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Mati v Prasad [2019] FJHC 183; HPP 40 of 2017 (7 March 2019)

IN THE HIGH COURT OF FIJI
AT SUVA
PROBATE JURISDICTION
Probate Action No.: HPP 40 of 2017

BETWEEN

SUMINTRA MATI a.k.a SUMINTRA WATI and
VINESH CHANDRA a.k.a DHINESH PRASAD
PLAINTIFFS

AND
HARI PRASAD
FIRST DEFENDANT

AND
REGISTRAR OF TITLES
SECOND DEFENDANT

APPEARANCES/REPRESENTATION
PLAINTIFF : Mr. R Prakash / Ms. K Maharaj [Mishra Prakash & Associates]

FIRST DEFENDANT : Mr. D Prasad [Diven Prasad Lawyers]

SECOND DEFENDANT : Ms. M Ali [Attorney – General’s Chamber]

JUDGMENT OF : Acting Master Ms Vandhana Lal

DELIVERED ON : 07 March 2019

JUDGMENT
[Extension of Caveat]

Application

1. On 12 July 2017 the Plaintiffs filed an ex-parte summons seeking orders:
   
   1. That Caveat No. 1648 by the Plaintiffs to be extended and do remain on the said title until further orders of the court.
      

Said application is made pursuant to Order 32 of the High Court Rules and Section 110 (3) of the Land Transfer Act.

2. In support of the application, the Plaintiffs have filed affidavits of Sumintra Mati and Vinesh Chandra.
   
3. This application is opposed by the First Defendant Hari Prasad who filed his opposition on 30 October 2017.
   
4. The Plaintiffs thereafter filed an Affidavit of Vinesh Chandra on 14 November 2017 in response to the affidavit in opposition.
   

Substantive Claim

5. The Plaintiffs caused a Writ of Summon to be issued on 12 July 2017 and as per the claim they are alleging fraud; breach of trust and/or negligence of trust duties against the First Defendant.
   

They seek to have the transfer no. 130395 registered on 24 October 1973 on Crown Lease No. 1648 be set aside and/or cancelled and are further seeking general damages.

Grounds for the Application to Extend Caveat

6. Both Sumintra Mati a.k.a Sumintra Wati and Vinesh Chandra a.k.a Dhinesh Prasad are sister and brother.
   

Both are beneficiary in their late father’s estate [Estate of Ram Dulare].

They have a life interest in their father’s estate [via a will dated 15 January 1972]. Their father had provided that they be permitted to stay in the Estate house situated on Crown Lease No. 1648 for life or as long as they wish to do so.

The said will was proved in the then Supreme Court of Fiji and on 9 May 1973 the Court granted Probate No. 12427 to the First Defendant as the Sole Executor and Trustee of their father’s Estate.

Sumintra and Vinesh have always lived at 33 Nacara Street, Vatuwaqa, Suva, Fiji in the dwelling house belonging to their father situated on Crown Lease No. 1648. Except for a temporary period of about two (2) months when they lived with neighbours when the Estate house was burnt down.

They have lived in the house continuously and are living to-date.

The First Defendant is their brother and the Executor and Trustee of their father’s Estate.

On 24 October 1973 the First Defendant had transferred the Estate Crown Lease No. 1648 to himself in his personal capacity.

Allegation is the First Defendant transferred the lease without the Plaintiff’s consent. He did so fraudulently to defend and deny the Plaintiffs interest in the said property.

The First Defendant is said to have interfered with the quiet possession and peaceful occupation of the house by the Plaintiffs.

To protect their interest in the Estate property, the Plaintiff and another beneficiary Ram Adhar lodged caveat on the subject Crown Lease which caveat was registered on 7 July 1997 and number 433631.

The First Defendant has applied for the removal of the said caveat. Hence the application to have the caveat extended until final determination of the action.

Should the caveat be removed the First Defendant will be able to deal with the subject land and defeat the Plaintiffs’ interest. Thus the beneficiaries would be prejudiced.

The First Defendant has in the past gone to the extent of seeking orders for eviction which has been unsuccessful.

Opposition

7. According to Hari Prasad, the Plaintiffs were beneficiaries of the Estate of their late father to the extent that amongst other siblings, they were allowed the use and occupy one room each in the house erected on Crown Lease No. 1648 for so long as they may have wished to live there or until their death only as per Clause 4 of the last will and testament of the deceased.
   

Hence mere assumption and inferences cannot be relied on to claim a share from the Estate.

As a result of the fire, the house subject of the will no longer exists hence the Plaintiff’s interest as beneficiaries in the house has also relinquished.

He has erected a new dwelling on the property on his own effort hence no beneficiary under the will can make a claim.

