Cassation judgment No. 27/2006/DS-GDT dated october 2, 2006 regarding dispute over property right and inheritance

COUNCIL OF JUSTICES OF THE SUPREME PEOPLE’S COURT

CASSATION JUDGMENT NO. 27/2006/DS-GDT DATED OCTOBER 2, 2006 REGARDING DISPUTE OVER PROPERTY RIGHT AND INHERITANCE

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On October 2, 2006, the cassation trial was conducted at the office of the Supreme People’s Court to hear the civil case of dispute over property right and inheritance between:

- Petitioner:  Mrs. Nguyen Thi Binh, born in  1933; residing at:  kiosk No. 4, Hoa Binh zone, ward 1, Da Lat city, Lam Dong province (hereinafter referred to as Mrs. Nguyen Thi Binh 1).

- Respondent:  Mr. Dang Van Canh, born in 1954; residing at:  102 Phan Dinh Phung, ward 2, Da Lat City, Lam Dong province.

- Persons with related interests and obligations:

1. Mr. Dang Van Minh, born in 1955; residing at:  6/6 Tran Hung Dao, ward 3, Da Lat City, Lam Dong province;

2. Mrs. Nguyen Thi Binh, born in 1937; residing in: 314D An Quang, ward 9, district 10, Ho Chi Minh City (hereinafter referred to as Nguyen Thi Binh 2);

3. Mr. Dang Van An, born in 1959; residing at:  102 Phan Dinh Phung, ward 2, Da Lat City, Lam Dong province;

4. Mrs. Dang Thi Nhan, born in 1961, residing in Canada; Mrs. Nhan authorized Mr. Dang Van An and Mr. Dang Van Canh to act on her behalf;

5. Mrs. Dang Thi Huyen, born in 1957, residing in France; Mrs. Huyen authorized Mrs. Hoang Thi Yem at first, and then authorized Mr. Dang Van An and Mr. Dang Van Canh to act on her behalf;

6. Mrs. Dang Thi Thanh Xuan; born in 1967; residing at: 14 Nguyen Chi Thanh, ward 1, Da Lat City, Lam Dong province;

7. Mrs. Dang Thi Ngoc Bich, born in 1970, residing at the same address with Mrs. Binh 1;

8. Mrs. Dang Thi Tuyet, born in 1932; residing at: 356 pho Hue, Hanoi;

9. Mr. Dang Van Loc, born in 1972, residing at the same address with Mrs. Binh 1;

10. Mrs. Tong Ho Kim Chung, born in 1932; residing at: Center for Social Protection, Lam Dong province;

11. Mrs. Ngo Thi Thu, born in 1914, residing at the same address with Mrs. Tuyet and she authorized Mrs. Tuyet to act on his behalf.

FINDING THAT

Representation of Mrs. Nguyen Thi Binh 1, Mrs. Dang Thi Thanh Xuan, Mrs. Dang Thi Ngoc Bich and Mr. Dang Van Loc in the lawsuit petition dated July 1, 1992 and statements made at the People’s Court of Lam Dong province:

Mrs. Ngo Thi Thu has two children: Mrs. Dang Thi Tuyet and Mr. Dang Van Tuy.

Mr. Tuy had 4 wives:

- The first wife is Mrs. Nguyen Thi Binh 2 (got married in 1954) and they have 1 common child: Mr. Dang Van Minh. In 1955, Mr. Tuy and Mrs. Binh 2 voluntarily divorced (in 1959, Mrs. Binh 2 got married to another man).

- The second wife is Mrs. Tran Thi Hoa (got married in 1955) and they have 4 common children: Mr. Dang Van Canh, Mr. Dang Van An, Mrs. Dang Thi Huyen, and Mrs. Dang Thi Nhan.

In 1962, Mrs. Hoa died leaving no will.

- The third wife is Mrs. Tong Ho Kim Chung: In 1965 Mr. Tuy had a relationship with Mrs. Tong Ho Kim Chung but they have no common child. In 1966, they broke off with each other by their own.

- The fourth wife is Mrs. Nguyen Thi Binh 1: After breaking off with Mrs. Chung, in 1966 and 1967 Mr. Tuy had cohabited with Mrs. Binh 1 and have 3 common children: Mrs. Dang Thi Thanh Xuan, Mrs. Dang Thi Ngoc Bich, and Mr. Dang Van Loc.

