Chetty v Chetty (CS 78/2007) [2021] SCSC 1013 (12 October 2021)

SUPREME COURT OF SEYCHELLES Reportable [2021] sese G?I CS78/2007 Plaintiff In the matter between MERSIA CHETTY representing Estate of Lea Chetty (rep. by Kelly Louise) the and THE ESTATE OF MARIAPEN CHETTY Represented by Priscille Chetty and Elvis Chetty (rep. by Basi! Hoareau) Defendants Neutral Citation: Chetty v Chetty (eS 78/2007) 2021 SCSC(:0 (10 September Before: Summary: there was joint ownership of land parcel V 5497- whether 2021). property - social partnership (societe de fait) - whether land was transfer Dodin 1. Whether matrimonial null and void. 6, 7, 12 August, 12 October 2021 Heard: Delivered: 10 September, 19 November 2020. ORDER It has not been established on the balance of probabilities that land parcel V5497 and the business thereon were partnership property destined and designed to be managed and shared accordingly at the end of the partnership. The transfer of the land to the 21lu Defendant was not unlawful, null or void. The Plaint is dismissed with cost to the Defendant. JUDGMENT DODIN J. The Parties: [I] Mersia Chetty is the daughter of the late Lea Chetty and the late Mariapen Srinivasen Chetty. Lea Chetty married the late Srinivasen Chetty the previous proprietor of land parcel V5497 on the yh day of June 1965. Priscille Chetty is the executrix of the estate of the late Srinivasen Chetty. Elvis Chetty is the grandchild of the late Srinivasen Chetty and current proprietor of land parcel V5497. The Pleadings: [2] Bya Plaint filed prior to her death, Lea Cherty, now represented by Mersia Chetty claimed as follows: I. Mrs. Lea Chetty, the Plaintiffhereinafter was a business-woman of Beau Vallon, is a businessman of Huteau Lane, The /1' Defendant, at all material Victoria, the 2nd Defendant is an Attorney-at-law. times. 2. The Plaintiff married the ]SI Defendant on the 051hday of January ]965, at Huteau the Plaintiff and }SI is the grandson of The 2nd Defendant Lane, Victoria. Defendant. 3. On the ]]Ih day of August 1988, absolute title was registered in [avour of the lSI in respect of land parcel V5497, situated at Albert Street, Victoria, Defendant, Mahe. 4. The said land was purchased through the lSI Plaintiffand ]S, Defendant's pooling their resources, their monies. theirjoint work and efforts and thereby establishing a shop. The Plaint ifl and Ihe l" Defendanl joint Iy const ructed and established the shop on the said Land II was agreed that the afore-mentioned properties belonged jointly to the Plaintiffand /SI Defendant. 5. The said shop was operated through companies and in ]988, through M Srinivasan Chetty & Sons (Ply) Ltd. a locally registered company of which the said Plaintiffand l" Defendant are registered as shareholders. 6. In the months of July, August, September, October and November 2006, Plaintiff and ]SI Defendant became increasingly estranged as husband and wile and suffered matrimonial acrimony. 7. On the ]6,h of October 2006, Plaintiff attempted to register a restriction against the transfer or assignment of the said land parcel V5497, which remains in the office of the Registrar of Lands, to date and was not registered by the said Registrar. 8. On the ]3,h ofNovember 2006, the Plaintiff filed divorced proceedings as against the ]SI Defendant in D V J 45 of2006. Plaintifffiled several civil actions, including Cs no 330 of2006 and Cs327 of2006 to protect her properties as against the 1.1'1 Defendant on the 61h September 2006 and the 5'h of September 2006, respectively. 9. On the 51h day of October 2006. the t" Defendant, in an extraordinary general meeting of the shareholders o] M Srinivasan Chctty and Sons (Ply) Ltd, acting through his proxy Basil Hoareau of Belombre and 2/1dDefendant, removed the Plaintiff both as Secretary to the said company and a Director thereof, replacing Plaintiff with the 2nd Defendant, ]0. On the 29'h day of September 2006, the ].1'1 Defendant, without the knowledge the said property and building, the purported sum of and with consent of the Plaintifftransferred namely land parcel V5497, 10 the 2nd Defendant for R], 000, 000/-. 