Cassation judgment No. 30/2006/DS-GDT dated October 3, 2006 regarding inheritance dispute

COUNCIL OF JUSTICES OF THE SUPREME PEOPLE’S COURT

CASSATION JUDGMENT NO. 30/2006/DS-GDT DATED OCTOBER 3, 2006 REGARDING INHERITANCE DISPUTE

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On October 3, 2006, the cassation trial was conducted at the office of the Supreme People’s Court to hear the civil case of inheritance dispute between:

Plaintiff:

1. Mr. Giang Quoc Hai, born in 1935; address: 86, Cong Quynh Street, Pham Ngu Lao ward, district 1, Ho Chi Minh City;

2. Mr. Loi Xu Ha, born in 1937; address: 34B 3^rd floor, Nguyen Duy Duong Street, ward 8, district 5, Ho Chi Minh City;

3. Mrs. Loi Muoi, born in 1943; address: 33, group 6, Linh Dong commune, Thu Duc district, Ho Chi Minh City.

Defendant:

1. Mr. Loi Quoc, born in 1952; address: 8/18, Co Giang Street, Di An town, Thuan An district, Binh Duong province;

2. Mr. Loi Nguu, born in 1946; address: 214/12, hamlet 2, Dong village, Dong Hoa commune, Thuan An district, Binh Duong province.

Persons with relevant rights and obligations:

1. Mr. Loi Phu, born in 1941; place of residence: the USA (duly represented by his son Mr. Loi Phuc Phat, address: 55/2 Truong Van Ky Street, ward 12, Tan Binh district, Ho Chi Minh City);

2. Mr. Loi Tan, born in 1949; place of residence: the USA (duly represented by his niece Ms. Loi My Ngan, address: 55/2 Truong Van Ky Street, ward 12, Tan Binh district, Ho Chi Minh City);

DEEMING THAT

Representation of Mr. Giang Quoc Hai, Mr. Loi Xu Ha, Mrs. Loi Muoi in the lawsuit petition dated November 30, 1994 and testimonies at the court:

Mr. Loi Chuong (died in 1988) and his wife Mrs. Giang Diu (died in 1985) had 7 children: Mr. Giang Quoc Hai, Mr. Loi Xu Ha, Mrs. Loi Muoi, Mr. Loi Phu, Mr. Loi Tan, Mr. Loi Nguu and Mr. Loi Quoc.

With reference to property, Mr. Chuong and Mrs. Diu had a 2-room house at No. 8/10 (old number 2/10), Co Giang Street, Di An town, Thuan An district, Binh Duong province (managed by Mr. Quoc).

In 1976, Mr. Chuong bought a land plot with area of 0.71 mou (unit of land measurement, currently 6.451m²) spending his own money from Mr. Hieu and his wife at hamlet 2, Dong village, Dong Hoa commune, Thuan An district, Binh Duong province and let Mr. Loi Quoc have his name on the transfer paperwork, the transfer was certified by the local government. After transfer, on the land plot, Mr. Quoc has planted fruit trees by himself, Mr. Chuong and Mrs. Diu built a house with corrugated iron roof, plank wall and soil base to provide Mr. Loi Nguu with a dwelling. Meanwhile, Mr. Loi Quoc still had lived together with Mr. Chuong and Mrs. Diu at the house 8/18, Co Giang Street, Di An town. While living in Dong Hoa, Mr. Nguu kept planting some fruit trees and cultivated on the land plot bought by Mr. Chuong and Mrs. Diu. Mr. Chuong and Mrs. Diu died without a will, Mr. Quoc kept managing and using the house 8/18, Co Giang Street and spent his own money to repair the house when it was damaged; in the meantime, Mr. Nguu kept living in the house at hamlet 2, Dong village, Dong Hoa commune. Mr. Hai, Mr. Ha and Mrs. Muoi thereby filed a petition for distribution of inheritance of Mr. Chuong and Mrs. Diu being the house 8/18, Co Giang Street and house and land at hamlet 2, Dong village, Dong Hoa commune, Thuan An district, Binh Duong province as per the law.

