In the High Court of Fiji at Suva
Civil Jurisdiction

Civil Action No. 57 of 2012

Between:

Vineeta Devi
Plaintiff

And:

Chandar Kanta
First defendant

And:

Navin Chand
Second defendant

 Appearances: Mr Feizal Haniff for the plaintiff
 Mr Ritesh Naidu for the first defendant
 Date of hearing:4th and 5th September, 2014 

Judgment

1.	The plaintiff, the registered proprietor of CT No. 39224, Lot 2 on DP 9943(“the land”) at Naitata, Navua, brings this action against Chandar Kanta, the first defendant for vacant possession of that land. The land was transferred to the plaintiff, in terms of the will of her father, Vir Chand. Navin Chand was the executor of the will. He was joined as a party, on the application of the first defendant. 

2.	The first defendant in her amended statement of defence and counterclaim states that Vir Chand invited and gave express authority to her late husband, Shiu Shankar and herself to build a permanent house and promised he will sell the land to them. The first defendant claims that the plaintiff is estopped from:(a) denying that the first defendant has the right to remain permanently on the land by the assurances and promise given by Vir Chand, and (b) evicting her. The first defendant further claims that the transfer to the plaintiff is fraudulent and counterclaims for the following reliefs: 

(a)	A declaration that: the plaintiff is holding the land in trust for the first defendant; the first defendant is entitled to permanently occupy the land; to purchase the land from the first defendant; to an equitable charge or lien over the land; and, is the “owner infee simple in possession of the land”.

(b)	An order that the plaintiff be ordered to sell the land to the first defendant and the notices to vacate issued by the plaintiff are invalid and unenforceable.

(c)	An injunction restraining the plaintiff from selling, transferring, assigning or disposing of the land and from interfering with the first defendant and her families quite enjoyment and occupation of the land.

(d)	Damages and all necessary and consequential directions for the transfer of the land to the first defendant.

3.	The plaintiff in her reply to defence and counter claim states as follows:

(a)	The will of Vir Chand, expressly provided that the land was to be subdivided and given to the plaintiff.

(b)	The land has been subdivided twice before and no objection was raised from any of Shiu Shankar’s family members. Mr Shiu Shankar and his family had not made attempts to buy the said land for the past 50 years or more.

(c)	The house built on the land is not a permanent structure, as it does not have an approved building plan.

(d)	The defendant was in occupation of the land as a tenant only and was required to pay rent until the plaintiff required the land for own use and occupation. Vir Chand received rent from his tenants, as indicated in the receipts issued by Vir Chand . 

(e)	The timber business was started after the death of Vir Chand.

(f)	The plaintiff joins issues with the defendant on the counterclaim.

4.	The determination

a.	The main issues for determination in this case are twofold:(i) whether Vir Chand, the plaintiff’s father promised the first defendant and her husband Shiu Shankar that he will sell and transfer to Shiu Shankar the land, upon completion of the subdivision of his land, and (ii) whether the first defendant is entitled to remain on the land under the doctrine of proprietary estoppel. 

b.	It is not in dispute that Vir Chand’s father, Jagessar was the owner of the land in 1950.The agreed facts provide that Vir Chand became the registered proprietor of the land on 26 February, 1981. He passed away on 24th October,2006. On 30th April 2009, the land was transferred to the plaintiff in terms of Vir Chand’s will, without any memorandum of prior lease and encumbrances.

c.	Mr Haniff, counsel for the plaintiff, in his closing submissions submits that the title of the plaintiff, as registered proprietor, is indefeasible. He also pointed out quite correctly that no evidence was adduced by the defence, as regards the several allegations of fraud pleaded against Vir Chand, the plaintiff and the second defendant. 

d.	Next, he contended that the first defendants’ case is premised on a promise made by Vir Chand in 1950, to her late husband, Shiu Shankar, when Vir Chand was not the owner of the land in 1950.

e.	Mr Naidu, counsel for the first defendant submits in reply that a cause of action on equity can be made out even when a defendant does not own the property, at the time the representation was made. 

f.	In support, he cites the following passage from Van Dyke v Sidhu, [2012] NSWSC 61:“..it is not necessarily a complete bar to a claim that there is some law preventing transfer of an interest. In the subject property or some other party holds an interest in the property which is the subject of the claim: the Court can give equitable compensation.”

g.	Mr Naidu also refers to Thorner v Major,[2009]UKHL 18 where Lord Walker of Gestingthorpe said “.it is a necessary element of proprietary estoppel that the assurances given to the claimant (expressly or impliedly, or, in standing-by cases, tacitly) should relate to identified property owned(or, perhaps, about to be owned) by the defendant. 

