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Rekha v Chandra [2005] FJHC 250; HBC0417.2005 (25 August 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0417 OF 2005

BETWEEN:

CHAND REKHA
PLAINTIFF

AND:

SALESH CHANDRA
DEFENDANT

Ms B. Devi for Plaintiff
Ms P. Maharaj for Defendant

Date of Hearing: 25th August 2005
Date of Ruling: 25th August 2005

RULING

Caveats are lodged under Section 106 of the Land Transfer Act. Under Section 106 the caveator must satisfy two requirements.

(a) that he is a person claiming to be entitled or to be beneficially interested I any land, estate or interest under the Act; and

(b) he/she is claiming by virtue of an unregistered agreement or other instrument or transmission or any trust expressed or implied or otherwise howsoever - see Cambridge Credit Fiji Ltd. v. W.F.G. Limited – 21 FLR 182.

At this stage it is inappropriate for the court to determine the rights of the parties in a summary manner especially where there are conflicting affidavits and where the question of a caveatable interest is distinctly arguable – Narain v. Malley – 34 FLR 118.

However if it is possible for court to conclude that a caveator could not possibly succeed, then of course it refuses to extend the caveat.

In the present case, the caveator is claiming to have contributed financially to development of matrimonial property, purchased during currency of the marriage. These allegations can only be resolved by oral evidence and cross examination.

Accordingly, caveat No. 565219 is extended until matrimonial case No. 1 of 2005 in Nasinu Magistrate’s Court is finalised or until further order of this court.

[ Jiten Singh ]
JUDGE

At Suva
25th August 2005