Defendants Mr. Loi Nguu and Mr. Loi Quoc agree with representation of plaintiffs regarding consanguinity, however, Mr. Nguu claims that the estate of Mr. Chuong and Mrs. Diu is only the house 8/18, Co Giang Street, the house and land hamlet 2, Dong village, Dong Hoa commune cannot be divided because Mr. Chuong and Mrs. Diu gave them to him. Mr. Quoc claims that he spent his own money to purchase the land plot at hamlet 2, Dong village lawfully in his name certified by the local government, after purchase, he has directly cultivated, planted many perennial crops on the land and he agreed with Mr. Chuong and Mrs. Diu to build a house on the land plot to provide dwelling for Mr. Nguu, the house and land at hamlet 2, Dong village, Dong Hoa commune belong to him so he contests the request to divide. In addition, Mr. Quoc also requests deduct an amount equivalent to expenditure on his care of parents when they were alive, their funeral and his effort to preserve, embellish, and maintain the house 8/18 Co Giang Street from the inheritance value.

At the first instance civil judgment No. 07/DSST dated March 12, 1996, People’s Court of Song Be (old name) province judged:

1. Accept the petition for distribution of inheritance of Mr. Loi Chuong and Mrs. Giang Diu filed by Mr. Giang Quoc Hai, Mr. Loi Xu Ha, Mrs. Loi Muoi.

2. Distribute the estate of Mr. Chuong and Mrs. Diu of VND 162.939.680 to their 7 children Mr. Giang Quoc Hai, Mr. Loi Xu Ha, Mrs. Loi Muoi, Mr. Loi Phu, Mr. Loi Tan, Mr. Loi Nguu and Mr. Loi Quoc, each will receive an estate portion of VND 23.277.097,14.

With reference to property in kind:

- Distribute Mr. Giang Quoc Hai, Mr. Loi Xu Ha and Mrs. Loi Muoi a joint ownership of the right side (viewing from the road) of the house 8/18, Co Giang Street, Di An town, Thuan An district. The area of the house is 77,35m² on the area of 90,3m² with the structure: tile roof, brick floor, walled enclosure of VND 70.224.363, in which Mr. Loi Quoc will be reimbursed VND 2.508.113 for the repairs of the house and have the right to administer the area of 2,280m² of land in Dong hamlet, Dong Hoa commune (diagram A) valued at VND 518,400 on land with fruit trees valued at VND 3,650,000.Total value of distributable assets is VND 74.392.763, in which value of the estate is VND 68.234.650.

Mr. Giang Quoc Hai, Mr. Loi Xu Ha, Mrs. Loi Muoi must reimburse Mr. Loi Quoc VND 2.508.113 for the sum of money that Mr. Loi Quoc spent on the repair of the right side of the house 8/18, Co Giang Street, Di An town and reimburse Mr. Loi Nguu VND 3.650.000 for the value of fruit trees on the 2.280m² land area, and receive VND 1.596.641,42 reimbursed from Mr. Loi Quoc in cash.

- Distribute Mr. Loi Quoc the ownership of the left side (viewing from the road) of the house 8/18, Co Giang Street, Di An town, Thuan An district with residential land area of 90,3m² and the house with structure: tile roof, brick floor, walled enclosure; total value of land and house is VND 71.491.513 in which value of the estate is VND 67.716.250, the repair value is VND 3.775.313.Mr. Loi Quoc must reimburse Mr. Giang Quoc Hai, Mr. Loi Xu Ha and Mrs. Loi Muoi VND 1.596.641,42 and reimburse Mr. Loi Phu VND 23.277.097,14 and reimburse Mr. Loi Tan VND 19.565.414,3. Mr. Loi Quoc may be reimbursed VND 2.508.113 for repairs of the right side of the house 8/18 Co Giang from Mr. Loi Xu Ha, Mr. Giang Quoc Hai and Mrs. Loi Muoi.

