Diaz Priscillia v Diaz Angela

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 25 November 1997
• Neutral Citation: [1997] SGCA 55
• Docket Number: Civil Appeal No 198 of 1996
• Date: 25 November 1997
• Year: 1997
• Published date: 19 September 2003
• Plaintiff Counsel: JL Ponniah and R Chandran (R Chandran & Co)
• Citation: [1997] SGCA 55
• Defendant Counsel: G Raman and Gopal Krishnan Nair (G Raman & Pnrs)
• Court: Court of Appeal (Singapore)
• Subject Matter: Interest in land,s 53(5) & (6) Land Titles Act (Cap 157, 1994 Ed),Methods of severance,Whether severance effected by declaration in approved form and service on other joint tenant,Joint tenancy,Land,Whether registration of instrument of declaration necessary to effect severance,Construction of s 53(5) & (6) of Land Titles Act (Cap 157, 1994 Ed)

Judgment:

LP THEAN JA

Cur Adv Vult

(delivering the judgment of the court): This is an appeal against the decision of the High Court dismissing an application by the appellant for an order that the caveat lodged by the respondent claiming an interest as a beneficial owner of an undivided half share in the property known as No 51 Jalan Hari Raya be removed or expunged. The court held that the respondent has a caveatable interest in the property.

2. The facts

The relevant facts that gave rise to the dispute before us are as follows. The appellant is the elder sister of the respondent and they are the only children of the late Mrs Diaz Theresa (the mother). Until March 1989 the mother, the appellant and her daughter and the respondent and her family all stayed together at the house known as No 27 Jalan Isnin, which was owned by the mother. In March 1989, the respondent and her family moved to a house of their own. On or about 17 November 1989 the appellant and the mother entered into an agreement for the purchase of the property, No 51 Jalan Hari Raya for $300,000, and the purchase was completed on 9 February 1990 with a loan of $215,000 from the United Overseas Bank Ltd taken by both of them and a loan of $98,000 from the Central Provident Fund Board taken by the appellant from her own CPF funds. The property was transferred to them as joint tenants and they held it as such. Before the completion of the purchase the mother sold her property No 27 Jalan Isnin and that sale was completed on 24 April 1990. The mother and the appellant together with the latter`s daughter moved to No 51 Jalan Hari Raya (the property) and the mother lived there with the appellant and her daughter until her death in January 1996. At all material times, the property is registered land, ie land that has been brought within the provisions of the Land Titles Act (Cap 157).

3.On 23 November 1994, the mother decided to change the legal nature of her holding of the property. She gave instructions to her solicitors to sever the joint tenancy, and her solicitors prepared an instrument of declaration in the approved form under s 53(5) of the Land Titles Act (Cap 157, 1994 Ed) (the Act). She signed the form (the instrument) before a commissioner for oaths on 23 November 1994. The instrument contained the following statutory declaration by the mother:

I, hereby do solemnly and sincerely declare that I am the registered proprietor of [No 51] as joint tenant with [the plaintiff] and that I wish to sever the joint tenancy and hold the land as a tenant in common with [the plaintiff] in the share proportionate to the number of joint tenants.

On 26 November 1994, a copy of the instrument was sent by registered post to the appellant which the appellant received on 30 November 1994.

4.The appellant said that thereafter she spoke to her mother about the severance, but as the mother did not wish to discuss it she did not pursue the matter further. On 5 January 1995 the mother made a formal statutory declaration of service which was endorsed on the instrument. The instrument was stamped but for some unknown reason was not registered pursuant to s 53(6) of the Act. There is no dispute between the parties that the instrument was an instrument of declaration in the approved form under s 53(5) of the Act. There is also no dispute that the appellant did receive a copy of the instrument.

5.By her last will dated 5 January 1995, the mother appointed the respondent as the sole executrix and bequeathed to the respondent her entire estate. The mother died on 16 January 1996.

6.After the mother`s death, the appellant instructed her solicitors to conduct a title search on the property. The search revealed that the property was still registered in the joint names of the appellant and her mother as joint tenants. On 16 February 1996, the appellant`s solicitors lodged a notice of death, the duplicate certificate of title (which she had obtained from the bank) and a duly executed production form (obtained from the CPF Board`s solicitors) at the Registry of Land Titles. Although this lodgment was rejected owing to an error in the description of the land, an amended notice was accepted on 23 February 1996.

