IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
Civil Action No. 317 of 2007

BETWEEN:

PARVATI SAHIM
PLAINTIFF

AND:

SHIU PRAKASH GOUNDER 
as Executor and Trustee of the Estate of Uma.
1ST DEFENDANT

AND:

SHIU PRAKASH GOUNDER .
2ND DEFENDANT

Counsel : Mr Suresh Chandra for the plaintiff
: Mr V.M. Mishra and Ms R. Karuna for the 2nd defendant

Hearing : 12th October, 2011

JUDGMENT

1.	This action is concerned primarily with the ownership of two properties, the legal title of which is in the name of Shiu Prakash Gounder (Shiu Prakash),the executor, trustee and sole beneficiary of the estate of Uma, his mother.

Parvati Sahim claims that she had engaged into a scheme to form a joint venture, wherein she transferred monies to her sister Uma's account in Westpac, Sigatoka from National Westminster Bank, England for the mutual benefit of Uma and herself, upon her return from London, where she had worked as a nurse. The major portion of the investment was to be contributed by Parvati Sahim. The statement of claim proceeds to state that apart from some "nominal payment" for her handicapped brother Keshwan Nair, the monies were to be invested in properties to be purchased by Uma in her own personal name, except State Lease No. 12802, which was to be purchased in the name of Keshwan Nair. The property contained in CT 30424 was purchased in the name of Uma personally, as mutually agreed by Parvati Sahim and Uma as a joint investment. 

The statement of claim makes the following allegations: Uma fraudulently transferred CT 30424 to herself, and State Lease No.12802 to her name as trustee for Shiu Prakash; and Uma had failed to bequeath to her, the two properties purchased on her behalf, though it was agreed that the parties shall make mutual wills conferring upon each other reciprocal benefits.

Parvati Sahim seeks order that Shiu Prakash, the beneficiary and executor and trustee of Uma's estate holds the two properties in trust for her; or alternatively, an order to declare the transfer of the properties null and void or that Shiu Prakash transfer the properties to her; and a sum of $45,000 towards the purchase of a motor vehicle. She alternatively, seeks judgment in a sum of $ 231,000 against Shiu Prakash or the estate of Uma. 

Her claim of $ 231,000 is comprised of the following components: 

a)	Purchase price of CT 30424 $ 25,000
b)	Building cost of house on CT 30424 $ 145,000
c)	Purchase price of State Lease No. 12802 $ 16,000
d)	Purchase price of vehicle $ 45,000

Shiu Prakash, in his statement of defence, denies the claim. He pleads the defence of res judicata and counter-claims for damages suffered as a result of the lodgement of caveats by Parvati Sahim on the two properties. 

The dispute between the parties has already resulted in litigation being filed twice, and the present case is the third journey. In the first case, Probate Action No 445/06, Parvati Sahim had unsuccessfully sought to obtain administration of the estate of Uma, stating that she had a proprietary right in State Lease No. 12802, on the premise that she had expended money for the purchase of same. Subsequently, in a second case: HBC 61 of 2006,Parvati Sahim had filed an indorsed writ of summons against Shiu Prakash seeking an extension of the caveat lodged against State Lease No. 12802,that he acknowledges her contribution to State Lease No. 12802 and convey that property to her. The Master had dismissed the action, stating that there was nothing pleaded against Shiu Prakash and no statement of claim filed. 

2.	The determination

2.1 I will first clear the subsidiary matter of law raised by counsel for Shiu Prakash. 
Mr Mishra, in his submissions, contends that Section 59 of the Indemnity, Guarantee and Bailment Act prevents Parvati Sahim from asserting her claim. As I read this section, it precludes an action being brought upon any contract or sale of lands or in any interest in or concerning land, in the absence of a writing signed by the party to be charged. This section does not in my judgment, forbid the bringing of an action founded on an assertion in equity under a resulting, implied or constructive trust, in respect of which there is no requirement of a writing.