- Distribute Mr. Loi Nguu a land area of 3.571m² situated in Dong hamlet, Dong Hoa commune, Thuan An town (diagram B) including 300m² of residential land of VND 26.988.780 and the ownership of house and wall according to the voluntary consent of litigants. Mr. Loi Nguu may own all fruit trees on the distributed land area of 2.280m² and be reimbursed VND 3.650.000 of the value of these fruit trees (diagram A) from Mr. Giang Quoc Hai, Mr. Loi Xu Ha and Mrs. Loi Muoi.

Mr. Loi Nguu must reimburse Mr. Loi Tan VND 3,711,682.86 for the asset value of which exceeds his estate portion.

- Mr. Loi Phu may inherit VND 23,297,097.14 in cash refunded by Mr. Loi Quoc.

- Mr. Loi Tan may inherit VND 23,297,097.14 in cash, in which VND 19,565,414.30 is refunded by Mr. Loi Quoc and VND 3,711,682.86 is refunded by Mr. Loi Nguu.

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

After first-instance trial, on March 14, 1996, Mr. Loi Quoc made an appeal, claiming that the land plot at hamlet 2, Dong village, Dong Hoa commune is under his ownership, so the court was wrong when determine that the land plot was the estate of Mr. Chuong and Mrs. Diu, moreover, he also requests the court to determine his effort in preservation and maintenance of the estate, care and funeral for them.

At the appellate civil judgment No. 183/DSPT dated October 1, 1996, the Appellate Court of People’s Supreme Court in Ho Chi Minh City judged: Uphold the first instance judgment:

- Quash the Mr. Loi Quoc’s request to claim ownership of the land plot of 6,451m² at Dong hamlet, Dong Hoa commune, Thuan An town, Song Be province and to keep all the estate, including land and house at 8/18, Co Giang Street, Di An town, Thuan An district, Song Be province.

- Accept the petition for distribution of inheritance of Mr. Loi Chuong and Mrs. Giang Diu filed by Mr. Giang Quoc Hai, Mr. Loi Xu Ha, and Mrs. Loi Muoi.

- Distribute the estate of Mr. Chuong and Mrs. Diu of VND 162,939,680 to their 7 children Mr. Giang Quoc Hai, Mr. Loi Xu Ha, Mrs. Loi Muoi, Mr. Loi Phu, Mr. Loi Tan, Mr. Loi Nguu and Mr. Loi Quoc, each will receive an estate portion of VND 23,277,097.14.

With reference to property in kind:

+ Distribute Mr. Giang Quoc Hai, Mr. Loi Xu Ha and Mrs. Loi Muoi a joint ownership of the right side of the house (viewing from the road) 8/18, Co Giang Street, Di An town, Thuan An district, Song Be province (old name). The area of the house is 77.35m2 on the area of 90.3m2 with the structure: tile roof, brick floor, walled enclosure of VND 70,224,363, in which Mr. Loi Quoc will be reimbursed VND 2,508,113 for the repairs of the house and have the right to administer the area of 2,280m2 of land in Dong hamlet, Dong Hoa commune (called A) valued at VND 518,400 on land with fruit trees valued at VND 3,650,000. Total value of distributable assets is VND 74,392,763, in which value of the estate is VND 68,234,650.

Mr. Giang Quoc Hai, Mr. Loi Xu Ha, Mrs. Loi Muoi must reimburse Mr. Loi Quoc VND 2,508,113 for the sum of money that Mr. Loi Quoc spent on the repair of the right side of the house 8/18, Co Giang Street, Di An town and reimburse Mr. Loi Nguu VND 3,650,000 for the value of fruit trees on the 2,280m2 land area, and receive VND 1,596,641.42 reimbursed from Mr. Loi Quoc *

+ Distribute Mr. Loi Quoc the ownership of the left side (viewing from the road) of the house 8/18, Co Giang Street, Di An town, Thuan An district with house area of 77.35m² and residential land area of 90.3m2 and the house with structure: tile roof, brick floor, walled enclosure; total value of land and house is VND 71,491,513 in which value of the estate is VND 67,716,250, the repair value is VND 3,775,313. Mr. Loi Quoc must reimburse Mr. Giang Quoc Hai, Mr. Loi Xu Ha and Mrs. Loi Muoi VND 1,596,641.42 and reimburse Mr. Loi Phu VND 23,277,097.14 and reimburse Mr. Loi Tan VND 19,565,414.3. Mr. Loi Quoc may be reimbursed VND 2,508,113 for repairs of the right side of the house 8/18 Co Giang from Mr. Loi Xu Ha, Mr. Giang Quoc Hai and Mrs. Loi Muoi.

