Ng Tsorng Chinn and another v Vijaykumar Nanalal Shah (executor of the estate of Nanalal Shamji Shah, deceased)

Andrew Ang J:

[1] This action was commenced by Mr and Mrs Ng Tsorng Chinn (“the Plaintiffs”) claiming rights of adverse possession over a plot of land in Jalan Lana, Singapore (“Plot D”) against Vijaykumar Nanalal Shah (“the Defendant”) acting as executor of the estate of Nanalal Shamji Shah (son of Shamji Premji) (“the Deceased”).

[2] The Plaintiffs are currently the registered proprietors of 17 Jalan Lana Singapore 419041, Land Lot No MK28-389P (“Lot 389P”) while the Deceased was at all material times the registered proprietor of an adjacent parcel of land bearing Land Lot No MK28-388V (“Lot 388V”). Part of Lot 388V comprises Plot D which adjoins Lot 389P. In and prior to 1964, Lot 389P together with Lot 388V formed a larger plot of land which, for convenience, shall be referred to as “Lot 23-150”.

[3] As regards the size of Plot D, one Goh Chin Cheng, a registered land surveyor under the Land Surveyors Act (Cap 156, 2006 Rev Ed), prepared a report dated 17 October 2011 testifying on behalf of the Plaintiffs that Plot D covers 172.1m of land in Lot 388V. The Defendant has not controverted Goh Chin Cheng’s evidence in that regard.

[4] The key events pertaining to the ownership and possession of Lot 389P, Lot 388V and Plot D are summarised in the table below:

[5] At the hearing, copious arguments were canvassed. I do not propose to go further than to summarise the main arguments put forth by both parties.

[6] The Plaintiffs contend that their claim is established by the aggregation of separate but continuous periods of adverse possession by the various parties who owned Lot 389P from the year 1964 onwards. They aver that the law recognises that a person can transfer rights in respect of land under his or her adverse possession to a successor possessor of the land, whether by sale, gift or any other manner of disposition.

[7] On the facts of the present case, the Plaintiffs suggest that 12 years adverse possession necessary to give rise to a valid claim against the Defendant commenced either in 1976 (taking reference from the time Kew Carey allegedly asserted adverse possession over Plot D by erecting the mesh-wire boundary fence around it) or, at the latest, in 1989 (taking reference from the time the septic tank was removed from Plot D in or around 1976 to 1977). In the later case, the Plaintiffs claim that all restrictive covenants, rights and liberties in connection with the maintenance of the septic tank in Plot D would have ceased to operate with the consequence that any continuing possession of Plot D by the owners of Lot 389P thereafter could only amount to adverse possession.

[8] In either of the two cases, the requisite 12 years of adverse possession would have crystallised before the abolition of the doctrine of adverse possession on 1 March 1994 and the conversion of Lot 388V (comprising Plot D) to registered land on 29 November 2001. In this last regard, the Plaintiffs added that possessory title to Plot D, which they allegedly acquired upon their purchase of Lot 389P on 29 October 2001, was preserved by Caveat No IB/277242H (“the Caveat”), which they had lodged against Lot 388V on 4 February 2009.

[9] The Defendant, on the other hand, argues that adverse possession is not made out in the present case for a host of reasons. Firstly, the Defendant claims that Kew Carey’s possession of Plot D after the Deceased’s conveyance of Lot 389P to her on 3 February 1964 was permissive and not adverse. The basis for this contention can be found in paras 21 and 23 of the Defendant’s written submissions:

[10] The Defendant further adds that where possession of a piece of land at its inception is permissive, there must be strong proof of animus possidendi before permissive possession may be successfully converted into adverse possession. In other words, evidence must be led of conduct demonstrating an overt intent to oust the true owner of the land to the latter’s knowledge. That being the state of law as contended by the Defendant, the Defendant argued that the Plaintiffs’ claim must fail because:

(a) Kew Carey’s act of erecting the mesh-wire boundary fence in 1964 was “by itself not determinative of ouster, [let] alone being overt”; and

(b) Apart from the fence, there was no other assertion of adverse title by any of the previous owners of Lot 389P to the knowledge of the Deceased.

