Sukhu v Kumar [2014] FJHC 473; HBC267.2013 (27 June 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

HBC Action No.: 267 of 2013

BETWEEN:

SUNDAR MASIH SUKHU aka DAYA MASIH SUKHU as the Administrator of the ESTATE OF SUKHU aka SUKHU MAHAJAN of 18 Park Road, Raiwasa, Suva, in Fiji, Retired.
PLANTIFF APPELLANT

AND:

SALEND KUMAR of off Bidesi Place, Raiwasa, Suva, in Fiji, Labourer.
DEFENDANT RESPONDENT

BEFORE : Justice Deepthi Amaratunga

COUNSEL : Ms. Swasthika Narayan for the Appellant

Ms. N. Karan for the Respondent

Date of Hearing : 27th June, 2014 (10.30am)

Date of Decision : 27th June, 2014 (2.30 pm)

JUDGMENT
INTRODUCTION

1. This is an appeal from the Judgment of the Master Rajasinghe delivered on28th February, 2014. The Master has rejected an application for vacant possession made in terms of Section 169 (Cap 131) of the Land Transport Act. He had dismissed the application on the basis that the Plaintiff had failed to establish title as the certificate of title filed is not a clear copy and had also awarded $1,000 as costs to the Defendant who appeared in person. The Plaintiff Appellant (Plaintiff) appealed against the said decision of the Master.
   
2. Grounds of appeal in terms of the notice of appeal filed 4th March,2014 are as follows
   
   1. Ground 1: That the learned Master erred in law and fact in concluding that the copy of Certificate of Title No. 6576 attached to the Affidavit of the Appellant was not a clear copy.
      
   2. Ground 2: That the learned Master erred in law and fact in holding that the Appellant's evidence did not satisfy that late Sukhu Mahajan was the last registered proprietor of the land of eighty-four acres, one rood and twenty-five perches described in Certificate of Title No. 6576 when the title copy clearly specifies so.
      
   3. Ground 3: That the learned Master erred in law and fact in concluding that there was no evidence before the court to determine that whether the subsequent leases and partial transfers have disposed the entire land and/or extent of the land presently owned by the Appellant when the Certificate of Title clearly indicated that it is only partially cancelled.
      
   4. Ground 4: That the learned Master erred in law and fact in concluding that the Appellant vaguely deposed in his Affidavit that he is the appointed executor and trustee of the Estate of late Sukhu Mahajan described in Certificate of Title No. 6575 and that the memorials showed otherwise when the Copy of Probate attached in the Affidavit deposed by the Appellant clearly stated that the said property fell within the administration of the Appellant as a Trustee.
      
   5. Ground 5: That the learned Master erred in law and fact in holding that the Appellant failed to satisfy the court that he is the last registered proprietor of the Certificate of Title No. 6576 when the evidence clearly showed otherwise.
      
   6. Ground 6: That the learned Master erred in law and f act in holding that the Appellant failed to satisfy that the Respondent was in possession of the land and failed to consider that despite being allowed an opportunity to respond, the Respondent failed to provide any reason in his Affidavit as to why he was not willing to give vacant possession of the property and also failed to provide in his Affidavit any counter-evidence to show that he did not reside at the property of the Appellant
      

LAW AND ANALYSIS

3. The touchstone of the provisions found in Section 169 to 172 of the Land Transfer Act (Cap 131) is the indefeasibility of the title. The language contained in the Land Transfer Act and the provisions relating to indefeasibility of the title and the meaning is clear. The advent of Torrens system and need for such system was explained in Fels and another v Knowles and another (1907) 26 NZLR 604 in the joint majority judgment (delivered by Edwards J) at p 619 as follows:
   

'In the course of centuries of our English history there had grown up a complicated system of rules regulating dealings with and transfer of real property. The result was that every dealing necessitated a minute and careful inquiry into the preceding title, attended by great expense, and never resulting in absolute certainty to title. More especially the rules affecting the administration of trusts and the fact that notice, direct or constructive, of a breach of trust might result in grievous loss to wholly innocent persons were felt to bear very hardly, without sufficient compensating advantages. Impressed by this view of the matter, it occurred, now many years ago, to an ingenious gentleman in South Australia, Mr. Torrens, that the Merchant Shipping Acts supplied a model for which a scheme of land registration could be devised, by which all trusts should be excluded from the register, and under which a person dealing honestly with the registered proprietor should not be called upon to look further than the register, and should be entirely unaffected by any breach of trust committed by the registered proprietor with whom he dealt. From this genesis sprang the system of land registration which now prevails in all the Australian Colonies and is now represented in this colony by "The Land Transfer Act 1885" and its amendments.'

