IN THE HIGH COURT OF FIJI
CIVIL JURISDICTION

CIVIL ACTION NO. 402 OF 1993

Between:

RAJESH PRASAD
f/n Shambhu Prasad
Plaintiff

- and -

DINESH PRASAD
f/n Shambhu Prasad
Defendant

Mr. A. Khan for the Plaintiff
Mr. Subhas Parshotam for the Defendant

DECISION

On 19th July, 1993 the Plaintiff filed an ex-parte motion seeking an order for extension of Caveat No. 333655 on Crown Lease No. 1554 being Lot 21 Section 3 Samabula until the determination of an appeal filed by the Plaintiff in the Fiji Court of Appeal on 10th June, 1993 or until further order of this Court. The motion was supported by an Affidavit sworn by the Plaintiff on 19th July, 1993.

An Order was made on the ex parte motion by Kepa J. extending the caveat until further order and it was further ordered that all documents be served on the defendant and the matter was adjourned to 17th September, 1993 for mention.

An Affidavit in Reply to Plaintiff's affidavit was filed on 13.10.93 and by consent a further affidavit sworn the 29th November, 1993 was filed by the Plaintiff.

The inter-partes hearing of the motion took place on 30th November, 1993 when counsel made oral submissions.

The facts of the Case

On 11th February, 1993 the Plaintiff lodged a Caveat No. 333655 against the said Crown Lease No. 1654 being Lot 21 Section 3 Samabula (hereafter referred to as the "said land") claiming a beneficial interest in the estate of his mother VIDYA WATI d/o Raj Bali deceased who died on 10th April, 1991. Probate of the last will of the deceased was granted to the defendant on 16th January, 1992.

The Plaintiff claimed beneficial interest by virtue of agreement dated 31st January, 1986 and 6th August, 1986.

On 11th June, 1993 the defendant applied to the Registrar of Titles for the removal of the said caveat.

The Plaintiff received the Notice to remove on 5th July, 1993.

The Defendant became the registered proprietor of the said land pursuant to the last Will of his mother dated 20th June, 1986 by which she bequeathed all her "real and personal property whatsoever and wheresoever situate" to the defendant. In High Court civil action no. 312/92 the defendant obtained an order for vacant possession from the Plaintiff on 24th May, 1993. The Plaintiff vacated the said land on 27th September, 1993.

An appeal against this decision is pending in the Fiji Court of Appeal.

The defendant is intending sell the said land while the appeal is pending.

Apart from filing Notice of Appeal the Plaintiff has taken no further steps to prosecute the appeal.

Stay of the order for possession was refused by the High Court on 3rd September, 1993 and by the Fiji Court of Appeal on 24th September, 1993

Relief sought by the Plaintiff

The Plaintiff says that the said caveat should not be ordered to be removed as he has a ceveatable interest in respect of the said land.

He sets out in detail in his said Affidavit sworn on 29th November how this interest is derived. In short he swears that the Will of the deceased dated 20th June 1986 (on which Probate was obtained by the defendant) was executed when there was "undue influence" on her. He is saying that that is not the "last and true Will" of the deceased. He states that the Will of 23rd day of September, 1985 is the "true last will" under which he is a beneficiary in the estate. The Plaintiff says that he "intends to file the necessary papers in the High Court of Fiji to set aside and revoke the probate granted in favour of the defendant in my mother's estate and seek relief to have the last will and testament of my mother dated the 23rd day of September, 1985 be admitted to probate" (paragraph 14 of the affidavit). He wants to be "allowed to file the Writ of Summons seeking revocation of the Probate .....".

What does the Defendant say?

The defendant says that the Appeal in the Fiji Court of Appeal will be opposed by him.

Apart from filing Notice of Appeal the Plaintiff has not taken any further steps in prosecuting the appeal.

The two stay applications against the order for possession had been dismissed by High Court as well as the Fiji Court of Appeal.

The defendant does intend to sell the said land and that he is entitled to do so as he is the registered proprietor.

The defendant says that the Plaintiff has no beneficial interest or otherwise in the said land as he has so far failed to prove any such interest.

The defendant is asking for an order for the removal of the caveat.

