IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action HBC 34 of 2014

IN THE MATTER of the Land Transfer Act, and IN THE MATTER of an application by MISHRI PRASAD JAS for declarations that late RAM BARAN and late RAM JAS had held the CT 21230 as Tenants in common and not as Joint Tenants

BETWEEN:

MISHRI PRASAD JAS 
as Executor and Trustee of the estate of Ram Jas late of Savusavu.
PLAINTIFF

AND :

SANT RAM AND SHIU RAM 
as Executors and Trustees of the estate of Ram Baram late of Savusavu
DEFENDANT

Before : Master Robinson
Appearances : Mr. Sadiq of M. Sadiq Esq. Solicitor Labasa for the Applicant/Plaintiff.
Mr. S Prasad for the Respondent/Defendant for Mitchell Keil Lawyers.

RULING

Introduction

1.	This is an application by originating motion seeking the following orders:-

(1)	A declaration that late Ram Baran and late Ram Jas had held the freehold land comprised in the CT 21230 as tenants in common and not as joint tenants.

(2)	A declaration that the Plaintiff is entitled to one – half undivided share in the said CT 21230.

(3)	An Order against both defendants to hand over the Title of the said CT 21230 to the Plaintiff within 7 days from the date hereof to enable him to register the transmission by death and the transfer of one – half undivided share in the CT 21230.

(4)	In the Alternative an order against both Defendants to execute the necessary documents, sub-divisional plan, Transfer or any other documents required for obtaining of the Titles over various Lots which he is sub-dividing.

(5)	And that the costs of and incidental to this application be paid by both defendants. 

2.	The application was supported by an affidavit sworn by the applicant which states:-

(1)	That he is the Executor and Trustee of the Estate of his late father the late Mr. Ram Jas, who died on the 2nd day of August, 2000.

(2)	That both defendants are the Executors and Trustees of the Estate of their late father Ram Baran, who died on the 25th day of December, 2010.

(3)	That the said late Ram Bran and the said late Ram Jas purchased the CT 21230 from south Sea Lands Limited for a price or sum of $11250.00 and both contributed equally to the purchase of the said property. 

(4)	That the intentions of the purchasers were that both would hold one half undivided shares of the said CT 21230 as tenants in common and not as joint tenants.

(5)	That later on the 26th day of August 1997, both late Ram Baran and late Ram Jas entered into an agreement wherein they agreed that one half of CT 21230 belongs to late Ram Baran and the other one – half belongs to late Ram Jas and a copy of that agreement is annexed hereto and marked "D".

(6)	That in terms of the said agreement of 26th day of August 1997, the parties then had the said CT 21230 sub-divided into two equal lots and agreed that Lot 1 shall belong to late Ram Baran and Lot 2 shall belong to late Ram Jas and a copy of that proposed sub-division is annexed hereto and marked "E".

(7)	That to the best of my knowledge, information and belief sometimes at the end of 2010 or early in 2011 the Title of the CT 21230 was handed to Sant Ram and since then he has kept it.

(8)	That to the best of my knowledge, information and belief the Defendants are getting their share of the land in the CT 21230 sub-divided into several lots.

(9)	That I have also engaged a surveyor to sub-divide the said Lot 2 of the CT 21230 into several Lots.

(10)	That upon the completion of the said sub-division of Titles of all those various lots have to be obtained.

3.	The respondents/defendants oppose the application and filed an affidavit in opposition sworn by Sant Ram on the 21 July 2014 in which he states so far as is relevant the following:-

(1)	That I am the First named Defendant in this action. Both my brother and I are duly appointed Executors and Trustees of the Estate of our father Ram Baran. 

(2)	That I depose this affidavit on the basis that the events deposed herein are within my own knowledge and from information gained from perusal of documents relating to this matter and from the advice of our solicitors.

(3)	That the advice received from our solicitors is that this action is wrongly constituted.

(4)	I have reviewed the Affidavit of Mishri Prasad Jas, the Plaintiff, sworn on 28 June 2014 ("Plaintiffs' Affidavit") with our solicitors.

(5)	I agree with paragraphs 1 and 2 of the Plaintiff's Affidavit.