11. Plaintiff avers that the said transfer was unlawful and a fraud against Plaintiff practiced by the ]SI and 2nd Defendant, calculated to deprive her of ownership and interest in the said land parcel and building situated thereon. Particulars a) The said transfer was made contrary to the original mutual agreement between the Plaintiffand ].1'1 Defendant. b) The Plaintiffwas not consulted nor informed 0/ the said transfer between her husband and grandson. c) The ]SI Defendant and 2nd Defendant were aware of the matrimonial difficulties They had and property disputes between the Plaintiff and lSI Defendant. knowledge ofPlaintiff's rights and interest in the said property. d) The purported transfer of Rl,OOO, 0001- to the ]S' Defendant by the 2nd Defendant was a sham. e) The ]SI and 2nd Defendant had knowledge of the impending divorce proceedings and that matrimonial properly adjustment orders would be sought. j) The 1S1 and 2nd Defendant jointly, participated in the said fraud to deprive Plaintiffof her ownership and interests, g) The lSI Defendant practiced the said fraud which was accepted by the rei Defendant, 12. Plaintiffavers that the lSI and 2nel Defendant are liable to Plaintiffin law AND Plaintiff prays this Honourable Court/or the following orders,' a) To order that the transfer of to 2nd Defendant made on the 291h day a/September 2006 is null and void and be set aside. land parcel V5497 from 1.1'1 Defendant b) To order that land parcel V5497 be transferred to thejoint names of the Plaintiff and 1.1'1 Defendant, OR c) To order that the land parcel is transferred to the lSI Defendant, AND d) To declare Plaintiff's right and interests in the said land parcel. e) To make such orders that are just and fair in the circumstances, AND j) To make orders in respect ofcosts and interests, [3] The Defendants contested the averments contained in the Plaint raising the following defence: Save that it is denied that the Plaintiff is a business woman Paragraph 1 of the 3 plaint is admitted. Paragraph 2 of the Plaint is admitted. Paragraph 3 of the plaint is denied and the Plaintiffis put to the proof The lSI Defendant avers that absolute title in respect a/parcel Jl5497 was registered in favour of the late Mariapen Srinivasan Chetty (hereinafter the "deceased") before 1988, 4 Each and every allegation contained in paragraph 4 of the plaint is denied. The Defendants further avers that at the time parcel V5497 was purchased by the deceased, the deceased was not married and or living with the Plaintiff Save that the Plaintiff is and the deceased vvas shareholders in Srinivasan Chetty & Sons (Pty) Ltd paragraph 5 of the Plaint is denied. The Defendants further avers that the said company Srinivasan Chetty & Sons (Pty) Ltd was only incorporates in 1988, and not at the time Parcel V5497 was purchased. Paragraph 6 of the Plain! is denied The Defendants avers that the deceased bore 8 no if! will towards the plaintiff Paragraph 7 of the plaint is denied. Save that it is denied that the properties are the Plaintiff's, paragraph 8 of the Plaint is admitted. Paragraph 9 of the plaint is admitted. The Defendant further avers that the said paragraph is irrelevant to the present cause of action. J 0 Paragraph J 0 of the plaint is admitted. The Defendants aver that there was no need to inform or to get the consent of the Plaintiff to effect the transfers the F' Defendant was the sale owner of parcel V5497. J I Save that paragraph II (b) of the plaint is admitted, each and eve,y other allegation contained in paragraph 1/ of the plaint is denied and the Plaintiff is put to the proof 12 Paragraph 12 of the plaint is denied WHEREFORE the Defendants pray this Honourable Court to dismiss the Plaint with costs. Witnesses' Testimonies: [4] For the Plaintiff; I. Mersia Chetty, executrix of the estate of the Plaintiff, testified that the parcel V5497 was registered in the name of Srinivasen Chetty who was married to Lea Cherty but she had no knowledge at the time of the particular transfer. She admitted that the land was purchased in 1957 in the sole name of Srinivasen Chetty. Srinivasen Chetty married Lea Chetty in 1965. Srinivasen Chetty sold the land to Elvis Cherty in 2006. Lea Chetty filed for divorce in March 2007. Srinivasen Cherty died on 12111July 2007 and the divorce was never concluded. She maintained that Lea Chetty was a business woman involved in the business together with her husband Srinivasen Chetty and she was shocked when she found out that the land had been transferred to Elvis Chetty. [5] For the Defendants several witnesses were called to testified: I. Mr Hoareau, the Deputy Registrar-General testified that parcel V5497 was registered on the sole name or Elvis Raja Cherty or Le Niole since September 2006 by Srinivasen Chetty who had an absolute title and no other person had any right in the property. II. Elvis Cherty, the 2nd Defendant testified that parcel V 5497 was transferred to him by Srinivasen Chetty for the sum of SCR 1,000,0001- paid