Wati v Wati [2012] FJHC 1142; HBC441.1999 (28 May 2012)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 441 of 1999

BETWEEN:

MAYA WATI, BIMLA WATI, SUBHAS CHAND, RAMRAKHA, AMAR RAMRAKHA & HARISH CHAND RAMRAKHA
[Plaintiffs]

AND:

SARAS WATI
[1st Defendant]

AND:

RADHE PRASAD
[2nd Defendant]

AND:

SUSHIL PRASAD SHARMA
[3rd Defendant]

AND:

REGISTRAR OF TITLES
[4th Defendant]

AND:

ATTORNEY GENERAL OF FIJI
[5th Defendant]

Counsel: Mr.V. Maharaj for the Plaintiffs.
Mr. S. Sharma for the 3rd Defendant.
Ms. N. Karan for 4th & 5th Defendants.

Date of Judgment: 28th May, 2012

INTERLOCUTORY JUDGMENT

[1]. The plaintiff, by a Notice of Motion, is seeking following reliefs against the defendants:

1. That the 3rd defendant whether by himself, his servants, agents or otherwise and howsoever be restrained from disposing and /or dealing in any way whatsoever in respect of the property comprised in Certificate of Title number 19761, Lot 1 on Deposited Plan No. 1796 containing an area of 7 acres 2 roods and9 perches situated in the District of Rewa until further order of the court;
   
2. Alternatively, in the event the property comprised in Certificate of Title number 19761, Lot 1 on Deposited Plan No 1796 containing an area of 7 acres 2 roods and 9 perches situated in the District of Rewa is disposed of, the 3rd defendant his servants and or agents be ordered to deposit the sale proceeds without any deduction in court forthwith until final determination of the matter; and,
   

100. Costs.
     

[2]. The plaintiffs, namely Maya wati, Subhas Chand Ramrakha, Amar Ramrakah and Harish Chand Ramrakah have filed a Writ of Summons together with their statement of claim which was amended later. In the amended statement of claim the plaintiff seeks inter alia following relief;

1. To declare that the transmissions by death and the transfer documents procured by the 1st and 2nd defendants registered by the 4th and 5th defendants is null and void.
   

[3]. On 16.02.2012, the 2nd named plaintiff placed a caveat on the property in dispute with the registrar of titles claiming inters as a beneficiary in the estate of late Suraj Ram Singh.

[4]. In the 2nd named plaintiff's affidavit, it is deposed that the 3rd defendant's servants and or agents presented an instrument for transfer at the Registrar of Titles Office for the conveyance of the said property.

[5]. The 2nd named plaintiff alleges that if the property in dispute is disposed off to a 3rd party, proceedings with the substantive matter would prove to be nugatory since one of the relief sought by the plaintiffs against the defendant is a declaration that the acquisition of the property by the 3rd defendant was unlawful and the estate property be transferred to the beneficiaries of the estate.

[6]. Opposing the plaintiff's motion, the 3rd defendant filed an affidavit. In the affidavit, the 3rd defendant stated that he is the registered proprietor of the property in title since 1996. It is further stated that the 3rd defendant has been the registered proprietor of the said property since 1996 pursuant to a lawful transfer of the property to him, he has been in continuous occupation of the said property for last 18 years and also there is no secrecy on the sale of the subject property. It is further stated that the sale has been arranged by a real estate agent and the 2nd named plaintiff's entitlement is only one ninth in the estate of Suraj Ram.

[7]. The principles to be followed in considering the granting of injunctions are set out in the leading case of American Cyanamid Co. v. Ethicon Ltd (1975) 1 ALL ER 509

In that case Lord Diplock stated the object of the interlocutory injunction as follows:

"..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.

[8]. A similar opinion was expressed by McCarthy J in Nothern Drivers Union v.Kuwau Island Ferries (1974) 2 NZLR 617 as follows:

"the purpose of an interim injunction is to preserve the status quo until the dispute has been disposed of on a full hearing. That being the position, it is not necessary that the court should have to find a case which would entitle the applicant to relief in all events: it is quite sufficient if it finds one which shows that there is a substantial question to be investigated and that matters ought to be preserved in status quo until the essential disputes can be finally resolved..."