h.	In the first case, the defendant was joint owner of the property with his wife and represented to the plaintiff that he was able to do what he wished with his share of the property. The promise was only conditional on the sub-division of the property, which depended on Council approval, as stated in the paragraph immediately preceding that cited.

i.	Likewise, the dictum in Thorner v Major, must be considered in the light of the facts in that case. The deceased was the owner of the property. The uncertainty was as to its extent. The facts disclosed that the deceased bought and sold land.

j.	Returning to the present case, in my view, it can hardly be contended that Vir Chand was about to own the property in 1950, when he became the owner three decades later. It follows that Shiu Shankar could not have relied on the representation alleged to have been made by Vir Chand to him.

k.	Finally, Mr Haniff takes a pleading point, namely that the statement of defence does not aver that Vir Chand made a representation to the first defendant.

l.	Mr Naidu’s response is that the relevant averment is contained in paragraphs 5 (c) and 20 of the amended statement of defence and counterclaim. He concedes that the pleadings do not reflect the date on which the promise was made.

m.	Paragraph 5, in so far as is relevant, reads:

(a)	The plaintiff is not a bona-fide purchaser for value..

(b)	In 1950 the plaintiff’s father Vir Chand (now deceased) invited the defendant’s husband Shiu Shankar (now deceased) to permanently build a house and reside on the said land.

(c)	Vir Chand assured and promised Shiu Shankar and the defendant that he will sell and transfer to Shiu Shankar a lot of about 5580m2 of the land now contained in Certificate of Title No. 39224 being Lot 2 on DP 9943 upon completion of the subdivision.

(d)	Vir Chand gave express authority to Shiu Shankar to develop and upgrade the said land, cultivate the said land and build a permanent house on the said land.

(e)	Shiu Shankar and his family expanded money and built a permanent house on the said land in the expectation induced and/or encouraged by Vir Chand and/or on the assurances and promises made by Vir Chand that he and his family would be allowed to permanently remain on the said land 

and purchase the said land from Vir Chand upon completion of the subdivision of the land. (emphasis added) 

n.	Sub-paragraphs(d) and (e)state that Vir Chand assured and promised Shiu Shankar and the defendant he will sell and transfer the land to Shiu Shankar. Sub-paragraph(d) is reiterated in paragraph 20.

o.	Mr Haniff begs the question why Vir Chand would promise the first defendant that he will sell and transfer the land to Shiu Shankar, when Shiu Shankar was already deceased at that time. He also submits that the plaintiff was not cross-examined on the promise made to the first defendant .

p.	Be that as it may, the matter is pleaded. 

q.	I reproduce excerpts of the first defendant’s evidence in chief on this point:

Q. Do you know on whose property your husband was residing/living when you got married ?
 A. Vir Chand …

Q. What made you say Vir Chand was owner of the land?
A. My husband told me.

 Q. Did Vir Chand tell you he was owner of the land ?.
 A. He told my husband that he is owner of the land and my husband built the house…

Q. Who allowed husband to build the house on that land ?
 A. Vir Chand told usto stay there and when I got married I lived there…

Q. At the time the husband built the house on the subject land, the land did not belong to Vir Chand, he was not the registered proprietor ?
A.	We were just paying and he was issuing us receipts…

Q. Why did not Vir Chand while he was alive sell the portion of land that you occupy to you ?
A.	He said that when he sells land he will sell it to him. He told us not to leave and we will measure the land and give it to him. Its taking long.

Q. Why did he not sell ?
 A. He said when he sells he will sell it to us…

Q Before the death of Vir Chand did you at any time discuss the issue of Vir Chand selling his share to you ?
A.	 He just said that when he sells he will sell it to me and then he passed away.

 Q. When was ground rental increased from $150 to $250 ?
A. I forget. We had a meeting and he increased rent.

Q. Before the ground rental was increased to $ 250 was there any discussion between Vir Chand and Chandra Kanta?
A.	No. When I got married my husband told me that after the measurements the land will be ours.

Q. What did your husband tell you when you got married regarding the property?
A.	He said if he will sell that land, he will sell it to him. He told my husband that he will not ask him to vacate the land. My husband and Vir Chand were in good terms.

Q. Did the first defendant at any time hold any meeting with Vir Chand regarding the selling of the property to them ?
A.	He told that if he will sell, he will sell that property to us.