by his father Levi Chetty, on the 13111September, 2006. He was present when payment was made by his father. He also did a diligence check which revealed that Srinivasen Chetty purchased the land for the sum of SCR 30,000, paying SCR 20,0001- from his own funds and the remaining SCR 10,000 from a friend whom he later repaid. He does not recall the late Lea Chetty being involved in the business but recalled her as a housewife. III. David Michel Cherty test ilied that he was born in 1948 and remembers his cousin Lea Cherty, then Pillay, living with his family at Bel Air. In 1955 Lea gave birth to Mersia Chetty and then moved to Albert Street. Then Lea went to live at Huteau Lane with Srinivasen Chetty and had another child Levi Krishna Chetty in 1959. As far as he recalled, Lea Chetty took care of the house but never saw her working in the shop. IV. Frank Ally, then an Attorney-at-Law and Notary, testified that he drew up the transfer of land parcel V5497 on the instructions of Srinivasen Chetty and signed as attorney on the 14th September, 2006 at Huteau Lane. The transfer was from Srnivasen Chetty to Elvis Chetty for the sum of SCR I million. He had previously conducted a search at the land registry and found that Srinivasen Cherty was the sole owner with an absolute title and there was no encumbrance or restriction thereon. v. Levi Krishna Chetty testified that he had lived at Huteau Lane since birth in 1959. As far as he can recall. his mother was a housewife and his father was a businessman running a shop first as sale trader and later formed a company. It was always the intention of his father to transfer the land and business thereon to Elvis Chetty and after negotiations the transfer was made by Honourable Frank Ally on the instructions of his father in September 2006 His father died in . July 2007. [6] All exhibits adduced were accepted on all sides as authentic and were not in contention. Submissions: [7] Learned counsel for the Plaintiff submitted as follows: i. The Plaintiff's case is that 011 or about I -I'/} September 2006, the lSI Defendant sold parcel V5497, located at Albert Street in Victoria to the 2nd Defendant through a transfer instrument, without the knowledge and or consent of Lea Chetty - at the time the wife and partner infact ofher husband Mariapen Chetty, now represented by the }SI Defendant. The Plaintiffs case continues in that, she deems this transfer to be one of fraudulent nature in view of the fact that Lea Chetty had invested monies in the property by working jointly 'with her husband, herein the lSI Defendant, who she had met and had a relationship with him asfar back as 1955 - the dale of birth oftheir daughter. Mersia Chettv -, and had thereby acquired an interest in the property by virtue of their common and or shared endeavors as partners. ii. The Plaintiffsubmits that the transfer 10 the 2nd Defendant was effected without due and proper and consideration of Lea Chetty's vested legal interests in the above mentioned property, this despite the 2nd Defendant holding in his evidence before this court that he was satisfied upon conducting his due diligence that the Plaintiff had no legal interest in the property because it had been purchased by way of a Mortgage which charge was secured over the above-mentioned property, parcel V5497. The Plaintiff submits however, that the sums generated for the repayment of this charge was so generated by both Lea Chetty and her husband at the time, as both of them were working as merchants in business together at the time, in order to pay discharge the obligations with regards to the above-mentioned charge. The Plaintiff submits that the fact that the 2nd Defendant found it necessary and considered {he interest the Plainliflat the lime ofthe sale shows that there is an element of knowledge ofthe same 011 the part ofthe 2nd Defendant that the Plaintiff at the time at the very least, may have had a vested interest - despite not being yet placed on the Land Register - in parcel V5497. The Plaintiff submits that Lea Chetty did have such a vested interest in the property. iii. In response to the case of the Plaintiff the Defendants maintained the position that according to them, the Plaintiff at the time - Lea Chetty - had no interest in the property, and was according to them not entitled to any such interest in the property because she never worked with her husband herein the 11/ Defendant in the business and infact according to them, was only a housewife. To that end the witnessesfor the Defendants' case testified to the effect