In the matter of Petrousse & Ors (MA 103/2021) [2021] SCSC 951 (16 July 2021)

IN THE SUPREME COURT OF SEYCHELLES Reportable [2021] sese MA ]03/2020 ~ In the matter between DIANA ODILE BERNADETTE PETROUSSE MELDA COLLETTE PETROUSSE JOSEPH RENE PETROUSSE TACIANA FRANCISCA PILLAY MARGARET BERTHA PILLAY PHILOMENA ANTOINETTE PETROUSSE MARC CONSTANT BRIAN PETROUSSE NOEL ELIZABETH PATRICE ELIZABETH ·JUDY BONNELAME & ORS (all rep. by France Bonte) 1ST APPLICANT 2ND APPLICANT 3RD APPLICANT 4TH APPLICANT 5TH APPLICANT 6TH APPLICANT 7TH APPLICANT 8TH APPLICANT 9T1-1APPLICANT 10IH APPLICANT Neutral Citation: Before: Heard: Delivered: In the matter of Diana Odile Petrousse & Ors (MA 103120) [2020J sese I+W G. Dodin 07 April 2021 l6 July 2021 JUDGMENT Dodin J [I] The Applicants are co-owners in in-division of several parcels of land situated at Anse Louis, Mahe, registered as Titles C.9072, C9073, C9074, C.9075, C.9922, e.9937 and C.9589 which are subdivisions of parent parcel C.9154. e9154 was a subdivision of C.8211, which is a subdivision of C.7260, which comes from the main parcel C.1670 owned by the late Albert Petrousse. [2] The late Albert Petrousse died testate and his last Will is registered as Transcription 46 No 117. The Will contains a provision prohibiting the heirs from mortgaging or selling the land for a period of99 years. Consequently a restriction has been entered against the parent parcel, now subdivided that prevents the mortgaging or transfer of the land. [3] The heirs are in agreement that the restriction is highly prejudicial to all of them as they cannot charge, own or transfer the land and hence hinder the development of the land. [4] The heirs are also in agreement that they cannot remain co-owners in in-division for the period of 99 years. [5] The Applicants further aver that they have contracted the services of Surveyor Michel Leong for the partition of the land and they are all in agreement as to the proposed partition by the said Surveyor which is as follows: C.9072 C.9073 C.9074 C.9075 C.9922 C.9937 to to to to to to Diana Odile Bernadette Petrousse Melda Collette Petrousse Joseph Rene Pctrousse Francisca Taciana Pillay Margaret Bertha Pillay Philomena Antoinette Petrousse C.9589 jointly to: Marc Constant Petrousse Marie Emma Petrousse Marie Renette Petrousse Giselle Vcronique Adele Pillay Harry Robed Adrien Pillay Taciana Francisea Pillay Robert Hevelien Pillay Sheila Sherley Pillay Sonny Didier Pi llay Marie-May Janina Pillay f6] The Applicants aver that it is fair and necessary that the restriction be removed so that the Applicants may be able to hold the properties in their own names, free of any such conditions in order that they can mortgage and deal with their respective properties freely. [7] The Applicants therefore move the Court for an order removing the restrictions on the properties and to approve the allotment proposed by Surveyor Michel Leong. [8] Having considered the Application and the affidavit in support as well as other attached documents, I find that the restriction imposed by the provision in the will restricting mortgage and sale of the land for 99 years to be oppressive and an unreasonable hindrance to the development of the land. It is also prejudicial to the actual heirs of the late Albert Petrousse as they are prohibited from fully appreciating their right to succession during their lifetime. I also find that the heirs are in agreement to the proposed allotment drawn up by Surveyor Michel Leong which I consider to be fair and just considering each heir's share in the property. [9] I therefore make the following orders in respect of the Will and the properties: J. The provision of the Will prohibiting the sale and mortgage of the property is declared null and void and is struck off; II. The restriction entered against the parent parcel C 1670 now existing against the subdivisions is removed forthwith against each of the subdivided parcel against which it had been entered; III. The Registrar of Lands is ordered to remove the restriction against the parcels, C.9072, C9073, C9074, C.9075, C.9922, C.9937 and C.9589; iv. v. The allotment proposed by Surveyor Michel Leong is approved; and The parcels are registered in the names of the respective Applicants as per the allotment as reflected also in paragraph 5 of this judgment, subject to any payment of fees or taxes that may be required by law. [10] A copy of this Judgment shall be served 011 the Registrar of Lands. Signed, dated and delivered at lIe du Port on 16 July 2021. 4