Prasad v Prasad [1996] FJHC 167; Hbc0348d.95s (12 December 1996)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 348 OF 1995

Between:

SATISH PRASAD
s/o Ram Prasad
Plaintiff

and

1. SILAWATI PRASAD
d/o Hari Prasad
2. VIJAY PRASAD
s/o Ram Prasad
3. THE REGISTRAR OF TITLES OFFICE
4. THE ATTORNEY GENERAL OF FIJI
Defendants

Mr. S. Chandra for the Plaintiff
Mr. H. Nagin for the 1st and 2nd Defendants
Mr. S. Baiju for the 3rd and 4th Defendants

DECISION

By Summons dated 4 July 1996 the Plaintiff is seeking the following orders:

(a) That Vijay Prasad, The Registrar of Titles and The Attorney-General of Fiji be joined as second, third and fourth defendants respectively.

(b) That the plaintiff be permitted to lodge a second caveat against Certificate of Title No. 9758 on the grounds that the Plaintiff is a beneficiary.

(c) That the Plaintiff be given leave by this Court to file Amended Statement of Claim.

An affidavit in Support of his application was filed by the Plaintiff on 12 July 1996 and Messrs. Sherani and Company, Solicitors for the first and second defendants replied to it by filing an affidavit on 4 September 1996 sworn by the proposed second defendant.

The Plaintiff states that he has a beneficial interest in the estate of his father which has been administered by his mother who is the first defendant in this action. The estate mainly comprised of property as more particularly described in Certificate of Title No. 9758 together with a dwelling house erected thereon.

He alleges that the administratrix and the Registrar of Titles had "no powers to distribute the property unless and until the interest of the Plaintiff has been properly taken care of." He also complains that the Registrar of Titles ought not to have accepted the transfer document for registration in favour of the second defendant unless all the beneficiaries' interests have been taken care of under Succession Probate and Administration Act and that the Registrar of Titles was wrong in cancelling its own caveat under section 94 of the Land Transfer Act.

The Plaintiff further contends that despite the order of this Court extending the time for removal of Plaintiff's own caveat the Registrar of Titles unlawfully cancelled the Plaintiff's caveat.

Mr. Chandra for the Plaintiff submits that under the Torrens system of registration, the Plaintiff's unregistered interest could only be recorded on the title by virtue of a caveat lodged under section 106 of the Land Transfer Act and he therefore asks the Court to allow the registration of his caveat under section 112 of the Act.

The said section 112 provides:

"112. When any caveat has been removed under the provisions of section 109 or 110, it shall not be lawful for the Registrar to receive any second caveat affecting the same land, estate or interest by the same person, or in the same right and for the same causes, except by Order of the Court."

The Plaintiff's third prayer is that since he has demonstrated that there is a cause of action against the second, third and fourth defendants he asks the Court in the exercise of its discretion to allow the amendment to the Writ as proposed in the draft Statement of Claim (annexure 'C' to Plaintiff's affidavit).

In Reply to the Plaintiff, Mr. Nagin in opposing the application said that Court Order extending the caveat No. 377943 was for some reason not registered with the Registrar of Titles by the Plaintiff's former solicitors nor were the first and second defendants served with any Court order in that regard. Hence Mr. Nagin says that for the negligence of his solicitors the Plaintiff cannot join the parties as in the application.

Mr. Nagin also argues that in law, the Plaintiff has no claim on "that property" as he merely had an interest of 13.33% in the Estate of his father and that this interest of 13.33% cannot be pointed to one particular property. He says that in this type of case the administratrix may sell the property and distribute the funds to the interested beneficiaries. Here, he says, the property has been sold and the Plaintiff's interest of $16,000 is in the trust account of his firm ready to be paid out to him.

His argument in answer to the lodging of second caveat is that the property is already in the name of the second defendant and he has mortgaged it to Westpac Banking Corporation and also the interest of Fiji National Provident Fund has been registered by way of a charge. He says that no purpose will be served in allowing the Plaintiff to lodge a second caveat.

On application to amend the Statement of Claim, he says that there is no cause of action against the second, third, and fourth defendants. Hence leave to amend should be dismissed.

Consideration of the application

I have considered the submissions made by both counsel.

As far as joinder is concerned, I have the second defendant's argument before me and although State Counsel Mr. Baiju was present during the hearing of the Summons he did not wish to say anything and rightly so as the third and four defendants have not yet been joined as parties to the action. Once they are all joined a party, it would then be open to them to make any application they wish to make as far as cause of action against them is concerned.

Bearing in mind the submissions before me in this application, it would be wrong at this stage to refuse the Plaintiff's application to join the second, third and fourth defendants as parties to the action.

As for being allowed to lodge a second caveat, on all the facts and circumstances of this case, particularly when no Order of the Court extending the time for removal of caveat was lodged with the Registrar of Titles nor served on the second defendant, I see no merit in the Plaintiff's application.

The legal position of the plaintiff, in so far as his beneficial interest in the estate is concerned, has been discussed at length by FATIAKI J in MAHENDRA VIJAY ANGANU and 1. DAYAWANTI 2. ROBIN RAVINDRA ANGANU (C.A. 629/93). Here, as stated in ANGANU (supra) at p.5, the Plaintiff's 'interests' "would be confined to the 'residuary estate of his late father. The question that must then be considered is whether such an 'interest' is sufficient to support a caveat in terms of section 106(a) of the Land Transfer Act (Cap. 131)." I pose the same question in this case and also refer to the cases of GUARDIAN TRUST AND EXECUTORS CO. of N.Z. v HALL (1938) NZLR 1020 and IN re SAVAGE'S Caveat (1956) NZLR 118.

The following passages from these two cases are worth noting as they are pertinent to the issue before me.

In HALL (supra) at p.1026 CALLAN J said:

"The interest conferred on the caveator by the will of his father was a right to share in the residue, and the residue was to be arrived at by sale, realization, and a discharge of liabilities. This process is not yet complete."

He goes on to say:

".... the legatee of a share in residue has no interest in any property of the testator until the residue has been ascertained, and that his right is to have the estate properly administered and applied for his benefit when the administration is complete."

In SAVAGE (supra) at p.120 MacGREGOR J said:

".... it seems to me the caveator's claim is not to an interest in the land but merely to a right to share in any surplus of the intestate estate after all liabilities have been discharged."

Without going into details of the case the Plaintiff has not established that he is a person who would be entitled to lodge a second caveat as prayed.

I therefore see no merit in the Plaintiff's application to be allowed to lodge a second caveat.

I have considered the application to amend the Statement of Claim and feel that I ought to allow it. Thereafter the parties will be at liberty to make any application they wish to make so that the Court can consider it on its merits.

In the outcome, I grant the application to join Vijay Prasad, The Registrar of Titles and The Attorney-General of Fiji as second, third and fourth defendants respectively and also grant leave to file an amended Statement of Claim in this action within 7 days and I do so order but the application to lodge a second caveat is refused. The costs are to be costs in the cause.

D. Pathik
Judge

At Suva
12 December 1996

HBC0348D.95S