The Issue

In the circumstances of this case, bearing in mind the affidavit filed by him, has the Plaintiff a caveatable interest in respect of the said land to enable him to have the caveat extended until further order or until the determination of an action which he intends to institute to have the Will on which Probate was granted revoked?

Counsels' submissions

Mr. Khan's submission on behalf of the Plaintiff, put briefly, is that since the time the caveat was lodged an earlier Will of the Plaintiff's mother dated 23rd September, 1985 has now come to hand and under that Will the Plaintiff is a beneficiary. He says that although the caveat was based on certain agreements, but now that he has this additional document (Will) he cannot be precluded from including it in support of his argument.

He says that he should now be allowed to institute proceedings to have the grant of Probate revoked on the grounds, inter alia, of undue influence exerted on the deceased. He says that the said land could remain in the name of the defendant until the determination of the action otherwise if the Plaintiff succeeds it will be difficult to recover damages as the said land would be sold.

On law, counsel says that although he has not instituted proceedings by way of Writ of Summons, the Court in its inherent jurisdiction is empowered to hear the application by way of Motion. He further says that the case of IN RE SAVAGE'S CAVEAT (1956) NZLR. p. 118 referred to by the defendant's counsel is distinguishable from the facts of this case; that was a case of intestacy. There it was held that:

"the caveator's claim was not to an interest in the land of the deceased intestate, but merely a right to share in any surplus of the intestate estate after all liabilities had been discharged; and, accordingly, the caveator had no interest in the land entitling him to lodge a caveat as required by s.137 of the Land Transfer Act 1952".

Mr. Parshotam dealt with the matter under four heads, namely, (a) various aspects of High Court Rules, (b) statutory requirements of Land Transfer Act, (c) Legal principles relating to caveat and (d) facts of the case.

Mr. Parshotam says that the Plaintiff's application by way of Motion ought to be dismissed as in proceedings of this nature a Writ of Summons should have issued in accordance with Order 5 r. 2 of the High Court Rules.

The second argument Mr. Parshotam puts forward is that the Court had no jurisdiction to extend the caveat ex parte as the caveat had lapsed by the time the Plaintiff came to Court. However, he says, the Court had granted the application ex parte.

Counsel says that, before the Plaintiff claimed under two agreements and now he is in addition claiming under in earlier Will of 21.9.85. He argues that whichever way one looks at it, these documents do not create interest in land but in the estate and he referred the Court to IN RE SAVAGE'S CAVEAT (supra) in support of this proposition.

DEALING WITH THE ISSUE

I shall now proceed to deal with the issue before the Court.

The Plaintiff relies on the two agreements referred to by him in the Caveat and on the Will of 23rd September, 1985 to entitle him to lodge the caveat in respect of the said land.

I have carefully considered the submissions made by counsel and have looked at the cases on the subject and have come to the conclusion that the Plaintiff has no caveatable interest whatsoever to entitle him to lodge a caveat in respect of the said land.

Provisions relating to caveats are contained in s.106 to 117 of the Land Transfer Act Cap. 131.

In s.106 it is provided -

"Any person -

(a)	claiming to be entitled or to be beneficially interested in any land subject to the provisions of this Act, or any estate or interest therein, by virtue of any unregistered agreement or other instrument or transmission, or of any trust expressed or implied, or otherwise howsoever; or

(b)	.......................... 

may at any time lodge with the Registrar a caveat in the prescribed form, forbidding the registration of any person as transferee or proprietor of, and of any instrument affecting, such estate or interest either absolutely or unless such instrument be expressed to be subject to the claim of the caveator as may be required in such caveat".

The caveat, when lodged, is in the nature of a statutory injunction, the caveator being thereby enabled to retain the matter in statu quo until his claim is adjudicated upon by the Courts (the Australian Lands Titles (Torrens) System by Kerr p. 470 - 471).

It is usually issued by the Registrar of Titles ex parte on a claim unsupported by evidence. In this case the caveator states in the caveat document that he was "claiming an estate or interest as beneficial interest in the estate of caveatee namely (Vidya Wati) deceased, and by virtue of an agreement dated 31/1/86 and 6/8/86" (which he attached).

It is only some legal or equitable interest in land, partaking of the character of an estate, or of an equitable claim upon the land, which can sustain a caveat (MUNICIPAL DISTRICT OF CONCORD v COLES 3 CLR 96).

