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Singh v Singh [2014] FJCA 21; ABU0015.2013 (5 March 2014)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CIVIL APPEAL No. ABU 0015 OF 2013
(High Court File HBC 129 of 2011 L)

BETWEEN:

GURDEV SINGH
Appellant

AND:

MALKIT SINGH
Respondent

CORAM : Basnayake, JA
Lecamwasam, JA
Gamalath, JA

Counsel : Mr. N. Vakacakau with Ms M. Vanua for the Appellant
Mr. D. S. Naidu for the Respondent

Date of Hearing : 12 February 2014
Date of Judgment : 05 March 2014

JUDGMENT

Gamalath JA:

[1] Mr. Pritam Singh had left the last will dated 23rd May 1946 having appointed Ms Bachini, his wife as the sole Executrix and the Trustee of the Estate. Mr. Pritam Singh died on 29th of October 1960. On 17th May 1961, the Probate of Mr. Pritam Singh's estate was granted to Ms Bachini.

[2] In the last will of Pritam Sing there was a lease hold property bearing registration number 26859. Pritam Singh owned this part of the said property whilst the other part owned by one Chaturi, father's name Ramjas. The controversy over the ownership of said property, which is presently owned by the Respondent, is the basis upon which this law suit is launched.

[3] As can be seen with reference to the documentary evidence exhibited at the trial, upon the probate of Pritam Singh being granted Bachini became the trustee of the entire estate including the said undivided lease hold property. In support of this position, the Learned Counsel for the Appellant pointed out to this Court the relevant documentary evidence as exhibited in the Civil High Court.

[4] As stated above, the other portion of the lease holding property had been owned by one Chaturi, father's name Ramjas. According to the Memorial that was pointed out to this court by the Learned Counsel for the Appellant, Bachini, acting in her capacity as the executrix of Pritam Singh's estate, had bought the said undivided portion from Chaturi somewhere in 1967.( the exact date as in the document is illegible).

[5] Thereafter, a very significant development with regard to this property had taken place on 15th November 1984 (or 1985, once again the exact date is illegible in the document) when the entirety of the said lease holding property was bought by Bachini for a consideration of $163,000.00. The document was filed of record and exhibited in evidence as 5, bearing transfer number 221785.

[6] As far as the consideration of $160,000.00 is concerned the picture in this case is obscure and perplexing as well. There is nothing on the record to show as to what exactly had happened to this consideration and in the High Court no support had come from either party to the suit to clear up this matter.

[7] It evinces from the available material that one Pyara Singh, another son of Ms Bachini, and a sibling of both the Appellant and the Respondent, acting in his capacity as the attorney of Bachini had executed the above two transactions namely the transaction with Chaturi on the other undivided portion of the lease holding property and the transaction with regard to the purchase of the entire property in the name of Bachini for a consideration of $160,000. Although there is no allegation of fraud or irregularity made about this transaction, the Appellant had highlighted the fact that the late Ms Bachini was an illiterate person. As far as this case is concerned, since there is no fraud alleged, no inference or any insinuation can be drawn from this fact.

[8] Signifying the next development relating to this "lease hold Property", Ms Bachini transferred the said property to Malkit Singh, the Respondent of this case for a consideration of $500.00. According to the Memorial of Transfer, this had happened on 16th of January 1997. Since this transaction was in relation to the entire lease hold property, one can assume the Respondent to be the owner of it.

[9] The next development in relation to this impugned lease hold property is reflected in the last will of Bachini [see item 4, an exhibit of the Plaintiff] when she bequeathed the lease holding property in its entirety to the Respondent /Defendant of this case.

It states that: "I give devise and bequeath my lease hold land known as Lot No 1 section 14 comprised in Lease No 26859 situated at 25 Yasawa Street, Lautoka together with improvements thereon unto my son Malkit Singh absolutely."

[10] Bachini drew up her last will on 26th May 1991, appointing the Respondent as its sole executor and trustee. After her death in June 2000, her probate was granted on 12th September, 2000. As pointed out by the Learned High Court Judge there had been no challenge to the grant of this probate.