that according to them, Lea Chetty had been but a housewife. iv. Elvis Chetty the grandson of the Late Lea Chetty, testified that his grandmother had told him that she never worked in the business with her then husband. The Plaintiff submits that this representations being alleged are clearly in opposition of the pleadings in the case before this court which clearly and unambiguously states that according to Lea Chetty at the time of filing this matter, she was a business partner to her husband in all matters and both worked in the family businesses from the 1960's - before the coming into effect ofthe companies Act 1972 - and continued to do sofor years after in numerous companies thereafter including but not limited to those companies whose incorporation documents have been produced before this Court including but not limited to the Company Ms. Chetty and Sons (Proprietary) limited. v. The Plaintiff submits that in view of the fact that it is Mr. Elvis Chetty the 2nd Defendant who received the benefit of the sale of parcel V5497 as the transferee therein, it is clear that any representations he makes with regards to this matter would be made with the intent to maintain the status quo vis a vis this particular transfer which clearly is in his interest. The Plaintiff denies that any such representations that she never worked were ever made and claims this to be untrue and not in line with what actually happened between the Plaintiff and the Defendant. The Defendants two other Witnesses were the father of Elvis Chetty, Levi Chetty, the son of/he late Mariapen Chetty and one David Chetty who is the cousin of the late Lea Chetty. Again the two witnesses for the defence deponed before this court that Leu Chettv II'USjust a housewife and had never actually worked in the family merchant business. Again the Plaintiffsubmits that this is untrue and not in line with what actually happened between the husband and wife duo herein. Levi Chetty's motivation to maintain such a position before this court must be considered in view ofthefact that it is in his son's - the 2nd Defendant's= interest that the sale be upheld as valid. To that end it is submitted that his evidence and that of his son were clearly biased infavour of the Defendants case because it is in their interest to be so vi. Their final Witness a Mr. David Cherty. maintained the Defendant's position and claimed that every single day he visited his cousin - Lea Chetty - she was never in the shop working only her then Husband Mariapen Chetty was, and yet, he further testified that on those occasions that the late Mariapen Chetty had travelled for business, which it is submitted by the Plaintiff he often did, at those times David Chetty convenienlly never visited his cousin and therefore had no idea who ran the family business in Seychelles. The Plaintiffsubmits that the clear bias in David Chettys evidence is palpable. especially considering the fOCI that he is currently working with Levi Chetty, thefather of the 2nd Defendant, and expressed after being cross-examined by counsel that he was upset at the late Lea Chetty, who according to him filed divorce proceedings against her then husband despite him pleading with her to not do so. vii, The Plaintiff submits that the evidence produced before this Court by the Defence was done with the sale purpose 10 deprive the Late Lea Chetty of her entitlement and or interest in the properly known as parcel 1/5497 and do not reflect an accurate description of her activit ies with her husband in businessfrom the] 960 's onwards, viii. The Plaintiff submits that despite having been married, it is clear that section 20 (1) g of the Matrimonial Causes Act canna! apply as in this case there was no final decree of divorce despite the process having been initiated in 2006 by the Late Lea Chetty, when as testified by the witness for the Plaintiff, she realized her husband at the time was 1101 safeguarding her interest in theirjointly acquired assets. The Plaintiff submits that her action before this Court is couched in a De Facto Partnership or Societe de fait, Whilst this remedy is typically reserved for parties who had lived in concubinage and are settling their assets between them upon the breakdown ofthe same, in this case it is clear that the parties remained married until the death of the late Mariapen Chetty in 2008, husband and wife and therefore those provisions that would normally apply namely the Matrimonial Causes Act upon the dissolution of a marriage cannot apply in this case as it pertains to declaring an