Wati v Bhan [2003] FJHC 3; Hbc00276d.1997s (17 April 2003)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 0276 OF 1997S

Between:

VIDYA WATI
(f/n Shiu Narayan)
Plaintiff

and

CHANDAR BHAN
(f/n Shiu Shankar)
Defendant

S. Chandra for the Plaintiff
H. Nagin for the Defendant

DECISION

In February 1983 the Plaintiff became the owner of one undivided quarter share of about 100 acres of land at Nakaulevu, Navua upon the death of her husband, the Defendant’s brother.

In July 1997 the Plaintiff commenced this action in which she alleged that the Defendant, by fraudulent means, had obtained the transfer to himself of her interest in the land. The Plaintiff claimed that she was illiterate and uneducated and had been induced by the defendant to execute the documents of transfer by placing her thumb print upon them while being under the impression that she was acknowledging receipt of a loan of $3,000 which the Defendant had advanced to her.

In October 1997 the Defendant filed a Defence denying fraud and asserting that the $3000 was not a loan but was a first instalment of an unspecified sum which represented the agreed purchase price of the Plaintiff’s interest in the land.

In March 1998 the usual orders were made on a summons for directions taken out by the Plaintiff’s solicitors, Messrs Maharaj Chandra and Associates.

On 5 July 2000 the Plaintiff’s solicitors issued an Order 34 rule 2 notice requesting the Defendant’s solicitors to attend a pre-trial conference.

On 17 July Messrs Sherani & Co replied to the Order 34 notice. They advised that the Plaintiff had filed and served upon them a notice of discontinuance. They enclosed a copy for information. What appear to be original copies of a notice of discontinuance and a notice of intention to act in person dated 31 December 1998 were filed in the High Court on 5 January 1999. Both documents bear a thumb print which is not disputed to be that of the Plaintiff.

Mention must also be made of a third document. This is a withdrawal of a caveat No. 393217 which the Plaintiff had lodged against the land. This document (marked MFI1) also bears the thumbprints of the Plaintiff. It was witnessed by Mr. S. Parshotam, Barrister and Solicitor, on 31 December 1998 and was registered on 28 January 1999.

On 2 July 2002 the Plaintiff filed the present summons in which she seeks leave to withdraw her notice of discontinuance. The summons was filed by Messrs Maharaj Chandra and Associates. It is supported by two affidavits by the Plaintiff in which she avers that she was induced to execute the three documents by the Defendant in the belief that she was taking eviction proceedings against troublesome tenants on the land.

The Defendant’s affidavit in answer was filed on 3 September 2002. The Defendant averred that in 1998 the Plaintiff came to see him at a friends house where he was staying. She expressed sorrow and guilt over commencing the action. She told him that she wished to discontinue the action and withdraw the caveat. The Defendant’s response was to refer her to her solicitors for advice. According to paragraph 2 (xii) of the affidavit:

“I am not aware whether the Plaintiff took legal advice or not. However I received a letter dated 18 February 1999 from my solicitors saying that the Plaintiff had filed (the documents)”.

In view of the allegations and counter allegations being advanced I decided on the slightly unusual step of hearing evidence on the application.

On 14 April 2003 I heard the Plaintiff, the Acting Registrar of Titles, the Defendant, Mr. S. Parshotam and two other witnesses.

During the hearing a number of oddities emerged. These include the provenance of the documents, the typed preparation of which still remains a mystery, the odd appearance of two thumbprints on the withdrawal of caveat when Mr. Parshotam was certain that only one thumbprint was there when he witnessed the document, the Defendant’s denial that he had seen the documents before or that he had discussed the discontinuance of the action with the Plaintiff and the Defendant’s payment of $1,000 to the Plaintiff in January 1998 “for signing of withdrawal of caveat” when his evidence was that he did not become aware of the withdrawal until several months later.

In family disputes of this kind, it has been my experience in Fiji that the whole truth is very hard to ascertain. There is some force in Mr. Nagin’s submission that the Plaintiff had, in cross examination, admitted discontinuing the action because she lacked funds. However individual admissions by illiterate litigants giving their evidence with the aid of an interpreter must be considered against the background of the totality of their testimony.

In approaching this application I have borne in mind that to refuse it would be to shut out the Plaintiff entirely from prosecuting her claim to the land which previously belonged to her husband. To allow it on the other hand would be to give the parties an opportunity to have their claim to what after all is clearly a valuable asset fully tested. Having heard the Defendant I had a sufficient degree of doubt about his evidence to raise disquiet. The benefit of the doubt must be given to the Plaintiff. The application succeeds.

M.D. Scott
Judge

17 April 2003