[11] After a long lapse of almost 11 years, the Appellant/Petitioner of this case has become activated to challenge the transfer of the impugned lease hold property to his brother, the Respondent and thus began this law suit in the Civil High Court of Lautoka. Basically, he challenged the transfer of the lease holding property in the name of the Respondent.
The following two claims were prayed inter alia in his Statement of Claim.

"[a] An order for the administration of the estate of Pritam Singh and Estate of Bachini and particularly the impugned lease holding property with all necessary directions to the Registrar of Titles.

[b] A declaration that the Defendant failed in his duty as a Trustee of Bachini and is liable to the Plaintiff for loss and expenses and damages to be qualified by the Plaintiff".

[12] The Appellant on 12th of November 2012 testified in this case. He was the only witness for his case and in the cross examination he was specifically asked to explain the inordinate delay in instituting the action against the Respondent and his explanation goes as follows;

Question: Before the grant of the estate, you see the advertisement in

2000?

Answer: Yes.

Question: you waited 10 years?

Answer: No answer.

The Responded did not give evidence nor called any witnesses, but elected to make submission that there is No Suit to answer against him.

[13] The evidence of the Appellant in the High Court clearly shows that although he had the full knowledge of the grant of Bachini's probate, he did nothing to intervene or to object to it and remained silent for almost over 10 long years, until he instituted this suit in the High Court.

[14] The Learned High Court Judge who heard the case dismissed the matter on the basis that the law suit did not disclose a valid cause of action, mainly owing to the fact that Bachini is now dead and gone long time, and her probate had been granted many years ago and as a result it is too late in the day and futile now to challenge the transaction with regard to the lease hold property.

[15] The learned High Court Judge, commenting on the documents exhibited as 4 and 5 at the trial that is, the evidence produced in support of the Appellant in the High Court, held that by allowing them to be admitted without any objection being raised on behalf of them, the Appellant had admitted that the impugned lease hold property had already ceased to be a part of the estate of Bachini.

The exhibits 4 and 5 of the Appellant's case were relating to the transfer of the lease hold from Bachini to Respondent Malkit Singh, dated 16th January 1997 for a consideration of $500.00 and the outright purchase of the lease holding property by Bachini for a consideration of $163,000.00.

[16] This Appeal is against the said judgment of the Civil High Court and there are five
grounds of appeal raised against it.

[17] The grounds of appeal are as follows:

"1. The learned trial judge erred in law and in fact in not making a finding, based on the merits of the case (and the evidence and the weight of evidence) rather than approaching it on the basis of non-suit;

In relation to this ground of appeal, suffice is to state that it was not on the basis of Non Suit that the Learned High Court Judge decided the issue against the Appellant/Petitioner and it is clearly borne out by the reasons given in his decision. In paragraph 12 of the judgment he had specifically stated that the case had been looked at based on its merits and not on the basis of Non Suit, as urged on behalf of the Respondent in the High Court.

2. 2nd and 3rd Ground of Appeal The learned trial judge erred in law and in fact in finding that the Plaintiff did not disclose any cause of action.

3. 4th Ground of Appeal

The learned Judge erred in law and in fact in not considering section 9(b) of the Limitation Act Chapter 35.

4. 5th and 6th Ground of Appeal are as follows:

The learned judge erred in law in not considering all the evidence and the weight of evidence and (b) the learned judge erred in law and in fact in not accepting unconditionally the evidence of the Plaintiff.

[18] However, as we gathered from the arguments strenuously advanced by the Learned Counsel for the Appellant, it finally boiled down to his main submissions on the 4th Ground of Appeal, in which he maintains that since the Respondent is a constructive trustee of the Bachini's estate, the impugned lease hold property cannot be owned by him. He contended that it is still a part of Pritam Sing's estate of which Bachini was the trustee. In effect, his contention is that the undivided lease hold property as reflected in Pritam Singh's estate should be divided amongst all the remaining beneficiaries of his estate. However, none of the other prospective beneficiaries of the estate are either parties to this case or were called in as witnesses in the High Court trial.