Once the caveatee (the defendant in this case) who is the registered proprietor of the said land challenges for its removal then the caveator (the Plaintiff in his case) is required to show that there is an "arguable case to justify the caveat and so justify its continuation" (CASTLE HILL RUN LTD v THE NZI FINANCE LTD 1985 2 NZLR 104). In the case before me the caveator must show that he is the person entitled or beneficially interested in the said land which he has caveated (s106 (a)) (underlining mine).

Under the Will of 1986 on which Probate was granted the Plaintiff was not "entitled or beneficially interested" (S.106) in the said land. The Defendant became the registered proprietor of the said land pursuant to the said Will of 1986. That Will was not disputed by the Plaintiff. Hence the defendant could do what he liked with the said land. In the said Civil Action No. 312/92 in the High Court he obtained an Order for vacant possession of the said land from the Plaintiff and vacant possession was given on 27th September 1993. It is interesting to note that the Plaintiff's applications for stay of the order was refused both by the High Court and the Fiji Court of Appeal. An appeal from the said order is pending. But for reasons best known to the Plaintiff he has not taken any further steps apart from filing Notice of Appeal.

It is worthy of note that in all the actions, namely, the application for vacant possession by the Defendant and stay applications by the Plaintiff, the Plaintiff made references to and exhibited the said documents in which he based his said caveat except that he made no mention of any Will of 23rd September, 1985 which he claims is the true and last will and not the later Will on which Probate was granted to the defendant. The reason which Mr. Khan (for Plaintiff) gives for producing this Will now is that the Plaintiff "has now found some papers".

It is a matter of comment that in all the proceedings before the Courts, before the present one, there were no allegations in those proceedings that the Will of 1986 was executed by the deceased under influence as at present alleged. It is unthinkable that the situation giving rise to the present allegations cropped up overnight. The Plaintiff ought to have taken steps to dispute the Will soon after his mother's death.

In the said Civil Action 312/92 JESURATNAM J. also expressed his view in the said civil action on the inaction on the part of the Plaintiff (who was the defendant in that action) to challenge the last Will of deceased on which Probate was obtained. His Lordship had this to say:-

"It appears that the plaintiff was an employee of the said company at one time and was not paid any salary as such during that period and hence an arrangement appears to have been made among all three to settle his claims on that account. It is my view that those agreements do not impinge on the validity of the present title of the plaintiff to the property in question.

The plaintiff's present title arises from the last will which was the free and voluntary act of Vidya Wati, who was the mother of both the plaintiff and defendant and owner of the property in question.

In the context of the many allegations made by the defendant it seems to me strange that he has so far not taken any steps to challenge the last will of the testatrix on which the whole matter rests."

Similarly, on 3rd September, 1993 his Lordship Justice Scott had this to say when dealing with stay application by the Plaintiff (who was defendant in said action 312/92):

"In the present case the Plaintiff succeeded in title to the property by operation of his mother's Will. The Defendant stated that he did not accept the validity of the Will and that he proposed to challenge it. He did not state why he believed the Will to be invalid and he did not in fact challenge it. 

The Defendant stated that he had a beneficial interest in the property but made no attempt, beyond exhibiting certain documents which the Learned Judge found to be irrelevant, to establish the basis or extent of his interest. No application was made by Counsel for the Defendant either prior to or at the section 169 hearing for the matter to be dealt with in open Court. I am of the opinion in these circumstances that the Defendant's prospects of success on appeal are very slight indeed.

Unfortunately, as already mentioned, the defendant has never specified the extent of the beneficial interest claimed by him. There is nothing before me to suggest that he claims to be beneficially entitled to the whole of the property and even if his claim to less then the whole were upheld he could not prevent sale."

The Plaintiff's attempt to prove his beneficial interest in the said land based on the said agreements failed in the said Civil Action. By him now introducing the said prior Will (prior to the one on which Probate was obtained) is of no assistance to him either in the application before the Court, as in the light of the authorities he can neither claim "to be entitled or to be beneficially interested" in the said land. He cannot lodge a caveat based on the documents he has now produced in support of his caveat as on the facts of this case as outlined hereabove he does not have a caveatable interest. As to what remedy he has in such circumstances it is not for the Court to advise him on that. The application before me is merely to decide on the issue stated hereabove.

