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Anganu v Dayawanti [1994] FJHC 72; Hbc0629d.93s (29 June 1994)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO: HBC0629 OF 1993

Between:

MAHENDRA VIJAY ANGANU
Plaintiff

-and-

1. DAYAWANTI
2. ROBIN RAVINDRA ANGANU
Defendants

Mr. Ram Chand for the Plaintiff
Mr. V. Kapadia for the Defendants

RULING

The plaintiff in this action lodged a Caveat No. 344401 pursuant to Section 106 (a) of the Land Transfer Act (Cap 131) prohibiting any dealings with the land comprised in CT 9324 being Lot 41 on DP 2274. On the 2nd of November '93 the Registrar of Titles issued a written Notice pursuant to Section 110 (1) requiring the plaintiff to withdraw his caveat within 21 days of receipt of the notice.

On the 10th of December 1993 some 20 days after receipt of the notice the plaintiff issued an ex parte summons seeking an extension of the caveat "until the hearing and determination of (the) action".

In his affidavit in support of the application the plaintiff deposed inter alia that he has a 'caveatable interest' in the land. No copy of the caveat has been annexed to the affidavit nor was any attempt made in the affidavit to explain either the nature of the plaintiff's estate or interest claimed or how it is derived.

At this juncture I should say something about the form and manner in which the plaintiff's application for an extension was brought.

Section 110 (3) of the Land Transfer Act (Cap 131) provides:

"The caveator may either before or after receiving notice from the Registrar apply by summons to the court for an order to extend the time beyond the 21 days mentioned in such notice, and the summons may be served at the address given in the application of the caveatee, and the court, upon proof that the caveatee has been duly served and upon such evidence as the court may require, may make such order in the premises either ex parte or otherwise as the court thinks fit."

It will be seen at once that the subsection may be invoked "either before or after receiving notice from the Registrar"; Secondly, the court has a discretion to extend the time within which a caveat will lapse "as the court thinks fit"; and thirdly (and this is a feature upon which there appears to be some variance) the application for extension in my view must come by way of inter partes summons and be supported with "proof that the caveatee has been duly served."

In my considered opinion the use of the word "may" in the sentence "... and the summons may be served at the address given in the application of the caveatee,"
merely provides an instance where service of the summons would suffice. It does not in any way alter or obviate the requirement for service of the summons seeking the extension of the caveat.

Similarly the use of the term "ex parte" in the last sentence of Section 110(3) refers to the order of the Court and NOT to the nature of the caveator's application.

In ANZ v. Maharaj Civil Appeal No. 49 of 1983 (unreported) the Fiji Court of Appeal in ordering the removal of the caveat in the case emphasized that the time for the removal of a caveat by the Registrar under Section 110(1) takes effect "... after the lapse of 21 days from the date of service, not 21 days from the date it was given." Furthermore in affirming the importance of adhering to the procedure for the removal of a caveat, the Court said at p 7:

"... the procedure following a notice pursuant to Section 110(1) is prescribed, step by step, by the subsection, and such steps not having been taken, we are compelled to conclude that the Judge in making the order as to the caveat exceeded his jurisdiction."

Be that as it may there is annexed to the plaintiff's affidavit a copy of a Writ of Summons in which the plaintiff in a separate action against the defendants seeks to challenge the validity of the will of his late father on the dual grounds of fraud and forgery.

I also note that one of the plaintiff's prayers in the aforesaid Writ is for:

"(i) An order restraining the 1st defendant whether by herself, her servants and/or agent from dealing or alienating in anyway whatsoever with the property described as Lot 41 on Deposited Plan 2274 situate in the Island of Vitilevu and in the District of Suva comprising an area of 0 acres 1 rood 0.3 perches on Certificate of Title Number 9322 as to one undivided half share only."

Needless to say if the plaintiff is successful in challenging the will of his late father thereby rendering him 'intestate' then there can be no doubting that as a son he has at the very least an 'interest' in two-thirds of the residuary estate of his late father by virtue of Section 6(1)(c) of the Succession Probate and Administration Act (Cap 60).

The defendants for their part filed a Statement of Defence in which they deny that the plaintiff is a beneficiary in the estate of his late father having regard to the terms of a will dated the 24th of September, 1991 in which the first Defendant is named as the sole executrix, trustee and beneficiary. They admit however that the plaintiff is challenging the validity of the will which they in turn are resisting.