interest in property infavour ofone spouse against another. ix. In order to maintain such a claim, the Plaintiff must show as per Labiche v Ah Kong (SCA 312009) proof of the partnership between the parties, as per Dalloz, at para 26- ... une telle societe n 'existe pas par Ie seulfait que les concubins ont use en commun des biens qu 'ils possedent et participe ()UX depenses sur leur menage, ni meme par le seul fait qu 'ils ont mis en commun leurs resources et travaille ensemble. Lejuge defond, dans notre droit actuel, doit, pour affirmer I 'existence d'une societe relever les circonstances de fait d 'oil resultent I 'intention des interesses de participer aux benefices et au penes du [onds social constate par les apports, et la volonte de s 'associer. x. Further thereto the Plaintiffsubmits as per Dalloz, Encyclopedie Juridique, Verba, "Concubinage" at page 3, para 27, "S 'agissant d'une societe de fait, il n 'est pas necessaire qu 'elle soit constatee par ecrit, meme si elle comprend un immeuble dans son actif". If the existence of the de facto partnership is established, it is necessary that it should be dissolve by thejudge who should then proceed to share out the assets of the partnership (per Labiche v Ah-Kong). II is clear therefore that 'while no written deed ofpartnership is required to establish the partnership proof of the same must be adduced before this Court. In the Plaintiff's case, at paragraph 4 of the Plaint the Plaintiffstates that, "The said land [parcel V5497] was purchased through the Plaintiff and the ]SI Defendant pooling their resources, their monies, their joint work and efforts and thereby establishing a shop. The Plaintiff and the /SI Defendantjointly constructed and established the shop on the said land, II was agreed that the afore-mentioned properties belonged jointLy to the Plaintiff and the ]SI Defendant. " xi. The show ofproof of thejoint work and efforts ofthe parties the Plaintiff deponed to the activities ofthe late Lea Chetr; the l'laintifion the other hand relying on the evidence of Mersia Chetty, the daughter of the Late Lea Chetty and representing her late mother's estate herein as her Executrix, testified that at the time the shop first opened, unlike the witnesses ofthe defence. she had been there at all times, and remembered exactly what had gone on between her parents as it pertained to the family business as merchants operating through their shop on parcel V5497 at Albert Street. The witnessfor the Plaintiff gave details on the comings and goings of her later mother at the material lime, explained and described her involvement in running the shop with her husband, banking monies, dealing "with the stock merchandise of the shop, and while the late Mariapen Chetty was away from the jurisdiction, Lea Chetty running the shop without him, all while she maintained a household for her husband and their workers of which there were many. The partnership between the late Lea Chetty and her Late Husband continued well after they opened their first shop and continued when they incorporated various other businesses as exhibited before this court until the relationship between the parties broke down and the Late Lea Chcttv initiated divorce proceedings, xii. Asper Labiche v Ah-Kong, in deciding what orders to make upon the establishment of a de facto partnership, The sharing is done by the judge in accordance with the wishes of the parties as expressed by themselves when the partnership was established. In the absence ofsuch expressed wishes, "elle doit I 'etre en proportion des apports de chacun, compris des apports en travail" (Dalloz, ibid, para 28). xiii. In this case, it is submitted by the Plaintiff that what was agreed by the parties was that their joint efforts would benefit hath of them jointly and or equally, and therefore it is just and equitable that the court makes a declaration pursuant to prayer (f) of the Plaintiff'splaint, and declare the existence of a partnership infact, with regards to the acquisition and ownership of parcel V5497, make an order declaring the legal interest in parcel V5497 in/avow' of the Plaintiff In view of thefact that the property was transferred without the knowledge and or consent of the Plaintiff in the circumstances it isjust and equitable that the transfer of parcel V5497 - being subject to a partnership infact - be vitiated so that the property may be distributed between the estate ofthe late Lea Chetty and the Estate of the late Mariapen Chetty. xiv. In conclusion learned counsel submitted that 1. 2. 3. 4. 5. 