In this context, Halsbury, Laws of England, (4th Edition) Vol 16(2), para 602 provides:

"An equitable interest arises under a trust when, by virtue of a deed, will or other instrument, the legal owner (the trustee) is bound to hold the property for the benefit of another (the cestui que trust or beneficiary); or when, without a written instrument, the circumstances are such that a court of equity will impose this obligation upon the legal owner"(footnotes omitted).

2.2 It is axiomatic that in order for Parvati Sahim to succeed in her claim, she must in the 
 first instance, establish that she provided monies to Uma to purchase and develop the two 
 properties in issue. 

It will be convenient to refer to the oral evidence given before me by Parvati Sahim. 

Parvati Sahim,in her examination in chief, stated that she had sent a total of GBP 109,126 to the late Uma, which included monies sent for her handicapped brother Keshwan Nair. The balance monies aggregating to a sum of GBP 84,578/ was invested in the joint venture for the mutual benefit of Uma and herself. In support, she produced letter dated 30th April,2008, addressed by her solicitors to Shiu Prakash's solicitors, which contains a schedule of the specific dates on which monies aggregating to GBP 84,578/ was sent together with the names of the sending and receiving bank. 

In cross-examination, her evidence was challenged and then, she retracted eight of the twenty-eight amounts, she claimed she sent towards the joint venture. She stated, the sum of GBP 84,578 included the following: six payments totalling GBP 10,584 sent to Uma, when she faced financial difficulties; a remittance of GBP 30,036 sent on 7 July,1999,for the purchase of State Lease No.12804 in her (Parvati Sahim's) name; and a remittance of a sum of GBP 1500 sent for Keshwan Nair on 11th November, 1997, as confirmed by letter dated 10th November, 1997, sent by Parvati Sahim to Uma. 

The closing submissions filed on her behalf provides:

"In terms of the Statement of Claim she claimed the sum of $231,000.00 which upon concession to the Defendant in cross examination she reduced the claim to (GBP) 43958.91 from(GBP)84,578.95. at the rate of 2.73"..the balance claim by the Plaintiff being net $120,000((GBP) 43958.91) being invested in the two properties and the motor vehicle."

No deduction has been made of the sum of GBP 1500 sent for Keshwan Nair on 11th November, 1997.

There was not a shred of evidence adduced in the form of correspondence between Parvati Sahim and Uma or any other documentary evidence, to establish that the parties entered into a joint venture to purchase properties for the mutual benefit of each other. On the contrary, the documentary evidence discloses that remittances were sent by Parvati Sahim, for the upkeep of her handicapped brother, Keshwan Nair. 

Counsel for Parvati Sahim, Mr Suresh Chandra, in his closing submissions, concedes that there is no documentary evidence to support Parvati Sahim' s contention that Uma and she agreed to the mutually beneficial scheme and invokes the doctrine of unjust enrichment. 

2.3	The history of the matter is that Parvati Sahim was the trustee of her father's estate and had an obligation to look after Keshwan Nair. Keshwan Nair was living in the family house and receiving as income, rent from one flat. Her brother M Nair, who testified on her behalf stated in cross-examination, that Parvati Sahim had purchased his interest in the family home for $15,000 and had the property transferred to herself. Thereafter, another brother Pathmanathan Nair had fraudulently transferred the family home to himself and evicted Keshwan Nair from the family home, in 1997. Keshwan Nair was then taken by Uma to her house as requested by Parvati Sahim. On 10th November, 1997 she wrote to Uma in the following terms: 

 " Dear Uma
 Enclosed copy of form for the money sent today -£1,500.00. You should get it by the end of this week or early next week. Go to the Bank and inquire.

 You must insure the car fully Comprehensive Policy which covers for everything.
Bring Keshwa to your place and get someone to do the washing and cleaning the house. I will send money for his keep. Ask Sonu(Shiu Prakash) to look after him. And tell Somu to learn to read and write. I will write to Inspector of Police in Nadi and report Pathmanathan Nair for beating Keshwan"............(emphasis mine)

This letter heralded Parvati Sahim' s benevolence to Keshwan Nair and the remittance of monies by her to Uma, for his upkeep. The fact of the matter is that the two sisters had a close relationship and Parvati Sahim gave Uma the discretion to be spend the monies she forwarded for the upkeep of Keshwan Nair, as she desired. Unhappily, as time went on and after his demise, they became estranged.

