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IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
ACTION NO. HBC 93 OF 1997
JAMES SHALENDRA
(f/n Surendra aka Surendra Mistry)
of Waila, Nausori, Businessman
Plaintiff
AND:
CHANDAR BHAN
(f/n Shiu Mangal)
c/- Maharaj Chandra & Associates, Suva
Defendant
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
ACTION NO. HBC 109 OF 1997
BETWEENpan>
CHANDAR BHAN
(f/n Shiu Mangal)
of California, U.S.A., Security Officer
Plaintiff
AND
THE REGISTRAR OF TITLES AND
THE ATTORNEY-GENERAL OF FIJI
Defendants
J. Maharaj for Plaintiff Shalendra
S. Chandra for Defendant Bhan
Ma'ata Sakiti for Defendants in HBC 109
Dates of Hearing: 24th June, 17th July, 18th August 1997
Date of Judgment: 25th August 1997
JUDGMENT
These two actions have been consolidated but the Court has not requested any submissions to be filed by the Defendants in Action No.
109 of 1997 for reasons which will appear later.
Both actions concern the law concerning joint tenancy and particularly the right of survivorship. Affidavits have been filed on behalf
of the various parties and written submissions made in Action No. 93 of 1997.
From the affidavits the following facts which are not contested emerge:
(1) On the 6th of November 1968 SHIU MANGAL was issued a lease as Lessee of Crown Lease No. 4323 by the Registrar of Titles in which
the Director of Lands was the Lessor. The lease was issued under the Land (Transfer and Registration) Ordinance, the predecessor
of the Land Transfer Act Cap. 131.
(2) The land comprised in the lease was Lot 4 on Plan R.1866 at Nausori comprising 23.4 perches and the agreed rent of £32.15 was
subject to re-assessment in the years 1993, 2018 and 2043.
A further condition of the lease was that the Lessee had to erect on the land to the satisfaction of the Lessor a building for industrial
purposes costing a minimum of £2,000.
(3) On 31st October 1980 at 2.50 p.m. SHIU MANGAL transferred all his interest to his two sons Suren and the Defendant by virtue of
Transfer No. 180240 as joint tenants. This transfer is endorsed on the lease.
(4) On 4th September 1986 a Transmission By Death in the Estate of Suren was registered as to one undivided half share of the lease
to one Sita Wati as the Administratrix.
(5) On 2nd June 1994 a Record of Death of Suren was also registered by virtue of Record of Death No. 359857.
(6) On 6th of June 1994 the Plaintiff registered a Caveat by Caveat No. 405427.
On 14th of March 1997 the Plaintiff through his former solicitors issued a Writ and an Ex-parte Notice of Motion seeking an order
that Caveat No. 405427 be extended beyond 21 days until further order of this Court.
On 17th March 1997 Pathik J. made an order in terms of the Motion.
In his affidavit in support of the Motion sworn on the 13th of March 1997 the Plaintiff alleges that he is one of the lawful beneficiaries
in the estate of his late father's property namely the land mentioned above. He further deposes that his late father Surendra Mistry
and his uncle Chandar Bhan the present Defendant were joint tenants in the above property, which as I have said is not denied. He
further deposes so far as relevant the following:
(i) That his father died intestate on the 11th of November 1983 at Nausori and Letters of Administration were taken out by the Public
Trustee of Fiji on the 7th of November 1985.
(ii) That his mother also died intestate on the 16th of May 1988 at Suva and Letters of Administration No.25117 were taken out in
its favour by the Public Trustee of Fiji.
(iii) That he has one brother namely Sandra Shalesh Kumar and sister Helen Lata who are both residents of United States of America and who have renounced their
interests in the shares in his favour.
On 3rd of April 1997 Pathik J. gave the Defendant leave to file an Affidavit in Reply. This was sworn on 24th of April 1997 by Nirmala
Ram of Suva who claims to be the lawful Attorney of the Defendant who now also resides in the United States of America.
The Plaintiff also claims in his affidavit of the 13th of March that as a result of the refusal of the Public Trustee to execute transfer
documents which would enable the Plaintiff to have his late father's share transferred into his name, he will suffer loss and damage.
This is denied by the Defendant on the ground that as he is the survivor of the joint tenancy the property automatically vested in
him, which is evinced by the endorsement on the Crown Lease, and that consequently the Plaintiff can not suffer any loss as he has
no legal interest whatsoever in the property.
On 24th of June the parties appeared before me when Mr. J.K. Maharaj announced that he was now acting for the Plaintiff. I then directed
that a Notice of Change of solicitors be filed, which was duly done, and ordered the parties to deliver written submissions together
with an Amended Statement of Claim and Defence.
Whereas previously the Original Statement of Claim sought an order that Caveat No. 405427 be extended and general damages and costs,
the Amended Statement of Claim which goes to 8 pages seeks various declarations and orders not made in the Original Statement of
Claim.