7.On 12 March 1996, the respondent lodged a caveat no CV/97165E (the caveat) on the register of titles claiming an interest as beneficial owner as tenant in common of an undivided half-share in the property. Her claim was made on the following grounds:

(1) An instrument of declaration by a joint tenant to sever a joint tenancy dated 23 November 1994 by Diaz Theresa to Diaz Priscillia Gloria Agnes and served on the caveatee on or about 30 November 1994 to be lodged in the Registry of Titles.

(2) The last will of Diaz Theresa dated 5 November 1995 whereby Diaz Theresa bequeathed her half-share as tenant in common in the property to the caveator.

The respondent filed the caveat as she feared that the appellant might sell the property and not account to her her half share of the net proceeds of sale.

8.On 10 May 1995, the appellant pursuant to s 127 of the Act applied by OS 447/96 for an order that the caveat be removed on the ground that since the mother had died before presenting the instrument for registration, there was no severance of the joint tenancy. The appellant contended that despite the service of the instrument, she and the mother continued to hold the property as joint tenants and that upon her mother`s death she became the sole owner of the whole property by virtue of the right of survivorship.

9.The respondent, on the other hand, whilst admitting that the instrument was not registered, maintained that by the mother`s execution of the instrument and service of a copy thereof on the appellant, the mother had effectively severed the joint tenancy prior to her death and thereafter held the property as a tenant in common in respect of the undivided half share. As the respondent is the sole beneficiary of her mother`s estate, she became entitled to the undivided half share of the property and has a caveatable interest therein.

10.At the hearing below, there was some dispute as to who provided substantially the purchase price for the purchase of the property. The appellant maintained that the purchase price was wholly or at least substantially paid for by her. The respondent disputed this claiming that it was the mother who substantially paid the purchase price. In order that this dispute might not delay the hearing of this originating summons, counsel for the appellant agreed that the court should, for the purpose of this application, proceed on the basis that the mother provided the whole of the purchase price. The respondent herself did not pay anything towards the purchase price.

11. The decision below

The application was heard before CR Rajah JC. The learned judicial commissioner held that upon a joint tenant making an instrument of declaration in the approved form under s 53(5) of the Act and serving a copy thereof personally or by registered post on the other joint tenant or tenants, he or she would effectively sever the joint tenancy. Turning to s 53(6) of the Act, the learned judicial commissioner held that registration of the instrument gave the world at large notice that the joint tenancy had been severed. Until such registration, the severance of a joint tenancy of registered land affected only the co-owners themselves qua co-owners, and third parties are entitled to treat the joint tenancy as subsisting and conduct any dealings they may have in relation to the land on that basis. Third parties would only have to treat the land as being held by the owners as tenants in common when the instrument of declaration is registered.

12.The learned judicial commissioner found that since there was no dispute that the mother made the instrument in the approved form and that it was duly served on the appellant, the severance of the joint tenancy was effected and a tenancy in common between the mother and the appellant was created. Thereafter, the mother held her half share in the property as a tenant in common, and upon the mother`s death this half share devolved on the respondent under the terms of the mother`s will. The learned judicial commissioner therefore held that this conferred on the respondent a caveatable interest in the property. Accordingly, he dismissed the appellant`s application with costs.

13. The appeal

The issue before us is whether the mother by making the instrument of declaration in the approved form under s 53(5) of the Act and serving a copy thereof on the appellant had effectively severed the joint tenancy and thenceforth, as between the mother and the appellant, they held the property as tenants in common in equal shares.

14.The appellant contends that s 53(5) of the Act should not be read on its own but together with s 53(6). The Act by these provisions has set a two-fold procedure by first, prescribing the instrument to be executed and service of a copy thereof under s 53(5), and secondly, creating a new legal interest in the registered land upon registration of the instrument pursuant to s 53(6). Therefore, in order to effect a severance of a joint tenancy, a joint tenant is required not only to execute an instrument of declaration and serve a copy on the other joint tenant or tenants in compliance with s 53(5) but also to register the instrument in pursuance of s 53(6). Only upon the registration of the instrument would the joint tenancy be effectively severed. In the absence of registration, the joint tenancy continues to subsist. The appellant further submits that s 45(1) of the Act states that no instrument can pass any estate or interest in land under the provisions of the Act until it is registered, and relies on the Australian case of Corin v Patton [1989-1990] 169 CLR 540 to contend that without registration, the instrument is not effectual for the purpose of severing the joint tenancy.

15.The respondent,...