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Devi v Kuar [2001] FJHC 251; HBC100.2000 (21 November 2001)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 100 OF 2000

BETWEEN:

NORINE SHARMILA DEVI (d/o Shiu Narayan)
of Serea, Vunidawa, Domestic Duties, as the
administratrix of the estate of Ramesh Narayan
(f/n Dip Narayan)
Plaintiff

AND

BHAN KUAR (f/n Ram Sundar) of Suva, of
25 Nailuva Road, Suva, Domestic Duties
Defendant

M. Arjun for the Plaintiff
Vijay Maharaj for the Defendant

Dates of Hearing: 30th October, 29th November 2000, 26th October 2001
Date of Ruling: 21st November 2001

RULING

The Plaintiff applies for an extension of time for removal of a Caveat which she lodged against land in which she claims an equitable interest being the property known as Lot 8 DP2365 in Certificate of Title No. 12518.

On the 23rd of February 2000 she received a Notice from the Registrar of Titles’ Office informing her that the Caveat would be removed on the 15th of March 2000, that being 21 days from the date of service of the Notice on her.

In a Statement of Claim annexed to a Writ which was issued on the 9th of March and in an affidavit sworn on the same day in support of a Summons for extension of time of the Caveat beyond the 21 days she states the following:

She is the administratrix of the estate of Ramesh Narayan (f/n Dip Narayan) deceased and her late husband.

The Defendant is the owner of the land described in the Certificate of Title and against which the Plaintiff lodged a Caveat.

Letters of Administration were issued to the Plaintiff by the High Court of Fiji on the 22nd of September 1999. The Plaintiff and her son Nirmesh Ravneel Narayan are the sole beneficiaries of the estate of Ramesh Narayan.

The Plaintiff alleges that when the Defendant first bought the land there was only one old wooden building on it.

The Defendant wanted to develop the land but had no means of her own to do so and requested her husband to develop the land on condition that the Defendant was to transfer it to her husband subject to the Defendant’s life interest. The Plaintiff alleges that at the request of the Defendant and upon her promise that the property would be transferred to her husband, the deceased extended the existing dwelling house, renovated the old building and spent over $40,000.00 of his own money improving the land.

The Plaintiff alleges that at all material times when her husband was expending his money on the land and the dwelling house the Defendant knew that he was doing this only on the understanding and the Defendant’s promise that she would transfer the property to him in accordance with their oral arrangements.

The Plaintiff alleges that the deceased had another building constructed on the land partly from his own funds but mainly through mortgage which became possible mainly because of the added value of the land.

The Plaintiff claims that after she married she and her husband lived together with the Defendant and her husband as one family unit in a common household and that her husband was the only member of the family earning regular income.

The Plaintiff claims that during the deceased’s life time the Defendant openly acknowledged the contribution of the deceased and that the property would be transferred to him subject only to the life interest of the Defendant’s husband and son.

After the death of the deceased the Plaintiff claims that the Defendant in breach of her agreement and undertaking forcefully removed the Plaintiff from the matrimonial home alleging that since her son was now dead the Plaintiff had no right to the property.

The Plaintiff seeks a declaration that the Defendant holds one half of the land and building on the land upon a constructive or resulting trust for the estate of Ramesh Narayan, deceased.

Alternatively the Plaintiff claims from the Defendant the sum of $40,000.00 for services rendered, material supplied and other benefits conferred on the Defendant by her husband improving the land at the Defendant’s request.

The Defendant denies the Plaintiff’s allegations. She says that she bought the property over 30 years ago when the Plaintiff’s deceased husband was attending primary school. She says that she gave authority to the Plaintiff’s husband to arrange for tenants, collect rentals and repay the mortgage debt to the Fiji Development Bank. She states that the Plaintiff’s husband furnished the house by furniture on credit and it was his responsibility to make regular payments to the furniture company out of the rental proceeds which he collected on the Defendant’s behalf.

She also claims that the deceased lived with the Defendant rent free as part of the extended family system and in return carried out his family obligations by arranging payment to contractors and labourers out of the loan proceeds. She denies giving any undertaking to the deceased who was her eldest son that the property would be eventually transferred to him.

It will be seen immediately from this brief summary of the Statement of Claim and Defence that there are numerous triable issues. As to the matter of extension to the Caveat the Defendant contends that the Plaintiff has no caveatable interest and that any continuation of the Caveat will cause serious financial damage.

The Defendant also claims in her submission that the Caveat lodged by the Plaintiff does not comply with Section 107 of the Land Transfer Act Cap. 131 which sets out the particulars to be stated in a Caveat. It requires inter alia that there shall be stated “with sufficient certainty, the nature of the estate or interest claimed and how such an estate or interest is derived”.