+ Distribute Mr. Loi Nguu a land area of 3,571m2 situated in Dong hamlet, Dong Hoa commune, Thuan An town (diagram B) including 300m2 of residential land of VND 26,988,780 and the ownership of house and wall according to the voluntary consent of litigants. Mr. Loi Nguu may own all fruit trees on the distributed land area of 2,280m2 and be reimbursed VND 3,650,000 of the value of these fruit trees (diagram A) from Mr. Giang Quoc Hai, Mr. Loi Xu Ha and Mrs. Loi Muoi.

Mr. Loi Nguu must reimburse Mr. Loi Tan VND 3,711,682.86 for the asset value of which exceeds his estate portion.

+ Mr. Loi Phu may inherit VND 23,297,097.14 in cash reimbursed by Mr. Loi Quoc.

+ Mr. Loi Tan may inherit VND 23,297,097.14 in cash, in which VND 19,565,414.30 is refunded by Mr. Loi Quoc and VND 3,711,682.86 is refunded by Mr. Loi Nguu.

In addition, the appellate court decided the court fee.

After appellate trial, Mr. Loi Quoc filed many claims against the abovementioned appellate judgment, claiming that: The court’s determination that the land area in hamlet 2, Dong village, Dong Hoa commune, Thuan An district is estate of Mr. Chuong and Mrs. Diu prejudices him.

At the appeal decision No. 32/KNDS dated September 16, 1997, the Chief Justice of the Supreme People’s Court appealed the appellate judgment No. 183/DSPT dated October 1, 1996 of Appellate Court of People’s Supreme Court in Ho Chi Minh City judged: The first instance court and appellate court are right when determining that the house 8/18, Co Giang Street, Di An town, Thuan An district, Binh Duong province is the estate of Mr. Chuong and Mrs. Diu and value that estate for distribution of inheritance.

The land plot 6,451m² at hamlet 2, Dong village, Dong Hoa commune, Thuan An district, Binh Duong province is considered belong to Mr. Pham Trung Hieu and his wife. On January 16, 1976, Mr. Hieu and his wife made a “Permanent Transfer Paper”, mutually agreeing to have Mr. Loi Quoc and his wife permanently own that land plot. The aforesaid transfer was certified by the local government (case file p. 69). After the transfer, Mr. Quoc planted many perennial trees on the land plot by himself (certified by People’s Committee of Dong Hoa commune on April 11, 1996), and he agreed with Mr. Chuong and Mrs. Diu to build a house with corrugated iron roof and plank wall to provide dwelling for Mr. Loi Nguu. Therefore, it is well-grounded to consider that the above land plot is under ownership of the Mr. Loi Quoc, the first instance court and appellate trial, in this case were supposed to recognize that the land area with the house of Mr. Chuong and Mrs. Diu thereon was given by Mr. Quoc, and the remaining land area belongs to Mr. Loi Quoc. The courts were wrong when recognizing all the land plot under ownership of Mr. Chuong and Mrs. Diu for distribution of inheritance purpose solely based on the depositions of plaintiffs and some witnesses.

However, according to the on-the-spot investigation report, valuation report (case file p. 27,33) of the first instance court determining that the above land plot includes residential land, perennial crop land and annual crop land, the first instance court and appellate court were mistaken when determining the person who has agricultural land use right without specifying area of each type of land and persons who directly cultivate the land, declare and pay taxes on annual crop land (agricultural land).