[19] He further contended that the fiduciary responsibility that was reposed on Bachini, as the trustee and executrix of the estate of Pritam Singh is still in force, especially in relation to the lease hold property and therefore, an order should be made directing the return of the impugned lease hold property to the common estate of Pritam Singh.

[20] In effect, what the learned counsel for the Appellant is trying to drive home is that the outright transfer of the impugned lease hold property in the name of Bachini was irregular and therefore, it should be declared that the Respondent cannot be or rather should not be considered as the sole beneficiary of the said impugned lease hold property.

[21] We wish to point out, this ground of appeal in its present form is not to be found in the Statement of Claim in the High Court and as a result it is difficult for us presently to know the extent to which it was pursued in the High Court.

[22] At this juncture, turning towards another direction in this case, we wish to point out another matter that surfaces out of the bundle of documents of the Petitioner. Accordingly, we find that the transfer of the entire lease hold property for a consideration of $160,000.00 had already been registered in the name of the late Bachini and subsequently it was transferred in the name of the Respondent.

[23] As it is the decided law of the land that any registration shall attract an indefeasible title to the registered owner of the property and it is for all purpose to be considered as reposing on the registered owner the absolute and conclusive rights to the property. We wonder if this law is applicable to the impugned lease hold land of this case as well. Vide, Star Amusement Ltd v Prasad, (2013) FJSC 8; CBV005. Decided on 23 August 2013.The Judgement lays down the principle that;

"The purpose of the Torrens system was to establish certainty of title based on registration, which can be taken as notice to all of the identity of and extent of interest of the person who is certified to be the owner [Gibbs v Messer - (1981) A.C.248] It recognised that innocent persons might suffer through error or other causes; this must take second place to the merit of certainty, leaving innocent parties to be compensated. The registered proprietor's interest is indefeasible"

However, since this is not a ground which was advanced by either party in this case, we shall not be looking in to this aspect any further.

[24] Moving back to the main matter under consideration, one cannot overlook the fact that the transfer of the lease hold property in its entirety to Bachini was carried out by Pyara Singh, the holder of her Power of Attorney and since they are members of the same family, it is inconceivable that this transaction was not within the knowledge of the other members of the same family. In that context, the long delay to invoke the jurisdiction of the court to challenge the transaction is bothering us considerably.

[25] As already discussed, Bachini, by the execution of her last will make an outright transfer of the said property in the name of the Petitioner. Her last will marked and exhibited as 9 in this case bears testimony to that fact. The fact that at no stage, especially at the time of the grant of the probate, no one, especially the Petitioner raised no objection to its grant and it is a serious issue in this case. It in our view is indeed posing an insurmountable problem to the Petitioner's case. The fact that at one stage Bachini became the sole owner of the lease hold property and it was bequeath to the Petitioner in her last will and the Probate of Bachini was never challenged etc are factors that operate contrary to the interest of the Petitioner. In the light of the available material in this case it is difficult for us to hold that the Respondent is a Constructive Trustee to the estate of Bachini, and in turn to the estate of Pritam Singh.

[26] As far as his strenuous submissions are concerned we are in full accord with the Learned Counsel for the Petitioner that Section 9(1) of the Limitation Act has no application to a person who holds a position of a constructive trustee. Since we are unable to conclude the Petitioner is a Constructive Trustee, there is no need for us to probe into the matter any further.

[27] All the Judgements that were cited to assist us were also taken into consideration in arriving at the conclusion we are grateful for the assistance.

[28] In the circumstances, we find no basis to interfere with the decision of the Learned Trial Judge of the High Court and therefore the Appeal is dismissed with no costs.

The Orders of the Court are:

1. The Appeal is dismissed.
2. No costs.
   

Hon. Justice E. Basnayake
Justice of Appeal

Hon. Justice S. Lecamwasam
Justice of Appeal

Hon. Justice S. Gamalath
Justice of Appeal