(6)	I agree with paragraph 3 of the Plaintiff's affidavit and further say that Transfer No. 244215 registered on 10 November 1986 and marked as Annexure C in the Plaintiff's Affidavit specifies that the conveyance of the property comprised in Certificate of title No. 21230 ("CT 21230") was as "Joint Tenants". Annexed hereto and marked with the letter "A" is a copy of CT 21230 with the endorsement of the said Transfer overleaf as "Joint Tenants".

(7)	In answer to paragraph 4 of the Plaintiff's Affidavit, I repeat paragraph 6 hereinabove and say that the intention of the parties, as can be deduced from the annexures, is patently obvious.

(8)	In answer to paragraphs 5 and 6 of the Plaintiff's Affidavit, I say that Annexure "d" which is copy of a document titled "Provisional Boundary Agreement for Subdivision of CT 21230" dated 26 August 1997 has to be read in conjunction with and subject to the Transfer and CT 21230 mentioned in paragraph 6 hereinabove.

(9)	In answer to paragraph 7 to the Plaintiff's Affidavit I say as follows:-

(a)	I held a power of attorney of my father Ram Baran hence CT 21230 was handed to me by the Chief Registrar of the High Court after a formal complaint was lodged against Mr. M Sadiq, the Plaintiff's counsel.

(b)	By way of background, Mr. Sadiq had initially denied that he had CT21230 after numerous requests were made to his office.

(c)	Upon failure to obtain original CT 21230, an application was made for provisional CT 21230 which is when we discovered that the original CT 21230 was lodged by Mr. Sadiq at the Registrar of Titles Office to register a Transmission by Death of late Ram Jas on the instructions of the Plaintiff. Annexure "A" herein confirms an attempt to register Transmission by Death on 7 may 2009 by the Plaintiff. 

(d).	A mediation was held in respect of my complaint against Mr. Sadiq in Labasa High Court by the Chief Registrar who advised Mr. Sadiq and the Plaintiff that CT 21230 in law belongs to my father Ram Baran.

(e).	Since then I held onto CT 21230.

(10)	In answer to paragraph 8 of the Plaintiff's Affidavit I say as follows:

(a)	Ram Jas died on 2 August 2000 and my father died on 29 June 2011.

(b)	I have obtained legal advice that for property ownership as joint tenants the right of survivorship is applicable.

(c)	As can be seen from Annexure "A", we filed a Record of Death No. 789183registered on 13 November 2013 against CT 21230 to record Mr. Jas' death. Therefore effective 2 August 2000 my late father was the sole registered proprietor of CT 21230.

(d)	As Executors and Trustees of our late father's Estate, and as can be noted from Annexure "A", we filed a Transmission of Death which was registered on 13 November 2013.

(e)	In our capacity as registered proprietors of CT 21230 we have taken steps to subdivide CT 21230 and deal with the same as we have seen fit.

(11)	I am not aware of the matters deposed in paragraphs 9 and 10 of the Plaintiff's Affidavit suffice to say that the Plaintiff and/or his agent would be trespassing on CT 21230, which in law belongs to us.

(12)	I am advised by our solicitors that the Plaintiff's action is wrongly constituted in form and/or misconceived in terms of facts and must be dismissed with costs awarded to us on indemnity basis.

4.	A reply to the affidavit in opposition was filed by the applicant but I need not provide the details as it is clear from the affidavits so far that the issue to be determined is a legal issue. The question to be determined is in respect of the severance of the joint tenancy.

Background

5.	From the affidavits the following facts are clear, the first is that CT 21230 washeld by both the late Ram Baran and Ram Jas as joint tenants. That Ram Jasdied on the 2 August 2000 andRam Baran on the 25 December 2010. That onthe death of Ram Jas his son Mishri Prasad was appointed the administrator ofhis estate. The defendants became the executor and trustee of their father RamBaran's estate. It appears from the affidavits that both Ram Jas and Ram Baran had plans to sub-divide the land as far back as 1997 and the sub-division had proceeded as could be gathered from the plaintiff's affidavit.

