IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 25 of 2012

IN THE MATTER 
of Part XXIV of the Land Transfer Act Cap. 131

BETWEEN:

ROHIT NIRESH CHAND & NIRSHITA CHAND 
of Khalsa Road, Valelevu in the Republic of Fiji, Real Estate Agent and Bank Officer respectively.
PLAINTIFF

AND:

RAJESH CHAND 
of 12 Savou Road, Bayview Heights, Tamavua in the Republic of Fiji.
DEFENDANT

BEFORE : Master Deepthi Amaratunga
COUNSEL : Ms. Rakai M. for the Plaintiff 
Defendant In Person

Date of Hearing : 13th September, 2012
Date of Decision : 24th September, 2012

DECISION

A.	INTRODUCTION

1.	The Plaintiff is the last registered owner of the property. The property in issue is the ancestral property of the Defendant as well as the two immediate previous owners who transferred the property among themselves. The previous owner was the sister of the Defendant and she obtained it from a brother named Rakesh Chand. The said Rakesh Chand had purportedly obtained a transfer of the property from his late father who owned the property, while he was acting as his father's power of attorney holder. The power of attorney holder obtaining a transfer to himself while the father was still living in 2003, would by itself create suspicion and this suspicion is more reinforced by the last will of the late father of said Rakesh Chand, who bequeathed the said property to his wife and the Defendant as joint tenants. If the late father knew about the transfer why he included the same property in his will is an issue. Rakesh Chand transferred the property to a sister Simla Wati in 2005 and a similar application by Simla Wati for eviction of the Defendant and the mother was dismissed. Without appealing from that order, Said Simla Wati has purportedly transferred the same property to the Plaintiff on 6th December, 2011 where the Defendant and his mother lived. The purported transfer to the Plaintiff would not change the nature of the chain of transaction that can be considered dubious. The materials before me create a further doubt as to the transaction between the Plaintiff and the said Simla Wati. Even the counsel for the Plaintiff could not explain the certified copies of the title and the memorials obtained on 28th December, 2011 and also on 5th January, 2012 clearly indicating a caveat on the property lodged by a third party and also not showing any transaction of 6th December, 2011, to the Plaintiff. If the Plaintiff obtained the transfer on 6th December, 2011 how it was not depicted in the memorial creates further suspicion and needs further elaboration, unfortunately the counsel was unable to explain or comment on that and this fact taken in totality of the circumstances of this matter, indicate that this matter cannot be decided by originating summons in terms of the Section 169 of the Land Transfer Act for the eviction of the Defendant who had lived in the property with the parents till their demise and also continued to live and also named in the will of the late father as a joint tenant with his late mother who has also expired in 2012. The issues surrounding the transfer to the property to the Plaintiff as well as the immediate prior transactions can be considered a series of attempts by two siblings of the family to evict the Defendant and the late mother from the property. The Defendant who has continued to live in the said property has shown a right to possession under the circumstances.

B.	ANALYSIS 

2.	The Plaintiff is the last registered owner of the property, according to the certificate of the title that is annexed to the affidavit in support. The alleged transfer to the Plaintiff happened on 6th December, 2011, but the Defendant has filed two certificates of title which were obtained on 28th December, 2011 and also on 5th January, 2012 where the purported transfer on 6th December, 2011 is not shown and both of the said memorials indicate a caveat on the property.

3.	This phenomenon is unexplained and when the court inquired the counsel for the Plaintiff she said that she is unable to explain or reply and this vital issue though raised in the affidavit in opposition has not been addressed in the affidavit in reply of the Plaintiff.

4.	The said certified true copies of the certificate of the title obtained on 28th December, 2011 and also 5th January, 2012 were annexed to the affidavit in opposition as 'B' and 'C' and the affidavit in reply of the Plaintiff has not addressed this issue or try to explain this and unable to satisfactorily address the vital issue. This create a suspicion on the date of transaction of this property. This is vital as the Defendant had allegedly lodged a caveat on 9th December, 2011, but this again was not properly registered on the memorials though a hand written side note indicate a caveat being lodged on 9th December, 2011, without giving additional particulars.

5.	The situation is more complicated as the caveat dated 9th December, 2011 was never recorded in the certificates of the titles filed by the Plaintiff or the Defendant but the annexed 'A' to the affidavit in opposition indicate all the supporting evidence of such lodgment of caveat by the Defendant.

