Singh v Registrar of Titles [1999] FJLawRp 27; [1999] 45 FLR 122 (22 June 1999)

[1999] 45 FLR 122

HIGH COURT OF FIJI ISLANDS

PRAMENDRA SINGH

v

REGISTRAR OF TITLES

[HIGH COURT, 1999 (Shameem J) 22 June]

Civil Jurisdiction

Estate- power of Registrar to enter caveat against sale of estate property by executor- Land Transfer Act (Cap 131) Sectio, 94, 129 &129 & 131- Ssion Probate and Administration Act (Cap 60) Section 11 (3).

After the exec executor of an estate sold estate propert Registrar of Titles refused to register the transfer and eand entered a caveat against dealing in the property. She requested d of Family mily Arrangement. Upplication being made to e to the Court for removal of the caveat the High Court HELD: (i) e absence of any suggestion of unproper dealing the Registrar had no authority to enter ther the caveat and (ii) there is no power to back date a caveat under the powers conferred on the Registrar by Section 94 of the Act.
#160;
Intutory applicatiication in the High Court.

N. ArjunS. Kumar for Defenbr>&#br>Sham:

This is an application tion by Pramendra Singh, (the Plai Plaintiff) under Section 164 of the ef="h/www.pacli/forg/fj/legj/legis/consol_act/lta141/">Land Transfer Act (C31), fo), for an order ther that the Registrar of Titles rer the transfer of property comprised in CT Register Volume 43 Folio 4245, Lots 7, 8, 9 Sect Section XXI, to the said Plaintiff. decisf the Registrar grar grar giving rise to this application, was her decision to lodge a caveat (number 192113A) against the title160; 7th May 1999, backdated to 24th May 1982 (when she was not the Registrar of TitleTitles) preventing the transfer of the property to the Plaintiff on the sale by the executor and trustee of the estate of Sarah Grace Vandenberg.

The affidav the cant, Pnt, Pramendra Sdra Singh, shows that the property in question was part of the estate of Sarah Grace Vandenberg. She died st May 1977. Her son-in-law one Vishnu Deo Prasad was appointed executor, by virtue ofue of her will dated 28th February 1975. Ttate was tras transferred to the executor on 25th May 1982. The of Sarah Grac Grace Vandenberg named her eight children as iciaries in equal shares.

On 160;July 1998 the exhe executor sold the propertyperty in question to the Plaintiff. urchase pras paid to t to t to the executor in full, and he took possession of the land. The transfer dated 8th July 1998 was stampedged acd accepted for registration by the Registrar of Titles on 6th A 1998. On 8tOn 8th Ja60;January the Registrarstrar red the Transfer document to the Plaintiff’s solicitors, with a verbal request for a De a Deed of Family Arrangement.
&#1r>On 7tOn 7th May 1999, the docuand the Tthe Title Deed were again returned to the Plaintiff’ s solicitors with a cavndorsed on the title by the Registrar backdated to 25th May 1982, the of transmisnsmisnsmission by death, and a date on which she was not the Registrar of Titles.

On 7th May 1999, the Plain#8217; s17; s solicitors wrote to the Registrar askingfor her reasons for refusinfusing registration. This is a requirement under Section 164(1) of the La/">Land Trnd Transfer Act. The Registrar did not respond to this letter.

The matter was listed on 26th May 19ay 1999, and on 3rd June 1999. 999. On both dates the Registrar failed to appear. However on 11th June the Registrar was represented by counsel, who asked for time to file an affidavit.

On 14th;June, thedavit avit of Ma’ata Sakiti, the RegisRegistrar trar of Titles was filed. She deposed that she wished to sight a Deed of F Arrangement “which would indicate that the sale was in the best interests of the bene beneficiaries named in the will of Sarah Grace Vandenberg”. At paragraph 8(iii) of her affidavit, the Registrar deposed that the sale was to a person not named in the Will. She stated that she entered a caveat under Section 94 of the Land Transfer Actwhich provided that

&#Upon registrationation of the transmission of any estate orrest in land under the provisions of Section 93 the Registrgistrar may enter a caveat for the protection of the interests of any persom he is satisfied are bene beneficially interested in such estate or interest.”