Q. When was ground rental increased from $150 to $ 250 ?
 A I forget. We had a meeting and he increased rent.

 Q. Who attended meeting?
A.	Myself, Jai Ram and Mul Prasad.

Q. What did Vir Chand inform you at meeting ?
A.	He said that he will be increasing ground rent and after subdivision of the land, he will sell the property to me.(emphasis added)

r.	The first defendant’s evidence was that Vir Chand told her husband that he was the owner of the land and her husband built the house. Vir Chand told him that when he sells the land, he will sell it to him. Next, she said that Vir Chand, before his death had told her that when he sells, he will sell it to them. As regards the meeting with Vir Chand when the ground rental was increased, in the first instance, she said that she did not have a meeting. Later, she said that she had, and Vir Chand told her that he will sell the land to her.

s.	Mr Haniff, in cross-examination put it to the first defendant that she did not have a meeting with Vir Chand before he passed away. She maintained that there was a meeting.

t.	DW2,(Renuka Devi) said that Vir Chand, at a meeting with Mul Prasad, the first defendant and herself said he will be increasing the ground rent and when he subdivides the land, he will give them the first chance to buy the property.

u.	DW4, (Meena Kumari,) in her testimony said she was living on one of the lands that Vir Chand had bequeathed to Rineetha Devi. She said that her mother-in-law told her that Vir Chand at a meeting had told her that he will sell the lot he was staying on, to them.

v.	In my judgment, the alleged promise is vague and unsubstantiated.DW2,whotestified that Vir Chand had made a similar promise to her at the meeting, was also his tenant on an adjacent lot. DW4 was the first defendant’s daughter-in –law.

w.	 The compelling evidence was that Vir Chand considered Shui Shanker the first defendant as a tenant and admittedly, increased the rent from $150 to $ 250.

x.	Moreover, no claim was made by the first defendant when Vir Chand subdivided the property and sold lots nor when the land was transferred to the plaintiff by the second defendant. 

y.	I do not accept the first defendant’s evidence that the deceased Vir Chand, made the promise to Shui Shanker, also deceased or her.

z.	In Naqaiya v Subaiya,15 FLR 212 Justice Marsack at page 216 stated that where: 

it is sought to establish that the registered proprietor is in fact holding as a trustee then, in my view, there must be cogent and compelling evidence of the existence of such a trust. This evidence should prove how the trust came into existence. (emphasis added)

aa.	Mr Naidusubmits that clear and unequivocal test does not apply to proprietary estoppel. He citesat length, excerpts from the judgment in Van Dyke v Sidhu,(supra) which reiterates a dictum of Lord Walker of Gestingthorpe in Thorner v Major, at paragraph 165that:

.to establish a proprietary estoppel the relevant assurance must be clear enough. What amounts to sufficient clarity, in a case of this sort, is hugely dependent on context…When a judge, sitting alone, hers a case of this sort, his conclusion as to the meaning of spoken words will be inextricably entangled with his factual findings about the surrounding circumstances.(emphasis added)

bb.	In Van Dyke v Sidhu, the representations and promises were made during the course of an ongoing sexual relationship between the parties.

cc.	In Thorner v Major, the appellant had worked on the farm of the deceased for 30 years without pay, on the assurance that he would inherit the farm.

dd.	I turn to the question whether an equity arises out of the expenditure of money.

ee.	White J in Denny v Jensen,[ 1977] 1 NZLR 635 at page 638 stated that the following four conditions must be satisfied before the doctrine of proprietary estoppel applied viz, there must be "an expenditure, a mistaken belief, a conscious silence on the part of the owner of the land, and no bar to the equity". 

ff.	The plaintiff, in evidence in chief said that the first defendant had a small house with 2-3 bedrooms. After the notice to quit was issued, the first defendant had renovated and extended the house without her permission. She said that she wants the first defendant to remove her house. In re-examination, she reiterated that the house was a small wooden house, and not like the house depicted in the photographs shown by the defence.

gg.	DW1,(the first defendant) in evidence in chief said that her husband constructed a small house on the land with "bamboo and leaves.. we were very poor at that time". Her evidence in chief further reads:

Q. At present what type of house is constructed on the property?
A. Tin aur lakari (translated as) iron and wood.

Q. Who has built the present house with iron and wood?
A. My sons.

Q. What type of house was constructed on the property when your husband passed away at the time of his death?
A.	It was a small house.(emphasis added)

hh.	The evidence in chief of DW3(Vinod Prasad, a son of the defendant) reads:

