Narayan v Raj [2012] FJHC 1146; 2012-05-31 HBC 380.2011 (31 May 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 380 of 2011S

IN THE MATTER
of the land comprised in Certificate of Title No. 12530, the property of Kiran Sostika Narayan

AND

IN THE MATTER
of the Land Transfer Act, Section 169

BETWEEN:

KIRAN SOSTIKA NARAYAN
of 9 Cedarwood Crescent, Berwick, Victoria 3806, Australia, Accountant.
PLAINTIFF

AND :

DHARAM RAJ
of Lot 6 Vishnu Deo Road, Nakasi, Nasinu, Sales Representative.
DEFENDANT

BEFORE : Master Deepthi Amaratunga

COUNSEL : Mr. V. Singh for the Plaintiff

Mr. M. Nand for the Defendant

Date of Hearing : 23rd March, 2012

Date of Ruling : 31st May, 2012

DECISION

1. INTRODUCTION
   

1. The Plaintiff and the Defendants are siblings. The property in issue was owned by late mother who had bequeathed the same in full to the Plaintiff, by her last will. The Defendant had lived with the mother in the premises, till her death, but the late mother, in her last will completely ignored the Defendant who was living in the property in the same house and bequeathed the entire property to the Plaintiff. The last will was admitted without any objection and the property was accordingly transferred to the Plaintiff. The Defendant is claiming equitable interest on alleged improvements to the property. He has not taken steps to safeguard the alleged equitable interest in the property. No evidence of substantial improvement by the Defendant to the property in order to claim for any equitable interest.
   

2. FACTS
   

2. The Plaintiff and Defendant are siblings and the property in issue belonged to their late mother Subamma, who died in 2008.
   
3. This property was transferred to late Subamma in 2000 and a house was built on that and the family lived in that including the parents and the two siblings who are parties to this action.
   
4. The exact time of construction of the house on the property is disputed. The Plaintiff state that it was built in 2005 but the Defendant states that it was build in 2001.
   
5. After the marriage the Plaintiff has migrated to Australia, and the Defendant continued to live in the premises with late Subamma, till her demise in 2008.
   
6. The last will of the late Subamma bequeathed the entire property in question to the Plaintiff who was abroad at that time.
   
7. The Plaintiff has obtained the probate for the estate, without any objection from the Defendant and also the property was transferred to her on 29th April, 2010.
   
8. The Defendant is claiming equitable interest in the property. He is alleging that he was promised of a share of the property by late Subamma.
   

100. ANALYSIS
     

9. The Plaintiff is the last registered proprietor of the property in question and that is an admission by all the parties.
   
10. The Plaintiff obtained the property by virtue of the last will of the late mother of the Plaintiff and Defendant named, Subamma. The Defendant in his affidavit in opposition states that he only became aware of the ownership of the property to Plaintiff, by a letter of 18th April, 2011, which is marked as 'B' to the affidavit in support of this summons for eviction.
    
11. The reply to the said letter 'B" is also annexed to the same marked 'C' does not denote any surprise or lack of knowledge on the part of the Defendant as to the ownership of the land in question. The said letter 'B' written by the Plaintiff's solicitors dated 18th April, 2011 was encountered by the letter of Defendant's solicitors dated 9th May, 2011. This indicate a very prompt reply from the Defendant through his solicitors. The letter 'B', though not a quit notice clearly explains the nature of the dispute between the parties. There was no question of who owned the property at that time. In the reply to the said letter the Defendant do not raise any issue as to the ownership or the property to the Plaintiff. If there was any doubt as to the will of late mother that would have raised in that letter. Not only that, the said letter 'c', substantiate the position of the Defendant that the recent addition/construction of a residential unit for rent was built by the Plaintiff. The dispute has arisen when the Defendant has allegedly abused and chased the, rent collector on behalf of the Plaintiff. In the letter 'c' the Defendant is accepting the Plaintiff's right to collect the rent and has also state that even the rent that was collected by the Defendant has already been handed over to the Plaintiff's agent upon her instruction to do so. If the said construction, where the tenants are residing was constructed by the Defendant, as alleged in the affidavit in opposition why should he hand over the rent that he collected from the tenant to the Plaintiff?
    