The Amended Statement of Claim summarised states that Shiu Mangal was a Blacksmith by trade who passed on the trade to the Plaintiff's
father who in turn passed it on to the Plaintiff who still occupies that portion of the building that was formerly occupied by his
father and grandfather as Blacksmiths, and is allegedly the only fully equipped Blacksmith Shop in the whole of the Nausori area.
It is alleged that it was the intention and desire of the grandfather that the Plaintiff's father and uncle (the First Defendant)
should each have separate and distinct possession and control of one half of the undivided share in the land and building thereon
in accordance "with Indian tradition and culture of the immediate children and grandchildren living together and sharing the
properties (sic) and assets under an unwritten code of religious honesty and cultural unity and affinity".
I must interpolate here before continuing with the Plaintiff's allegations that I would envisage the Plaintiff having some difficulty
in proving the matters alleged in that quotation. However in view of the conclusion to which I have come I need say no more about
it here. In any event the Defendant in his Statement of Defence filed on the 15th of August denies them and puts the Plaintiff to
strict proof thereof.
Various other allegations are made in the Amended Statement of Claim most of which I need not state here because I consider they are
irrelevant to the issue before me and further transgress the basic rule of pleadings that pleadings should state facts and not the
evidence by which those facts are to be proved. However one of the allegations made by the Plaintiff which appears in paragraph 12
of the Statement of Claim is to the effect that the Defendant following the Transmission By Death to Sita Wati on the 4th of September
1986 took no steps thereafter to indicate his desire to be registered as the sole holder of the lease and no steps to put forward
his purported claim as a joint tenant being entitled, upon the death of the other tenant (the Plaintiff's father) to take over the
whole land and the lease over it. He alleges that in early June 1994, nearly eleven years later, the Defendant caused a record of
the death of his brother Suren to be entered in the title folio in the office of the Registrar of Titles.
Finally he alleges that the registration of a joint tenancy was wrong and that it should have been registered as a tenancy in common
to enable the descendants of the transferees to take a common interest in the land.
The Defendant denies these allegations in his defence and says that Sita Wati never acquired any estate or interest in the lease so
that she could not transmit any on her death and further that upon the death of his brother Suren he acquired the whole lease by
virtue of the law of survivorship.
In Action No. 109 of 1997 the present Registrar of Titles has sworn an affidavit in response to a Motion by Chandar Bhan that the
Registrar be directed to cancel the Memorial of Transmission of Death No. 241278.
In paragraph 9 of her affidavit sworn on the 2nd of May 1997 the Registrar, Ma'ata Sakiti, states that the Registrar of Titles and
the Attorney-General of Fiji agree that it is an inherent principle of a joint tenancy that upon the death of one lessee/owner the
survivor in law has automatic entitlement to the deceased Lessees's share of the property.
I agree with this statement. It has been the law at least since the days of Blackstone and Coke that the jus accrescendi is the most
important feature of joint tenancy. Blackstone, in Volume 2, page 182 describes joint tenancy as "a thorough and intimate union
of interest and possession".
A little further he goes on, "They [i.e. two joint tenants] have not, one of them a seisin of one-half or moiety, and the other
of the other moiety; neither can one be exclusively seised of one acre, and his companion of another; but each has an undivided moiety
of the whole, and not the whole of an undivided moiety."
In Wright v. Gibbons [1949] HCA 3; 78 CLR 313 at p.323 Latham C.J. said with typical succinctness that the interests of each joint tenant in the land held are always the same
in respect of possession, interest, title and time. No distinction can be drawn between the interest of any one tenant and that of
any other tenant. If one joint tenant dies his interest is extinguished. He falls out, and the interest of the surviving joint tenant
or joint tenants is correspondingly enlarged.
At the beginning of this judgment I noted that the lease in question was issued under the predecessor of the Land Transfer Act. In Attorney-General v. Vijay Kumar and Everett Riley 1985 31 FLR 23 at p.29 the Fiji Court of Appeal referred to the philosophy underlying the Land Transfer system and said:
"The purpose is to establish certainty of title based on registration, which can be taken as notice to the world of the identity
and extent of interest of the person who is certified to be the owner, Gibbs v. Messer (1891) AC248."
If, as I hold, the Registrar of Titles ought not to have accepted and registered the Transmission By Death by Sita Wati, it follows
that the Defendant Bhan is entitled to be certified as the owner in law of the leasehold. In the same passage from which I have quoted
in Attorney-General v. Kumar the Court of Appeal went on:
"It is recognized that innocent persons may suffer through error or other causes, but this must take second place to the merit
of certainty, leaving injured parties to be compensated - in Fiji from the Consolidated Fund pursuant to Part XXII of the Act. The phrase so often used is that the registered proprietor's interest is indefeasible although that word is not used
in the Act."
Section 34 of the Land Transfer Act states, so far as relevant:
"Unless the contrary intention is expressed in the instrument of title, where two or more persons are registered as proprietors
of any estate or interest in land subject to the provisions of this Act, they shall be deemed to be entitled to the same as tenants
in common, and on the death of any one of such proprietors there shall be no right of survivorship in the other or others and the
share of such deceased proprietor shall pass to his personal representative."
