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Ram v Toganiyasawa [2011] FJHC 698; HBC205.2011S (3 November 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 205 of 2011S

IN THE MATTER of the Land Transfer Act 1971, Section 109

AND

IN THE MATTER of an application to remove Caveat No. 745302A lodged by Inise Toganiyasawa against Certificate of Title No. 12530, the property of Pushpa Wati Ram (f/n Ami Chandra)

BETWEEN:

PUSHPA WATI RAM (f/n Ami Chandra) of 21/19 Queen Street, Sandy Bay, Hobart. Tasmania, Australia, Domestic Duties.
PLAINTIFF

AND:

INISE TOGANIYASAWA who describes herself as being of 80 Nailuva Road, Suva, Caregiver but whose actual address is not known to the Plaintiff.
FIRST DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSEL: Mr. S. Parshotam for the Plaintiff
Mr. V.Vosarogo for the Defendant

Date of Hearing: 17th October, 2011
Date of Ruling: 2nd November, 2011

RULING

1. INTRODUCTION

1. This is an application by the Plaintiff dated 19 July 2011 for the removal of a caveat that has been lodged by the Defendant against the title to the Plaintiff's land comprised in Certificate of Title No. 12530 located at 80 Nailuva Road, Suva. The Defendant has described its claim as 'caregiver claiming vested and equitable interest in the property by virtue of a Letter of Intent dated 11th September, 2009 and in consideration of all or developments/improvements on the same whilst medically looking after the previous registered proprietor in the land described....' So it is clear that the Defendant is not claiming directly against the present owner, but relying on a letter dated 11th September, 2009 allegedly signed by Hari Ram who was one of the two joint tenants of the property in issue. It is clear that said letter cannot confer any right to the Defendant as upon the death of the one joint tenant, the right to the property that deceased tenant had prior to death, cannot be transmitted to the Defendant, who was not a joint tenant. The other reason for lodgment of the caveat was regarding caregiving of late Hari Ram and working beyond office hours without an additional payment, but clearly that would if proved amounts to a claim for money against the estate of the late Hari Ram and cannot be elevated to a covetable interest in the said land.
   

2. FACTS

2. The property in issue was owned by late Hari Ram. He purchased it on 21st February, 1968 and it remained under sole proprietorship of said Hari Ram till1993.
   
3. On 13.8.1993, the said property was transferred to the Plaintiff and said late Hari Ram as joint tenants. Said Hari Ram died on 27th July, 2010.
   
4. Upon Mr. Ram's passing away, a "Record of Death" was registered by the Plaintiff against the title to the said property whereby the Plaintiff became the sole proprietor of the property.
   
5. The Plaintiff is also the Executrix and Trustee of the Estate of Mr. Ram under Probate issued by the High Court of Fiji on 9 February 2011 and the Defendant did not object to the said probate being granted to the Plaintiff.
   
6. During the currency of the ownership of the said property by the Plaintiff, the Defendant has lodged a Caveat against the title to the said property on 13.05.2011. In Caveat, the Defendant claims the following interest in the said property
   

"... being vested an equitable interest in the property by virtue of a Letter of Intent dated 11 September 2009 and in consideration of all our (sic) development/ improvements on the same whilst medically looking after the previous registered proprietor ...".

7. The Defendant attempts to establish and maintain her Caveat in contentions she makes in Paragraph 5 of her Affidavit:
   

"5. ... I will clarify and state as follows as the basis of the caveat lodged ...

I had taken care of the late Mr. Hari Ram, looking after his health, organizing his company and business operations and his overall welfare on a daily basis from 6am in the morning to very late at nights, say 10.30pm and this went for years without overtime pay or consideration; and

I was only paid my normal working hours by the late Mr. Hari Ram, whom I had looked after whilst the Plaintiff was living in overseas; and

The late Mr. Hari Ram had intimated to me that because of my continuous attendance to his personal welfare and his business operations, he would ensure that I would have a share in the property and monies from his estate."