6.	It is also true that during their attempt to sub-divide the land, the land was still held by them as joint tenants. It is also true that no attempt to sever the joint tenancy was lodged for registration during this period. This application is therefore designed to achieve this end. The question this Court is required to answer is, is it possible to sever a joint tenancy after the death of one of the parties in the manner proposed by the plaintiff?

The Submissions

7.	Both parties provided useful submissions which is taken into account in this ruling. The plaintiff's position is that prior to the death of Ram Jas (the plaintiff's father) an agreement was reached between the parties to divide the land between themselves equally. The late Ram Jas who had Lot 2 then sub-divided his portion, he died before it was completed. The plaintiff relied on the agreement and the subsequent attempt to sub-divide as giving rise to a right to sever the joint tenancy. In this regard it relies on the classic statement in respectof severance of joint tenancy set out in Williams -v- Hensman (1861) 1J &H 546 and on paragraph 1244 in Volume 35 of the 4th Edition of the Halsbury's Laws of England. In Williams and Hensmanit was suggested that there are three ways in which joint tenancy can be severed and these are:-

(1)	By an act of one of the parties operating upon his own share may create a severance as to that share;

(2)	By mutual agreement; and

(3)	There may be severance by any course or dealing sufficient to intimate that the interests of all were mutually treated as consisting a tenancy in common.

8.	The Halsbury's Law of England states that if joint tenants enter into a mutual agreement to hold as tenants in common, there is severance even though it takes effect only in equity. Subsequent conduct of all joint tenants may effect severance. 

9.	The plaintiff's counsel further relies on the decision in Burgess -v- Rownsley (1975) 3 ALL ER 142 CA which confirmed the severance of joint tenancy in the manner stated in Williams and Hensman. 

10.	The defendants counsel on the other hand objects to the application on various grounds. The first ground is that the application is wrongly instituted in that it is made under the provisions of the Land Transfer Act without setting out the provisions of the act relied upon. Further that there is no reference as to which order of the High Court Rules the application is made. Lastly the application does not comply with the High Court Rules in that there is nothing in the rules which permit the filing of an originating motion for an action under the LandTransfer Act. In other words the plaintiff has used the wrong procedure in its application.

11.	The second objection by counsel for the defendants is based on the principle that on the death of one of the parties whose proprietorship of land is held asjoint tenancy the surviving party owns the property absolutely. In this regard it relies on the decision of Justice Kotigalage in CamariTirikula -v- PeniTirikula(2012 FJHC 1034. The defendant's counsel further relies on the provision of section 34 of the Land Transfer act. 

Analysis

12.	In the present case the Court will treat the non-compliance as an irregularity and will not strike the matter out as submitted or impose conditions to regularize it under Order 2. What the Court would do is treat the application as being initiated by origination motion only without considering the portion of the motion which brings the matter as one under the Land Transfer Act. In so doing it will be able to deal only with the important legal question about the severance of the joint tenancy. This would in the Court's view be sufficient to dispose of the matter and answer the legal question posed. This being a chamber matter heard on affidavit evidence.

Severance of Joint Tenancy

13.	Before we answer the question of whether it is possible to sever the joint tenancy in the manner proposed by the applicant it is prudent in my view to determine the nature of a joint tenancy first. 

14.	Firstly ownership or proprietorship of land in Fiji in the absence of any contrary intention is held as tenancy in common, to preserve survivorship of the right to the land in the event of death of one party; (section 34(a) of the LandTransfer Act). Hence the key aspect of this kind of tenancy is the right of survivorship, sub-section (b) ensures that this right is held in equal shares.

15.	Joint tenancy on the other hand is characterized by what is termed "the four unities", unity of title, unity of time, unity of possession and lastly unity of interest. Unity of title means that co-ownership must be created by the same deed or instrument whilst unity of time depicts the simultaneous vesting of interest on the land. In a similar way the unity of possession means that each tenant has equal right to possession (similar to tenants in common) and lastly unity of interest means that each party must have the same type of interest, that is, one party cannot have a life interest whilst the other an estate in fee simple. (see Introduction to Land Law by Peter Butt 1980 Edition at page 169-170)

16.	The two basic differences which distinguishes joint tenancy from tenancy incommon is that firstly, there is no distribution of seisin under joint tenancy and secondly neither is there a right of survivorship. It is the second feature which is the most striking feature of joint tenancy, that is, the right of survivorship or "ius accrescendi".