6.	In the circumstances it creates a reasonable suspicion in the mind regarding the transaction of the property to the Plaintiff by the previous owner Simla Wati, specially regarding the date of the transaction which is vital as property would not have transferred after 9th December 2011 as the Defendant had also lodged a caveat. There was a caveat lodged by a third party to the same property prior to 6th December, 2011 but this was not removed as late as 5th January, 2011 according to the certified true copies of the title submitted by the Defendant. So, how can the Plaintiff obtain the property on 6th December, 2011 when there was already a caveat on the property by a third party and Defendant had also lodged a caveat on 9th December, 2011, which got only recorded as a side note on a memorial? This suspicion is not unfounded as I have previously dismissed a similar application filed by Simla Wati, who is a sister of the Defendant also on similar grounds of suspicion as to the transfer of the property to her from a brother Rakesh Chand on 18.02.2005. I do not wish to elaborate the reason for the said dismissal of HBC 15 of 2011, as the Plaintiffs in this case were not parties to the said case. The Plaintiff in the said case of HBC 15 of 2011 was Simla Wati who had transferred the same to the Plaintiff.

7.	The affidavit in reply sworn by the Plaintiffs annex a document marked 'C' which is dated 10th April, 2012 which is the notice to the removal of caveat to the Defendant indicating that the removal of the caveat of the Defendant was done while this action is pending. This action was filed by the Plaintiff on 31st January, 2012. If so why was it not registered or shown on the certified copy dated 24th January, 2012, of the certificate of title annexed as "A" to this application?

8.	After the said decision dismissing the application to evict the Defendant and his mother from the premises in issue, the previous owner Simla Wati, who is a sister of the Defendant has transferred the property to the Plaintiff. The alleged transfer was executed on 6th December, 2011, but the evidence before me create a serious doubt as to the date of the alleged transaction. There are pertinent questions that are unanswered in this application.

9.	They are

a.	Why did the caveat lodged by the Defendant did not got registered in the certificate of the title?

b.	If the transfer to the Plaintiff happened on 6th December, 2011, how did the said transfer was not depicted in the certificates of the title that were obtained on 28th December, 2011 and also on 5th January, 2012 which are annexed to the affidavit in opposition marked 'B' and 'C'?

c.	Both certificates of the title marked as 'B' and 'C' also indicate an earlier caveat lodged by a third party and without the removal of that no transfer could have been taken place and the said caveat was not removed as late as 5th January, 2012 and how can a transfer be executed on 6th December, 2011 while the caveat is still on the title?

d.	If the property in issue was already transferred to one child why did the late father bequeathed the same property to his wife and the Defendant as joint tenants in his last will?

e.	Why did not the caveat lodged by the Defendant was not registered on the title, though Plaintiffs sought a removal of that while this action is pending?

10.	All these questions and suspicious circumstances that surround the transfer to the Plaintiff would indicate that court should consider the issue of fraud and these proceedings are not suitable for such deliberation. In considering the 'fraud' aspect of the Defendant's allegations the Court has to consider the "test of fraud" as stated by Salmon J in the following passage in the New Zealand Court of Appeal case of Waimiha Sawmilling Co Ltd v Waqione Timber Co Ltd [1923] N.Z.L.R.1137 at p. 117 this was cited in Shah v Fifita [2004]FJHC 299 HBC0392.2003s(23June 2004) by Justice Pathik in his judgment, 

"The true test of fraud is not whether the purchaser actually knew for a certainty the existence of the adverse right, but to make further enquiries before purchasing, or to obtain from the purchase, or to purchase subject to the claimant's rights rather than in defiance of them. If, knowing, as much as this, he proceeds without further inquiries or delay to purchase an unencumbered title with intent to disregard the claimant's, if they exist, he is guilty of that willful blindness or voluntary ignorance which, according to the authorities, is equivalent to actual knowledge, and therefore amounts to fraud …" (emphasis added)

11.	In the case of Morris Hedstrom Limited –v- Liaquat Ali CA No: 153/87, the Supreme Court said that:-

"Under Section 172 the person summonsed may show cause why he refused to give possession of the land if he proves to the satisfaction of the Judge a right to possession or can establish an arguable defence the application will be dismissed with costs in his favour. The Defendants must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under Section 169 procedure. That is not to say that final or incontrovertible proof of a right to remain in possession must be adduced. What is required is that some tangible evidence establishing a right or supporting an arguable case for such a right must be adduced." (emphasis is added)

C.	CONCLUSION

12.	The Defendant and his mother were named as joint tenants in the last will of his father and he had continued to live in the property even after the demise of both parents. The alleged transfer of the property to the Plaintiff has created a series of unexplained and unanswered questions which cannot be dealt in this proceeding in a summary manner. What the Defendant has to show is not an absolute or uncontroverted right, but some right to possession of the property he had remained possession even after the demise of his parents. On the proper analysis of the evidence before me considering to totality of the evidence this is not a suitable instance for the court to summarily evict the Defendant from the premises. The application for eviction is dismissed. I do not award cost considering circumstances of case. 

D.	FINAL ORDER

a.	The originating summons for eviction in terms of Section 169 of Land Transfer Act is dismissed.

b.	No cost.

Dated at Suva this 24th day of September, 2012.

………………………………………….
Master Deepthi Amaratunga
High Court, Suva