Nagur v Narsamma [1979] FJSC 67; Action 2 of 1977 (16 March 1979)

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

Probate Jurisdiction

Action No. 2 of 1977

BETWEEN

NAGUR s/o Kotaiya
Plaintiff

AND

NARSAMMA d/o Appal Sami
Defendant

Mr. S. Prasad, Counsel for the Plaintiff
Messrs. R.D. Patel & Raj Kumar, Counsel for the Defendant

JUDGMENT

The defendant is executrix of the estate of her husband who died on 20/5/63 leaving all his property in equal shares to the plaintiff, (his brother), and the defendant.

At the time of the testator’s death his brother, the plaintiff, was living at the deceased’s house as part of his family and was already married.

The deceased left a cane farm with a cane contract 1980 and implements, cattle and a rough dwelling which for purposes of probate were valued at approximately £1200. There was also a small, separate piece of land measuring about 3¾ acres.

Since 20/5/63 the plaintiff and his family have lived on the farm with the defendant. The plaintiff’s Statement of Claim requests an account of the affairs of the estate since 1963 and for distribution. The Statement of Claim is dated 24/1/78.

In her Statement of Defence the defendant alleges that the account for probate was prepared by the plaintiff because she is illiterate and that since the death of her husband the bank account, although in her name, was operated by the plaintiff. It alleges that in 1973 she purchased a 9 acre farm with cane contract No. 1981 for $6000 from Ram Kissun, and conveyed it to the plaintiff in lieu of his share of the deceased’s estate. She claims an account of the proceeds of farm 1981 from 1973 to date should it be held to be part of the trust estate.

In reply the plaintiff alleges that he paid for farm 1981 from the monies he earned on the farm.

He admits that until 1976 the plaintiff, his wife, and six children have lived with the defendant on the proceeds of the deceased’s farm since 1963; that his children have been and are being educated from its proceeds; his son and daughter were married at a joint wedding and the defendant borrowed money to pay for it. During this period the defendant had no one dependent upon her.

The defendant was entitled to payment for the work he did on the farm and to half the income after making that deduction. Had the proceeds been divided in that manner he would undoubtedly have been worse off. In cross-examination he agreed that throughout the years the bulk of the income from the farm had been expended on the plaintiff and his family. It was also admitted that the defendant was alone, that her requirements were very modest and she had no family to support.

The plaintiff says he did not know that he was on equal beneficiary with the defendant under his brother’s will. If that is so then he would have been the victim of a deception on the part of the defendant. But no such allegation has been made in the pleadings and I do not believe it.

The defendant is completely illiterate. She says and the plaintiff agrees that shortly after her husband’s death she opened an account with Bank of New Zealand at Ba in her own name, and until 1973 the only person to operate it was the plaintiff.

Earnings from the farm’s cane contract were paid into the account. The plaintiff constantly had access to the farm accounts and from the money he withdrew he knew that he was receiving most of the income for himself and his family.

The purpose of taking an account is to ensure that the beneficiaries received a fair share of the income. The plaintiff agreed that this was the position up to 1976 although differences began to arise about 1973/74 in connection with the purchase of farm 1981. In 1976 and 1977 he says that the defendant paid him ½ of the earnings from the farm 1980 but at that time he was retaining the entire income from farm 1981.

In my view, up to 1977, the plaintiff has clearly received more than his full share from the farm 1980.Therefore no useful purpose would be served by ordering the defendant to file returns showing all the monies earned by that farm – if this were possible.

The plaintiff asks for and he is entitled to distribution of the estate and one has to consider what consists of. The defence contend that the farm 1981 must be included in the estate if an order for distribution is made.

The plaintiff argues that the farm 1981, purchased for $6000 in 1973 from Ram Kissun is not part of the estate and that it belongs entirely to him. He alleges that it was not brought from the income arising out of the deceased’s estate but from his own personal efforts on the farm 1981.