17.	What this means is that if one of the joint tenant dies the whole of the land held remains in the hands of the surviving joint tenant and is wholly seized (or possessed) by the surviving tenant. Hence "ius accrescendi" may appear to give an unfair advantage to the accident of a longer life which could can only be defeated by disposition by one of the parties. In Fiji as in most common law jurisdictions for this disposition to be lawful it must be by a registered instrument. 

18.	Registration is the key to legal disposition of this right to the property held as joint tenant. To successfully dispose of this right it must be done by an instrument registered with the register of titles. Section 37 of the Land Transfer Act Cap. 131 states that:-

No instrument until registered in accordance with the provisions of this Act shall be effectual to create, vary, extinguish or pass any estate or interest or encumbrance in, on or over any land subject to the provisions of this Act, but upon registration the estate or interest or encumbrance shall be created, varied, extinguished or passed in the manner and subject to the covenants and conditions expressed or implied in the instrument.

19.	In New South Wales an application to dispose of this right was made in McCoy –v- Estate of Peter Anthony Caelli (2008) NSW SC 986. In the above case the issue which came before the Court was "whether Mrs. McCoy has a seriously arguable case for a final injunction retraining registration of the transfer (of deposition) upon the basis that, the deceased having died before it was lodged let alone registered, her claim to be entitled by survivorship has priority". The facts of the case was that both parties were registered as proprietors as joint tenants of a residential property at Port Macquarie in the State of New South Wales. Prior to his death Peter Anthony Caelli executed a will and signed a form of transfer unilaterally severing the joint tenancy in respect of the land. 

20.	He died three days before the transfer to unilaterally sever the joint tenancy was registered. The Court held that the joint tenancy remained on foot up to the moment of the deceased's death and therefore Mrs. McCoy is entitled to become registered by survivorship pursuant to s101 of the New South Wales Real Property Act. Section 101 recognizes that a surviving joint tenant becomes entitled to an estate or interest in land upon death of the other joint tenant and that entitlement is a precondition to registration. 

21.	What these provision does is recognize the principles of survivorship in joint tenancy. The New South Wales Real Property Act provides the mechanisms by which disposition of rights under joint tenancy can be attained. For instance when an application for disposition is made by only one of the parties (unilateral application) the Registrar is then required to inform the other party of this intention and failing objection the application is granted and registered, the joint tenancy is then severed. 

22.	However it still remains that a transfer or an application to sever the jointure remains inoperative until registration. Our Land Transfer Act does not provide for any mechanism to enable severance except the recognition of it by the fact of registration.

23.	It appears that what is paramount in that jurisdiction before any severance by a unilateral application is granted is the need to obtain the consent or the concurrence of both parties. Only then will severance of the jointure be allowed. This is perhaps so because of the principle behind joint tenancy described by Peter Butt as the four "unities" and that is simply that both parties who hold proprietorship in land as joint tenants are joined in the rights which follow or flow from the jointure. 

24.	Therefore any application to sever the relationship must be by mutual agreement or concurrence. And further this concurrence or mutual agreement must be real and the intention must be shown in any document which appears to confer this severance of the jointure.

25.	The plaintiff in this matter relies on the English case of Williams -v- Hensman (1861) EngR 701 in which it was decided that there are three ways in which a joint tenancy can be severed. They are:-

(1)	By a unilateral application;

(2)	By mutual agreement; and 

(3)	There may be severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. 

26.	It is clear that in this instance the application is based on the third manner of severing the jointure that is the applicant wishes that the severance be intimated by the behavior of the parties as shown by their agreement to sub-divide.

