Prasad v Registrar of Titles Office [2005] FJHC 743; HBC196.2002 (6 June 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL JURISDICTION NO. 196 OF 2002

Between:

JAI CHAND PRASAD f/n Lachmi as Executor and Trustee of the Estate of
Ramrajee f/n Hargovind, Deceased.
Plaintiff

And

REGISTRAR OF TITLES OFFICE
1st Defendant

And

ARUN CHAND and AMI CHAND Both sons of Lachmi Dutt f/n Mahesh Dutt as Executors and Trustees of the Estate of Lachmi Dutt, Deceased.
2nd & 3rd Defendants

Mr. G. P. Shankar for Plaintiff
Mr. R. P. Singh for Defendants

DECISION

By motion dated 2 December 2003 Arun Chand and Ami Chand (the ‘2nd and 3rd defendants – D2 & D3) respectively seek an Order that the Order for
injunction and the continuation of injunction made on 23rd July 2003 be dissolved upon the grounds filed by Mr. R.P. Singh, the counsel for the defendants.

Mr. Singh says that because of the judgment of Jiten Singh J. in CA 491/02, with which this action is inter-twined, which dismissed the action of the plaintiff there is no basis for the continuation of the injunction in this case.

Background facts

Writ of summons herein (C.A. 196/02) was issued by the plaintiff to restrain the defendant from dealing with CT Nos. 1772 and 17682 till the final hearing and determination of the matter pertaining to damages being High Court C.A. No. 260/00.

An interim injunction was granted on 23 July 2002.

The defendants by their affidavits in Reply opposed the application stating, inter alia, that the said properties were transferred to them during the lifetime of the deceased by virtue of transfer dated 31 March 2000 in consideration of the sum of $15,000 by an agreement between the deceased and themselves (the defendants).

According to the plaintiff the land has not been registered in the name of the defendants and hence the said Titles belong to the Estate of the deceased Lachmi Dutt.

In my decision herein of 15 July 2003 I had fully set out the background to the case. The situation has not changed for the purposes of this application by the defendants.

Consideration of the issue

On the affidavit evidence before me it appears that the two Certificates of Title are still part of the estate of the deceased.

Although the defendants allege that these properties were transferred to them in the life time of the deceased and stamped they have not been registered.

The plaintiff has a judgment against the deceased and hence is a creditor of the estate as alleged by him and he is trying to protect his interest by seeking an order for injunction to continue until the trial and determination of the civil action which is still pending.

The counsel for the defendants relies upon the said judgment of Jiten Singh J. There the plaintiff applied for an Order directing sale of the lands and that the plaintiff be appointed to sell them.

This application failed for the following reasons which His Lordship gave:

"In the application before me, I note that the six months time specified in section 104 of the Land Transfer Act has expired so there is no charge on the land in respect of which the Court can make orders. It is on this basis that the application is destined to fail. Application is therefore declined. I shall not allow cost as it is the debtors’ attitude that has caused the plaintiff to embark on this application."

I am not required to go into the merits of this case in this application. I am not convinced that there are good reasons to dissolve the injunction. The said decision in 491/02 does not in any way affect the plaintiff’s injunction.

For these reasons the defendant’s application for dissolution of the said injunction is refused. The injunction order is to continue until further order of this Court.

The application is dismissed with costs in the sum of $350.00 to be paid within 28 days.

D. Pathik
Judge

At Suva
6 June 2005