With reference to property: In 1955, Mrs. Thu, Mr. Tuy and Mrs. Hoa rent a house in Da Lat (now is at 102 Phan Dinh Phung, Da Lat city). In 1962, Mrs. Hoa died, Mr. Tuy, Mrs. Thu and the children of Mrs. Hoa still lived in the rent house. After getting married to Mrs. Binh 1 (in 1966), Mr. Tuy, Mrs. Binh 1, Mrs. Thu and the children had lived in this house.

In 1970, Mr. Tuy, Mrs. Binh 1 purchased this rent house and rebuilt it as it is now.

On January 10, 1980, Department of Construction of Lam Dong province issued a certificate of ownership of the house at 102 Phan Dinh Phung to Mrs. Binh 1 and Mr. Tuy.

On February 11, 1991, Mr. Tuy died without a will. Mrs. Binh 1, Mr. Canh, and Mr. An take care of a portion of the house, and Mrs. Thu came to Hanoi to live with Mrs. Tuyet.

Due to certain conflicts, in 1992, Mrs. Binh 1 filed a lawsuit stating that the house at 102 Phan Dinh Phung, Da Lat is the common property of her and Mr. Tuy, so she claims payment of marital property and distribution of inheritance associated with the estate of Mr. Tuy.

Mr. Canh states that the house at 102 Phan Dinh Phung is the common property of Mr. Tuy and his mother (Mrs. Hoa) and Mrs. Thu, Mrs. Binh 1 gave no contribution so he claims a portion of inheritance from the estate of Mrs. Thu, Mr. Tuy and Mrs. Hoa.

Mr. Minh states that Mrs. Binh 2 contributed a portion in the amount used to purchase the house at 102 Phan Dinh Phung, so he claims to refund her that portion and he also claims a portion of inheritance from the estate of Mr. Tuy.

Other litigants claim inheritance by operation of law.

In addition, the litigants all admit that Mr. Tuy and Mrs. Binh 1 still owe Mrs. Tuyet (Mr. Tuy’s sister) 4 taels of gold.

In the first instance civil judgment No. 01/DSST dated January 25, 1995, the People’s Court of Lam Dong province judged:

1. Certify that the marital property of Mr. Dang Van Tuy and Mrs. Nguyen Thi Binh 1 includes the house at 102 Phan Dinh Phung, ward 2, Da Lat city, Lam Dong province worth VND 1,001,267,208 and determine that the debt of Mr. Tuy and Mrs. Binh 1 payable to Mrs. Dang Thi Tuyet is 4 taels of 24k gold.

2. Determine that the heirs of Mr. Dang Van Tuy include 11 people as follows:  Mrs. Thu, Mrs. Chung, Mrs. Binh 1, Mr. Minh, Mr. Canh, Mr. An, Mrs. Nhan, Mrs. Huyen, Mrs. Xuan, Mrs. Bich and Mr. Loc.

3. Mrs. Nguyen Thi Binh 1 shall be entitled to own the entire house at 102 Phan Dinh Phung, Da Lat city, Lam Dong province and Mrs. Binh 1 shall be liable for repaying 4 taels of 24k gold to Mrs. Dang Thi Tuyet and repaying other 10 heirs VND 44,748,510 each.

In addition, the judgment also decided the court fee and announced the appeal right to litigants as per the law.

On January 26, 1995, Mrs. Chung made an appeal claiming that it is improper that she is only entitled to the same portion of inheritance as the children though she is the official wife of Mr. Tuy.

On January 27, 1995, Mrs. Hoang Thi Yem (authorized by Mrs. Huyen) made an appeal claiming that: The property of Mr. Tuy was contributed by 4 wives, so the court was improper when only distributing that to the fourth wife.

On February 7, 1995, Mr. Canh made an appeal claiming that: The court has not made specific verification of the property formation and development in last 40 years and related persons are not insufficiently mentioned. The judgment is only appropriate in a case of 1 wife and 1 husband, but Mr. Tuy had 4 wives and 3 lines of children.

In the appellate civil judgment No. 194/DSPT dated September 30, 1995, the Appellate Court of People’s Supreme Court in Ho Chi Minh City judged:

1. Quash the first instance civil judgment No. 01 dated January 25, 1995 of the People’s Court of Lam Dong province on the dispute over inheritance between the petitioner Mrs. Nguyen Thi Binh 1 and the respondent Mr. Dang Van Canh.