If Mr. Loi Nguu has directly cultivated the land, declared and paid taxes on agricultural land for growing of annual crops or aquaculture, it is justifiable when determining that he has the right to use that land plot, however, the land plot with the house (administered by Mr. Nguu) thereon is the estate of Mr. Chuong and Mrs. Diu, and the land plot for growing of perennial crops belongs to Mr. Loi Quoc. If Mr. Loi Quoc has directly cultivated and paid taxes to the state, except for the land area with the house thereon is the estate of Mr. Chuong and Mrs. Diu, the remaining land plot belongs to Mr. Loi Quoc (including land for growing of perennial crops and annual crops).

With reference to distribution of property in kind: In fact, Mr. Loi Quoc has directly managed and lived in the house 8/18, Co Giang Street so far, he spent his own money to repair the house and has settled there, Mr. Loi Nguu has managed and lived in the house in Dong hamlet, Dong Hoa commune since 1976. Mr. Hai, Mr. Ha and Mrs. Muoi have settled in Ho Chi Minh City and request inheritance in cash (case file p. 34, 35, 36). Mr. Phu and Mr. Tan who have lived abroad have no demand for housing in Vietnam. Therefore, it was supposed to distribute the house 8/18, Co Giang Street to Mr. Quoc, distribute the house in Dong hamlet, Dong Hoa commune to Mr. Nguu and distribute the remaining value of estate to the heirs in cash in conformity with reality and stability of real estate for litigants. However, the courts decided to jointly distribute Mr. Hai, Mr. Ha and Mrs. Muoi a part of house in Di An town and a part of land in Dong Hoa commune causing the unnecessary disturbance of housing of litigants. Alternatively, Mr. Quoc in fact has lived at the house 8/18, Co Giang Street with Mr. Chuong and Mrs. Diu, he put considerable effort into taking care of them when they were alive and cover funeral expenses when they died, in addition, he also repaired and restored this house, therefore, before distribution of inheritance, he may receive a sum of money from the estate value equivalent to his effort, it is supposed to be the reasonable resolution of the case.

Chief Justice of the Supreme People’s Court requests Committee of Justices of the Supreme People’s Court in charge of cassation trial to quash the above appellate judgment and the first instance judgment No. 07/DSST dated March 12, 1996 of People’s Court of Song Be province; refer the case file to People’s Court of Binh Duong province for re-conducting a first-instance trial in compliance with the mentioned appeal.

At the Conclusion No. 264 dated October 17, 1997, the Chief Procurator of the Supreme People’s Procuracy unanimously concurs with the appeal made by Chief Justice of the Supreme People’s Court and requests the Committee of Justices of the Supreme People’s Court to quash the first instance judgment and appellate judgment, refer the case file to the People’s Court of Binh Duong province for re-investigation and re-trial from the first instance stage.

At the Decision No. 60/UBTP-DS dated November 6, 1997, 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.

At the cassation trial, the representative of the People’s Supreme Procuracy unanimously concurs with the appeal of Chief Justice of the Supreme People’s Court and requests the Council of Judges of the Supreme People’s Court to quash the appellate judgment No. 183/DSPT dated October 1, 1996 of the Appellate Court of the Supreme People’s Court of Ho Chi Minh City and the first instance judgment No. 07/DSST dated March 12, 1996 of People’s Court of Song Be province (old name); refer the case file to the People’s Court of Binh Duong province for first instance re-trial as per the law.

CONSIDERING THAT

The first instance court and appellate court are right when determining that the house 8/18, Co Giang Street, Di An town, Thuan An district, Binh Duong province is the estate of Mr. Chuong and Mrs. Diu for distribution of inheritance.