100. LAW AND ANALYSIS
     

8. It is to be noted that the said letter dated 11th September, 2009 allegedly signed by late Hari Ram had only one witness and that is also the Defendant and there is no independent witness to the said document to find out the authenticity of the document. At the same time late Hari Ram could not have dealt with the property as described in the said letter, as he was only a joint tenant from 1993.He on his own accord has changed his position from being a sole proprietor to a joint tenant with the Plaintiff. So, no legal rights can be conferred from that letter even if its authentication is proved, as he cannot grant the proprietorship, as indicated in the said letter, of the said property to another person without the change of the joint tenancy to tenancy in common.
   
9. The said joint tenancy could have been transferred to a person while he was living, but that has to be transferred and registered prior to the death of late Hari Ram, which was not done. In any event, the Defendant has to prove the genuineness of the said letter and the signature of the alleged author of the letter, namely late Hari Ram even if one were to ascribe any legally enforceable right before a court of law, save any caveatable interest on that letter.
   
10. This application is made under Section 109 (2) of the Land Transfer Act upon the grounds:
    
    1. That the Plaintiff is registered as proprietor of the land.
       
    2. That the Defendant has not disclosed any caveatable interest against the land under her Caveat.
       
11. A caveat is a document which, when lodged, with the Registrar of Titles, gives the caveator the opportunity of protecting an existing right or of establishing and existing claim and it can be defined as a 'form of statutory injunction.', where the provisions contained in the Land Transfer Act enables the lodgment of caveat in fulfillment of the requirements therein. .A caveat is a creature of statute and may be lodged only by a person upon whom a right to lodge has been conferred by statute: Guardian Trust and Executors Co of New Zealand Ltd v. Hall [1938] NZLR 1020.
    
12. Section 106 of the Land Transfer Act, which is contained under heading 'caveats' in Part xvii, states as follows
    

PART XVII-CAVEATS

Caveat may be lodged

106. Any person-

(a) claiming to be entitled or to be beneficially interested in any land subject to the provisions of this Act, or any estate or interest therein, by virtue of any unregistered agreement or other instrument or transmission, or of any trust expressed or implied, or otherwise howsoever; or

(b) transferring any land subject to the provisions of this Act, or any estate or interest therein, to any other person to be held in trust,

may at any time lodge with the Registrar a caveat in the prescribed form, forbidding the registration of any person as transferee or proprietor of, and of any instrument affecting, such estate or interest either absolutely or unless such instrument be expressed to be subject to the claim of the caveator as may be required in such caveat. (emphasis is added)

13. In Cambridge Credit (Fiji) Ltd V W. F.G. Limited Vol 21 FLR 182 the Fiji Court of Appeal cited Miller v. Minister of Mines [1963] AC 484 and also reported in 1963 1 All ER 109 where it held
    

"The caveat procedure is an interim procedure designed to freeze the position until an opportunity has been given to a person claiming right under an unregistered instrument to regularize the position by registering the instrument."

14. In the Fiji case of Narain Sammi Naidu v. Pushpa Wati (Lautoka High Court Action No. 1 of 2009; Decision of 21 April 2010), Master Tuilevuka stated:
    

"[36. In a application to remove a caveat, the appropriate factors to be considered were canvassed by the Fiji Court of Appeal in Bahadur Ali v. Fiji Development Bank (Court of Appeal Civil Appeal No. 57 of 2004; Decision of 18 March 2005) as follows:

1. Whether there is a serious issue to be tried.
   
2. Where the balance of convenience lies
   

100. The overall justice of the case (adopting the approach in Klisser v. Harvest Bakeries [1985] 2 NZLR 142)."
     

15. The Section 34 of the Land Transfer Act provides:
    

"34(1) Subject to the provisions of any law for the time being in force relating to trusts and to the provisions of Part XY, 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 his 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 others and the share of such deceased proprietor shall pass to his personal representative.

