Kumar v Prakash [2011] FJHC 177; HBC274.2010 (18 March 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 274 of 2010

IN THE MATTER of the Land Transfer Act (Section 169)

BETWEEN :

DALIP KUMAR (f/n Behari)
of Makoi, 8 Miles, Nasinu, Businessman
PLAINTIFF

AND:

JOHN PRAKASH (f/n Damodar)
of Lot 56, 8 Miles, Makoi, Nasinu, Unemployed
DEFENDANT

BEFORE : Master Deepthi Amaratunga

COUNSELS : PARSHOTAM & CO. for the Plaintiff
VAKALOLOMA & ASSOCIATES for the Defendant

Date of Hearing: 19th November, 2010
Date of Ruling : 18th March, 2011

RULING

1. INTRODUCTION
   

1. The action was instituted in pursuant to Section 169 of the Land Transfer Act. The Defendant objects to grant of the possession on the basis of fraud or mistake done by Housing Authority, by not granting the lease to the sitting-tenants. Defendant through his predecessors claims proprietary estopple.
   

2. FACTS
   

2. The Plaintiff is the last registered proprietor of the premises depicted in the Housing Authority Sub-lease No 580830 being Lot 56 on Deposited Plan No. 5209. The Property was transferred to the Plaintiff by one Latchmi, who obtained the lease from the Housing Authority. After obtaining the premises, the Plaintiff has also mortgaged the property to Colonial National Bank of Fiji.
   
3. Defendant state that his predecessors were the occupants of the premises for a long time even before the Housing Authority subdivision was done. Defendant state that the premises in question along with adjoining land was possessed by his predecessors and when the sub-division was done by the Housing Authority a mistake was done and when sub-divisions of lot 56 and 57 were granted to wrong parties. Premises no 56 was granted to an uncle of the Defendant and lot 57 was granted to the father of the Plaintiff. He said that was contrary to the understanding with the Housing Authority, when the sub-division was done. Defendant state that his father also had a Hindu shrine at that place and he had been the head priest of the said Hindu temple before the sub-division. Since the lot 56 and 57 were mistakenly granted to wrong parties, Housing Authority sub-lease granted to Defendant's father, along with Lot 56 sub-lease surrendered to rectify the error. The said surrendered sub-lease of Lot 56 was also attached to the supplementary affidavit filed by the Defendant.
   
4. The contention of the Defendant is that neither his father nor he obtained the lease from the Housing Authority as the sitting tenants of the property in question, instead it was granted to one Latchmi who transferred to the Plaintiff.
   
5. The father of the Defendant is dead and in terms of the last will Defendant is neither the executor nor a beneficiary. The premises was transferred to Latchmi after the demise of the Defendant's father.
   
6. Plaintiff has purchased the property form Latchmi, and neither Latchmi nor the Plaintiff were in possession of the premises as Defendant was in possession of the premises after his father's death from 15th August, 2002.
   

100. LAW AND ANALYSIS
     

7. The Plaintiff has brought this action in terms to the Section 169 of the Land Transfer Act as the last registered proprietor of the premises. Plaintiff has annexed the title and according to it the title had been granted to one Latchmi on 19th January, 2006 by the Housing Authority and the Plaintiff has obtained the title from said Latchmi on 5th October, 2007.
   
8. There is also a mortgage registered in 2008 and the Plaintiff has mortgaged the property to the National Bank of Fiji.
   
9. According to Section 169 of the Land Transfer Act plaintiff is entitle to bring this action as the last registered proprietor of the property.
   

10. The Plaintiff has obtained the transfer from Latchmi who was granted the title by Housing Authority in 2006.

No fraud was alleged against the Plaintiff, but the Defendant alleges fraud against the predecessor in title and the Housing Authority.

11. The Section 41 of the Land Transfer act states as follows:
    

"Any instrument of title or entry,alteration, removal or cancellation in the register procured or made by fraud shall be void as against any person defrauded or sought to be defrauded thereby and no party or privy to the fraud shall take any benefit therefrom"(emphasis is added)

12. There is no allegation of any fraud by the Plaintiff and no material put forward to suggest that the plaintiff was privy to the alleged fraud.
    
13. It is also noted that apart form the voluntary surrending of the title to lot 56 by one Surendra Rama there is no evidence that is before the court to assume any fraud. According to the Defendant the Surendra Rama is a brother of his deceased father and in 1982 the lot 56 where his father resided was granted to Surendra Rama, who happened to be a brother of his father and the reason for surrendering is to rectify the error. Even if that was accepted, the Defendant will not obtain any right as he is neither the executor nor a beneficiary of the estate of his father.
    
14. The Defendant has filed the last will of his father, who died in 2002. The said Will was filed by the Defendant annexed as "C" to the supplementary affidavit filed on 8th November, 2010. It is noted that testator has bequethed all of his properties equally among his two sons namely Keshwan Damodaran and Krishna Damodaran Swami and the Defendant was not a beneficiary to his father's Will.
    

