Nand v Mohan [1987] FijiLawRp 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.