JDP School of Law LAWF14 – English for Legal Purpose Major Assignment 2 Case Brief Name: Shimal S Prakash Student ID: 20200671 Case Brief – Rajendra Kumar v Ronald Dutt – High Court Case No: HBC 207 0F 2018 Case Name: Kumar v Dutt [2021] FJHC 18; HBC207.2018 (21 January 2021) Parties: Rajendra Kumar v Ronald Dutt Court: The High Court of Fiji. Presiding Judges: Hon. Mr. Justice Vishwa Datt Sharma Date of Hearing: 18th of August 2020 Date of Judgement: 21st January, 2021 at 9:30am Brief Facts: The Leaned master in her ruling of 14th February 2020 made the following orders: i. There are maters such as sub diving the property to ensure there is just and equitable of the beneficiaries in trust in the properties. These are maters that rightfully ought to be decided by way of a writ and not to be ascertained summarily. ii. Accordingly, the originating summons dated 11th July 2018 is dismissed with cost in favor of the Defendant and assessed at $800.00. iii. The plaintiff is to pay the said cost in 14 days. Raj Wanti took demise on 1ST of April 1981. The Plaintiff Rajendra Kumar was granted with Letters of Administration with will grant No.60862 in the Estate of Raj Wanti on 29th September 2017. The Defendant Ronald Dutt is the son of Amika Kumar who is named as one of the four beneficiaries in the deceased Raj Wanti’s will. the Defendant was raising a Defence of Proprietary Estoppel in the substantive case. On 3rd September 2020 the Respondent filed, a formal summons seeking for extension of time to file its written submission pursuant to Order 3 Rule 4 of the High Court Rules 1988. Which states Extension, etc., of time (O.3, r.4) Case Brief – Rajendra Kumar v Ronald Dutt – High Court Case No: HBC 207 0F 2018 4.-(1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these rules, or by any judgment, order or direction, to do any act in any proceedings. (2) The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period. (3) The period within which a person is required by these Rules, or by any order or direction to serve, file or amend any pleading or other document may be extended by consent (given in writing) without an order of the Court being made for that purpose. The Defendant was granted with the grant of Probate No. 62314 in his father’s Estate on 24th July, 2018. Amika Kumar had bequeathed his real and personal Estate to the defendant and his children. Appeal Case: The Plaintiff’s application seeks out orders for vacant possession of the Plaintiff’s land comprised and described in CT 8257 Lot 1 DP No. 1912 situated in the District of Navua. Said application is made pursuant to section 169 of the Land Transfer Act and is supported by an affidavit of Rajendra Kumar sworn on 03 July 2018. The Defendant filed his affidavit sworn on 24 October 2018 showing cause why he should not give up possession. A reply by the Plaintiff was filed on 22 November 2018. The property in question was registered under the deceased’s name and subsequently upon her demise to Rajendra Kumar as Administrator of the Estate. The transfer was affected on 08 November 2017. The Defendant claims to be residing on the property since his birth and prior to that his father has been residing there and both have invested on the property. The Plaintiff states the Defendant has failed to show any evidence of investment. The Defendant has been residing on the property since birth and it would be understandable that a person who thinks he owns a property would not keep receipts of expenditure done on the property. The Plaintiff merely opposes the claim of how the Defendant came into occupation of the land. There are matters such as subdividing the property to ensure there is just and equitable division of the beneficiary’s interest in the property. These are matters that rightfully ought to be decided by way of a Writ and not to be ascertained summarily. Accordingly, the originating summons dated 11 July 2018 is dismissed with costs awarded in favor of Defendant and assessed at $800. The Plaintiff is to pay the said cost in 14 days. Relief Sought: The court had to deliver decisions on two [2] impending applications: Firstly, on the Respondents interlocutory summons seeking for extension of time to file its written submission; and secondly the substantive appeal filed by the appellant hearing. It noted that the Respondent is the party to those proceedings. Also, the Respondents counsel cited order 41 of the High Court Rules 1988i which provides the rules in terms of the filing of affidavits. The affidavit in support filed is deposed by the law clerk, Priya Darshani Devi and the annexures are witnessed by another counsel. Case Brief – Rajendra Kumar v Ronald Dutt – High Court Case No: HBC 207 0F 2018 The Respondent did not find any defect with the law clerks’ affidavit nor do I find anything wrong with the deposed affidavit since it is in compliance with Order 41, Rule 4 of the High Court Rules 1988. Further, the contents of the affidavit were expressed in terms of the administrative facts only. As to the reason on the failure on the respondent’s counsel to appear at the hearing of the Appellant appeal on 15th of August 2020. As for the above reasons the Plaintiff allowed the written submissions filled by the respondent’s counsel. Later on, the substantive