There can be no doubt whatsoever in my mind that during the life-time of the co-owners their interest existed as that of joint tenants.
There is no evidence before this Court of any attempt by the Transferees to cancel or revoke that joint tenancy.
In their book Introduction to Land Law (Butterworths 1979) by Hinde, McMorland and Sim the authors state at p.424 when dealing with
the right of survivorship:
"On the death of one joint tenant his interest is extinguished and accrues to the surviving joint tenants by virtue of the right
of survivorship (a). This process goes on until there is only one survivor, who then holds the land as sole owner. For example, if
A, B and C hold a parcel of land as joint tenants, and A dies, B and C then hold the land as joint tenants. When either B or C dies,
the survivor holds the land as sole owner."
This is an amplification of what Latham C.J. said in Wright v. Gibbons.
In my judgment the creation of the joint tenancy, rightly in my view registered on the lease, is clear evidence of contrary intention
under Section 34 of the Act and as such sufficient to defeat the Plaintiff's claim.
Counsel for the Plaintiff has supplied a written submission of 20 pages in which he cites numerous cases and authorities in support
of the Plaintiff's claim to a tenancy in common. With all respect to counsel's diligence I must say that none of these is relevant
to this case in that I consider that it falls clearly within the Land Transfer Act and particularly Section 34 thereof.
It is true that during the initial argument I noted that Section 101 of the Act which deals with survivorship states that upon the
death of any person registered together with any other person as joint proprietors of the same interest in any land where there is
right of survivorship the Registrar may, upon the application of the person entitled and upon proof of death and production of a
Certificate from the Commissioner of Estate and Gift Duties certifying that all duties payable under the provisions of any law relating
to estate duties have been paid, register such person as proprietor of the estate or interest.
Counsel for the Plaintiff says that the use of the permissive "may" as distinct from "shall" shows an intention
to give the Registrar a statutory discretion to evaluate the strength of an application based on survivorship in a joint tenancy
situation.
In my judgment Section 101 does not apply to this case in that Estate and Gift Duties are no longer applicable to an estate of this
nature. Consequently in my view the Registrar would not have any choice in the circumstances to register the Transmission by Death,
a fact as I have said conceded now by the Registrar. It is for that reason that I have not required the Defendants in Action No.
109 to make any submissions.
Among other alternative orders that the Plaintiff seeks in his submission are that the First Defendant, in the event of his cause
being upheld by this Court pay compensation or damages to the Plaintiff; or that the State being vicariously responsible for the
negligence of the Registrar of Titles pay compensation or damages to the Plaintiff on the ground of negligence.
In my judgment it is unnecessary to consider these alternative submissions here. My present view however is that as the Defendant
is the rightful proprietor of the estate he is not liable in damages to the Plaintiff.
I refrain from expressing any opinion as to whether the Registrar of Titles may be so liable to the Plaintiff. There is nothing however
to prevent the Plaintiff issuing proceedings for damages against either or both these persons if he be so advised.
I consider that for the reasons I have given the Defendant in Action No. HBC93 of 1997 is entitled to an order that the Plaintiff's
claim be dismissed.
I further order that the First Defendant in Action No. HBC109 of 1997 cancel the Memorial No. 241278 registered on the 4th day of
September, 1986 on the original State Lease No. 4323 held at its Registry.
The Plaintiff must also pay the Defendant's costs in Action No. HBC93 of 1997.
JOHN E. BYRNE
JUDGE
Legislation and authorities referred to in judgment:
Land Transfer Act Cap. 131.
Attorney-General v. Vijay Kumar and Another 31 FLR 23.
Blackstone, Commentaries Volume 2 p.182.
Wright v. Gibbons [1949] HCA 3; 78 CLR 313.
The following additional authorities were mentioned in submissions:
Re Kayford Ltd. (1975) 1 ALL E.R.36.
'The Discipline of Law', Lord Denning.
'Laying Down the Law', Morris et al.
Harvey v. Harvey 68 WN (NSW) 241.
The Law of Contract.
Cheshire and Fifoot's 'Law of Contract' 4th NZ Edition J.K. Northey.
Hinde, McMorland & Sim, Introduction to Land Law (1979).
Introduction to Property Law 2nd Edition, Teh & Dwyer
Introduction to Land Law, J.G. Riddall 1974 Edition.
Holmes, Collected Legal Papers (1920) 187.
Stenm v. Milkulski, 139 Neb. 374, 297 N.W. 595 (1941).
Interpretation Act N.S.W.
'Equity and the Law of Trusts', Philip H. Pettit.
'Land Ownership and Use', Curtis J. Berger, 2nd Edition.
Mozley & Whitleley's Law Dictionary, 10th Edition, E.R. Hardy Ivany.
Understanding Contract Law, D. Khoury and Y.S Yamouni (Butterworths).
Lindsay Petroleum Co. v. Hurd [1874] UKLawRpPC 1; (1874) L.R. 5 P.C. 221.
Hbc0093j.97s
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