With this digression, I return to consider her claims . 

2.4.1 State Lease No. 12802 (Lot 5 Olosara)

The first claim is the purchase of State Lease No. 12802 by Uma in her own name, as trustee for Shiu Prakash on 6th July,2001.Parvati Sahim claims the property was purchased for $16,000. Shiu Prakash's evidence, that the consideration was $ 13,000 is manifested in the Transfer of Crown Lease . 

On 24 January and 2 May,2001, Parvati Sahim had sent three remittances to Uma's account in sums of GBP 2000, 1000 and 1024. These figures are comparable to the initial amount sent by her for Keshwan Nair upkeep. I thus reject Parvati Sahim's claim that she financed the purchase of this property.

2.4.2 CT 30424, Lot 20 DP 5446 (Lot 20 Korotogo)

The next point of relevance is the purchase of the property contained in CT 30424 . Here again, Parvati Sahim was unaware of the exact purchase price. Shiu Prakash testified that this property was purchased by Uma on 25 May, 1999, for $ 27,500, while Parvati Sahim stated the purchase price was $ 25,000 . 

It transpired in Parvati Sahim' s cross-examination, that as depicted in the letter dated 30th April,2008, referred to above, she had in 1999, sent two remittances of GBP 2000 each, to Uma. In my judgment, it is evident that these remittances too were sent for Keshwan Nair,comparable as they are to the initial amount forwarded.

In re-examination, Parvati Sahim, was heard to say that the purchase money of $ 25,000 was not remitted to Uma's account, but was given by her to Uma's daughter. It follows that her contention that this property was purchased by Uma with monies remitted by her, is hardly of conviction. 

Parvati Sahim alleges that she remitted a sum of $ 145,000 for the construction of the building on this property comprising 3 flats, which was completed in 2003. Her brother M Nair, who testified on her behalf, also stated that she had sent monies for the building. The letter dated 30th April,2008, provides that she had sent four remittances in 2003, after the demise of Keshwan Nair, two of which were substantial amounts of GBP 7020 each. At the exchange rate of 2.73 at the relevant time, as provided in the closing submissions of Parvati Sahim, the sum of GBP 14040 is equivalent to FJ $38329.20 and is a far cry from the sum of $ 145,000 she alleges was sent for the construction of the building .It is likely that, as suggested to Parvati Sahim in cross-examination, that these monies were sent to Uma, for the funeral expenses of Keshwan Nair.

 M. Nair stated he was aware of an arrangement between the two sisters to invest in property, but was not sure of any arrangement, in terms of which Uma was to hold the freehold property on which she built 3 flats, in trust for Parvati Sahim. The evidence disclosed that Shiu Prakash had build a fourth flat on this property .

I treat Parvati Sahim's testimony with great reserve, if not scepticism, as her evidence on her claim was admittedly fallacious. 

Parvati Sahim had dealt with this property on the premise that it was owned by Uma. In a letter dated 29 January,2005, she wrote to Mr Mishra, as solicitors of Shiu Prakash that "Uma is very ill and has moved to her flat in Korotoga against my advice"(emphasis mine).

In my judgment, she is estopped from now taking a contrary position from that which she had acted upon previously.

2.4.3 Motor vehicle

Parvati Sahim alleges she made payments to the deceased Uma in the sum of $45,000, as a contribution towards the purchase of a motor vehicle registration no. DP 073 or about 2000. It is not contested that she provided the money to obtain a conveyance, which was subsequently traded, but this too was admittedly for the benefit of Keshwan Nair. 

2.5. Res judicata 

As I have reached a finding that Parvati Sahim claims fail,it is not strictly necessary to reach a decision on the defence of res judicata.

