a monthly tenancy of commercial premises. If there was any tenancy for life or for any term exceeding one year there should have been a registered lease under section 54(1) of the Land Transfer Act.

The Defendant does not question the indefeasibility of the Plaintiff's title to the land in question. As such the Plaintiff's title is not subject to any unregistered encumbrances (see Subarmani and Maria v Dharam Sheela and three Others, FCA Civil App. 56 of 1981). The Defendant submits that there is a defence and counter-claim. There are allegations that the late Gurudayal Singh, whose estate the Plaintiff administers, owed some monies for airline tickets. Even if Mr. Gurudayal Singh did owe the Defendant some monies, this does not question the indefeasibility of the Plaintiff's title. The Defendant would have had other recourse to recover such monies. There was apparently a close personal relationship between Gurudayal Singh and the Defendant. However the basic fact remains that what the Court is dealing with is a monthly tenancy. The Defendant himself admits that he did modifications and repairs and Mr. Gurudayal Singh would adjust it in my rents (para 12 affidavit of 29/08/00). He also deposes that usually if any increases in rent were made it was done by mutual understanding (para 17). A distress for arrears of rent was also issued by the Plaintiff in May 1998.

The Court is appreciative of the fact that the Defendant has operated his travel service and computer business from the said premises for a long time. He may be performing some community service by assisting illiterate and poor people. However, this is his prerogative. There have been increases in rent previously. The Plaintiff landlord is seeking further increases. The Defendant is refusing to pay the increased rental. A Notice to Quit has been served.

The Court is appreciative of the range of authorities cited and submissions by both Counsels. In considering the principles involved and the facts deposed the Court finds that the Defendant has not shown cause why he should not vacate the premises. An Order for possession is granted.

Application for possession granted.

Mereseini R Vuniwaqa