[11] Secondly, the Defendant challenges the Plaintiffs’ claim that possession by the various owners of Lot 389P and Plot D from 1964 onwards was continuous and unbroken. He does this by contending that, as a matter of law, no right of adverse possession is transferrable under a mortgagee’s exercise of its power of sale. The Defendant further argues that:

[12] Thirdly, the Defendant submits that as a matter of law when registered land is mortgaged, any periods of adverse possession accumulated by the predecessors-in-title of that registered land do not pass on to the mortgagee. As such, contrary to the Plaintiffs’ contentions, OCBC Bank’s sale of Lot 389P to Tng Chin Kok and Lee Ming Lee in 1990 could not have conveyed any right arising from an earlier adverse possession of Plot D. Taking the Defendant’s argument to its logical conclusion, this would also mean that a conveyance of title under a mortgagee’s power of sale (ie, Keppel TatLee Bank Ltd) would not entail the conveyance of any crystallised title to a neighbouring property which was acquired by adverse possession. Accordingly, the Plaintiffs could not have acquired any good claim of adverse possession against Plot D when keppel TatLee Bank Ltd transferred Lot 389P to them on 29 October 2001.

[13] Finally, the Defendant raises a secondary defence that the Plaintiffs ought to have lodged the Caveat before end November 2006 (ie, five years from the date Lot 388V was converted to registered land in November 2001). The basis for this, according to the Defendant, is found in ss 19(2) and (3) of the repealed Land Titles Act (Cap 157, 1985 Rev Ed) (“the 1985 LTA”):

As can be seen from the wording of the provisions, once a caution has lapsed the registered land ceases to be subject to any interest other than those reflected on the register at that point in time. However, the Caveat reflecting the Plaintiffs’ interest in Plot D was only lodged on 4 February 2009. According to the Defendant, by this time the Plaintiffs had lost any alleged interest they had in Plot D.

[14] Having regard to the arguments put forth by the parties, I have identified the issues for the present case as follows:

(b) Were there at least 12 years in aggregate of continuous adverse possession of Plot D by the previous owners of Lot 389P between 1964 and the date on which the doctrine of adverse possession was abolished (ie, 1 March 1994)?

(c) In any event, did the caution in respect of Lot 388V’s qualified title lapse before the Caveat was lodged on 4 February 2009?

[15] I shall deal with the issues in the order set out above.

[16] In Kevin Gray and Susan Francis Gray, Elements of Land Law (Oxford University Press, 5th Ed, 2009) (“Gray and Gray”) at para 9.1.43, the meaning of adverse possession was explained as follows:

[17] As to what constitutes an animus possidendi sufficient to support a finding of adverse possession, the Plaintiffs quoted (rather economically) from Charles Harpum et al, The Law of Real Property by Megarry and Wade (Sweet & Maxwell, 7th Ed, 2008) at para 35–019 for support:

[18] On the same point, I also found Gray and Gray at para 9.1.53 to be of some useful guidance in the present action:

[19] The Defendant, on the other hand, cited Thomas v Thomas [1855] 25 LJ Ch 159 at 161 for the proposition that “possession is never to be considered adverse if it can be referred to lawful authority”. The Defendant claimed that the Indenture of Conveyance dated 3 February 1964 gave rise to a licence under which Kew Carey was authorised by the Deceased to enter Lot 388V for the purpose of maintaining the septic tank which was then kept in the part of Lot 388V which later came to be referred to as Plot D. It was on this premise that the Defendant contended that the requisite animus possidendi in the present case should be held to a higher standard, viz, adverse possession would only be made out in the present case where the adverse possessor has an overt intent to oust the true owner of the land by way of asserting adverse title to the property to the knowledge of the true owner (see [9]–[10] above).

[20] It is not in dispute that Kew Carey came into possession of Plot D after she built the mesh-wire boundary fence around the premises. The question is thus whether such possession was permissive or adverse in nature.