Sated that she had powe power under 129(1) of the Land Transfer Act to call for documennd that she believed that she was entitled to backdate the the caveat since her predecessor ought to have lodged a caveat in 1982. She saat she had acted to protect the interests of the beneficiaries. She does not state what grot grounds she has for believing that the executor was not acting in the interests of the beneficiaries. There is no evidence at all that the beneficiaries objected to the sale of the property in question.

The application eard onrd on 18th June 1999. Mr.ndra Arjun foun for the Plaintiff submitted that the executor and trustee is deemed to be the absolute proprietor of the estate by virtue of Section 93(3) e&#16href="http://www./www.paclii.org/fj/legis/consol_act/lta141ta141/">Land Transfer Act. He submitted that whilst the Registrar could enter a caveat under Section 94 of the Act, this power must be exercised “upon registration of any estate” by virtue of a transmission by death under section 93. He submitted that this power did not exist 15 years after such transmission. He argued that there was no statutory or legal requirement for a Deed of Family Arrangement before an executor and trustee could sell the estate, and that a Deed of Family Arrangement was normally required when the beneficiaries wished to vary the terms of a will, or wished to renounce their interests.

Mr. Arubmitted that thet the Registrar did not point to any improper dealing on the part of the executor. He argued that if her predecessor had decided not to enter eat in 1982, the pree presegistrar could not now substsubstitute her own discretion for his. Mr. Arjun submitted that the result was that a bona fide purchaser alue had no security of title.

Mr. Kumar for tfor the Registrar endorsed Mr. Arjun’ s submissions on the law. However he said that his instructions were to stand by the affidavit of Ma’ ata Sakiti. He conceded that if the beneficiaries aggrieved by the sale of thof the estate, they had a right of action against the executor. He said that he left the matter to the Court.

There is no dou all thal that the Registrar of Titles has wide powers under the Land Transfer Act. Section 129he Act gives thes the Registrar power to require any personrested in property to produce any instrument in his/her possession.

Under Sect Section 131 the Registrar may enter a cavn behalf of any person wher where an error has been made in the descon of the the property, or for the prevention of fraud or per dealing. Section 131(2) gives the Registrar powers to c to correct errors in the register provided that the date of such correcti inserted by her. In this chis case the Registrar purported to act under Section 94 of the Act. She states that the section impliedly allowed her to backdate the caveat. I cannot agree. The then Registrar of Titles did not consider it necessary to register a caveat to protect the interests of the beneficiaries in 1982. Any prospective purchaser searching the register for any encumbrances on the file, would have found the title clear.

Toster a caveat 17 year years after the transfer to the executor on transmission by death, and to backdate such a caveat, would defeat the whole purpose of the Act. It would render the process oistration, and search, a fu a futile exercise and would prevent the security of titles. Finally, the back-dating of the caveat creates a false impression of the date of the entry of the caveat.

The Registrar does have powers to enter a caveat at any time under Section 131 (1) of the Act, but must only act if he/she believes an error is made by misdescription or to prevent for improper dealing. Although the Registrar does not purporurport to rely on this provision in this case, it is apparent from her affidavit that she has no grounds to suspect error, fraud or improper dealing.

The Regr appears to baso base her action on the fact that the purchaser is not a beneficiary under the will. The executor is not obliged to sell the estate to a benefi. Furthermore Section 11 (3) of the Succession, Probate ande and Administration Act (Cap 60) provides

“An execto whto whom probate has been granted, or administrator, may, for the purposes of administrator, sell or lease such real estate rtgage the same, with or without a power of sale, and assure the same to a purchaser or morr mortgagee in as full and effectual manner as the deceased could have done in his lifetime”.

If the Registrar’s position in entering the caveat without suspicion of improper dealing, is correct, no executor and trustee could sell the estate and distribute the proceeds, wi a Deed of Family Arrangement. a position clearllearly haly has no legal basis. It is also impcal and woul would frustrate the orderly administration of the registration process.

In he circumstances I fs I find that the Registrar erred in eng Caveat No. 192 113A, and I order her to remove such caveacaveat forthwith. I also order the registn oion of the transfer of C5 to the Plaintiff. C60; Costs of thplication tion are to be paid by the Defendant to the Plaintiff, to be taxed if not agreed.

(Application granted.)