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Begum v Roul [2006] FJHC 88; HBC 139.2005 (13 January 2006)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC139 OF 2005

BETWEEN

GULNAZ BEGUM
daughter of Abdul Rauf of Korotogo, Sigatoka, Domestic Duties
PLAINTIFF

AND

JOSEPH ROUL
son of Shiu Narayan of Tavakubu, Lautoka, Manager
DEFENDANT

M K Sahu Khan & Co for the Plaintiff
(City Agents - S B Patel & Co)
Iqbal Khan & Associates for the Defendant

Date of Hearing: 17 June 2005
Dates of Submissions: 8 July, 29 July and 5 August 2005
Date of Ruling: 13 January 2006

INTERLOCUTORY RULING OF FINNIGAN J

By way of Interim Interlocutory Relief the Plaintiff obtained ex-parte an order extending the life of a caveat until further order of the Court. She has been required by the Court to justify her application inter-partes and the Defendant by submission seeks to have the caveat removed.

Brief History:

The parties lived together as man and wife in a house owned formerly by the Defendant and his mother and now by the Defendant alone as survivor. The Plaintiff claims a beneficial half interest in the property. She lodged a caveat to protect her claimed interest. She received a notice from the Registrar of Titles to withdraw the caveat and so commenced the present action for (inter-alia) a declaration that she is entitled to a half share in the property.

The Issue:

The issue now is whether the caveat should remain in place until her claim is determined. She maintains in her affidavit that the Defendant has threatened to sell the property. The Defendant in his affidavit denies almost all her claims but in particular denies either an intention or a threat to sell the property.

The Submissions:

I have had full submissions in writing from Counsel for both parties. The submissions of both are full and detailed and contain reference to several decided authorities.

For an unknown reason this file fell by the way side and was not put before me for decision until December 2005. I regret that the parties have waited till now for a ruling, particularly as both common sense and the authorities dictate the same result. I have read the pleadings the affidavits and the submissions of Counsel with close attention. Many of the authorities cited are known to me. Despite the careful submissions of Counsel for the Defendant (which are aimed solely at the substantive issues of the action) I am satisfied there is only one proper course and that is to leave the caveat in place until the action is determined. Apart from re-financing his mortgage the Defendant says he has no other intentions for the property.

Order:

The Interim Order made ex-parte on 17 June 2005 is confirmed as an Interlocutory Order and the Caveat No 555394 on the land known as Lot 3, DP5446 Certificate of Title No 22465 is extended until determination of the substantive writ action herein or earlier order of the Court.

Plaintiff will have costs, summarily assessed at $500.00.

The action will be place in the Call over on 24 February 2006 so that Counsel will have a hearing date.

D.D. Finnigan
JUDGE

At Lautoka
13 January 2006