Singh v Registrar of Titles [1999] FJHC 56; Hbc0252j.99s (22 June 1999)

Fiji Islands - Singh v Registrar of Titles - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 0252 OF 1999

:

PRAMENDRA SINGH
Plaintiff

AND:

REGISTRAR OF T
Defendant

Mr S. Kumar for Dfor Defendant

Hearing: 18^th June 1999
Decision: 22^nd June 1999

JUDGMENT

This is an application by Pramendra Singh, (the Plaintiff) under Section 164 of the Land Transfer Act Cap 131, for an order that the Registrar of Titles register the transfer of property comprised in CT Register Volume 43 Folio 4245, Lots 7, 8, 9 Section XXI, to the said Plaintiff. The decision of the Registrar giving rise to this application, was her decision to lodge a caveat (number 192113A) against the title on 7^th May 1999, backdated to 24^th May 1982 (when she was not the Registrar of Titles) preventing the transfer of the property to the Plaintiff on the sale by the executor and trustee of the estate of Sarah Grace Vandenberg.

The affidavit of the applicant, Pramendra Singh, shows that the property in question was part of the estate of Sarah Grace Vandenberg. She died on 21^st May 1977. Her son-in-law one Vishnu Deo Prasad was appointed executor, by virtue of her will dated 28^th February 1975. The estate was transferred to the executor on 25^th May 1982. The will of Sarah Grace Vandenberg named her eight children as beneficiaries in equal shares.

On 8^th July 1998 the executor sold the property in question to the Plaintiff. The purchase price was paid to the executor in full, and he took possession of the land. The transfer dated 8^th July 1998 was stamped, lodged and accepted for registration by the Registrar of Titles on 6^th August 1998. On 8^th January 1999, the Registrar returned the Transfer document to the Plaintiff’s solicitors, with a verbal request for a Deed of Family Arrangement.

The solicitors for the Plaintiff informed the Registrar that there was no Deed of Family Arrangement and that the executor had full powers to sell and distribute the estate. The Transfer document was then re-lodged at the Titles Office on 11^th January 1999.

On 7^th May 1999, the document and the Title Deed were again returned to the Plaintiff’s solicitors with a caveat endorsed on the title by the Registrar backdated to 25^th May 1982, the date of transmission by death, and a date on which she was not the Registrar of Titles.

On 7^th May 1999, the Plaintiff’s solicitors wrote to the Registrar asking her for her reasons for refusing registration. This is a requirement under Section 164(1) of the Land Transfer Act. The Registrar did not respond to this letter.

On 19^th May 1999, the Plaintiff applied to the High Court for an order that the Registrar register the transfer, by way of originating summons and supporting affidavit.

The matter was listed on 26^th May 1999, and on 3^rd June 1999. On both dates the Registrar failed to appear. However on 11^th June the Registrar was represented by counsel, who asked for time to file an affidavit.

On 14^th June 1999, the affidavit of Ma’ata Sakiti, the Registrar of Titles was filed. She deposed that she wished to sight a Deed of Family Arrangement "which would indicate that the sale was in the best interests of the beneficiaries named in the will of Sarah Grace Vandenberg". At paragraph 8(iii) of her affidavit, the Registrar deposed that the sale was to a person not named in the Will. She stated that she entered a caveat under Section 94 of the Land Transfer Act which provided that:

"Upon registration of the transmission of any estate or interest in land under the provisions of Section 93 the Registrar may enter a caveat for the protection of the interests of any person whom he is satisfied are beneficially interested in such estate or interest."

She stated that she had power under 129(1) of the Land Transfer Act to call for documents, and that she believed that she was entitled to backdate the caveat since her predecessor ought to have lodged a caveat in 1982. She said that she had acted to protect the interests of the beneficiaries. She does not state what grounds she has for believing that the executor was not acting in the interests of the beneficiaries. There is no evidence at all that the beneficiaries objected to the sale of the property in question.

The application was heard on 18^th June 1999. Mr Narendra Arjun for the Plaintiff submitted that the executor and trustee is deemed to be the absolute proprietor of the estate by virtue of Section 93(3) of the Land Transfer Act. He submitted that whilst the Registrar could enter a caveat under Section 94 of the Act, this power must be exercised "upon registration of any estate" by virtue of a transmission by death under section 93. He submitted that this power did not exist 15 years after such transmission. He argued that there was no statutory or legal requirement for a Deed of Family Arrangement before an executor and trustee could sell the estate, and that a Deed of Family Arrangement was normally required when the beneficiaries wished to vary the terms of a will, or wished to renounce their interests.

Mr Arjun submitted that the Registrar did not point to any improper dealing on the part of the executor. He argued that if her predecessor had decided not to enter a caveat in 1982, the present Registrar could not now substitute her own discretion for his. Mr Arjun submitted that the result was that a bona fide purchaser for value had no security of title.

Mr Kumar for the Registrar endorsed Mr Arjun’s submissions on the law. However he said that his instructions were to stand by the affidavit of Ma’ata Sakiti. He conceded that if the beneficiaries were aggrieved by the sale of the estate, they had a right of action against the executor. He said that he left the matter to the Court.

There is no doubt at all that the Registrar of Titles has wide powers under the Land Transfer Act. Section 129 of the Act gives the Registrar power to require any person interested in property to produce any instrument in his/her possession.

Under Section 131 the Registrar may enter a caveat on behalf of any person where an error has been made in the description of the property, or for the prevention of fraud or improper dealing. Section 131(2) gives the Registrar powers to correct errors in the register provided that the date of such correction is inserted by her. In this case the Registrar purported to act under Section 94 of the Act. She states that the section impliedly allowed her to backdate the caveat. I cannot agree. The then Registrar of Titles did not consider it necessary to register a caveat to protect the interests of the beneficiaries in 1982. Any prospective purchaser searching the register for any encumbrances on the title, would have found the title clear.

To register a caveat 17 years after the transfer to the executor on transmission by death, and to backdate such a caveat, would defeat the whole purpose of the Act. It would render the process of registration, and search, a futile exercise and would prevent the security of titles. Finally, the back-dating of the caveat creates a false impression of the date of the entry of the caveat.

The Registrar does have powers to enter a caveat at any time under Section 131(1) of the Act, but must only act if he/she believes an error is made by misdescription or to prevent fraud or improper dealing. Although the Registrar does not purport to rely on this provision in this case, it is apparent from her affidavit that she has no grounds to suspect error, fraud or improper dealing.

The Registrar appears to base her action on the fact that the purchaser is not a beneficiary under the will. The executor is not obliged to sell the estate to a beneficiary. Furthermore Section 11(3) of the Succession, Probate and Administration Act Cap 60 provides:

"An executor to whom probate has been granted, or administrator, may, for the purposes of administrator, sell or lease such real estate or mortgage the same, with or without a power of sale, and assure the same to a purchaser or mortgagee in as full and effectual manner as the deceased could have done in his lifetime".

If the Registrar’s position in entering the caveat without suspicion of improper dealing, is correct, no executor and trustee could sell the estate and distribute the proceeds, without a Deed of Family Arrangement. Such a position clearly has no legal basis. It is also impractical and would frustrate the orderly administration of the registration process.

In all the circumstances I find that the Registrar erred in entering Caveat No. 192 113A, and I order her to remove such caveat forthwith. I also order the registration of the transfer of CT 4245 to the Plaintiff. Costs of this application are to be paid by the Defendant to the Plaintiff, to be taxed if not agreed.

Nazhat Shameem, Ms
JUDGE

At Suva
22^nd June 1999

HBC 0252J.99S