12. in the said letter 'c' at paragraph 2 stated as follows
    

'2.) Our client admits that part of the property is on rent and wishes to put your client on notice that the property has been on rent for past 3 months only and the portion of the rent collected has already been given to one UDAY on instructions from your client.'

This indicate that not only the premises that was on rent but also the whole of the property in issue in this action was owned by the Plaintiff and the Defendant did not raise any issues as to the ownership at that time, but after this action is instituted, completely different turn was taken and state that before 18th April, 2011 the Defendant was unaware of the ownership of the property to the Plaintiff. This cannot be accepted in the proper analysis of the evidence before me.

13. Now, for the first time in the affidavit in opposition the Defendant is alleging that the Plaintiff who was abroad has exerted undue influence to the late mother to make the will that bequeathed the property entirely to the Plaintiff. This cannot be accepted as the transfer of the property was in 2010 and the death of late Subamma was in 2008. After the death the Defendant who was in occupation of the property would have exercised more vigilance in the affairs of the property if he had already established any equitable right, at the time of the death. The Defendant neither lodged a caveat to prevent the Plaintiff from obtaining probate nor took steps to nullify the said will of late Subamma, but for the first time in the affidavit in opposition is alleging duress on Plaintiff who was not even living with late Subamma. This is clearly an after thought and in the proper analysis of the evidence before me the allegation cannot be accepted as true. So, I reject the said allegation of duress.
    
14. The letter 'c' of the affidavit in support written by the solicitors for the Defendant is silent on the issue of the ownership of the property. So, there was no element of surprise when the solicitors of the Plaintiff stated that the property belonged to their client, the Plaintiff. The said reply not only was silent on the ownership of the property but state that according to the belief of the Defendant the property was under a mortgage. If the Defendant desired to find out the correct position of the property he could have easily done so by application for a certified copy of the title from the registrar of title. The Defendant, has sought legal advice even prior to the institution of this action, when the animosity between the parties started, indicating his knowledge and his interest of the rights, and cannot expect such a person to believe the alleged statement of the Plaintiff that the property was mortgaged, without any verification of that which could have done by obtaining a certified copy of the title. Even if he believed he would have asked the name of the mortgagee and the amount that was outstanding as he was the immediate victim of any mortgagee sale due to default. This allegation again cannot be accepted in the proper analysis.
    
15. The year of construction of the house where the Defendant lives is disputed and the Plaintiff state that it was constructed in 2005 and according to the Defendant it was constructed in 2001. I do not have sufficient evidence to decide on that, and the exact year of construction is not needed to arrive at a decision in this case.
    
16. In the case of Baker Vs Baker [1965] EWCA Civ 465 Lord Denning, Master of Rolls, held that the court must look at the circumstances in each case to decide in what way the equity can be satisfied. In the Baker (supra) it was also held any purchaser, who took with notice, would be bound by the equity. So, if the Defendant has established an equity on the property prior to the death of the mother, the plaintiff is bound by that.
    
17. The Defendant has admittedly lived in the said premises after the construction of the dwelling in that premises, but if he did any development to the property why did the mother excluded him and included a daughter who migrated to Australia needs an explanation. This clearly indicate that even the late mother did not want the property to be bequeathed to the Defendant who was in Fiji as opposed to a daughter in Australia. If the Defendant was promised of any share in the property late Subamma would not have done so. In the absence of any explanation this alleged promise of share in the property by the mother cannot be accepted.
    
18. The Defendant state that he paid council rates. He had annexed payments in 2007, 2008, 2009. The payment of council rates are disputed by the parties, but the relevancy of this to the case before me is whether an equitable interest is created by such payment and the simple answer to that is by paying council rates one would not create equitable interest in the property. So, I do not have to decide who paid the council rates in this case to arrive at a decision.
    
19. Admittedly, there is a recent construction which was given on rent and the rent is being collected by the Plaintiff through an agent. The Defendant is claiming that he constructed this building.
    
20. The dispute between the parties started because of the obstruction of collection of rent by an agent of the Plaintiff, but the issue was resolved later and the rent continued to be collected by the Plaintiff. If the Defendant built it why should he allowed such a thing?
    
