M Kapadia for Plaintiff
Mr. V. Maharaj for Defendant
JUDGMENT
This is the Plaintiff's Summons under s169 of the Land Transfer Act Cap 131 (the 'Act') for the Defendant to show cause why she should not give up vacant possession to the Plaintiff of the "premises" situate at Kalokalo Crescent, Stage II Makoi, Nasinu being Housing Authority Sub-Lease No. 337414, Lot 71 on D.P. No. 5215 (the "land") presently occupied by the Defendant.
It is the Plaintiff's case that the Defendant is illegally occupying part of the dwelling-house (the "premises") erected on the land as there is no consent or licence granted her by the Plaintiff to occupy same. On 27 October 1996 a Notice was
served on her to vacate the premises but she has failed to do so.
It is thendant's cons contention that her husband Mohammed Hussain transferred the land to the Plaintiff on 31 October 1996; but before
that she lived there with her husband; the land was purchased by him from Housing Authority in 1987 for $4500.00 and he paid a deposit
of ten per cent on it.
There are three children of the marriage. The couple lived in this house but subsequently the husband began to have an affair with
one Maya Wati a tenant in the house and he started living with her. Later he rented a room opposite their house and started living
there with Maya Wati. The Plaintiff then came to live in that area.
The husband decided to transfer the land to the Plaintiff with the intention of defeating, as she says, "her legal and equitable interests as a married woman, in what I regard was a matrimonial home".
She says that the property was sold to the Plaintiff for $10,000.00 but she is not sure whether any moneys changed hands or not.
The Plaintiff in Reply to the Defendant's affidavit stated that Hussain fell into arrears with mortgage payments to Housing Authority
and had not paid his telephone bills. He decided to sell the property. The land was eventually transferred to the Plaintiff. The
Plaintiff was not aware of the Defendant's problems with her husband. He denies that at any stage he conspired to deprive the Defendant
of any of her alleged rights with respect to the land.
Consideration of the issue
Under s172 of the Act the onus is on the Defendant to satisfy the Court that she has a right to possession of the land.
On the affidavit evidence before me, and as maintained by Mr. Kapadia, this was a straight out sale with no allegation that it was
sold at an under value. The Defendant's husband was behind in his payment to Housing Authority and to others and was in financial
difficulties. As a result he had to sell the property. The Defendant has not filed any caveat to protect her alleged interest.
The Defendant has not stated what her equitable interest is. The fact that she is married to Hussain does create that interest, the
premises is encumbered and not of great value; it was in the name of her husband and he was required to meet all payments which he
failed to do. In the end after payment of outstanding accounts he received meagre $4000.00 from the transfer of the property to the
Plaintiff.
There is suggestion by the Defendant that there was fraud in the transfer of the land. These are mere wild allegations and are not
sufficient to constitute fraud without proper particulars.
I do not find that there are any complicated questions of fact in this case to preclude the s169 procedure. The Plaintiff is the last
registered proprietor of the land. His title has not been questioned. The Defendant cannot have any claim against the Plaintiff;
her main complaint is against her husband and for that she can take whatever action she is advised upon to take. The Plaintiff was
not aware of the couple's problems. On fraud and indefeasibility of title I refer to the following passage from the judgment in FELS and ANOR v KNOWLES and ANOR (1907) 26 NZLR 604 C.A.:
"The cardinal principle of the Land Transfer Acts is that the register is everything, and that, except in cases of actual fraud
on the part of the person dealing with the registered proprietor, such person, upon registration of the title under which he takes
from the registered proprietor, has an indefeasible title against all the world. Everything which can be registered gives, in the absence of fraud, an indefeasible title to the estate or interest registered, or in the cases in which registration of a right is authorized - as
in the case of easements or incorporal rights - to the right registered" (underlining mine)
The following sections 39 and 40 of the Act clear the air as far as the allegations of transfer being fraudulent are concerned:
"39. - (1) Notwithstanding the existence in any other person of any estate or interest, whether derived by grant from the Crown
or otherwise, which but for this Act might be held to be paramount or to have priority, the registered proprietor of any land subject
to the provisions of this Act, or of any estate or interest therein, shall, except in case of fraud, hold the same subject to such encumbrances as may be notified on the folium of the register, constituted by the instrument of title
thereto, but absolutely free from all other encumbrances whatsoever except ..." (underlining mine).