4. The above brief history and the reason behind the Land Transfer Act in Australia and New Zealand is equally applicable to Fiji as the Land Transfer Act (Cap 131), which came in to operation on 1st August 1971 in Fiji. So, when the law contained in Land Transfer Act has to be applied and interpreted, keeping in mind the rationale behind the indefeasibility in title and the words in the said enactment is clear and unambiguous as to the rights of the last proprietor of property.
   
5. In Fels and another v Knowles and another (supra) further at p 620 the following appears:
   

'The cardinal principle of the statute is that the register is everything, and that, except in case of actual fraud on the part of the person dealing with the registered proprietor, such person, upon registration of the title under which he takes from the registered proprietor, has an indefeasible title against all the world. Nothing can be registered the registration of which is not expressly authorized by the statute.'

6. The Section 2 of the Land Transfer Act define the words 'instrument of title ' and 'proprietor' as follows:
   

"instrument of title" includes a certificate of title, Crown grant, lease, sublease, mortgage or other encumbrance as the case may be.

"proprietor" means the registered proprietor of land, or of any estate or interest therein".

7. The Plaintiff has filed this action in the capacity of administrator and or trustee of the property by virtue of a probate. He had annexed marked 'A' to the affidavit in support the said probate and attached to that the last will of late Sukhu Mahajan.
   
8. Section 9 and 11 of Succession, Probate and Administration Act (Cap 60) provide:
   

"9. Upon the grant of probate or administration, all property of which a deceased person dies possessed, or entitled to, in Fiji shall, as from the death of such person, pass to and become vested in the executor to whom probate has been granted, or administrator for all the estate and interest of the deceased therein, in the manner following, that is to say-

(a) On testacy or on partial intestacy, in the executor or administrator with the will annexed; and

(b) On testacy, in the administrator.

11. (1) The real as well as the personal estate of every deceased person shall be assets in the hand of the executor to whom probate has been granted, or administrator for the payment of all duties and fees and of the debts of the deceased in the ordinary course of administration."

9. Section 169 of the Land Transfer Act( Cap 131) which provides as follows:-
   

"The following persons may summon any person in possession of land to appear before a judge in chambers to show cause why the person summoned should not give up possession to the applicant:-

(a) The last registered proprietor of the land.

(b) A lessor with power to re-enter where the lessee or tenant arrear for such period as may be provided in the lease and, in the absence of any such provision therein, when the lessee or tenant is in arrear for one month, whether there be or be not sufficient distress found on the premises to countervail such rent and whether or not any previous demand has been made for the rent;

(c) A lessor against a lessee or tenant where a legal notice to quit has been given or the term of the lease has expired.

10. There is no issue that an administrator or executor cannot institute action in terms of the Sections 9 and 11 of the Succession Probate and Administration Act (Cap 6) read with Sections 2 and 169 of the Land Transfer Act (Cap 131).
    
11. In the originating summons the Plaintiff was seeking following orders
    

' ....an order for immediate vacant possession of the property comprised in certificate of title No 6576 being lot 1 on Deposited Plan no 1145 and of an area of 84 acres 1 rood 25.1 perches, situated at Raiwasa in the district of Suva, in the island of Viti Levu in Fiji of which the Plaintiff is the legal owner, should not be made against the Defendant'

12. The Plaintiff had proved in the annexed 'A' to the affidavit in support of the originating summons that he was one of the two joint executors of the estate of late Sukhu Mahajan . From the certificate of title No 6576 annexed to the affidavit in support late Sukhu was the proprietor of the lot 1 on Deposited Plan no 1145 and of an area of 84 acres 1 rood 25.1 perches, in 1940.
    
13. It should be noted that there were 153 memorials registered prior to the death of Sukhu Mahajan. These numerous memorials deals with leases, variation of leases, dedications for roads, discharge of mortgages, partial transfers, caveats. The leases were not for entire land and all other encumbrances were also not for the entire land, but for specific lots partitioned from the deposited plans.
    
14. In the circumstances when late Sukhu Mahajan died he did not own freehold land depicted in Lot 1 on Deposited Plan no 1145 and of an area of 84 acres 1 rood 25.1 perches, hence the entire land did not become part of estate.
    
15. Section 171 of the Land Transfer Act (Cap131) states as follows
    

'Order for possession

'171. On the day appointed for the hearing of the summons, if the person summoned does not appear, then upon proof to the satisfaction of the judge of the due service of such summons and upon proof of the title by the proprietor or lessor and, if any consent is necessary, by the production and proof of such consent, the judge may order immediate possession to be given to the plaintiff, which order shall have the effect of and may be enforced as a judgment in ejectment.'(emphasis added)

16. Even in case of Defendant not appearing at the hearing, the proof of title is essential to obtain an order for possession in favour of the Plaintiff.
    