The application before the court however is not one directly seeking the removal of the plaintiff's caveat under Section 109 (2) of the Land Transfer Act as might be expected, rather, the application is brought under Order 18 rule 18(1)(a) of the High Court Rules for an order that the plaintiff's Statement of Claim be struck out as disclosing 'no reasonable cause of action'.

In this regard the court is confined to an examination of the pleadings whilst bearing in mind the guiding principle that it is only in "plain and obvious cases" that recourse should be had to the summary process under the rule. (See: AG v. Shiu Prasad Halka 18 FLR 210).

Learned counsel for the defendants simple submission in this instance is that the Statement of Claim fails to establish any entitlement of the plaintiff to the land in question. In other words a 'caveatable interest'

With all due respect I cannot agree having regard paragraphs 1, 2, 9 and 10 of the Statement of Claim the cumulative effect of which may be summarised as follows: The plaintiff is a son of the late Parshu Ram Anganu who died leaving as part of his estate the caveated land, and although his late father allegedly left a will, the plaintiff is challenging its validity.

It might be that in making his submissions counsel for the defendants was relying upon the Statement of Defence which pleaded that the land in question is already registered in the first defendant's sole name and as such she had acquired an indefeasible title to the land prior to the lodgment of the plaintiff's caveat but if I may say so the indefeasibility of the 1st defendant's title is entirely dependant on the validity of a will which is itself being challenged by the plaintiff on the ground of 'fraud' albeit in a separate action.

In this latter regard it need hardly be said that "fraud" is and has been a long-recognized exception to the indefeasibility of the title of a registered proprietor under the Torrens System. (See: Sections 39, 40 and 41 of the Land Transfer Act).

The existence of an allegation of fraud however is not the end of the matter, for even if one assumed that the plaintiff was able to successfully challenge his late father's will (as the Court is obliged to assume on an application such as the present) his 'interest' (if any) would be confined to the 'residuary estate' of his late father. The question that must then be considered is whether such an 'interest' is sufficient to support a caveat in terms of Section 106 (a) of the Land Transfer Act (Cap 131).

In Guardian Trust and Executors Co. of NZ v. Hall (1938) NZLR 1020 Callan. J. in removing the caveat lodged by the caveator in the case on the basis of a "beneficial interest as a beneficiary under the will of his father" said at p 1025:

"A caveat is the creature of statute and may be lodged only by a person upon whom a right to lodge it has been conferred by the statute. It is not enough to show that the lodging and continued existence of the caveat would be in some way advantageous to the caveator."

and later at p 1026 in discussing the particular interest claimed by the caveator, the learned judge said:

"The interest conferred on the caveator by the will of his father was a right to share in the residue, and the residue was to be arrived at by sale, realization, and a discharge of liabilities. This process is not yet complete."

Then after citing several cases Callan J. concluded:

".... the legatee of a share in residue has no interest in any 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."

In the present case whilst it is unknown what stage of the administration of the late father's estate has been reached, it is nowhere claimed that the land in question forms part of the "residuary estate" or that the plaintiff's interest attaches (in any way) directly to the caveated land.

Furthermore in In re Savage's Caveat [1956] NZLR 118 in which the caveator claimed to be beneficially interested in the property in question as a son of the registered proprietor who had died intestate, MacGregor J. in ordering the removal of the caveat in the case said at p 120:

".... it seems to me the caveator's claim is not to an interest in the land but merely to a right to share in any surplus of the intestate estate after all liabilities have been discharged."

In the light of the above authorities which are founded on a provision of the NZ Land Transfer Act which is in identical terms to Section 106 of our Land Transfer Act (Cap 131) and with which I respectfully agree, I conclude that the plaintiff's has failed to establish that he is in the words of the Section:

"a person entitled to or beneficially interested in the land (against which he has caveated) by virtue of some unregistered agreement or other instrument or transmission on otherwise howsoever."

The application is accordingly granted and Caveat No. 344401 is ordered to be removed forthwith with costs to be taxed if not agreed.

(D. V. Fatiaki)
JUDGE

At Suva
29th June, 1994

HBC0629D.93S