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IN THE HIGH COURT OF FIJIn>
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO: 277 OF 1996
BETWEEN:
N-GB>
RAJENDRA PRASAD
Plaintiff
AND:
LILY PREMILA DEVI
1st Defendant
REGISTRAR OF TITLES
2nd Defendant
ATTORNEY-GENERAL OF FIJI
3rd Defendant
Counsel: Mr G.P. Lala & Mr N. Shivam for Plaintiff
Mr S. Sharma fora for 2nd and 3rd Defendants
No appearance for 1st Defendant
Hearing: 15th February 2000
Judgment: 25thuary 2000
JUDGMENT
In June 1996, the Plaintiff issued a writ of summons seeking a declaration that property at CT 2at Wailoku, Suva was held on trust
by the 1st Defendant fort for the Plaintiff, and an order that the Registrar of Titles (the 2nd Defendant) register the Plaintiff’s
interest under the Land Transfer Act Cap. 131.
The facts as laid out in the statement of claim, are that the Plaintiff and the 1st Defendant were married on 12th January, and divorced
on 27th Sept September 1989. The 1st Defendant now resides abroad.
On 1st March 1987 the Plaintiff decided to buy the property CT24345 from his relatives Shiu Charan and Chandra Wati, for $12,0span>
The Plaintiff paid $500.00 as deposit, and agreed to pay the balance in montnstalments. The sale was in the name of the 1st Defendant
want who was unemployed.
On 15th February 1993, the vendor Chandra Wati apparently at the request of the 1st Defendant transferred the property to theDefendant.
The registered ored owner of the property is the 1st Defendant.
Service of the writ was acknowledged by the 1st Defendant. However no Defence was filed. No action was taken by the Plaintiff, until
June 1998 when a Notice of e of Intention to Proceed was filed. Leave to serve the 1st Defendant out of jurisdiction was granted
on 13th January 1999. Summons for Directions were filed on 16th March 1999. On 12th April 1999, Messrs. A. K. Narayan and Company
withdrew as solicitors for the 1st Defendant on the ground that attempts to contact the 1st Defendant had been futile, and that no
instructions had been received from her.
The Plaintiff then made an application for Judgment to be entered in default of Defence. It was then acknowledged that Judgment could
not be entered in default in the case of a declaration.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The matter was finally set down for hearing on 15thuary 2000.
The Plaintiff called two witnesses. PW1 Rajendra Prasad gave evi of his marriage to and divorce from the 1st Defendant. He said that
the property had been been bought under his wife’s name because he suffered from ill-health and wanted to ensure the security of
his wife and daughter after his death.
He tendered a Sale Note (Exhibit P6) which shows the 1st Defendant as the sole purchaser.
Rajendra Prasad said that he paid the $500 deposit, and then paid the balance by monthly nts. He said his wife did not work, and that
he worked as a as a taxi-driver. He said he continued to pay for the property after the divorce and on 2nd February 1993 the owners
transferred the property to the 1st Defendant’s name.
The Plaintiff then registered a caveat in respect of the property on 30th September 1993. He agreed that d no receipts for any of
thof the payments.
The second witness (PW2) was Chandra Wati Charan, the former owner of the property. She gave evidence that payments for the property
were made by both the Plaintiff and the 1st Defendant. She said that the Plaintiff only made payments after his wife left the country.
She said she issued receipts and that the reason why the property was in the 1st Defendant’s name was because the Plaintiff trusted
her. She said she had lost the receipts but that the 1st Defendant had paid around $3000 towards the purchase price.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> There were no further witnesses and counsel made written submissions. It was agreed by both counsel that Sectio of the Land Transfer Act CAct Cap. 131 gave the court powers to order registration of title or substitution of title, to give effect to a judgment of the
court.
Mr N. Shivam for the Plaintiff submitted that acts of the case disclosed the existence of a resulting trust, and asked for order in
termsterms of the Writ of Summons.
Mr S. Sharma for the 2nd and 3rd Defendants, agreed that there was evidence of a commonntion that the property should be the matrimonial
home, and, and as such a common intention that the Plaintiff has a beneficial interest in the property. Counsel submitted that although
the 1st Defendant did not work outside the home while she lived in the matrimonial home “the court is invited to consider whether
she is entitled to any interest in the property on the basis of her performing domestic duties during the short duration when the
family stayed on the premises.”