6. The parties at the material time being the late Lea Chetty and Mariapen Chetty were at the material time in a de facto partnership. The parries at the material time being the late Lea Chetty and Mariapen Chetty were at the material time both owners ofparcel V5497 by virtue of this de facto partnership; The Court make a declaration of what the interest of the parties herein the estate of the Late Lea Chetty and the Estate of the Late Mariapen Chetty; That the transfer from the Late Mariapen Chetty to Elvis Chetty, of parcel V5497, dated 14th September 2006 be set aside as it was transferred in breach of the de facto partnership; That the court makes any such orders it deems/if; The court makes an orderfor costs and interest infavour ofthe Plaintiff. [8] Learned counsel for the Defendants submitted as follows: I. In her submission counsel for Plaintiffhas argued that the Plaintiff': case is based on a defacto partnership or societe de fait between the Plaintiff and lSI Defendant. Counsel has relied on the Court of Appeal case of Labiche vis Ah Kong [20101 SLR 172. It is submitted that the argument that the Plaintiff's case is based on a "societe de fait" is an afterthought of Counse Ifor the Plaintiff which is not supported by the plaint. The plaint does not contain averments about the existence of a societe defait between the Plaintiff and the lSI Defendant in that- a. (he plaint does no/ contain any specific averments that there was in existence a partnership between the Plaintiffand the /SI Defendant; b. i( the plaint was based on a "societe de fail" it was imperative/or the Plaintiff 10 have averred as to when this defacto partnership was terminated or dissolved. There is no such averment in the plaint. In the case ofNG Cheon Ton vis Ah /II/iall'NV' Hoi Fat [19751 MR 23, the Supreme Court of Mauritius quoted with approval from Hemards Nullitee de societe et societe de fait, 2 eme edition at pp 636 No 489 - at pp 26 of the judgment - that - "Les causes de dissolution des societes defait son celles des societes regulieres" (Refer to annexure D II at pp 26 thereof); c. the provisions cfthe Article 1865 of the Civil Code is applicable in respect ofthe termination ofa societe de fait. Article f 865 of the Civil Code provides - it also possible for a partner in a "societe de fait" to institute proceedings to dissolve the "societe defait ". In Labiche vis'Ah Kong (supra) the Court of Appeal - at pp 177 - stated - "If the existence of the defacto partnership is established, it is necessary {hat il should be dissolved by the judge who should {hen proceed to share out {he assets of the partnership ": d. in {he present case the plaint does not contain any specific prayer for the ('0 urt to dissolve the partnership and to share In the present case if the out the assets of the partnership. court proceeds to dissolve the purported partnership that would be ultra petita and contrary to the ratio decidendi set out in Charlie vis Francoise in that the Court would be granting the Plaintiff a relief not sought by the Plaintiff (supra at paragraph 2.2.7); and e. if the Plaintiff case was based on a societe de fait, the Plaintiff would 710thave restricted her claim to the property only but she would also have demanded a share of the profits generated by the partnership and this the Plaintiff has not prayed/or. ii. 1t is submitted that the Plaintiff's case is simply based on a purported contract, between the Plaintiff and JSI Defendant, that the property would bejointly owned by the Plaintiff and the ]SI Defendant but not on the basis that there was in existence a de facto partnership between the Plaintiffand the }SI Defendant to run and manage a business. This is clearly confirmed by the last sentence a/paragraph 4 of the Plaint to the effect that,' "It was agreed that the above-mentioned properties belonged jointly to the Plaintiffand the lSI Defendant". lfthe plaint was based on existence of a societe de fait the averment would have been that the property belonged to the defacto partnership. iii. It is submitted, on the basis of all the above, that the Plaintiff's case is not based on the existence of a defacto partnership which Counsel for the Plaintiff has attempted to raise as an afterthought. iv. It is submitted that the evidence adduced before the Court does not prove either the existence of a defacto partnership between the Plaintiff and the l" Defendant nor that there was an agreement that the property would belong to the Plaintiff and the JSI Defendant. Indeed the evidence is contrary to the averments on which