Lata v Registrar of Titles [2017] FJHC 186; HBC85.2016 (3 March 2017)

In the High Court of Fiji at Suva
Civil Jurisdiction
HBC Action No. 85 of 2016

Between

Shashi Lata

Applicant

And

Registrar of Titles

First respondent

And

Attorney General of Fiji

Second respondent

COUNSEL: Mr R P Singh for the applicant
Ms S. Ali for the respondents
Date of hearing : 16^th September, 2016
Date of Judgment : 3^rd March,2017

Judgment

1. In this originating summons, the applicant seeks to transfer her one undivided half share of the property in CT No. 12275,(held by her as a joint tenant) to her daughter, Arti Chandra. She seeks an order directing the first defendant to register the proposed transfer upon lodgment and a declaration that her one undivided half share be registered in the name of her daughter
   
2. In her amended affidavit in support, the applicant states that she and her son Lawrence Chandra are joint tenants of the property. When the transfer of her one undivided half share to her daughter was lodged at the first respondent’s office, her solicitors were advised by its staff that the transfer will not be accepted for registration, unless it is signed by the registered proprietor of the other undivided half share.
   
3. The first respondent’s affidavit in reply states that where a property is held as a joint tenancy, the transfer of an undivided half share to a third party has to be done by both tenants by mutual consent, in order to be registered.
   

The hearing

4. At the hearing, Mr Raman Singh, counsel for the applicant submitted that a joint tenant may sever a joint tenancy unilaterally. There is no necessity for the consent of the other tenant, as contended by the first respondent.
   
5. Ms Ali, counsel for the respondents, in response submitted that the joint owner must at least, have notice of the applicant’s intent. She invited my attention to section 37 of the Land Transfer Act, which requires a transfer of land to be registered.
   

The determination

6. Joint tenancy is characterized by what is termed “the four unities..:unity of possession unity of interest unity of title, and unity of time”- Hinde McMorland and Sim, Land Law in New Zealand. These four concepts are further explained as follows:
   • (a) Unity of possession. Unity of possession means that no joint tenant has an exclusive right to possession of any particular part of the land which is held on joint tenancy. Each joint tenant is just as much entitled to possession of all or any part of the land as the other or others....
   • (b) Unity of interest. In theory joint tenants own only one estate. Therefore the interest must be the same in nature, extent and duration. ..
   • (c) Unity of title. All the joint tenants must have derived their interests from the same memorandum of transfer, will or other instrument.
   • (d) Unity of time In a joint tenancy.. the estate of each joint tenant had to vest at the same time. (emphasis added)
     
7. Halsbury, Laws of England (4^th Ed,) Vol 39 at para 529 likewise states:
   

Nature of joint tenants’ interests. Each joint tenant has an identical interest in the whole land and every part of it. The title of each arises by the same act. The interest of each is the same in extent, nature and duration. In the case of freeholds, the seisin, and, in the case of leaseholds, the possession, is vested in all; none holds any part to the exclusion of the others. At common law the interest of each must vest at the same time. These are the four unities of title, interest, possession and time.(footnotes omitted)

8. The principle that can be deduced from the above authorities is that a joint tenant is entitled to possession of all or any part of the land, as the other. His interest “in extent, nature and duration” is the same. The other two features are that the title to the joint tenancy must flow from the same instrument and at the same time.
   
9. On the severance of a joint tenancy, Peter Butt, LAND LAW,(6 th Ed,2010) states as follows.

At para 14.58:

A joint tenancy depends on the continuation of the three unities of possession, title and interest. The destruction of any of these three unities terminates the joint tenancy.(emphasis added)

At para 14.78:

A joint tenancy may be severed in equity by agreement between all the joint tenants henceforth to hold as tenants in common.(Williams v Hensman [1861] EngR 701; (1861) 1 J & H 546 at 557,558; [1861] EngR 701; 70 ER 862 at 867; Wright v Gibbons...(emphasis added)

10. The transfer of the interest of a joint owner would convert the joint tenancy to a tenancy in common, as was held in Wright v Gibbons,[1949] HCA 3; [1949] 78 CLR 313 as cited by Mr Singh. At pg 322 of his judgment, Latham CJ stated :

All the authorities concur in stating that the alienation of his interest by a joint tenant to a stranger severs the joint tenancy as to produce the result stated.. (emphasis added)

11. Latham CJ stated further at pg 323:

But no transfer of an interest as a joint tenant so as to make the transferee a joint tenant with other joint tenants, is possible when the transferee is a stranger to the joint tenancy. The transfer, if it could be effective, would destroy unity of time and unity of title so far as the interest of the transferee was concerned. Therefore he could not be a joint tenant with the other original joint tenants. No joint tenant can alienate to a stranger so as to make that person joint tenant with his co-tenants, but he can alienate so as to make that person a tenant in common with his co-tenants..(emphasis added)

12. In Wright v Gibbons, (supra) three joint tenants A, B and C transferred their interests in their joint property as follows. A and B, two sisters made cross- transfers of their interest to each other by a single instrument to the intent that A,B and C should all three be tenants in common. C was not a party to the transaction. The High Court of Australia held that upon registration of the transfer, the joint tenancy was severed. A, B and C became tenants in common.
    
13. In Jas vs Ram,(HBC 34 of 2014) it was held that “any application to sever the relationship (under review) must be by mutual agreement or concurrence”.
    
14. Mr Singh relies on the following extract from Hinde McMorland and Sim, (op.cit, para 9.042 at pg 808 for the proposition that a joint tenancy can be severed unilaterally:

(a)By a joint tenant operating unilaterally upon his or her own share. If the interest of a joint tenant is transferred in his or her lifetime, the joint tenancy is severed because the unity of title is destroyed, and the transferee takes that interest as tenant in common with the other joint tenants. the shares of two thirds and one third respectively.

15. The sub-title “By a joint tenant operating unilaterally upon his or her own share”, must be importantly read with the comment immediately following that passage which states that the “ foregoing discussion is based on the premise that where the joint tenancy is in Land Transfer land, the appropriate instrument has been registered to effect severance at law. If this has not been done, there may nevertheless have been severance in equity..(emphasis added)
    
16. The judgment in Wright v Gibbons,(supra) elucidates that the joint tenancy was severed, upon registration of the transfer.
    
17. In the instant case, registration of the transfer has in my view, quite correctly been declined by the first respondent, for the reason that the other joint owner’s consent has not been obtained. As Ms Ali pointed out, he has not had even notice of the proposed transfer.
    
18. In my view, a joint tenancy may not be severed unilaterally, for the reason that the quintessence of its characteristics as to unity of title, unity of time and importantly to the right to survivorship would be extinguished, if it becomes a tenancy in common.
    
19. In my judgment, the rights of a joint owner cannot be taken away without his consent.
    
20. In the result, the summons fails and must be dismissed.
    
21. Orders
    1. The originating summons is declined.
    2. The applicant shall pay the respondents a sum of $ 1000 as costs summarily assessed.
       

A.L.B.Brito-Mutunayagam
Judge
3^rd March, 2017