Prasad v Latchmi [2004] FJHC 506; HBC0188.2004L (10 November 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0188 OF 2004L

BETWEEN:

DIWAKAR PRASAD
f/n Shiu Ram
Plaintiff

AND:

VIJAY LATCHMI
f/n Shiu Ram and
RAM RATI
f/n Shiu Charan
Defendants

AND:

THE REGISTRAR OF TITLES
Nominal 2nd Defendant

Counsel:
Mr. J. Sharma for the plaintiff
Mr. C.B. Young for the defendants

Hearing & Judgment: 10 November 2004

EXTEMPORE JUDGMENT

This matter comes before the court by way of Notice of Motion filed on the 6^th October 2004. That Motion seeks:

(a) that the orders made on 29^th June 2004 be dissolved; and

(b) that the plaintiff pay the costs to the defendants.

The orders made on the 29^th June 2004 were as follows:

(i) The defendants be restrained, whether by themselves, or by their servants or agents or otherwise howsoever from selling, alienating or in any way dealing with Certificate of Title No. 23807, the piece of land known as Malaqereqere (part of) being Lot 4 on DP 5734 in the district of Cuvu, and Certificate of Title No. 23808, the piece of land known as Malaqereqere (part of) being Lot 3 on DP 5739 in the district of Cuvu belonging to the estate of Shiu Ram f/n Ram Prasad.

(ii) The defendants be restrained, whether by themselves, or by their servants or agents or otherwise howsoever from disposing off, selling, depleting and/or in any way dealing with and/or alienating any asset of the estate of Shiu Ram f/n Ram Prasad.

(iii) That the caveats lodged by the plaintiff or Certificate of Title No. 23807, the piece of land known as Malaqereqere (part of) being Lot 4 on DP 5734 in the district of Cuvu, and Certificate of Title No. 23808, the piece of land known as Malaqereqere (part of) being Lot 3 on DP 5734 in the district of Cuvu be extended by the nominal 2^nd defendant until further order of the court.

The issues before the court arise from the estate of the father of the plaintiff, Shiu Ram, who died on the 27^th April 1995 and probate of his Will was granted to the named executrixes being the defendants to these proceedings, that is, his daughter, Vijay Latchmi and his wife, Ram Rati.

The terms of the Will provide for the estate to be held upon trust to pay all debts, funeral and testamentary expenses and for the rest and remainder of the estate to be held upon trust for the wife of the deceased, Ram Rati, for her life and after her death unto the children of the deceased, that is Chandrika Prasad, Ambika Prasad, Diwakar Prasad and Vijay Latchmi in equal shares.

The Will also contains a provision empowering the trustees in the execution of the trusts pursuant to the Will to sell, call in and convert into money such part or parts of the real and personal estate as the trustees shall in their absolute discretion think fit.

The applicant relies on the affidavits of Ram Rati sworn on 22^nd September 2004 and 2^nd November 2004.

The respondent relies on an affidavit of the plaintiff sworn on the 25^th October 2004.

Counsel for both parties have given to the court written submissions. It is argued on behalf of the applicant that the plaintiff has no caveatable interest. In support of that submission, the applicant relies upon Holt v Anchorage Management Ltd [1989] 1 NZLR 109 at page 114, McMullin J said:

“The cestui que trust who caveats the title need not wait for any threatened breach of trust or demonstrate any prejudice to his position. He is entitled to caveat the title even though he foresees no difficulties in the way of the enforcement of his rights.

It is not in dispute that the appellant is able to point to the Picton property as being one which is held for him under the trust and he is entitled to have the legal estate in it transferred to him subject only to the satisfaction of such obligations as the terms of the trust may impose on him.”

And further at page 114 at point 29 he stated:

“The appellant’s position would be different if his interest were an interest in a trust of which real property was only an undefined part of the subject-matter of the trust. In that case he could not claim to be entitled to a beneficial interest in the land. This was the basis on which Guardian Trust and Executors Co of New Zealand Ltd v Hall [1938] NZLR 1020 was decided. To the same effect is Re Savage’s Caveat [1956] NZLR 118 where all the caveator could claim was a right to share in any surplus of the intestate estate after liabilities had been discharged. But that is not the measure of the appellant’s interest here. He can point to specific land and fairly claim an interest as cestui que trust n that land.”

Clearly the situation, there is very different from that which is before this court. Here, the plaintiff is not in the position of the applicant in Holt v Anchorage Management Ltd, clearly here the plaintiff falls in the position as described in the quoted paragraph above.

The plaintiff does not therefore have a caveatable interest as his entitlement under the estate, is not to any defined parcel of land as is required by the authorities to which I have been referred and to which I have referred to.

The counsel for the plaintiff in fact referred the court to an extract from a text titled “Caveats” by Colbran and Jackson and at page 236 (5.79.4), it is stated:

The trust must relate to the land itself, not the proceeds of sale of the land, since once a registered proprietor executes an agreement for sale and purchase his or her interest becomes merely a lien on unpaid purchase money.”

There is nothing in the terms of the Will, which require the plaintiff beneficiary to receive any particular parcel of land but merely one quarter of the residuary estate after the death of his mother and the expiration of her life estate.

It is submitted on behalf of the applicant that there has been a material non-disclosure at the time the orders of the 29^th June 2004 were made. There is on the evidence that has been placed before the court was a non-disclosure as the material nature of that non-disclosure, I am not satisfied.

The plaintiff submits that the principles as expressed by Lord Diplock in American Cyanamid v Ethicon Ltd [1975] UKHL 1; [1975] A.C. 396 require a consideration of the following:

1. Is there a serious issue to be tried;
2. Are damages an adequate remedy;
3. Where does the balance of convenience lie.
   

Before considering these issues, it is perhaps appropriate to look at the words of Lord Diplock at page 406 where he said:

“The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty were resolved in the defendant’s favour at the trial. The court must weigh one need against another and determine where “the balance of convenience” lies.”

There is nothing that has been placed before the court by way of evidence to satisfy me that there has in fact been any breach of trust by the trustees in this matter.

Allegations are made that the transfer of property evidenced by a transfer, a copy of which, is annexed to the plaintiff’s affidavit shows a breach of trust. I am not satisfied that this is so on the evidence before the court. The document merely shows that the property was transferred pursuant to terms of settlement in resolution of proceedings before this court and nothing more.

The writ of summons and the statement of claim plead that the trustees no longer reside in Fiji, having migrated. An order is sought to replace the two trustees with the plaintiff. Section 4 of the Trustee Act Cap. 65 provides that:

“Where a trustee remains out of Fiji for more than 1 year without having properly delegated the execution of the trust, then new trustees may in the circumstances described in the Act be appointed.”

There is nothing before me to satisfy me that the trustees have in fact remained out of Fiji for more than 1 year. There is merely the evidence that they have migrated and the evidence of the defendant, Ram Rati that she returns to Fiji regularly. Clearly there are, from the writ of summons filed in this matter, series issues to be tried.

I am however not satisfied that in any event damages would not be an adequate remedy to the plaintiff if a breach of trust did occur and when attempting to determine where the balance of convenience lies and taking account of the evidence that is before the court at this time and in particular taking account of the fact that there is in fact no breach of trust at this time, I find that the balance of convenience lies with the applicant/defendants and accordingly, the orders of the court will be:

1. Order in terms of the motion filed on 6^th October 2004.

2. The defendants to pay the plaintiff’s costs which I assess in the sum of Five Hundred Dollars ($500.00).
   

JOHN CONNORS

JUDGE

At Lautoka

10 November 2004