4. PROPRIETARY ESTOPPLE
   

15. According to Handbury and Mandsle Modern Equity(11th Edi) p 736-737:
    

"One party knowingly encourages another to act or acquiesces in the other's action, to his detriment and in infringement of the first party's rights. He will be unable to complain later about the infringement, and may indeed be required to make good the expectation which he encouraged the other party to rely on. Unlike other estopples therefore, this doctrine may in some circumstances, create acclaim and an entitlement to positive proprietary rights in others it can operate negatively, or can produce a compromise situation appropriate to the particular circumstances."

16. It is to be noted that the Defendant has not alleged any improvements on the property but relies on the improvements of his father who had even excluded him being a beneficiary to his will. The Defendant states that he is conducting the religious rites in the said premises as the head priest, but in his father's will there is no mentioning of such status being conferred to the Defendant and he had been completely excluded from the Will.
    
17. According to Snell's Equity( 13th Edi) at para 39.12 state:
    

"Proprietary estopple is one of the qualification to the general rule that a person who spends money or improving the property to another has no claim to reimbursement of to any proprietary interest in the property"

18. In Wilfred Thomas Peter V Hira Lal and Farasiko HBC 40 of 2009 In the High Court of Fiji at Labasa Civil Jurisdiction, Justice A.Wati held that in order to succeed in a defence of proprietary estopple the following conditions has to be fulfilled:
    
    1. An Expenditure
    2. A mistaken belief
    3. Conscious silence on the part of the owner of the land; and
    4. No bar to the equity.
       
19. It is pertinent to note that all the above conditions has to be fulfilled in order to establish a proprietary estopple. The Defendant has not done any expenditure and the present owner (the Plaintiff) has not waited long as this case was filed in 2010 after obtaining the title in 2007 and mortgaging it in 2008. The expenditure that the Defendant claim is not done by him and he cannot claim any expenditure done by his father as father had excluded him from his Will. In terms of the clause 5 of the Defendant's father's will annexed to the supplementary affidavit of the Defendant reads as follows" I HEREBY GIVE DEVISE AND BEQUEATH all my property both real and personal whatsoever kind and nature and wheresoever situate over which I may have power of appointment or disposition UNTO my sons that said KESHWAN DAMODARAN and KRISHNA DAMODRAN SWAMI, to share equally in equal shares ABSOLUTELY".
    
20. It is also noteworthy that the proprietary estopple cannot be claimed against the present registered proprietor for the premises. There was no expenditure alleged by the Defendant after 2007 and there cannot be mistaken belief as there were no correspondence of this property between the Defendant and, or with the Housing Authority and or with the Defendant and, or with any other to show that there was a mistaken belief in the mind of the Defendant.
    
21. It is also noted that after the death of the Defendant's father there was no mistake on the part of the property held by his father as the father had expressly excluded him in the last Will of his father. So there cannot be mistake on the part of the Defendant to claim the property in question from his father's right to the said property.
    
22. The Defendant relies on the findings of Justice A. Wati in the case of Jims Enterprises Ltd V Mara (2010) FJHC 35 HBC139 of 2009 be applied to the present case . In the said case the proprietary estopple was claimed against the last registered proprietary, on the basis of occupation for a long time, but in that case the proprietary estopple was rejected and the defendants were ordered to be ejected form the land.
    
23. The Defendant's father died in 2002 and the premises was granted to the one Latchmi in 2006. When the said grant was obtained no representation made to the Housing Authority by the Defendant and there is no evidence before me to show at least a request from the Defendant to obtain the grant from the Housing Authority. After the death of the father of the Defendant there is no correspondence between Defendant and the Housing Authority. No request was made to transfer the property to the Defendant.
    

5. CONCLUSION
   

24. There is no fraud alleged against the Plaintiff. So the title of the Plaintiff is indefeasible and Section 41 of the Land Transfer Act cannot be held in favour of the Defendant. There is no allegation of being a privy to the alleged fraud, by the Defendant either. So, the allegation of fraud should fail.
    
25. The facts adduced before the court fall short of establishing proprietary estopple by the Defendant. The Defendant claims the proprietary estopple through his predecessor namely his father, but the Defendant was neither an executor nor a beneficiary of the estate of the father and he cannot claim the property of his father and rely on them as improvements done by him as he is excluded from the Will of his father. Defendant has not alleged any improvements to the premises after the demise of his father. He cannot claim any proprietary rights from his father as he was excluded from being a beneficiary. So the claim of the Proprietary Estopple also fails.
    
26. For the reasons given above the Plaintiff is granted possession of the land described in the property and Defendant is ordered to hand over the vacant possession to the Plaintiff.
    
27. Considering the circumstances of the case the execution is stayed till 30th April, 2011 and the Plaintiff is also granted a cost of $350 assessed summarily.
    

Dated at Suva this 18th day of March, 2011

.................................................
Mr. Deepthi Amaratunga
Acting Master of the High Court
Suva