He claims to have always acted within his role and duties as an Executor and Trustee of the said Estate and intended to distribute the Estate as per the last will and testament of the deceased. He is the sole beneficiary and does not need to get consent of the siblings for transfer of the property.

Hence the Plaintiffs have no caveatible interested or beneficial interest in the property.

8. In reply the Plaintiff state that their beneficial interest in the Estate has not been determined or terminated and it is continuing.
   

Their beneficial interest in the Estate lasts for their individual lifetimes or until they decided to live elsewhere.

They are not claiming any shares in the Estate but insist on their rights to live on the property for the rest of their lives or until they decide to live elsewhere.

According to them, their rights and interest to use and occupy the Estate home has not been relinquished due to the house being burnt down.

They deny the First Defendant himself had erected the new dwelling house. The burnt structures was replaced upon clear understanding of all beneficiaries and the First Defendant that the replacement building was property of their father’s Estate and to be occupied as a family home in the same manner that they had been occupying the original house. There was community assistance provided to rebuild the house.

The new dwelling is property belonging to their father’s Estate.

Vinesh Prasad and Ram Adhar made financial contribution by withdrawing funds from Fiji National Provident Fund for the reconstruction of the Estate house.

Vinesh claims to have bought building materials as well.

Law

9. Under Section 106 of the Land Transfer Act, any person who claims to be entitled or to be beneficially interested in any land, or any estate or interest, by virtue of any unregistered agreement, or other instrument or transmission, or of any trust expressed implied or transferring any land or estate or interest therein to any other person to be held in trust may at anytime lodge a caveat forbidding the registration of any person as transferee or proprietor of, and of any instrumental affecting, such estate or interest either absolutely or unless such instrument be expressed to be subject to the claim of the caveator as may be required in such caveat.
   
10. Every caveat should “state with sufficient certainty of the estate or interest claimed and how such estate or interest is derived” - Section 107.
    
11. Caveatee can make application in writing to the Registrar to remove the caveat and the registrar shall give 21 days’ notice in writing to the caveator requiring that the caveat be withdrawn - Section 110 (1).
    

Under subrule (3) “the caveator may either before or after receiving notice from the registrar apply by summons to the Court an order to extend the time beyond 21 days”.

DETERMINATION

12. Annexure VC5 in the Affidavit of Vinesh Chandra is copy caveat number 433631 lodged by Sumintra Wati, Ram Adhar and Dinesh Prasad claiming an interest as beneficiaries by virtue of the last will and testament of Ram Dulare.
    
13. A Notice of Removal of Caveat is dated 23 June 2017 which was posted to the applicants on 29 June 2017.
    
14. Clause 3 of the Will and Testament of the Deceased reads:

“I Devise and Bequeath all my real and personal property of whatsoever nature and wheresoever situated TO and UNTO may said son Hari Prasad (son of Ram Dulare) for his sole use and benefit absolutely”.

Clause 4 of the Will reads:

“I Further Direct that my Executor shall allow my following children the use and occupation of one room each in the house erected upon Crown Lease Number 1648 for so long as they may wish to live there or until their death BUT in no circumstances, shall they or any one of them be entitled to any share or anyone of them decide to live elsewhere:

1. Ram Narayan
2. Deo Narayan
3. Sumintra Wati
4. Shiu Prasad
5. Shiri Prasad
6. Ram Adhar
7. Chandrika Prasad
8. Dhinesh Prasad”.
   
15. On the hearing date the Court was informed by the Second Defendant Registrar of Title a nominal party that the caveat on the registered property is still intact.
    
16. In the Statement of Claim the Plaintiff are seeking orders that the Transfer Number 130395 be set aside and/or cancelled; the First Defendant be restrained from selling, transferring or disposing and/or creating any encumbrances and/or dealing with the subject land during the lifetime of the Plaintiffs or until earlier determination of the Plaintiffs life interest.
    

This claim is brought pursuant to Clause 4 of the Will and Testament of the deceased.

17. There are issues which need to be sorted out at trial: If the Plaintiffs’ beneficial interest in the Estate relinquished due to the burning of the original dwelling?; Or whether it continued irrespective of the reconstruction of the second dwelling until their lifetime or until they decide to live elsewhere?; Whether the First Defendant could transfer the property to his name during the lifetime of the beneficiary and until they continued to reside on the property?.
    
18. Pursuant to Clause 4 of the Will of the Deceased, the Plaintiffs have shown that they have caveatible interest. Should the caveat be removed they will be at prejudice likely facing eviction.
    

FINAL ORDERS

19. Accordingly, I grant orders on the Plaintiff’s application that is Caveat Number 433631 on Crown Lease Number 1648 by the Plaintiffs be extended until the final determination of the action HPP 40 of 2017.
20. Cost to be in cause.
    

................................
Vandhana Lal [Ms]

Acting Master

At Suva.