"It is always a matter of discretion, and ...the court will take into consideration the balance of convenience to the parties and the nature of the injury which the defendant, on the one hand, would suffer if the injunction was granted and should ultimately turn out to be right and that which the plaintiff on the other hand, might sustain if the injunction was refused and he ultimately turn out to be right....

[9]. In light of the above legal principles, I shall consider the present application.

[10]. The three matters to which the court must address itself in respect of the present application are:

1. Whether there is a serious question to be tried;
2. Whether damage would be an adequate remedy; and,,

100. If not, where does the balance of convenience lie?
     

Whether there is a serious question to be tried?

[11]. In this matter the property in dispute is the estate property of late Suraj Ram who passed away in 1961. The plaintiffs have brought this action as the beneficiaries of the estate of late Suraj Ram. The 2nd named plaintiff is one of the children of Suraj Ram Sing who died intestate. The allegation of fraud is levelled against the 3rd defendant. The defendant deposed that he is the registered proprietor of the property in dispute. It is evident on the statement of claim; the 3rd defendant's ownership is challenged by the plaintiffs.

[12]. Further, the plaintiffs in their amended statement of claim have explained the particulars of alleged fraud in details. Furthermore, it is stated that the 1st and 2nd defendants approached the first and second named plaintiffs to execute some documents as administratrix of the estate of Suruj Kumar, the 1st named plaintiff was explained by the 1st and 2nd defendant to sign the documents, and also they asked the 1st named plaintiff to sign for her sister the second named plaintiff. It is further stated that the documents were signed only by the first named plaintiff without any independent legal advice and the 2nd named plaintiff's signature was not obtained at any stage by the 1st and 2nd defendants.

[13]. The above particulars clearly demonstrate that there exists a serious question to be tried in the substantive action.

Would damages be an adequate remedy?

[14]. The 3rd defendant submitted that since the 2nd named plaintiff's entitlement is only for one ninth in the estate of Suraj Ram she can adequately be compensated with damages.However, one of the alternative reliefs to the injunction sought by the 2nd named plaintiff in his motion is that the plaintiff be ordered to deposit the proceeds of the sale of the property in court's account.The property in dispute is an estate property. If it is sold there is no absolute guarantee that the 3rd defendant would not dissipate with the sales proceeds until the final determination of this matter. Hence, it is my view that damages would not be an adequate remedy in this matter.

[15]. The defendants submitted that the 2nd named plaintiff has failed to tender sufficient evidence of her financial position and therefore the injunctive relief should not be granted. In an application of this nature, the applicant is required to tender sufficient information on his financial positions when he gives an undertaking as to damages. However, that requirement, in my view, should not be used as a device to prevent a litigant from seeking injunctive relief, in particular, when it is evident that there exists a serious question to be argued. However, considering the nature of the plaintiffs' action and also the circumstances under which the plaintiffs were made to institute this action against the defendants, I am not inclined to consider it as a fatal omission on the part of the 2nd named plaintiff.

[16]. The 3rd defendant stated that since he has already entered into an agreement with a real estate agent to sell the property in dispute, he will have to pay damages or would be sued for specific performance by the prospective buyer if the 3rd defendant is restrained from selling the property.

[17]. Upon consideration of the above, it is my view that the 3rd defendant should not be prevented from selling the property. Therefore, I am not inclined to grant anyorder which would prevent the 3rd defendant from selling the property in dispute.

[18]. However, once the property is sold it would be difficult to recover the plaintiffs' share in the event the court decides the substantive matter in plaintiffs' favour. Upon consideration of the above facts in particular the nature of the plaintiffs' claim against the defendant and possible consequences of disposing of the property, I conclude that the balance of convenience favours the plaintiff.

[19]. Therefore, I am of the view that the most appropriate way to deal with this application is to allow the 3rd named defendant to proceed with the sale of the property, and order him to deposit the sale proceeds in High Court until the final determination of the substantive matter.

[20]. On the above premise, I grant order in terms of the prayer (b) of the Notice of Motion.

[21]. Costs shall be in the cause.

Pradeep Hettiarachchi
JUDGE