appeal, the appellant has filed altogether four [4] grounds of appeal to be determined by this court as enumerated at paragraph 3 [i-iv] inclusive. Issues: The Plaintiff Rajendra Kumar AKA Rajendra Kumar Jiwan as the administrator of the Estate of Raj Wanti instituted these proceedings before the learned master of the High Court seeking an order against the defendant, Ronald Dutt for vacant possession. Pursuant to section 169 of the Land Transfer Act. On 5th March 2020, the Appellant, Rajendra Kumar filed the notice of appeal and the grounds of appeal seeking to challenge the findings of the learned Master on the following grounds: i. That the learned Acting Master erred in law and fact when she concluded and commented as follows: “The Respondent has been residing on the Property since Birth and it would be understandable that a person who thinks he owns the property would not keep receipts of expenditure done on the property.” ii. That the Learned Master erred in Law and fact when she took into account that a trustee could not evict a beneficiary. iii. That the Learned Master erred in law and in fact when she concluded that this matter without any documents provided by the Respondent to Support his Claim. iv. That the Learned Master erred in law and in fact when she failed to give any reasons as to why the Appellants summon for vacant possessions must fail Grounds: On the first reading of the above groundii, the conclusions that this court can draw herein is that the Respondent was raising the Defence of Proprietary Estoppel. The provisions of Section 169 – 172 of the Land Transfer Act provides the summary procedure seeking for an order for vacant possession. And also, Summary proceedings under Sections 169, 171 and 172 of the Land Transfer Act has a two-limb test. [The first test is that the honors are on the plaintiff to satisfy to the court that he is the last registered proprietor or a lessor defined under Section 169 [a, b, c] or the Act and that the Defendant is in the possession of the land. Once the Plaintiff satisfies the first limb of the test, then the burden will shift on the Defendant to proof that he has a right to the possession of the land. Pursuant to Section 172 of the Act, the defendant is not required to prove his title against the title of the plaintiff. This is not to say that the final or in incontrovertible proof of a right to remain in possession must be adduced. What is required herein is that some tangible evidence establishing a right or supporting and arguable case for such a right must be adduced]. Case Brief – Rajendra Kumar v Ronald Dutt – High Court Case No: HBC 207 0F 2018 The Deceased, Raj Wanti left behind a will bequeathing all her real and personal Estate in equal shares as tenants in common to her four sons Amika Kumar, Rajendra Kumar, Ravin Kumar and Narend Kumar respectively. Even after 4 (IV) grounds, the ground of appeal failed. Ratio Decidendi: The Appellant’s appeal was dismissed. There was no order for costs against the Plaintiff accordingly. Conclusion: Based on the above reasons, the complainant's complaint was rejected accordingly. Since the appeal was made in the absence of the defendant and the corresponding late written submission of the hearing, no cost decision will be made against the plaintiff. i Form of affidavit (O.41, r.1) 1.-(1) Subject to paragraphs (2) and (3), every affidavit sworn in a cause or matter must be entitled in that cause or matter. (2) Where a cause or matter is entitled in more than one matter, it shall be sufficient to state the first matter followed by the words "and other matters", and where a cause or matter is entitled in a matter or matters and between parties, that part of the title which consists of the matter or matters may be omitted. (3) Where there are more plaintiffs than one, it shall be sufficient to state the full name of the first followed by the words "and others", and similarly with respect to defendants. (4) Every affidavit must be expressed in the first person and, unless the Court otherwise directs, must state the place of residence of the deponent and his occupation or, if he has none, his description, and if he is, or is employed by, a party to the cause or matter in which the affidavit is sworn, the affidavit must state that fact. In the case of a deponent who is giving evidence in a professional, business or other occupational capacity the affidavit may, instead of stating the deponent’s place of residence, state the address at which he works, the position he holds and the name of his firm or employer, if any. (5) Every affidavit must be in book form, following continuously from page to page. (6) Every affidavit must be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject. (7) Dates, sums and other numbers must be expressed in an affidavit in figures and not in words. (8) Every affidavit must be signed by the deponent and the jurat must be completed and signed by the person before whom it is sworn. (http://www.paclii.org/fj/rules/procedural_rules/Fiji%20-%20Fiji%20High%20Court%20Rules%201988.html ) ii “The Respondent has been residing on the Property since Birth and it would be understandable that a person who thinks he owns the property would not keep receipts of expenditure done on the property.”