Sharma v Sharma [2004] FJHC 370; HBC0016.2000L (16 February 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0016 OF 2000L

BETWEEN:

GIRDHAR SHARMA, HARI RAM SHARMA & MADHU LATA SHARMA
Plaintiffs

AND:

DAYA SHANKAR SHARMA
Defendant

Counsel for the Plaintiffs: Mr. Haroon A. Shah
Counsel for the Defendant: Ms Vasantika Patel

Date of Hearing & Judgment: 16 February 2004

EXTEMPORE JUDGMENT

This matter comes before the court by way of Notice of Motion for removal of caveat dated the 3^rd of April 2003. In that motion the defendant seeks orders: -

1. That the order made by this Honourable Court on 7 June 2001 be dissolved;
   
2. That the Caveat No. 493612 against Certificate of Title No. 10053 lodged by the first named plaintiff be removed immediately pursuant to sections 110 and/or 168 of the Land Transfer Act, Cap. 131;
   
3. That the plaintiffs pay the costs of this application on an indemnity basis.
   

The order of the court of the 7^th of June 2001 which is sought to be dissolved was an order by Gates J. that Caveat 493612 remain on Certificate of Title No. 10053 Lot 42 until a further order of this Honourable Court.

In support the Notice of Motion, the defendant relies upon the affidavit of the defendant sworn on 31 March 2003. The plaintiff has put no evidence before the court with respect to the Notice of Motion and counsel informs the court that the plaintiff relies upon the affidavit evidence of the defendant. The court has the benefit of skeleton submissions from counsel for the plaintiff and counsel for the defendant.

The facts relevant to the application, it is acknowledged by counsel, are relevantly set out in the affidavit of the defendant. It is perhaps pertinent to briefly refer to some of those facts.

On 4 October 1996, orders were made by this court by consent to enable the subject property to be sold by public tender subject to a condition that the beneficiaries be entitled to submit offers for purchase of the said property either jointly or severally with the right to treat the value of their respective shares as part of the purchase price. Is understood pursuant to that order the defendant placed an advertisement in the newspapers seeking tenders for the sale of the property. A tender was received from the plaintiff in the sum of One Hundred and Fifty Thousand Dollars ($150,000.00) by letter dated the 1^st September 1997 being annexure “DSS-10” the affidavit of the defendant. The defendant on behalf of the estate accepted that offer.

The plaintiff did not settle the purchase and there is before the court no evidence as to why such settlement was not effected however counsel for the plaintiff submits that there was an obligation on the defendant to pursue the settlement of that sale prior to proceeding further with the disposition of the estate asset.

It appears from the defendant’s affidavit that in March 1998, the property was again advertised for sale by tender, two offers were forthcoming, one for One Hundred Thousand Dollars ($100,000.00) and the other for One Hundred and Forty Thousand Dollars ($140,000.00).

The defendant then reaffirmed the offer of the 5^th of May 1997 to purchase the property for One Hundred and Fifty Thousand Dollars ($150,000.00) and proceeded to settlement of that purchase. It is submitted on behalf of the plaintiff that the defendant was at that time under an obligation to seek the further approval of the court to that transaction. This submission is made notwithstanding the terms of the order of the 4^th October 1996. At the time of the registration of the transfer from the estate of the defendant, there was no caveat registered on the title.

It appears from the evidence that subsequent to the acquisition of the property by the defendant financial difficulties arose which for relevant purposes might be summarized as culminating in the property being sold by the defendant as is detailed in paragraph 30 of the defendant’s affidavit for the sum of the One Hundred and Twenty Thousand Dollars ($120,000.00).

The only evidence before the court is that the property has now been sold for One Hundred and Twenty Thousand Dollars ($120,000.00) it having been purchased for One Hundred and Fifty Thousand Dollars ($150,000.00). The caveat was lodged after the defendant became the registered proprietor of the land.

As I have indicated, there is no evidence before me to dispute the facts as to deposed by the defendant.

For there to be a right to maintain the caveat on the title the plaintiff must have a caveatable interest.

The uncontested facts are that the estate of Ram Shankar Sharma has progressed to the point of distribution. The plaintiff has apparently declined to accept what has been calculated as his distribution of the estate.

The third plaintiff has filed an affidavit with the court indicating her acceptance of the distribution of the estate.

I think the court can conclude that the estate has been distributed notwithstanding the plaintiff’s share, which is being held in trust.

Counsel for the defendant, refers the court to the decision of Fatiaki J. in Sir Sathi Narain v Phyllis Kathleen Malley 34 FLR page 118 where His Lordship considered the role of a caveat when considering an application to extend a caveat without reciting the words of the judgment. I think it’s suffice to say that the caveatable interest alleged by the plaintiff would not satisfy the tests and authorities that His Lordship refered to.

For these reasons and on the evidence that has been placed before the court, I am of the opinion that orders 1 and 2 was sought in the Notice of Motion should be granted and accordingly the Orders of the Court are: -

1. That the order made by this Honourable Court on 7^th day of January 2001 be dissolved;
   
2. That Caveat No. 493612 against Certificate of Title No. 10053 lodged by the first named plaintiff be removed immediately pursuant to sections 110 and/or 168 of the Land Transfer Act, Cap. 131;
   
3. That the 1^st and 2^nd plaintiffs pay the costs of this application.
   

JOHN CONNORS
JUDGE

AT LAUTOKA
16 FEBRUARY 2004