the Plaintiff has based her case. 1/ is uncontroverted that parcel V5497 was - unlike what is pleaded in the plaint - purchased solely by the lSI Defendant in 1957. At the time of the purchase ofparcel V5497. the J-~I Defendant was not married to the Plaintiff The parties only got married in 1965, seven years after the property had been purchased by the lsi Defendant. v. In respect of the issue ofdefacto partnership. in Labiche v/s Ah Kong (supra) the Court of Appeal stated - at pp 177 of the judgment that; "the law requires that the said finding must be supported by evidence adduced by the claimant ". Moreover in Hallock vis D 'otfay [J 983 - 19871 SCAR (Volume!) Civil cases Po 295 Sir Eric Law JA observed - atpp 300 ofthejudgement that- "As regards the question whether a 'societe de fait' or de facto partnership came into existence between the parties, the French authorities to which we have been referred seem to indicate thai such an association must be evidenced by the intention oj' the parties, and must involve mutual contributions in case or in kind and an agreement to share gains and losses,' in other "vllords,"vllhalis envisaged is an association ot' a business or commercial character. That was not the case here and Ifind myselfin full agreement with the learned Chief Justice on this part of the appeal" (emphasis is mine) (Re(er to Annexure D1l). Therefore the onus was on the Plaintiff to prove that there was an intention between her and the lSI Defendant to establish a defacto partnership which involved mutual contribution in cash or in kind and an agreement to share the gains and losses from the business. vi. It is submitted that no such evidence has been adduced. Mrs. Mersia Chetty was called as a witness in support ofthe Plaint ill's case. However she did not provide any evidence that there was an agreement or intention between the Plaintiff and the IS/Defendant to establish a defacto partnership which involved mutual contribution in cash or in kind and an agreement to shore gains and losses. In the same vein she failed to establish any evidence that there was an agreement between the Plaintiff and the lSI Defendant that the property would belong to the Plaintiff and the lSI Defendant. vu. As a matter offact at the lime that parcel V5497 was purchased Mrs. Mercia Chetty was only two years old and 'when the shop was built in the early ]960 's she was still a child. viii. The evidence of Krishna Chetty and David Chetty clearly established that the Plaintiffwas merely a housewife and was not involved in the running ofthe business of the ]SI Defendant. In her submission Counsel for the Plaintiff has argued that the evidence of Krishna Chetty and David Chetty are biased witnesses who should not be believed by the Court. It is subtn ittcd IhOIIhe evidence ofMercia Chetty is one which is very biased and self-serving. II was established in cross-examination that Mercia Chetty - who has substituted the Plaintiff in her capacity as the executor to the Plaintiff's estate - is the only beneficiary under a will made by the Plaintiff. Therefore if this Honourable COUl'ldeclares that the Plaintiffhas any interest in the property then Mrs. Mercia Chetty stands to be the only person to benefit from such a declaration. In other words Mercia Chetty had a clear motive to lie to the Court. ix. On the other hand, the evidence of Krishna Chetty and David Chetty corroborates and supports each other. As a matter offact David Chetty came across as a very credible and truthful witness. At one point during his testimony he became emotional when he recalled begging the Plaintiff to reconcile with the ]'H Defendant. He mentioned that the Plain/if/was his cousin and that they got on well and that he frequently visited the family home of the Plaint !It and l" Defendant. Both he and Krishna Chetty confirmed that the role of the Plaint iff in the family was that of a housewife and she was not involved in the running and managing of the business. They both confirmed that the business was operated solely by the }SI Defendant. The ]SI Defendant operated as a sole trader until the early }980 's when he started to trade through companies. x. The marriage certificate in respect of the marriage between the Plaintiff and ]SI Defendant - Exhibit P J - confirms that the Plaintiffand /,,1 Defendant got married on 5 January J 965. This II'ClS seven years after the purchase ofparcel V5497 and a good four years after the shop had been built on the said parcel. In Exhibit P], the profession of the Plaintiff is mentioned as "Housewife" and