To be entitled to lodge a caveat, the caveator must derive the interest which he claims through the document on which his claim is founded. If he acquires no interest under the document, the document will not form a foundation for the lodging of a caveat (KERR supra p. 474).

In this case, as far as the said land is concerned, the documents produced do not give the Plaintiff a caveatable interest. The prior Will that he has produced cannot affect the Defendant's ownership in any way whatsoever. The Court cannot take any notice of the prior Will as it is not the last Will on which Probate has been granted and no steps have been taken to revoke the Probate.

In the face of all this, the Plaintiff is saying that, inter alia, based on the prior Will he has a caveatable interest. Even looking at the provisions of the prior Will, assuming it is proved in his favour, even then it does not give him a caveatable interest.

That prior Will makes no mention of the said land but provides in clause 7:-

"I BEQUEATH the remainder and residue of my estate of whatsoever kind or nature or wheresoever situate over which I may have a power of disposition at the time of my death unto my said son RAJESH PRASAD for his own use absolutely."

In a situation such as this (quoting from LAND LAW by Hinde Vol. 1 p.250) it was pointed out by the Court of Appeal in GUARDIAN TRUST AND EXECUTORS CO. of NEW ZEALAND LTD v HALL (1938 NZLR 1020):-

"that the interest conferred on the caveator by the Will of his father was a right to share in the residue, and that residue has not yet been ascertained by the realization of the assets and the discharge of the liabilities" (LAND LAW by HINDE Vol 1 p. 250).

HINDE (supra) goes on to say:

"The Court then cited a line of English cases as authority for the proposition that the legatee of a share in residue has no interest in any of the property of the testator until the residue has been ascertained, and that his right is to have the estate properly administered and applied for his benefit when the administration is complete. It was therefore held that the caveator had no interest in the land in his father's estate sufficient to bring him within (now) S 137."

The Court there, was of the opinion that the caveat should be removed. This case was applied in RE SAVAGE'S CAVEAT (supra). There the registered proprietor died intestate as already stated; McGREGOR J held that the caveator's claim was not to an interest in the land but merely to a right to share in any surplus of the intestate estate after all liabilities had been discharged. He therefore concluded that the caveator had no interest in the land entitling him to lodge a caveat.

Hence the crucial question in deciding whether a person has a caveatable interest under s.106 is usually whether he claims to be entitled to or be beneficially interested in "any land, estate or interest". The strict construction that has been given to this phrase is as in GUARDIAN TRUST (supra). The fact that SAVAGE (supra) involved intestacy does not matter, the principle is still the same whether it is testacy or intestacy.

In STAPLES & CO. LTD v CORBY (1900 19 NZLR 517) it is stated (to explain s.106):

"The word 'interest', last used, shows that legal interest is meant, and this section was meant to guard equitable interests. Before a person can caveat under this section he must be a person who claims to be entitled to the land, or any estate or interest in the land, or to be 'beneficially interested' in the land, or in any estate or interest in the land, and the person in either event must claim 'by virtue of any unregistered agreement or other instrument or transmission ... or of any trust expressed or implied, or otherwise howsoever'".

To conclude, the Court is of the view, that in the light of the authorities referred to hereabove and for the reasons stated the Plaintiff has not shown any interest or arguable interest on the said land, to sustain a caveat, therefore he is not entitled to lodge a caveat against the said land and an order must be made for removal, and further he would not even be entitled to do so even if the said prior Will one day turned out to be in his favour. I emphasize that the Court was here merely dealing with entitlement to lodge a caveat under s.106. Whether the Plaintiff has other remedies for his grievance, it is not for the court to express any opinion on it but for counsel to advise his client.

In the view that the Court has taken of the matter, it is unnecessary to express any view as to other questions (such as the Plaintiff being out of time to lodge caveat and that the Plaintiff should have sought relief by issuing a Writ of Summons under Or.5 r.2 and not by way of motion) which were raised by Mr. Parshotam during the argument.

Therefore, the application to extend the caveat must be and is dismissed with costs. The caveat is accordingly ordered to be removed forthwith.

D. Pathik
Acting Puisne Judge

At Suva
16th December, 1993
HBC0402D.93S