Singh v Jaimal & Third Party [1941] FijiLawRp 1; [1875-1946] 3 FLR 282 (14 February 1941)

[1875-1946] 3 FLR 282

SUPREME COURT OF FIJI

Civil Jurisdiction

NAND SINGH

v

JAIMAL & THIRD PARTY

Corrie, C.J.

February 14, 1941

Building erected by lessee on land held under a "native " lease - clause in lease providing that building erected on the land shall be the property of and removable by the lessee - bill of sale executed by lessee - over buildings and other chattels - subsequent mortgage of lease executed by lessee - attornment clause in mortgage whereby lessee attorned tenant to the mortgagee at a rent equal to mortgage interest - rights of grantee of bill of sale as against mortgagee considered.

The facts of this case were the subject of a special case as follows:-

"This action was commenced on the 15th day of May 1940 by a writ of summons whereby the plaintiff claimed an injunction to restrain the defendant from entering on or remaining upon the land known as "Lau No. 1A" comprising 1 acre 1 rood in the district of Nakelo described and contained in Native Lease No. 5214 and from occupying or removing the buildings which are upon the said land namely a dwelling house, and kitchen. On the 17th day of September 1940 Security Investments Limited was joined as a third party to this action.

1. Sankar Das was the lessee of 19 acres 1 rood of land "Lau No. 1" by Native Lease No. 2381 dated the 15th day of May 1931, copy of which lease is annexed.

2. Sankar Das erected on that land a dwelling house built on plates resting on and nailed to piles fixed into the ground, and having walls partitions and ceiling of wood with roof of iron and also a kitchen built on piles fixed into the ground.

3. Sankar Das died on the 8th day of July 1931 and probate of his will was granted to Gurncharan on the 25th day of August 1931, copy of which will and probate is annexed. The said Lease No. 2381 was transmitted on the 22nd day of September 1931 to the said Gurucharan as executor and was mortgaged by Gurucharan to Jaimal by mortgage registered on 28th October 1933 numbered 8560, copy of which mortgage is annexed, and which mortgage was discharged on the 24th day of August 1935.

4. On the 1st day of August 1935 Gurucharan assigned the said dwelling house and kitchen to Jaimal of Suva by deed, which was registered as a bill of sale book 35 folio 394 and copy of which is annexed.

5. On the 1st day of August, 1935 no notice of intention to remove the dwelling house had been given by the lessee of Native Lease No. 2381 to the lessor.

6. In December 1935 Gurucharan as executor transferred seventy-two undivided seventy·sevenths share of the Native Lease 2381 to Haricharan and Dharambor.