Regarding the house on the 6451m² land in hamlet 2, Dong village, Dong Hoa commune, Thuan An district, Song Be province (old name) (now is Binh Duong province), that land plot is residential land (case file p.74) originally owned by the family of Mr. Pham Trung Hieu. In 1976, Mr. Hieu and his wife sold that land plot; transfer paperwork is in the name of Mr. Loi Quoc and certified by the local government. However, in the deposition (case file p.33), Mr. Hieu stated that he sold land to Mr. Chuong and Mrs. Diu; Mr. Chuong paid money in person and Mr. Hieu had never transacted with Mr. Loi Quoc.  Mr. Ha, Mr. Hai, Mrs. Muoi and Mr. Nguu all gave deposition that Mr. Chuong and Mrs. Diu purchased this land plot but have Mr. Loi Quoc’s name on the transfer paperwork and built a house for Mr. Nguu. Meanwhile, Mr. Loi Quoc claimed that he entered into the land transfer with Mr. Hieu and his wife in person, and after the transfer, he planted many perennial crops. In the case file, there is only a “Permanent Transfer Paper” dated January 16, 1976 with Mr. Loi Quoc’s name in the purchaser side. The first instance court and appellate court are not well-grounded to determine that the house and land in hamlet 2, Dong village, Dong Hoa commune, Thuan An district, Song Be province (old name) is the estate of Mr. Chuong and Mrs. Diu for distribution of inheritance just solely based on depositions of plaintiffs and confirmation of Mr. Hieu on March 8, 1996 (case file p.33). Therefore, more verification is needed associated with the transfer of land hamlet 2, Dong village, Dong Hoa commune, Thuan An district, Song Be province (old name). If there is no other evidence to prove that Mr. Chuong spent his money to purchase the land, it is supposed to consider Mr. Quoc as the purchaser. Furthermore, Mr. Quoc concurred with Mr. Chuong and Mrs. Diu to build a house for Mr. Nguu, therefore, the house and precinct (managed by Mr. Nguu) should be determined as estate of Mr. Chuong and Mrs. Diu for distribution of inheritance. And Mr. Loi Quoc should be determined as the person having right to use associated with the remaining land plot (for growing of perennial crops). Regarding the land plot for growing of annual crops, further verification is needed to specify the person who has directly cultivated thereon and paid taxes to the state and whether he/she obtains a land use right certificate in accordance with land law and policies.

With reference to property in kind: In fact, Mr. Loi Quoc has directly managed and lived in the house 8/18, Co Giang Street so far, he also spent his own money to repair the house and has settled there; Mr. Loi Nguu has managed and lived in the house in hamlet 2, Dong village, Dong Hoa commune since 1976, Mr. Hai, Mr. Ha and Mrs. Muoi have settled in Ho Chi Minh City and request inheritance portions in cash (case file p.34, 35, 36). Therefore, to avoid unnecessary disturbance related to housing of litigants, the court must verify the dwelling need of litigants for reasonable distribution of property in kind and in conformity with real circumstance. In addition, Mr. Quoc has lived in the house 8/18, Co Giang Street with Mr. Chuong and Mrs. Diu and put considerable effort in taking care of their parent while they were alive and cover funeral expenses when they died and also repaired and restored this house. Therefore, before distribution of inheritance, Mr. Quoc may receive a sum of money deducted from the estate value equivalent to his effort to ensure his interests.

Furthermore, the valuation of estate was conducted by the first instance court in 1995, 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. In addition, the case had been suspended since 1997, further verification is needed relevant to changes in litigants for sufficient grounds to settle the case.

Alternatively, while the first instance and appellate courts heard the case, Mr. Loi Phu and Mr. Loi Tan were residing in the USA. Therefore, further verification is needed to determine nationality of Mr. Loi Phu and Mr. Loi Tan to apply 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.

According to abovementioned documents and evidence, pursuant to Clause 3 Article 291; Clause 3 Article 297; Clause 1,2 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

Accept the Appeal No. 32/KNDS dated September 16, 1997 of Chief Justice of the Supreme People’s Court and quash the appellate judgment No. 183/DSPT dated October 1, 1996 of the Appellate Court of the Supreme People’s Court of Ho Chi Minh City and the first instance judgment No. 07/DSST dated March 12, 1996 of People’s Court of Song Be province (old name); refer the case file to the People’s Court of Binh Duong province for first instance re-trial as per the law.

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

1. There are inadequate substantial grounds for determining estate as stated in the first instance judgment and appellate judgment;

2. Re-valuation of estate is needed;

3. Further verification of changes in litigants and their requests is needed;

4. Further verification of nationality of persons with relevant rights and obligations is needed.

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

1. Inadequacies in taking and verification of items of evidence;

2. The duration of the case has been prolonged.