27.	The same case of Williams -v- Hensman was also used in argument by the counsel for the estate in the McCoy case. Here the plaintiff's counsel relies on the agreement entered into between the parties on the 26 August 1997 as sufficient in equity to sever the jointure. Cases in which such a proposal were being considered conclude that there must be an actual alienation, in equity if not at law, as distinct from a mere intention or proposal to alienate, before a severance occurs; (Patriche-v-Powlett (1740) EngR 185; Freed -v- Taffel (1984) 2NSwLR 322). The position as stated by His Lordship Helsham CJ in Eq. in Freed -v- Taffel is:

"The simple position is that either at law or in equity there must be an effective alienation of his interest by one joint tenant before the unity of title is affected and the jointure severed".

28.	Therefore in the absence of a legal alienation there must be an effective alienation of the interest and if it is by agreement then the agreement must be capable of being enforced. So the question then is does the agreement entered into between the parties on the 26 August 1997 be considered an effective or actual alienation sufficient to enable the severance of the jointure. 

The Agreement

29.	The agreement relied upon is titled "Provisional Boundary Agreement for Sub-Division of CT 21230". This agreement is reproduced in full below:-

"PROVISIONSL BOUNDARY AGREEMENT FOR SUBDIVISION OF CT 21230"

This agreement is binding upon both parties and/or beneficiaries.

The parties being; RAM BARAN (f/n Ram Lal) Labourer and RAM JAS (f/n 
Anganu), Labourer, both of Nacekoro, Savusavu and Joint Tenants of CT 21230,Lot 2, DP 5321 and known as Nacekoro (part of) and that the sub-division be according to the following terms and condition:-

(1)	That both parties agree to the sub-division.

(2)	That the sub-division be in accordance with the attached drawing and marked on the ground by Messrs. Inoke Consultants, Surveyors.

(3)	That Lot 1 on the attached drawing with an area of 1.0119 ha shall be the property of Ram Baran (f/n Ram Lal).

(4)	That Lot 2 on the attached drawing with an area of 1.0117 ha shall
be the property of Ram Jas (f/n Anganu)

(5)	Any party that seeks to obtain registered title over his share shall pay for relevant expenses to obtain such.

(6)	All improvements on the land shall belong to the relevant Lot owners as per sub-division drawing attached. 

Dated this 26 day of August 1997.

30.	It appears clear from the title that this agreement is an agreement to sub-divide CT 21230. The word "provisional" means temporary or conditional. It is in my view conditional until the subdivision is completed. They are bound by the sub-division, they agree to the subdivision. They agree to have separate lots.

31.	But most importantly there is no clear intention to separate the lots into different titles. Paragraph 5 merely states that "any party that seeks to obtain registered title over his share shall pay for the expenses to obtain such". This paragraph in my view is not clear enough to show that there was mutual intention to create or sever the joint tenancy. It is left for each party to determine which option to take perhaps at a later date. 

32.	If either of the parties do not obtain a separate title the other party cannot compel him to sever the jointure. In other words neither of the parties can enforce this agreement. This is so because there are no enforcement provisions in the agreement and that the agreement is temporary only. One could only conclude that the there was no clear intention to sever the jointure. This is not an effective alienation of their rights under the joint tenancy, the intention must be clear, the only thing that is clear is that they both agree to sub-divide their respective portion. The aspect of survivorship remains and was not addressed in the agreement. 

33.	Further the parties had not, since the sub-division, made any effort to sever the joint tenancy, there was no application by either of them to sever it. If their intention was to sever the joint tenancy an application to sever the relationship could have been made. 

34.	They both had sufficient time but did not, whether their failure was due to their not being properly advised is uncertain but this lack of advice cannot be cured by this application. The only conclusion which could be drawn is that a surviving joint tenant becomes entitled to an estate or interest in land upon the death of the other joint tenant and that entitlement is a precondition to registration. This was also the conclusion reached by his Lordship Justice Kotigalagein Tirikula -v- Tirikula. 

35.	The difference in the Tirikula matter and in the McCoy matter in New South Wales is that in both these matters the application to sever the joint tenancy was on foot before the decisions in favor of the legal principle was upheld.

Conclusion

36.	For the above reasons the application to sever the joint tenancy is dismissed. I would assess costs in favour of the defendant which is summarily assesed in the sum of $500:00.

H Robinson
Master, High Court
LABASA

11 March 2015