(2) where two or more person are entitled as tenants in common to any estate or interest in land subject to the provisions of this Act, they shall unless the contrary intention is expressed in the instrument of title, be deemed to hold the same in undivided equal share.'

16. If ownership of land is registered in the names of two or more persons, then unless a contrary intention is expressed on the title, each owner is deemed to own his or her interest in the land as tenant in common with the other owners in equal share with no right of survivorship. Right of survivorship in this context means that upon the death of one owner, his or her interest vests in the other remaining owner or owners.
    
17. A joint tenancy arises whenever land is transferred to two or more persons with the addition of the words "as Joint Tenants" as in the case before me where the memorial dated 13th August, 1993 state clearly and unequivocally the words "joint tenancy" so the law relating to the joint tenancy should be the paramount consideration in determination of the rights of each joint tenants.
    
18. The right of survivorship is the most important feature of a joint tenancy. On the death of one joint tenant, his or her interest is extinguished and accrues to the surviving joint tenants by virtue of the right of survivorship. In Wright v Gibbons [1949] HCA 3; (1949) 78 CLR 313 at 323, Latham CJ puts it as follows:
    

"The interest 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 interests 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."

19. The death of a joint tenant does not sever the joint tenancy. Therefore, a joint tenant cannot alienate his or her interest in the land by will, and an interest under a joint tenancy cannot pass to the successors or on intestacy if any joint tenant dies intestate. The survivor is not regarded as succeeding to the deceased joint tenant's interest, as the survivor acquired that interest at the time of transfer. The effect of the death is simply to free the property from control of one of its owners. Al long as co-owners remain joint tenants this right to survivorship cannot be defeated.
    
20. Although the right of survivorship precludes any joint tenant from disposing of his or her interest by will, any joint tenant has the power in is or her lifetime to determine the joint tenancy by severance.
    
21. There are five possible methods of severance:
    
    1. By a joint tenant operating unilaterally upon his or her own share.
       
    2. By mutual agreement.
       
    100. By a 'course of dealing'.
         
    4. Under the Family Law Act.
       
    5. Severance in equity.
       
22. For severance to be complete, there must be registration of the appropriate instruments so that there is severance at law. There can be severance in equity but this depends on the usual rules for the completion of a transaction in equity.
    
23. In this case though the Defendant is alleging certain rights being conferred to her on the alleged letter which was dated on 11th September,2009 nothing was registered till the death of the joint tenant, namely late Hari Ram's death was recorded on the memorial of the property 16.09.2010. So, for nearly one year the Defendant did not take any action to establish her rights as alleged in the letter dated 11th September, 2009.
    
24. It is admitted that Defendant was an employee of late Hari Ram and her main claim upon the said letter dated 11th September, 2009 cannot be substantiated in law to a caveatable right as the property had already vested with the Plaintiff upon the death of the only other joint tenant, and in any event there were no absolute rights as indicated in the letter to late Hari Ram as a joint tenant on the date of the said letter.
    
25. So the Defendant is left only with her claim for her 'services' she voluntarily did beyond the office hours and if proved would be a claim for payment of overtime payment, which she has not claimed from late Hari Ram while he was living or from his estate after death . This alleged claim for money cannot clearly be a ground for the lodgment of a caveat on the property.
    

4. CONCLUSION
   

26. The Defendant has neither obtained any caveatable interest from the alleged letter dated 11th September, 2011 nor has shown any other caveatable interest equitable or otherwise from the alleged services rendered beyond normal hours of work as an employee of late Hari Ram. In the circumstances the caveat should be removed forthwith and considering the circumstance of this case I will not grant cost.
    

5. FINAL ORDERS
   

27. The Caveat No 745302 'A', lodged on 13.05.2011 on the property described in Certificate of Title No. 12530 located at 80 Nailuva Road, Suva, by Edwin Julian Waiqolo as the agent of the Defendant is removed forthwith.
    
28. No cost.
    

Dated at Suva this 02nd day of November, 2011.

Mr. Deepthi Amaratunga
Master of the High Court
Suva