21. The Plaintiff's solicitors letter 'A' was written on 18th April, 2011 as a result of the dispute regarding the obstruction of rent being collected by the Plaintiff. The reply letter 'B' the Defendant has not disputed the building of the said premises and or the collection of the rent by the Plaintiff's agent. The Defendant has also not interfered with the said rent being collected by the Plaintiff after the said letter. This clearly shows that the acceptance of ownership of the premises on rent by the Defendant. If the Defendant has contributed to the construction of the said premises which is on rent, he could have easily stated so in the said letter 'B' where he readily allowed the agent of the Plaintiff to collect the rent for the premises. This indicate that even his claim for the said structure is without merits.
    
22. The receipts that the Defendant filed in the affidavit in opposition do not show any substantial expenditure and most of the receipts are for trivial expenses from a local hardware store which is grossly inadequate to create any equitable interest on the property. The only substantial expenditure was in 2009 and this is for a purchase of some timber, and this is clearly after the death of mother and cannot in any event be considered as a creation of equitable interest in the property when the mother died. The said expenditure is clearly an expenditure on the premises on rent which I have already decided as a one constructed by the Plaintiff.
    
23. The allegation is that the mother promised to give a share of the property and he on that promise developed the property cannot hold any water as there is no evidence of such improvement by the Defendant. The subsequent behaviour of the Defendant, which did not indicate any securing of any such right would indicate that there is no evidence of such improvement to create equity on the property.
    
24. I do not need to reiterate the principles involved in the proprietary estoppel as clearly there was no expenditure by the Plaintiff to consider such a right prior to the demise of their mother in 2008.
    
25. In Torrens system the registration is everything. In Prasad v Mohammed [2005] FJHC 124; HBC0272J.1999L (3 June 2005) His Lordship Gates J held 'In Fiji under the Torrens system of land registration, the register is everything: Subramani & Ano v Dharam Sheela & 3 Others [1982] 28 Fiji LR 82. Except in the case of fraud the title to land is that as registered with the Registrar of Titles under the Land Transfer Act [see sections 39, 40, 41, and.....'
    
26. So, on a mere allegation of equity without any evidence to support cannot be considered as a proof of right to remain in possession as required in terms of Section 172 of the Land Transfer Act. The circumstances and the facts before me in the proper analysis would indicate that the Defendant has not met the threshold required in the Section 172 either on equity or otherwise.
    

4. CONCLUSION
   

27. The Plaintiff has migrated to Australia after the marriage and to date lives in that country. Late Subamma died in 2008 and the property by virtue of the last will was transferred on 29th April, 2010.The Defendant neither lodged a caveat to prevent the probate being granted to the Plaintiff nor has objected to the last will of late Subamma who bequeathed the entire property to the Plaintiff. The Defendant in is affidavit in opposition described himself as a sales representative and cannot be considered to be ignorant of his rights. The property in issue got transferred in 2010 nearly two years after the demise of their mother and he had ample opportunity to file a caveat to prevent the land being transferred to the plaintiff or seek appropriate legal remedies to challenge the validity of the will. The Defendant has not clearly established a right to remain in the premises based on equity. There is no evidence of any promise either by late Subamma and or from the Plaintiff for a share of the property. There is no evidence of any substantial improvement and or development to the property by the Defendant. No right of equity is established. There is no serious question to be tried by a writ action to decide on any equitable remedy for the Defendant. The Defendant has failed to show a right to possession recognized in law. No equitable right was established prior to the demise of the mother as there is neither evidence of any promise to a share of the property nor any substantial improvement to claim such right. After the demise of mother there was no allegation of any promise by the Plaintiff to a share of property and any improvement after the demise of mother in 2008 (there is none) cannot create equity. The Plaintiff is granted order in terms of the summons seeking vacant possession of the premises, but considering the circumstances of the case I will grant six months for the Defendant to vacate the premises, failing the writ of execution may be issues by this court. I order no cost considering the circumstances of this case.
    

5. FINAL ORDERS
   

1. The Plaintiff is granted the order in terms of the summons to evict the Defendant.
2. The eviction is stayed for six months from today.(till 1st December,2012)

100. No cost.
     

Dated at Suva this 31st day of May, 2012.

Master Deepthi Amaratunga
High Court, Suva