There is no doubt on the evidence that the estate had not the $6000 with which to pay for the farm. One Hari Raniga, P.W.2, says that he loaned $6000 to the defendant to purchase the farm 1981. It was in 2 portions for $4000 and one for $2000. The $4000 was paid off within a week or two and the $2000 in a year or so. I have no hesitation in accepting P.W.2’s evidence which is supported by receipts for $4000 and $2000 which indicate that the payments were made to Ram Kissun in the plaintiff’s name. P.W.2 said that the plaintiff was present when the payments were made and that the defendant stated that the newly purchased farm was to represent the plaintiff’s share of the estate. I am satisfied on that evidence that the plaintiff was aware that he was a beneficiary and that the defendant was trying to effect a distribution without having to sell the estate.

It is not disputed that the bulk of the money borrowed from Hari Raniga was repaid to him from loans which the defendant obtained from other people. I am quite satisfied that she was responsible for the repayment of those loans. Hari Raniga, P.W.2, explained that the defendant was old friend of his family and he would not have loaned the money to the plaintiff. If the plaintiff was buying farm 1981 for himself why was the defendant so involved? It was the defendant who agreed the purchase price. Why did not the plaintiff borrow the $6000 himself and repay the money to the lender himself?

The plaintiff says that he nevertheless provided the defendant with the $6000 to pay for the farm by dint of his own efforts in working it. That statement proved to be quite untrue.

Farm 1981 holds the cane contract of that number i.e. 1981. The transfer was not consented to by the N.L.T.B. until mid-September 1973.

In cross-examination the plaintiff admitted that during 1973, 1974 and 1975 the farm 1981 only earned $3,524 without taking operating expenses into account yet he had claimed he had paid the $6000 in that period. He says that since 1976 he has retained the earnings from farm 1981 but in the preceding three years he had handed them to the defendant. However, in those three years his son and daughter were married and the defendant bore that expense. He does not know the cost but the defendant says it was about $2000. Therefore his (the plaintiff’s) contribution from farm 1981 could not have exceeded $1500 and the cost of cultivation, harvesting etc. for 3 years may have amounted to $1500. No allowance is made for the cost of keeping his large and fairly adult family during those three years, which must have come from the income of farm 1980.

I am quite satisfied that the plaintiff did not pay for farm 1981 from the money he earned on it. Of course I do not mean by that comment that he contributed nothing towards it. He was still helping on farm 1980 and it appears that his married son was working on farm 1981. Money must have come from farm 1980 to help meet the purchase price of $6000 paid for the farm 1981.

P.W.2, BESIA, the plaintiff’s brother, gave evidence to support the plaintiff’s claim that the plaintiff purchased farm 1981. He said that the plaintiff borrowed $800.00 from him and that the plaintiff repaid him over a period of 2 years. His evidence clashes somewhat with that of the plaintiff who says all the money earned from the farm 1981 in 1973, 1974 & 1975 went to pay the $6000 purchase money. The money could not go to two sources i.e. to P.W.2 and the defendant in payment for the farm. The plaintiff says that he earned extra money by breeding and selling goats. If he did so on trust land then he should account to the estate. The plaintiff intimated that he received little in the way of cash but his Statement of Claim shows that in 1967 he went to New Zealand. His evidence is that he stayed there for 3 months. Who paid for his airfare, and his keep and other expenses during his 3 months in New Zealand? I can only assume it was paid for out of the estate. There is no evidence to suggest that the defendant ever had a holiday of any kind.

Why did the plaintiff think that the defendant was going to all this trouble to get 9¾ acres of cane farm with a cane contract attached to it? Why did he think that she was making the purchase in the name of the plaintiff? He said he regarded it as fulfilment of the promise of his deceased brother to give him some land. I am not impressed by that reply because his deceased brother had left him a half-share in the farm 1980 and in his other property. Thus the brother had fulfilled his promise.

In my view, once the plaintiff thought that he was the sole beneficial owner of farm 1981 he then wanted a full half-share of the earnings of farm 1980 in addition to all the income from farm 1981, or the sale of farm 1980 and half the proceeds from the scale.