I agree with Mr Suresh Chandra however, that there was no adjudication on the merits in the earlier proceedings filed by Parvati Sahim, as regards State Lease No.12802.On this aspect, Halsbury, Laws of England, (4th Edition) Vol 16, para 1529 provides

In all cases where the cause of action is really the same and has been determined on the merits, and not on some ground (such as the non-expiration of the term of credit) which has ceased to operate when the second action is brought, the plea of res judicata should succeed. The doctrine applies to all matters which existed at the time of the giving of the judgment and which the party had an opportunity of bringing before the court. (emphasis mine)

With respect to the property contained in CT 30424,Mr Mishra appears to rely on the doctrine of res judicata, as its applies in the wider sense, which as exemplified by Stuart-Smith LJ in Talbot v Berkshire CC, ( 1993) 4 AER 9 at page 13 ".is not a true case of res judicata but rather is founded upon the principle of public policy in preventing multiplicity of actions, in there being in the public interest that there should be an end to litigation;"

Mr Mishra, has cited the case of Yat Tung Investment Co. Ltd v Dao Heng Bank Ltd, (1975)A.C. 581 which refers to the following passage of Wigram V.C. in Henderson v. Henderson, (1843) 3 Hare 100,115 which has dominated this area of the law:

"... where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time". (emphasis added)

In reply, Mr Suresh Chandra, placed reliance on Johnson V Gore Wood & Co, (2002) 2 AC 1.In that case, Lord Bingham does not depart from the statement of general principle of Wigram V.C in Henderson v. Henderson (supra),but declared at page 31, that it is "too dogmatic" an approach "to hold that because a matter could have been raised in earlier proceedings, it should have been, so as to render the raising of it in later proceedings necessarily abusive" .His Lordship stated further there should " be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before". (emphasis added)
Parvati Sahim has not advanced any reason why she did not make a claim in respect of the property contained in CT 30424, in either of the earlier proceedings instituted by her. There are other aspects of her conduct which tell against her claim. She took no steps to protect her alleged interests in the two properties in issue, when Uma was alive .She had given Uma a Power of Attorney in July,1999, to purchase State Lease No.12804 specifically in her name.

2.7 Unjust enrichment

Shiu Prakash, in his evidence, says that Uma purchased the two properties with her personal monies which included monies received from an insurance company,when her house was burnt, her savings, sale of a tractor and a loan. Parvati Sahim, in her affidavit, filed in these proceedings to extend the caveats, has admitted that Ms Uma had received monies from insurance.

The answer to Mr Suresh Chandra's contention for restitution on the principle of unjust enrichment is that Parvati Sahim has been unable to establish that she remitted the monies for the purchase of the two properties and the vehicle. 

2.6 Shiu Prakash's counter-claim

I turn to the counter-claim. Parvati Sahim, upon the death of Uma, had lodged two separate Caveat Nos. 585156 and 562938 in the properties contained in CT 30424 and State Lease No. 12802. Shiu Prakash has moved for the removal of the two caveats. He also claims damages suffered, as a result of the lodgement of the two caveats without just cause and the interim injunction granted by Justice Mr Jiten Singh on 7thAugust,2008, forbidding him from dealing with State Lease No.12802, until final determination of this action. 

In the light of my above findings, I hold that Parvati Sahim does not have caveatable interests in the said properties. Accordingly, the application for removal of the caveats on these properties is granted. No evidence was adduced of the damages alleged to be suffered as a result of the lodgement of same nor in respect of the interim injunction granted .Accordingly, Shiu Prakash's counter-claim is dismissed.

3.	Order

I make orders as follows:
a)	Parvati Sahim's claim is dismissed with costs summarily assessed in a sum of $ 2000 payable by Parvati Sahim to Shiu Prakash.

b)	that caveat Nos. 585156 and 562938 over State Lease No.12802 and CT 30424 be removed.

c)	The interim injunction granted on 7thAugust,2008, in respect of State Lease No.12802 is dissolved.

d)	Shiu Prakash's claim for damages is dismissed.

ALB Brito -Mutunayagam
Judge

13th April, 2012