[21] I accept that the Indenture of Conveyance dated 3 February 1964 did in fact give rise to a licence in favour of Kew Carey to enter Lot 388V for the narrow purposes stipulated in the Schedule to the Indenture of Conveyance which stated:

[22] However, I am unable to accept that the Deceased by the terms of the licence further permitted Kew Carey to occupy any part of the premises in Lot 388V as nothing in the Schedule reproduced above indicated so. Indeed, nothing in the Indenture of Conveyance or its Schedule conferred exclusive possession of Plot D to Kew Carey. This meant that mere access to Lot 388V was granted by the Deceased to Kew Carey at the material time. As such, permissive possession of Plot D as contended by the Defendant is not made out in the present case.

[23] In the circumstances, any possession of Plot D asserted by Kew Carey must therefore be adverse in nature, and I find that the elements of adverse possession in respect of Plot D were present at the material time. Factual possession (or factum possessionis) has been held to comprise a “complete and exclusive physical control” over the land in question: see Buckinghamshire County Council v Moran [1990] 1 Ch 623 at 641 (“Buckinghamshire CC v Moran”); J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at [41]. In Buckinghamshire CC v Moran at 641–642, Slade LJ held:

[24] Similarly, in our present case, in erecting the boundary fence, Kew Carey must have intended to exercise control over Plot D since nothing in the Schedule to the Indenture of Conveyance dated 3 February 1964 created a licence to occupy Lot 388V or any part thereof in the first place. I am not convinced that the Deceased or any other reasonable third party, upon discovering the mesh-wire fence boundary enclosing Plot D together with Lot 389P, would have come to any conclusion other than that Kew Carey was intending to exclude everyone, including the Deceased, from Plot D. Further, it emerged in evidence that access by any third party to Plot D could only be gained via entering and passing through Lot 389P, thereby providing additional support to the conclusion that the enclosure of Plot D was exclusionary against the whole world, including the Deceased. The building of a mesh-wire boundary fence around Plot D and Lot 389P therefore demonstrated Kew Carey’s intention to possess (or animus possidendi). Accordingly, I find that Kew Carey was in adverse possession of Plot D at the relevant time from the year 1964 onwards.

[25] It is not disputed in the present case that aggregation of more than one period of adverse possession between successive adverse possessors is in law permitted. In Gray and Gray ([16] supra) at para 9.1.4, the authors explain:

[26] The authorities relied upon by the Plaintiffs are also instructive in this regard. In Jubilee Electronics Pte Ltd v Tai Wah Garments and Knitting Factory Pte Ltd [1996] 1 SLR(R) 352 (“Jubilee Electronics Pte Ltd”), the Court of Appeal has held at [42] that:

[27] In Jubilee Electronics Pte Ltd, the Court of Appeal reached its conclusion after reviewing, inter alia, the cases of Willis v Earl Howe [1893] 2 Ch 545 (“Willis v Earl Howe”) and Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 (“Mulcahy v Curramore Pty Ltd”). In Willis v Earl Howe, Kay LJ held at 553:

[28] In Mulcahy v Curramore Pty Ltd where Willis v Earl Howe was considered and followed, Bowen CJ stated at 476:

[29] Returning to the facts of the present case, there were a series of owners of Lot 389P who had possession of Plot D from 1964 onwards, starting from Kew Carey. Kew Carey’s possession of Plot D, as I have held, was in the nature of an adverse possession as opposed to possession by permission (see [20]–[24] above). Accordingly, the question that remains is whether the adverse possession of Plot D was continuous for at least 12 years as required by law.

[30] In Mulcahy v Curramore Pty Ltd at 476, Bowen CJ held that continuity in adverse possession would not be made out if there was “abandonment by one adverse possessor followed by a break in time when the land is not in possession of some person adversely to the true owner” [emphasis added]. In the present case, the Defendant’s argument against continuity of adverse possession of Plot D for at least 12 years is two-fold. First, the Defendant argued that possession of Plot D by the various owners of Lot 389P was in the nature of a permissive rather than adverse possession. I have ruled that this point was incorrect. Second, the Defendant contended that when OCBC Bank exercised its power of sale in 1990 to convey to Tng Chin Kok and Lee Ming Lee title over Lot 389P, no rights over Plot D were transferred; likewise for Keppel TatLee Bank Ltd’s sale of Lot 389P to the Plaintiffs themselves in 2001.