In this regard I must mention that the equitable claim in the Caveat is said to be by virtue of “Will of Bhan Kuar (f/n Ram Sundar) dated 3/7/96".

This is a reference to what the Plaintiff claims to be the last Will of Bhan Kuar made on the 3rd of July 1996 and which appears as an annexure to the submissions in reply by the Plaintiff filed on the 26th of October 2001. Clause 6 of this Will is in the following terms:

“I HEREBY GIVE DEVISE AND BEQUEATH all the rest residue and remainder of my real and personal properties of whatsoever kind or nature and wheresoever situate to which I shall be possessed of or over which I shall have any power to dispose at my death to and unto my said son RAMESH NARAYAN absolutely.”

Dealing with this last matter first I consider it very arguable that the Plaintiff cannot claim an equitable interest by virtue of a Will of her mother-in-law Bhan Kuar when Bhan Kuar is still alive and challenging any extension of the Caveat. This is because a Will is a revocable instrument and as such can be revoked by the Defendant testatrix at any time during her life time. On this however, the Plaintiff seeks to rely on clauses 4 and 5 of the Will. Clauses 4 and 5 are as follows:

“4. I HEREBY DIRECT my executor and trustee to allow my son VIGESH NARAYAN (son of Dip Narayan) to stay free of rent in the wooden building situate at 25 Nailuva Road, Suva and to pay all the outgoing expenses such as water and electricity charges consumed by him.

5. I HEREBY FURTHER DIRECT my executor and trustee to allow my husband DIP NARAYAN (father’s name Jag Lal) to remain at the family property at 25 Nailuva Road, Suva during my said husband’s lifetime and my trustee paying all rates, taxes and other outgoings thereon and keeping the same insured and in good and habitable state of repair (if applicable).”

The Plaintiff contends that these clauses are evidence that at the date of the Will the Defendant intended to give the deceased an absolute interest subject to constructive trusts and that there thus arises a strongly arguable case that the land is held by the Plaintiff on a constructive trust from the Defendant and that this also shows the Plaintiff has a caveatable interest. I agree.

However in my view that does not end the matter for the Plaintiff because I consider that on the evidence it is arguable that the Plaintiff has a caveatable interest by virtue of a constructive trust. The headnote to Hussey v. Palmer [1972] EWCA Civ 1; (1972) 1 WLR 1286 reads as follows:

“The plaintiff, an elderly widow, was invited to live with her daughter and son-in-law, the defendant, in the house where they lived with their family. A bedroom was built on as an extension for the plaintiff. The plaintiff paid £607 for the cost of the extension herself. After living there for 15 months, differences arose and the plaintiff left. She claimed in the county court against the defendant, who was the owner of the house, for the £607 as money lent. The case was heard by consent by the registrar who intimated that it was not a loan but a family arrangement. The plaintiff elected to be non-suited and issued a fresh plaint claiming the £607 on a resulting trust.

In the second action the plaintiff gave evidence that she had “lent the money” to the defendant and said in cross-examination: “They would give me a home for life, if I wanted it.” The judge held that there was no case for a resulting trust and gave judgment for the defendant.

On appeal by the plaintiff:

Held, allowing the appeal (Cairns L.J. dissenting), that since the payment by the plaintiff for the extension to the house was not intended as a gift and there were no arrangements for its repayment it was against conscience for the defendant to retain the benefit of it without repayment and he held the property on a resulting or (per Lord Denning M.R.) constructive trust for the plaintiff proportionate to her payment (post, pp. 1289H-1290A, D, G, H, 1291D, E, G).”

At pp1289-1290 Lord Denning M.R. considered whether the Plaintiff was entitled to the return of the £607 either by resulting or constructive trust. He thought it was more in the nature of a constructive trust but then went on:

“But this is more a matter of words than anything else. The two run together. By whatever name it is described, it is a trust imposed by law whenever justice and good conscience require it. It is a liberal process, founded upon large principles of equity, to be applied in cases where the legal owner cannot conscientiously keep the property for himself alone, but ought to allow another to have the property or the benefit of it or a share in it.”

In Jenke v. Chaplin, Unreported, Supreme Court of Western Australia No. 2034 of 1994, 27.10.94 the defendant expended money on the construction of a granny flat at the request of and with the permission of the owner of the land, under the expectation
of an entitlement to an exclusive right of occupation of the granny flat during his lifetime. White J. held that a licence coupled with equity was sufficient to found a
caveatable interest in these circumstances.

Thus in my judgment there are serious issues of law and fact to be tried in this case and that it would be wrong at this juncture to deny the Plaintiff the right to have those issues tried. Accordingly I grant the order sought in the Plaintiff’s Summons of the 9th of March 2000 and extend the Caveat until the final determination of this case. Costs will be in the cause.

JOHN E. BYRNE
JUDGE