2. Remand the case back to the court of first instance for further investigation with another trial panel.

In the first instance civil judgment No. 01 dated May 17, 1996, the People’s Court of Lam Dong province judged:

1. Certify that the marital property of Mr. Dang Van Tuy and Mrs. Nguyen Thi Binh 1 includes the house at 102 Phan Dinh Phung, ward 2, Da Lat city, Lam Dong province worth VND 865,541,000.

- Determine that the debt of Mr. Tuy and Mrs. Binh 1 payable to Mrs. Dang Thi Tuyet is 4 taels of 24k gold, equivalent to VND 20,400,000 at the trial time.

2. Determine that the heirs by operation of law of Mr. Dang Van Tuy include 12 people as follows:  Mrs. Ngo Thi Thu, Mrs. Nguyen Thi Binh 2, Mrs. Tong Ho Kim Chung, Mrs. Nguyen Thi Binh 1, Mr. Dang Van Canh, Mr. Dang Van An, Mr. Dang Van Minh, Mrs. Dang Thi Nhan, Mrs. Dang Thi Huyen, Mrs. Dang Thi Thanh Xuan, Mrs. Dang Thi Bich Ngoc and Mr. Dang Van Loc.

Assign Mrs. Nguyen Thi Binh 1 be entitled to own the entire house at 102 Phan Dinh Phung, Da Lat city, Lam Dong province and Mrs. Binh 1 shall be liable for:

a) Repaying Mrs. Dang Thi Tuyet 4 taels of gold (equivalent to VND 20,400,000) of debt and VND 35,214,208 is the portion of inheritance to which Mrs. Ngo Thi Thu is entitled and Mrs. Tuyet is authorized to take care of Mrs. Thu’s portion of inheritance thereafter.

b) Repaying Mrs. Chung, Mrs. Binh 2, Mr. Minh, Mr. Canh, Mr. An, Mrs. Huyen, Mrs. Nhan, Mrs. Xuan, Mrs. Bich, Mr. Loc VND 35,214,208 each.

Giving Mrs. Binh 2’s portion of inheritance to Mr. Minh for temporary management.

Diving Mrs. Nhan and Mrs. Huyen’s portions of inheritance to Mr. Canh and Mr. An for temporary management.

c) Mr. Dang Van Canh has to give the entire house to Mrs. Binh 1 in 2 months since the judgment becomes legally effective.

In addition, the judgment also announced the court fee and the right to appeal of the litigants.

On May 24, 1996, Mrs. Chung made an appeal claiming that the court of first instance rendered an unfair judgment not based on reality.

On May 24, 1996, Mr. Canh made an appeal claiming that the court of first instance rendered an unsatisfactory judgment prejudicing the interests of him and his brothers and sisters.

In the appeal petition without date (the People’s Court of Lam Dong province received it on May 29, 1996), Mrs. Binh 1 states that the court of first instance was wrong when claiming Mrs. Binh 2 and Mrs. Chung as the eligible heirs.

In the decision No. 01/KN-DS dated June 25, 1996, the Chief Procurator of the People’s Procuracy of Lam Dong province appealed the first instance judgment, claiming that as Mrs. Binh 2 and Mrs. Chung are not official wives of Mr. Tuy, they are not eligible heirs. Therefore, request the appellate court of the Supreme People's Court in Ho Chi Minh City to try under appeal procedure towards distributing estate of Mr. Tuy legally.

In the appellate civil judgment No. 133/DSPT dated July 27, 1996, the appellate court of People’s Supreme Court in Ho Chi Minh City judged:

1. Accept the claim for division of marital property and distribution of estate of Mrs. Nguyen Thi Binh 1.

- Certify that the marital property of Mr. Dang Van Tuy and Mrs. Nguyen Thi Binh 1 includes the house at 102 Phan Dinh Phung, ward 2, Da Lat city, Lam Dong province worth VND 865,514,000.

- Determine the debt that Mr. Tuy and Mrs. Binh 1 are payable to Mrs. Dang Thi Tuyet is 4 taels of 24k gold (equivalent to VND 20,400,000 at the first instance trial time).  Mrs. Binh 1 is entitled to own the remaining half of marital property, after subtracting the debt of VND 422,570,500.

2. Determine the estate left by Mr. Dang Van Tuy (after dividing Mrs. Binh 1 a half of the marital property) of VND 422,570,500.