[31] It is not entirely clear why the Defendant raises the latter argument. As mentioned earlier, it is well settled that adverse possession consists of two basic elements – factual possession and the animus possidendi (see [16] above). If the Defendant is trying to demonstrate a break in the continuity of factual possession upon the mortgagee’s exercise of its power of sale, I would say that he is wholly misguided. The evidence shows that the boundary fence enclosing Plot D together with Lot 389P remained in place at all material times before, during and after the sales were effected in 1990 and 2001. At no time during the trial was there any suggestion made to the contrary. As such, I see no reason to find that the continuity of factual possession of Plot D was disrupted by the mortgagees’ power of sale at the relevant times. The fact that Plot D continued to be fenced off is also cogent evidence of the animus possidendi of whoever were in possession of Plot D: see [23] and [24] above.

[32] If, however, the Defendant is trying to show that, over the course of many conveyances over the years, a lapse in the transfer of the rights accruing out of adverse possession in respect of Plot D had occurred, then I would have more to say. In the fairly recent English decision of Site Developments (Ferndown) Ltd v Cuthbury Ltd [2011] Ch 226 (“Site Developments”), a dispute on land access rights arose principally between the second claimant who was the registered proprietor of a property (referred to in the judgment as “the brown land”) and the first defendant who held title to an adjoining plot of land (referred to as “the blue land”). In that case, the action commenced by the claimants were for, inter alia, an order that the second claimant be registered as the proprietor of the blue land and an order for possession thereof, the ground being that the blue land, prior to its transfer to the first defendant, was acquired via adverse possession by the second claimant’s predecessors-in-title who, in turn, transferred their rights over the blue land to the second claimant. Before the English High Court, one of the key issues was whether the adverse possession rights in respect of the blue land had been properly passed down through a series of, inter alia, transfers and liquidation processes which had occurred. On that particular issue, Vos J found that the rights over the blue land acquired by way of adverse possession had not been properly passed.

[33] In his analysis of the issue, Vos J rejected, inter alia, the argument that adverse possessory rights passed under s 62 of the Law of Property Act 1925 (which is in pari materia with our s 6 of the Conveyancing and Law of Property Act (Cap 61, 1994 Rev Ed) (“CLPA”)) each time the brown land was transferred. His analysis is as follows (see [168]–[171] of his judgment):

[34] It should nevertheless be noted that despite the holding quoted above, Vos J ultimately granted the orders sought by the claimants on their alternative argument that “each of Mr Knott’s companies [ie, the material successors-in-title of the brown land] [factually] took over possession of the blue land with the consent of the preceding squatter, so that time continued to run and the successor could assert the possession of itself and its predecessors against the owner of the paper title”: see Site Developments at [173].

[35] Coming back to the case before me, as was the case in Site Developments, Lot 389P had undergone several conveyances over the years. In agreement with Vos J as to the effect of s 62 of the Law of Property Act 1925 (which is in pari materia with s 6 of the CLPA), I hold that the mortgagees’ sale of Lot 389P in 1990 and 2001 did not as such transfer to the purchasers any adverse possessory rights in respect of Plot D. I further add that there was no evidence adduced by the Plaintiffs to show that each and every one of the conveyances in respect of Lot 389P over years was made expressly to include the transfer of rights in respect of Plot D (contra Buckinghamshire CC v Moran ([23] supra)).

[36] Nevertheless, I find that by continuity of possession, albeit by successive owners of Lot 389P, the Plaintiffs acquired adverse possessory rights over Plot D (see Jubilee Electronics Pte Ltd ([26] supra). I should perhaps add, for completeness, that the Plaintiffs’ rights are unaffected by the abolition of the doctrine of adverse possession in Singapore with effect from 1 March 1994. In Balwant Singh v Double L & T Pte Ltd [1996] 2 SLR(R) 7, the Court of Appeal reviewed the effect of the repeal of the Land Titles Act 1993 (Act 27 of 1993) (“the 1993 LTA”) and the enactment of the Land Titles Act (Cap 157, 1994 Rev Ed) (“the 1994 LTA”), and concluded at [24] as follows:

[37] In the present case, continuous adverse possession of Plot D commenced as early as 1976. The requisite 12 years was thus achieved as of 1988. Such possessory title to Plot D was preserved pursuant to s 177(3) of the 1993 LTA (see [36] above). This period of adverse possession continued until the present day even despite Keppel TatLee Bank Ltd exercising its power of sale over Lot 389P in favour of the Plaintiffs in 2001.