Q. When was the house built? 
A. In 1975.

Q. How many bedrooms in the house?
A. 6.

Q. Were the 6 bedrooms built in 1975?
A. No, later. 3 bedrooms were built in 1975.Three rooms were added later.

Q. When were three rooms constructed. How many years back?
A. Before my marriage ..in 1980. This was done before 1980.

Q. Three rooms were added before 1981?
A. Yes.

Q. What is house constructed of?
A. Tin,(iron) and wood (emphasis added)

ii.	In cross-examination, DW3 denied that he extended house after 2009.

jj.	The evidence of DW1 was that her husband built a house with "bamboo and leaves". DW1 and DW3 testified that the house was constructed in 1975. 

kk.	In 1975, Vir Chand was not the owner of the land. It follows that no assurance could have been given by him at that time. DW1 also said that at the time her husband passed away, in 1987, the house was small. The present house was constructed by her sons.

ll.	DW3 said that 3 bedrooms were built in 1975. He said that three rooms were added in 1980, that is a year before Vir Chand became the owner. His evidence was contrary to the testimony of DW1, who stated that the house was small in 1987. DW1's evidence on this point supports the plaintiff's testimony.

mm.	The first defendant did not produce the planning approval for the house. The plaintiff, in her reply and defence to counter claim averred that the house is not a permanent structure, as it does not have an approved building plan. 

nn.	Mr Naidu sought to produce a valuation report. Mr Haniff objected to the production of that document on the ground that its author was not being called. I upheld his objection.

oo.	On a review of the evidence as a whole, it is clear that a temporary iron and wood house was constructed in 1975, by Shiu Shankar, as depicted in the certificate of title no 39224.An iron and wood building is not a permanent structure.

pp.	In my judgment, there has been no substantial expenditure by Shui Shankar, in constructing the house.

qq.	Under the second test of mistaken belief, the first defendant was required to prove that she had some sort of genuine belief that she had ownership rights to the land.

rr.	I will refer to the first defendant's evidence in chief on this point:

 Q. Did you believe that Vir Chand will subdivide and sell lot to you ?
A Yes, we believed.

ss.	In my view, there is no cogent evidence before me that Shui Shankar and the first defendant had a genuine belief that she had ownership rights in the land. I have already referred to the tenancy that existed between the parties and the increase made in the rental.

tt.	There was no evidence adduced by the first defendant that Shui Shankar had sought consent of Vir Chand to build on the land or incur expenditure. In any event, he was not the owner as at 1975, when the house was constructed.

uu.	It is contended that the first defendant and her husband did rice farming on the land. It transpired in evidence that Vir Chand bought rice from them and deducted the purchase price from the rental, to help them,as Vir Chand and Shui Shanker were great friends.

vv.	In any event, as the FCA observed "the fact that a tenant carries out improvements without the consent of his or her landlord does not give him a right to continue occupation of the land if the landlord is otherwise lawfully entitled to it": Chand v Chandar, [2003] FJCA 10 (ABU0021.U.2002S)

ww.	I find there is no evidence to establish "conscious silence" on the part of Vir Chand.

xx.	White J in Denny v Jensen,(supra) stated:

 "Conscious silence" implies knowledge on the part of the defendant that the plaintiff was incurring the expenditure and in the mistaken belief that there was a contract to purchase and that the defendant "stood by" without enlightening the plaintiff. In short the plaintiff must establish fraud or unconscionable behavior. The rule, based on the cases cited, is stated in Snell (op cit) 566 as follows:-

"Knowledge of the mistake makes it dishonest for him to remain willfully passive in order afterwards to profit by the mistake he might have prevented. The knowledge must accordingly be proved by 'strong and cogent evidence.'"

This passage was adopted by Megarry J in Re Vandervell's Trusts (No. 2) [1974] Ch 269, 301; [1974] 1 All ER 47, 74.

yy.	In the light of my findings, I do not find it necessary to consider the final test as to whether there is a bar to equity.

zz.	I hold that the first defendant has failed to prove the requisites of the equitable doctrine of propriety estoppel. Her counterclaim fails.

aaa.	In my judgment, the plaintiff is entitled to vacant possession of her land.

5.	Orders 

(a)	The plaintiff is entitled to vacant possession of the land comprised in Certificate of Title No. 39224 being Lot 2 on DP 9943 located at Natiata, Navua, Fiji containing an area of 5580m2.

(b)	The first defendant and her families together with her servants and agents shall give the plaintiff vacant possession of the land on or before 17th December, 2015.

(c)	I decline the reliefs sought by the first defendant in her counterclaim.

(d)	The first defendant shall pay the plaintiff costs summarily assessed in a sum of $ 3000.

17th November, 2015

A.L.B. Brito-Mutunayagam
Judge