17. If the Defendant appears and either admit the title of the Plaintiff or if he claims possession under the Plaintiff the Defendant may be estopped from denying the title. In the case of Blue Latitude Ltd v Sharma [2012] FJHC 848 (unreported) decided on 31 January 2012 cited in the written submissions of the Plaintiff there was no such issue raised. This decision was appealed and even in the appeal no such issue relating to proof of applicant's interest was raised.
    
18. In contrast the Defendant in this case, had expressly denied the title of the Plaintiff in his affidavit in opposition. That was the only objection that Defendant had alleged in his affidavit in opposition. There was no affidavit in reply to the said affidavit in opposition. The Plaintiff's obligation to establish his title as the last registered proprietor remained with him.
    
19. The Plaintiff had become one of the executors under the will of late Sukhu Mahajan and there were several transmissions of death registered in favour of the Plaintiff as joint trustee, in relation to specific portions of the land .This is deducible from the memorials of Title No CT 6576. The memorial dated 6th August, 1976 indicate that the Plaintiff and David Ram Naresh were executors and trustees of a portion of land depicted in a deposited plan. Again on memorials of 7th April, 1977 indicate there were two additional portions of land of Title CT 6576 where Plaintiff and David Ram Naresh became executors and trustees. There was another transmission of death recorded in favour of the said joint trustees registered on 7th February, 1980. From these transmissions the Plaintiff had not obtained rights for the land described in the originating summons, but only to certain portions of that. The annexed copy of CT 6575 is clear enough to understand these self evident facts.
    
20. Since becoming the trustee and registering the first transmission of death in 1976 there were 14 partial transfers of property to various persons including David Ram Naresh who was just executor and trustee of the estate of late Sukhu Mahajan. So according to the said certificate of title annexed as 'B' which is partially cancelled the Plaintiff was never an executor and trustee for entire 84 acres and 1 rood and 25.2 perches and more specifically was not trustee for the said extent at the time of the filing of the originating summons.
    
21. He cannot seek possession for the lot 1 on Deposited Plan no 1145 and of an area of 84 acres 1 rood 25.1 perches, as he did in the originating summons since he did not become an executor for the said extent. The full extent of the land stated in CT 6576 belonged to late Sukhu Mahajan in 1940 and when he died he did not own the said extent due to partial transfers.
    
22. This may be the reason that last will of late Sukhu Mahajan did not indicate lot 1 on Deposited Plan no 1145 and of an area of 84 acres 1 rood 25.1 perches. Instead late Sukhu Mahajan, had bequeathed distinct portions out of the said land contained in the CT 6576 in the last will and all those portions were distinctly identified through deposited plans and their deposited plan numbers and lot numbers were indicated in the said last will.
    
23. Since becoming the executor from the probate obtained in 1975 which was registered in the memorials from 1976 there were 14 transfers of various portions depicted in deposited plans mentioned in the memorials.
    
24. The last will of late Sukhu Mahajan, annexed to the probate granted in 1975 to the Plaintiff and David Ram Naresh Sukhu, bequeathed portions of the land to named persons under (a) (ii) to (viii). From the said last will it may be presumed that prior to the death, the land comprising 84 acres 1 rood and 25.2 perches was subdivided and for that subdivision separate plans were made and they were deposited.
    
25. The certificate of title clearly state that it was partially cancelled, and this fact is admitted in the paragraph 14 of the written submissions filed in this appeal. If so how can the Plaintiff seek possession of the entire extent of the land comprising 84 acres 1 rood and 25.2 perches in the originating summons needs no further elaboration.
    

CONCLUSION

26. The provisions of Land Transfer Act established indefeasibility of title under Torrens system. The land in issue according to the originating summons is Lot 1 on Deposited Plan no 1145 and of an area of 84 acres 1 rood 25.1 perches, but it should be noteworthy that the Plaintiff did not become executor or trustee to the said land as there were partial transfers of the said property before the death of late Sukhu Mahajan. Even after he became joint executor numerous transfers were made and Plaintiff had failed to establish that he had a registered interest remained in the land described in the originating summons from which he is seeking eviction of the Defendant.
    
27. So, even without discussing further this appeal should be dismissed in limine as the originating summons itself is defective and the Plaintiff never was executor to the entire property of CT 6576 which comprised of 84 acres and one rood and 25.2 purchases stated in originating summons. The Plaintiff had failed to prove that Defendant resides in an area of land where the Plaintiff had an interest as executor or trustee. So I agree that Plaintiff had failed to establish his interest to the land described in originating summons. There is no appeal regarding the cost ordered by the Master. The stay order obtained by consent is vacated. The Defendant is granted a cost of $2000 assessed summarily for this hearing.
    

FINAL ORDERS

1. The Appeal dismissed and order of Master is affirmed.
2. The cost of this appeal is summarily assessed at $2,000 to be paid within 21 days. (this costs is in addition to costs already ordered by Master)
   

Dated at Suva this 27th day of June 2014.

.....................................
Justice Deepthi Amaratunga
High Court, Suva