[38] I now come to the issue of whether the Plaintiffs’ title in respect of Plot D was preserved by the Caveat they lodged on 4 February 2009 against Lot 388V. To recap, Lot 388V became registered land on 29 November 2001. A qualified certificate of title was issued and a caution entered in respect of title. The Caveat which sought to preserve the Plaintiffs’ adverse title to Plot D was lodged against Lot 388V on 4 February 2009, slightly more than seven years after Lot 388V became registered land.

[39] The parties disagreed over the latest date by which the Caveat ought to have been lodged against Lot 388V. On the one hand, the Defendant claimed that under s 19(2) of the 1985 LTA, the Plaintiffs ought to have lodged the Caveat no later than five years from the date Lot 388V was converted to registered land (see [13] above).

[40] The Plaintiffs, on the other hand, looked to s 25(2)(b) of the 1994 LTA as amended by the Land Titles (Amendment) Act 2001 (Act 25 of 2001) for guidance on the period within which they were required to lodge the Caveat to preserve their rights in respect of Plot D. This provision stipulated that a caution would only lapse ten years after the date Lot 388V was converted to registered land or 24 months after the amendment came into effect, whichever is the later. The relevant subsections of s 25 of the 1994 LTA (as amended) are as reproduced below:

[41] On this issue, I am unable to accept the Defendant’s argument. In my view, Lot 388V remained as unregistered land under the common law system until its conversion to registered land on 29 November 2001, by which time the 1985 LTA had already been repealed. As at 29 November 2001 when Plot D became registered land, the relevant provision in force which governed the lapsing of cautions in respect of registered land with a qualified title was s 25 of the 1994 LTA (as amended).

[42] Pausing here to make some comments on how s 25 of the 1994 LTA came to be, prior to the passing of the Land Titles (Amendment) Act 2001 (Act 25 of 2001), the lapsing of cautions could only take place where there was a purchase of land subsequent to the land’s conversion into registered land. In the second reading of the Land Titles (Amendment) Bill 2001 (see Singapore Parliamentary Debates Official Report (25 July 2001) vol 73 at col 1917 (per Assoc Prof Ho Peng Kee (“Assoc Prof Ho”), Minister of State for Law)), Assoc Prof Ho explained:

In fact, the exact text of s 25(2) of the 1994 LTA read as follows:

[43] In contrast, as alluded to in Assoc Prof Ho’s speech at [42] above, after the passing of the Land Titles (Amendment) Act 2001 (Act 25 of 2001) cautions could lapse in one of two ways, namely:

(a) the sale of the land subsequent to its conversion to registered land, in which case in favour of the purchaser the caution would lapse on the expiration of five years after the date of the last deed which was cancelled by the Registrar on the creation of the folio (see s 25(2)(a) of the 1994 LTA (as amended)); or

(b) the automatic lapsing ten years after the creation of a qualified folio pursuant to s 25(2)(b) of the 1994 LTA (as amended) or 24 months after the amendment came into effect, whichever is the later (see [42] above).

[44] In the present case, there was no sale of Lot 388V from the time it became registered land with qualified title until the present date. Any suggestion that the caution entered in respect of Lot 388V had lapsed under s 25(2)(a) of the 1994 LTA (as amended) would therefore be untenable. That leaves s 25(2)(b) of the 1994 LTA (as amended) to be considered.

[45] As rightly pointed out by the Plaintiffs, the ten-year period (as per s 25(2)(b) of the 1994 LTA) only started running from the time Lot 388V became registered land on 29 November 2001. As such, the lodging of the Caveat by the Plaintiffs on 4 February 2009, about seven years after Lot 388V became registered land was well within time and validly preserved the Plaintiffs title to Plot D under s 27(2) of the 1994 LTA (as amended) which provides:

[46] Accordingly, I find that the Plaintiffs’ claim for adverse possession in this action has been properly preserved up to the present day.