- Eligible heirs of Mr. Tuy include: Mrs. Ngo Thi Thu, Mrs. Nguyen Thi Binh 2, Mr. Dang Van Minh, Mr. Dang Van Canh, Mr. Dang Van An, Mrs. Dang Thi Huyen, Mrs. Dang Thi Nhan, Mrs. Dang Thi Thanh Xuan, Mrs. Dang Thi Bich Ngoc and Mr. Dang Van Loc. Mrs. Tong Ho Kim Chung is entitled to a part of inheritance of Mr. Tuy, equivalent to 1 estate portion.

3. Assign Mrs. Nguyen Thi Binh 1 be entitled to own the entire house at 102 Phan Dinh Phung, ward II, Da Lat city, Lam Dong province. Mrs. Binh 1 shall be liable for repaying:

a) Mrs. Dang Thi Tuyet 4 taels of 24k gold, worth VND 20,400,000. paying Mrs. Ngo Thi Thu the estate portion of VND 38,415,500, Mrs. Tuyet is authorized by Mrs. Thu manage the above-mentioned property to settle the inheritance of Mrs. Thu thereafter.

b) Mr. Dang Van Minh, Mr. Dang Van Canh, Mr. Dang Van An, Mrs. Dang Thi Huyen, Mrs. Dang Thi Nhan, Mrs. Dang Thi Thanh Xuan, Mrs. Dang Thi Ngoc Bich, Mr. Dang Van Loc the estate portion of VND 38,415,500 each and Mrs. Tong Ho Kim Chung the part of estate of Mr. Tuy equivalent to one estate portion of VND 38,415,500.

Diving Mrs. Nhan and Mrs. Huyen’s portions of inheritance to Mr. Canh and Mr. An for temporary management.

c) Mr. Canh has to hand over Mrs. Nguyen Thi Binh 1 the entire house at 102 Phan Dinh Phung, ward II, Da Lat city within 6 months before the date of appellate pronouncement on July 27, 1996.

In addition, the appellate court also decided the court fee.

After appellate trial, the litigants paid the court fees already and Mr. Canh and Mr. An handed over the house to Mrs. Binh 1 since January 1997.

Mrs. Binh 1 proposed to sell the house to make payments to the heirs and repay the debt.

According to the re-valuation of the house by the department of judgment enforcement of Lam Dong province, the value of the house is VND 542,639,000. Meanwhile, the heirs still claim VND 38,415,500 each based on the appellate judgment No. 133/DSPT dated July 27, 1996. Therefore, the foregoing judgment cannot be enforced. On July 6, 1998, the department of judgment enforcement of Lam Dong province sent the  dispatch No. 75-THA requesting the Supreme People's Court to retry the case under cassation procedure.

In the Decision No. 16/DS dated July 17, 1998, the Chief Justice of the Supreme People’s Court appeals the aforesaid appellate judgment with the following judgment:

The court of first instance and the court of appeal correctly determined the estate, the commencement of inheritance time and eligible heirs and properly distributed the estate of Mr. Tuy by operation of law to Mrs. Thu, Mrs. Binh 1 and Mr. Tuy’s children.

However, while the certificate of ownership of the house No. 431 dated January 10, 1986 of Department of Construction of Lam Dong province determines that the house at 102 Phan Dinh Phung (under current dispute) remains 50% of value (case file p. 30), the valuation report dated April 9, 1996 of the valuation council determines that the said house remains 61.61% of value. At the valuation time, the petitioner, the respondent and persons with relevant rights and obligations all claim that the valuation council overvalued the house. Therefore, the court of first instance and court of appeal was wrong when not re-valuing the house, applying the value determined by the valuation council to distribute the estate in kind to Mrs. Binh 1 and compelling Mrs. Binh 1 to make repayments the other heirs.

Request the Committee of Justices of the Supreme People's Court to quash the said appellate judgment, refer the case file to the appellate court of the Supreme People’s Court in Ho Chi Minh City to resolve the case towards: Re-value the house in dispute and determine the correct value of the estate of Mr. Tuy to distribute the inheritance as per the law.

Suspend the enforcement of the said appellate judgment.

In the conclusion No. 220/KL-DS dated November 26, 1998, the Chief Procurator of the Supreme People’s Procuracy requests the Committee of Justices of the Supreme People's Court to retry the case under the cassation procedure towards: Quash the first instance civil judgment No. 01 dated May 17, 1996 of the People’s Court of Lam Dong province and the said civil appellate judgment, and then refer the case file to the People’s Court of Lam Dong province to re-try under first instance procedure towards re-valuing the house for distribution of inheritance.