The defendant appeared to me to be honest, intelligent but completely illiterate elderly woman. She allowed the plaintiff to enjoy in kind the bulk of the income from the farm 1980. But realised, as did the plaintiff, that a division of the estate was becoming imperative. I am satisfied she thought that the best way of achieving this would be to double the size of the estate by the purchase of another farm which could be handed to the plaintiff in lieu of his share in his deceased brother’s estate. Whilst the plaintiff was aware of the defendant’s intentions there was no agreement in writing to that effect.

The farm 1981 was obviously purchased by the trustee, the defendant, from the proceeds of trust property i.e. from the proceeds of farm 1980 and in my view it forms part of the “trust estate.” No doubt the plaintiff contributed to this by his effort as a cane farmer.

It may be pertinent at this stage to estimate what the plaintiff has received from the trust estate since 1973 (he had the bulk of the income prior to 1973). He received since 1973 $2000 the cost of his children’s marriage; he had also received $1600 which was the cost of building his house; in 1976 and 1977 he received half the income from farm 1980; in addition he received the cost of feeding, clothing and educating his children up to 1976; his married son is still a liability having a wife and 3 children living on farm 1980.

After meeting all those outgoing s from the income of farm 1980 plus $3,500 from farm 1981 one wonders what could be left to the defendant as her share. If there was any balance left over from the years 1973 to 1977 it must surely be accounted for in the purchase of farm 1981 for $6000. It must also be borne in mind that since 1975 the defendant has received no money from farm 1981. She is really entitled to half the income from farm 1981 after the plaintiff is paid for his labour. However, this cross-accounting could cause confusion and therefore I do not think it would be expedient to make the defendant account for farm 1980 for 1978 and the plaintiff account for farm 1981 for 1976, 77 and 1978.

One item remains unaccounted for. It was a piece of separate land of 3½ acres or so which the defendant sold in October, 1977 for $260.00. She treated it as being outside the trust estate and kept her money for her own purposes. She readily agrees that she did not give part of it to the plaintiff.

Like the farm 1981 it is part of the trust estate. In my opinion the entire trust estate of which the defendant must make distribution are the two farms and the $2,600. The beneficiaries are the plaintiff and herself. Being of full age they could arrange their own mode of dividing or distributing the estate. Since they do not wish to take that course all that I can do is to order its sale.

I accordingly have to direct and I am loath to do so, that both farm and their accompanying cane contracts be sold. If that order were directed to the defendant her illiterate becomes a problem. Moreover, she could be confronted with serious difficulties in relation to the farm registered in the plaintiff’s name. Under the circumstances it would more expedient to vest the farms in Public Trustee for him to sell and to receive the income from them until sale and to divide the proceeds between the beneficiaries.

It will always be open to the parties, at any time before a contract or contracts for sale have been entered into by the public Trustee, to apply to this Court to set aside the order for sale and to approve some practical share out of the leases.

In any event the defendant has to account to the plaintiff for half of the $2,600 received by her on the sale of the separate 3 acre plot.

It is Ordered that the native lease holds known as lot 7, subdivision Veisaru held under N.L.T.B. Tenancy No. 4/1/2242 along with sugar cane contract No. 1981 and lot 6, subdivision Veisaru held under N.L.T.B. Tenancy No. 4/1/2241 along with sugar cane contract 1980 to be vested in the Public Trustee forthwith for the purpose of an immediate sale, including buildings, farm implements, tractors and working animals; that the defendant do hand to the Public Trustee the sum of $2,600 received by her from the sale of Native Lease No.4/1/3658, that the F.S.C. Ltd. Be directed to pay the sum due on the aforesaid cane-contracts to the Public Trustee until the further Order of the Court. Upon Sale of the said properties the Public Trustee will pay all monies received by him into the Court for distribution. Meanwhile the parties are restrained from attempting to dispose of the leaseholds or to charge them in a way and from receiving any income from the F.S.C. in respect of the farms.

I make no order for costs against either party since the plaintiff deliberately delayed in applying for distribution until such time as farm 1981 was paid for and he then hoped to gain an order which would entitle him to the whole of farm 1981 together with half the income from farm 1980.

(sgd) (J.T. Williams),
JUDGE

LAUTOKA,
16th March, 1979