Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Prasad v Latchmi [2005] FJHC 55; HBC0002.2005 (15 March 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0002 OF 2005

BETWEEN:

CHANDRIKA PRASAD
PLAINTIFF

AND:

VIJAY LATCHMI and RAM RATI
1ST DEFENDANTS

THE REGISTRAR OF TITLES
2ND DEFENDANT

Mr. V. Mishra for Plaintiff
Mr. C.B. Young for 1st Defendants
No Appearance for 2nd Defendant

DECISION ON EXTENSION OF CAVEAT

BACKGROUND:

On 5th January 2005 on an ex-parte summons I had extended caveat number 552308 over C.T. 23807 and caveat number 552311 over C.T. 23808 till further order of the court and ordered all documents to be served by the 17th January 2005. The land covered by the two titles is in Sigatoka which comes within the Western Division but as there was no judge available at Lautoka during the legal vacation, the application was filed in Suva. The continued existence of the caveats against the titles is being resisted.

FACTS:

Shiu Ram son of Ram Prasad died testate on 27th April 1995. He made a Will on 13th December 1991. Probate was granted on 21st July 1995. The defendants are the executors and trustees. The plaintiff is one of the residuary legatees of the estate. Under Clause 3 of the Will the deceased gave devised and bequeathed all his property to the trustees upon trust as follows:

“3.1 UPON TRUST to pay thereout all my just debts funeral and testamentary expenses.

3.2 UPON TRUST to hold the residue and remainder of all my property of whatsoever nature or kind and wheresoever situate for my wife RAM RATI father’s name Shiu Charan for her life and after her death unto my sons CHANDRIKA PRASAD, AMBIKA PRASAD and DIWAKAR PRASAD and my daughter VIJAY LATCHMI in equal shares, share and share alike absolutely.”

At present the estate of Shiu Ram comprises inter-alia of two Certificates of Titles at Malaqereqere, Sigatoka each being over four hectares in area. It is not in dispute that the plaintiff has built two concrete and iron houses on one of the lands. He deposes that he had built the houses during the life of his father with his father’s encouragement and also assistance and his father had told him that after the death of the mother the properties would go to the four children. He says he has been collecting rent from one of the houses while the other is occupied by him.

In short, he says that he has a right to caveat the title as a beneficiary in the father’s estate and also as his father had actively encouraged him to build a house on the land.

The right to caveat a land arises under the provisions of Section 106 of the Land Transfer Act Cap 131. The Court of Appeal in Cambridge Credit Fiji Limited v. W.F.G. Limited – 21 FLR 182 at 184H stated that for the caveator to bring himself within the provisions of Sections 106 has to satisfy two requirements:

“(1) That it is a person claiming to be entitled to or to be beneficially interested in any land estate or interest under the Act; and

(2) That it is so claiming by virtue of any unregistered agreement or other instrument or transmission or any trust expressed or implied or otherwise howsoever.”

The onus is on the caveator to satisfy the court that the continued existence of the caveat is justified. He can do that by showing “a reasonably arguable case for the interest he claims” – Sims v. Lowe [1988] NZCA 253; 1988 1 NZLR 656.

Justice Fatiaki (now the Chief Justice) in Sir Sathi Narain v. Phyllis Kathleen Malley – 34 FLR 118 at 121C stated that “it is inappropriate for this court at this stage to determine the rights of the parties to this action in a summary manner particularly where there are conflicting affidavits or where the question of a caveatible interest is a distinctly arguable one”.

He therefore suggested a “distinctly arguable” test which the caveator has to satisfy to justify continued existence of a caveat pending full hearing.

Further in Catchpole v. Burke (1974) 1 NZLR 620 in considering the position of a caveator McParthy P at page 625 stated:

“when it is plain to the court that the caveator cannot possibly succeed in establishing his claim against the registered proprietor it is proper to refuse to extend the caveat ... But where there are doubts surrounding the rights of the caveator ... the proper course is to extend the caveat until the conflicting claims of the different parties are determined in action brought for that purpose.”

A writ has been filed in this case. An acknowledgment of service has also been filed.

The caveator's position here that he is one of the four residuary legatees of the estate. There is only one life interest that is of their mother who is 67 years old. He submits that the estate is a substantial estate sworn at $250,000.00. There is rental income. There is surplus in the estate and there is no need to sell the two properties in which he has an absolute interest upon death of the mother.

Mr. Young submitted that the defendants intended to sell the property but not an area of land where the homes are. He argued that the plaintiff’s right is to the residue which can only be arrived at after sale. He also submitted that the continued caveat interfered with the defendant's power to sell granted under the Will. Granted they have the power to sell, it does not mean they can trample willy nilly over the wishes of the beneficiaries. The Will has to be considered in its entirety.

The probate was granted over nine and half years ago so by now all the just debts, funeral and testamentary expenses must have been paid. The defendants have not deposed any debts so the issue of surplus in the estate is a very real possibility. There is one matter which is subject of some disquiet is how a native lease (Sagayam Road property) allegedly belonging to the estate found its way in the name of Rajesh Patel who is the husband of Vijay Latchmi, the first named defendant and who is a joint executor and trustee. The plaintiff alleges deceit on part of the defendants in transferring the property to Rajesh Patel.

The defendants themselves have not sworn any affidavits and have relied on a law clerk to do it on their behalf not an entirely satisfactory state of affairs from executors and trustees of an estate. I am of the view that the facts have to be elucidated in a trial proper. The plaintiff has shown that there is a trust in his favour in that he is a beneficiary in the estate and also on basis of estoppel. The defendants may have power to sell but they cannot exercise that power in total disregard of the interests of the residuary devisees or legatees. The beneficiaries ought to be heard. I do not accede to defendants’ request that they be allowed to sell and purchase price held in court. The wisdom of such a course of action can be best decided at trial.

Accordingly I therefore decline to remove the caveat now. I make no order as to costs. The plaintiff is to pursue the substantive matter of the writ expeditiously.

The land which is subject matter of the action is in the Western Division. Counsels too are from Lautoka. Accordingly the file is transferred to Lautoka for disposal of matter there.

[ Jiten Singh ]
JUDGE

At Suva
15th March 2005