In the decision No. 04/UBTP-DS dated February 10, 1999, the Committee of Justices of the Supreme People’s Court suspended settlement of the case until there are new regulations of Standing Committee of the National Assembly on housing-related civil transactions established before July 1, 1991 with involvement of Vietnamese overseas.

At the cassation trial, the representative of the People’s Supreme Procuracy requested the Council of Judges of the Supreme People’s Court to quash the said civil appellate judgment of the appellate court of the Supreme People’s Court in Ho Chi Minh City, the first instance judgment No. 01 dated May 17, 1996 of People’s Court of Lam Dong province; refer the case file to the People’s Court of Lam Dong province for first instance re-trial as per the law.

CONSIDERING THAT

The court of first instance and the court of appeal correctly determined the estate, the commencement of inheritance time and eligible heirs and properly distributed the estate of Mr. Tuy by operation of law to Mrs. Thu, Mrs. Binh 1 and Mr. Tuy’s children.

In the certificate of ownership of the house No. 431ND/XD dated January 10, 1986, Department of Construction of Lam Dong province determines that the house in dispute remains 50% of value, but valuation report dated April 9, 1996 of the valuation council at the first instance level determines that the house at 102 Phan Dinh Phung, ward 2, Da Lat city, Lam Dong province remains 61.61% and determines that the value of house and land is VND 865,541,000. The litigants all claim that the valuation council overvalued the house and request the re-valuation, but the court of appeal failed to do so and still applied the old value determined by the valuation council and then gave the entire house to Mrs. Binh 1 and compelled her to make payments to the other heirs. This decision is not lawful and does not guarantee the interests of the litigants. Furthermore, the valuation of estate was conducted by the court of first instance in 1996, the prices of land and houses now considerably varies, the re-valuation is needed to ensure the interests of litigants and in conformity with real circumstance. Alternatively, the Committee of Justices of the Supreme People's Court suspended the resolution of this case as prescribed in laws and regulations in 1999, so, there are substantial grounds to resolve the case as prescribed in Resolution No. 1037/2006/NQ-UBTVQH11 dated July 27, 2006 of Standing Committee of the National Assembly:  “housing-related civil transactions established before July 1, 1991 with involvement of Vietnamese overseas” needs to be clarified if there is any change of the litigants and in their requests and it is required to clarify the overseas places of residence of the litigants and the requests of other litigants in the case.

In addition, the court of appeal also determined that Mr. Tuy and Mrs. Binh 1 owe Mrs. Tuyet 4 taels of gold and forced them to repay in cash while the value of this amount of gold considerably varied. Thus, it is essential to re-value these 4 taels of gold to ensure the interests of the litigants.

According to abovementioned documents and evidence, pursuant to Clause 3 Article 291; Clause 3 Article 297; Clause 2 Article 299 of the Civil Procedure Code, Resolution No. 1037/2006/NQ-UBTVQH11 dated July 27, 2006 of Standing Committee of the National Assembly on housing-related civil transactions established before July 1, 1991 with involvement of overseas Vietnamese.

HEREBY DECIDES

Quash the appellate civil judgment No. 13/DSPT dated July 27, 1996 of the appellate court of the Supreme People’s Court of Ho Chi Minh City and the first instance civil judgment No. 01 dated May 17, 1996 of the People’s Court of Lam Dong province which resolved the division of marital property and distribution of estate between the petitioner, Mrs. Nguyen Thi Binh 1, and the respondent, Mr. Dang Van Canh, persons with relevant rights and obligations, Mr. Dang Van Minh, Mrs. Nguyen Thi Binh 2, Mr. Dang Van An, Mrs. Dang Thi Huyen, Mrs. Dang Thi Nhan, Mrs. Dang Thi Thanh Xuan, Mrs. Dang Thi Ngoc Bich, Mr. Dang Van Loc, Mrs. Tong Ho Kim Chung, Mrs. Dang Thi Tuyet and Mrs. Ngo Thi Thu; refer the case file to the People’s Court of Lam Dong province to retry the case under first instance procedure as per the law.

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- Grounds for quashing the first instance judgment and appellate judgment:

1. It is required to re-value the estate;

2. It is required to determine if there are changes of the litigants, the litigants’ requests and places of residence of overseas litigants.

- Reasons for overturning the first instance judgment and appellate judgment:

1. There are inadequacies in consideration and valuation of the estate;

2. The duration of the case has been prolonged.