"40. Except in the case of fraud, no person contracting or dealing with or taking or proposing to take a transfer from the proprietor of any estate or interest in
land subject to the provisions of this Act shall be required or in any manner concerned to inquire or ascertain the circumstances
in or the consideration for which such proprietor or in any previous proprietor of such estate or interest is or was registered,
or to see to the application of the purchase money or any part thereof, or shall be affected by notice, direct or constructive, of
any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding, and the knowledge that any such trust
or unregistered interest is in existence shall not of itself be imputed as fraud." (underlining mine).
It is pertinent to note that under s40 even notice of a trust and unregistered interest in existence does not of itself constitute
fraud upon the party obtaining registration. Here evidently the Plaintiff knew that the Defendant and Hussain were wife and husband
respectively but no more. The Plaintiff is not required to go into the "history" of the title and the fact that the Plaintiff has an "indefeasible title" to the property means that the title cannot be set aside because of some defect in its "history".
It is not the Plaintiff's duty to find out why she was in the house. I think the following passage from the book INTRODUCTION TO LAND LAW by PETER BUTT at 298 sums up the law to some extent on the situation that prevailed in this case:
"It has been held that it is not fraud to purchase with notice of an unregistered lease, become registered as proprietor and
then evict the lessee relying on the indefeasible title conferred by registration (Oretel v. Horden [1902] NSWStRp 21; (1901) 2 S.R. (N.S.W.) (Eq.) 37; Wicks v. Bennett (1021) [1921] HCA 57; 30 C.L.R. 80, at 91, 94-95; R. M. Hosking Properties Pty. Ltd. v. Barnes [1971] S.A.S.R. 100, at 103; Achatz v. De Reuver [1971] S.A.S.R. 240, at 250); it is always open to the holder of an unregistered interest to protect his interest by caveat, and "a purchaser may
shut his eyes to the fact of there being an unregistered interest, and need not take any consideration of the persons who claim under
the unregistered interest: (Munro v. Stuart [1924] NSWStRp 54; (1924) 41 S.R. (N.S.W.) 203, at 206. In the words of Kitto J., "merely to take a transfer with notice or even actual knowledge that its registration will
defeat an existing unregistered interest is not fraud" (Mises v. Stokman [1967] HCA 15; (1967) 116 C.L.R. 61, at 78). Nor is it fraud to register promptly with the purpose of defeating a claim over the land which may be established by pending
litigation: that is not cheating a person of a known existing right (Waimiha Sawmilling Co. Ltd. v. Waqione Timber Co. Ltd. [1926]
A.C. 101). On the other side of the line, a registered title is defeasible for fraud where the purchaser takes not merely with notice
of the unregistered interest but having given an assurance that the interest will be preserved (Loke Yew v. Port Swettenham Rubber
Co. Ltd. [1913] UKLawRpAC 11; [1913] A.C. 491, at 501-502)."
I therefore find that on the facts and on the authorities referred to above, no fraud can be imputed to the Plaintiff either directly
or indirectly.
To conclude I hold that s169 procedure on the facts of this case is appropriate. The alleged rights of the Defendant cannot be "allowed to supersede the statutory legal effect of the Section" (JAYARATNE J in CPS REALTY-FIJI IC and DAVID SIMPSON v ANNE SIMPSON C.A. No. 178/90) although in certain circumstances equity would compel the Plaintiff to give right or title to the land to the Defendant
but that is not the case here.
In the outcome, for the above reasons the Plaintiff is entitled to an order for immediate vacant possession of the premises and land
and I do so order with execution stayed for two weeks from the date of personal service of this Order upon the Defendant.
The Defendant is to pay the costs of this action which is to be taxed unless agreed.
D. Pathik
Judge
At Suva
17 October 1997
Hbc0073j.97s
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/1997/157.html
