Narayanamma v Naidu [1979] FJSC 52; Civil Action 133 of 1979 (12 October 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
Civil Jurisdiction

Action No. 133 of 1979

BETWEEN

NARAYANAMMA
d/o Rangal Swamy Naidu
Plaintiff

AND

SIVAM NAIDU
s/o Murri Appalswmay Naidu
Defendant

Mr. A. Balram, Counsel for the Plaintiff
Mr. J. Punja, Counsel for the Defendant.

JUDGMENT

The plaintiff in the instant case is the mother of the defendant and they reside on the same farm and in the same house.

She issued a notice to quit to the defendant and complains that he refuses to leave and brings a summons for possession under S.169 of the L.T.A. 1971.

Her affidavit complains that the defendant has stayed on the premises ever since the death of her husband, pays no rent and does not have her permission to be there. She does not state when her husband died but claims to be the sole registered proprietor and annexes a photostat of the certificate of title. The latter reveals that there is a tenancy in common under which the plaintiff holds ²/₃ in her own right and one third as executrix and trustee of the estate of Murri Appalswami Naidu. She omitted, perhaps conveniently to state that Murri Appalswami Naidu was her husband and that the ¹/₃ share she holds as executrix is his estate.

The lost piece of information appears in the defendant's affidavit who states that Murri Appalswami Naidu, the defendant's father died on 7/2/69 and annexes a photostat of the deceased's will. Under the will the plaintiff (deceased's wife) and his 3 sons share equally the deceased's ¹/₃ of the farm and appoints the plaintiff as executrix. As a result of the will the plaintiff now holds (²/₃ + (¹/₄ of ¹/₃) of the farm i.e. ⁹/₁₂ and her three sons including the plaintiff hold ¹/₁₂ each.

The plaintiff should have completed the administration of her husband's estate some years ago but appears to be doing nothing about it. Since she cannot partition the land without the consent of the Director of Lands, and he is unlikely to give consent to the lopping off of portions amounting to only ¹/₁₂ especially since the farm is only 7 acres, she will have to sell it unless she can come to some arrangement with the beneficiaries. There is no method by which the defendant can be allocated one twelfth by actual measurement and marking out. His is an undivided share and it gives him a right to remain on the land to the extent of fully enjoying that share. It would seem that those observations apply to the house which is on the land and which appears to have formed part of the deceased's estate.

There is no doubt that the defendant has shown cause why he should not be evicted.

The plaintiff's claim is dismissed and she will pay the costs of this proceeding.

(Sgd) (J.T. WILLIAMS)
JUDGE

LAUTOKA,
12th October, 1979