There is no doubt at all that the Plaintiff and the 1st Defendant lived on the property together with their daughtn Sheila Maharaj v. j v. Jai Chand (1986) 1 AC 898 the Privy Council in a case involving a couple who lived on property for twelve years in a de facto relationship said at p.1205:
“In such cases a contract or an express trust as at the time of the acquisition may not be established, because of lack of certainty
or consideration or non-compliance with statutory requirements of writing; but a constructive trust may be established by an inferred
common intention subsequently acted upon by the making of contributions or either action to the detriment of the claimant party.
And it has been held that, in the absence of evidence of the contrary, the right inference is that the claimant acted in the belief
that she (or he) would have an interest in the house and not merely out of love and affection.”
In Hussey v. Palmer [1972] EWCA Civ 1; (1972) 1 WLR 1286, the plaintiff had paid for aension to the defendant’s home on the basis of a promise byse by the defendant that she could live there
as long as she liked. She left, and claimed reimbursement of the value of her contributions. Lord Denning M.R. and Philamore L.J.
held that the defendant held the property upon a constructive trust for the plaintiff in respect of a beneficial interest proportionate
to the amount of her contributions.
A common intention to create a trust can be construed wheth persons contributed to the property in money, work, and labour (Doohan v. Nelson (1973) 3 NSWLR 320.) No such common intention was found by the High Court of Australia in Baumgartner v. Baumgartner (1988) 62 ALR 29 where a woman gave her partner her earnings to meet household expenses thus allowing the loan amount on the house to be more rapidly
reduced than would otherwise be the case. However, it was held that a constructive trust existed to prevent one partner from unconscionably
retaining the benefit of the other’s contributions (Mason CJ Wilson and Deane JJ).
It is clear from the evidence that it was the intention of the parties that the property should be for the benefihusband and wife.
It is alss also clear that both the Plaintiff and the 1st Defendant made contributions to the purchase price. Although the Plaintiff
says that all the contributions were made by him because his wife was unemployed, this does not explain the payments made after their
separation and divorce. The vendor herself said that the 1st Defendant made contributions of around $3000. Furthermore, in his affidavit
sworn on 27th September 1999, the Plaintiff stated that the property was transferred to his wife’s name on 15th February 1993 after
the divorce. In the statement of claim, the Plaintiff claimed at paragraph 10, that the 1st Defendant had made payments to the total
of $300.00 from Australia, in 1992. In his evidence, he said he did not live on the property, that the house was rented out, and
that he did not know who received the rent. Finally, his statement of claim seeks an order that the Plaintiff is the beneficial owner
“of such proportion as the court may think just.”
Given the evidence in this case, it appears that the parties had a common intention that the house shouljointly owned. It is on this
basis that both parties made cade contributions to the purchase-price. I cannot draw the inference that the Plaintiff ask me to,
that because the 1st Defendant was a housewife, she had no other source of income other than the Plaintiff. I accept therefore that
both parties made contributions and that there was a common intention that the 1st Defendant should hold the property on trust for
both the Plaintiff and the 1st Defendant.
Section 168 of the Land Transfer Act allows the Court to direct the Registrar to alter title. The section provides:
“In any proceedings respecting any land subject to the provisions of ct, or any estate or interest therein, or in respect of anyf
any transaction relating thereto, or in respect of any instrument, memorial, or other entry or endorsement affecting any such land,
estate or interest, the court may by decree or order direct the Registrar to cancel, correct, substitute or issue any instrument
or title or make any memorial or entry in the register or any endorsement or otherwise to do any acts as may be necessary to give
effect to the judgment or decree or order of the court.”
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The 2nd and 3rd Defendants submit that the power under section 168 should be exed in the most exceptional circumstances because of
the neee need to protect indefeasibility of title upon registration. I agree.
I am of the view that this is one of those exceptional cases. The Plaintiff wh contributed substantially to the purchase of the property
erty can get no benefit from it because he holds no registered interest. His interest for many years has been frustrated by the 1st
Defendant’s absence from the country, and her lack of response to this action.
In the circumstances I consider an order under section 168 of the Transfer Act, to be appropriate. I therefore order the Registrar
of Titles to alter the tite title on CT 24345 to show that the property is jointly owned by the Plaintiff and the 1st Defendant.
Given the nominal (but helpful) appearance of the 2nd and 3rd Defendants in this case, and the disappearance of the 1st Defendant
I make no order for costs.
Nazhat Shameem
ass=MsoNormal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> > JUDGE
At Suva
lang=EN-GB>25th February 2000
Hbc0277j.96s
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