that of the P'Defendant as "Merchant". The Plaintiffand II' Defendant go/married in accordance with the Civil Status Act, J 893 which came into force in Seychelles in J 893. Section 72 (1) of the Civil Status Act, 1893 provides- "72 (1) The act of marriage shall be drawn up in theform 111of schedule A" Indeed Exhibit PI is a copy of the act of marriage of the Plaintiffand I" Inform III of Schedule A one column providesfor Defendant. regarding the occupation of the parties getting married. information xi. Thus the Plaintiff and IS/ Defendant 'were obligated by law to provide information regarding their respective occupations at the time of their marriage in January 1965. It is clearfrom Exhibit P J that the II! Defendant provided his occupation as Merchant whilst the Plaintiffprovided her occupation as Housewife. flat the time the Plaintiff was a merchant why did she not say so? The fact that this was information provided in accordance with the law, namely the Civil Status Act 1893, the Court has to take it that in 1965 the Plaintiffand gives credence to the evidence of Krishna Chetty and Mr. David Chetty that the Plainiiffwas a housewife and not a merchant. xii. In view that the Plaintiffwas only a housewife and not a merchant in J 965, it means that in 4957 the Plaintiffdid not have the resources /0 contribute to the acquisition of the parcel V5497 and to the establishment of the shop thereon in early J 960 's nor that she was assisting the Plaintiff in the running and managing of the business. In other words Exhibit P 1flies in theface ofthe arguments that there was an intention and agreement between the Plaintiff and I" Defendant to create a defacto partnership whereby they would share the gains and lossesfrom the business or that it had been agreed between the Plaintiff and IS' Defendant that the property would belong jointly to them, this was certainly not the case here. xiii. The fact that the Plaintiff was shareholder and director in a company, which in any event vilas incorporated long after the acquisition ofparcel V5497 and establishment ofthe shop, does not establish that [he Plaintiffwas a trader or merchant. Moreover there is also Exhibit D4 - the transcription of a deed of transfer by virtue of which the lSI Defendant transferred the bare ownership ofa parcel of land, on 251h January ] 961, to the ]SI Defendant, which parcel ofland is now known as V5494. Exhibit D4 is proof that when the J-" Defendant intended to give the Plaintiff proprietary interest in a property the ].1'1 Defendant would transfer such right to the Plaintiff II is pertinent to note that D4 - by virtue of which the bare ownership in parcel V5494 was transferred to the Plaintiff= was executed in I 961,four years after the Plaintiff has acquired parceL V5497. If indeed the Plaintiff and J-II Defendant had agreed that the property was to belong jointly to the two of them, then surely the lSI Defendant would have transferred and undivided half share of the property to the Plaintiff Thefact that parcel V5494 was transferred in 1961 to the Plaintiffwhilst the property remained registered in the exclusive name ofthe ]SI Defendant is clear proof that the said property belonged solely to the ]SI Defendant. As a matter offact at the lime the properly was transferred by the ]SI Defendant to the 2nd Defendant, the lSI Defendant was registered as the absolute owner of the property - as confirmed by Exhibit F2. Therefore at the lime ofth« property being transferred to the 2nd Defendant the lSI Defendant was vested with absolute ownership of the property. xiv. The reliefs being sought by the Plaintiffis clearly to rectify the register of V5497 in accordance with Section 89 (1) of the Land Registration Act. Section 89 (1) states: "89. (1) Subject to subsection (2), the Court may order rectification of the register by directing that any registration be cancelled or amended where it is satisfied that an)' registration has been obtained. made or omitted byfraud or mistake ". xv. In the present case the Plaintiff is claiming that the register of parcel V5497 ought to be rectified on the ground offraud, However the Plaintiff has not adduced any evidence of fraud on the part of the I" and 2nci Defendants. The Plaintiff has clearly failed to prove her case on a balance of probabilities. In Ebrahim Suleman and Drs vis Marie- Therese Joubert and Ors sell 2712010the Court ofAppeal stated - "12. In such circumstances applying evidentiary rules we need to find that the Respondents discharged both their evidentiary or burden of proof as is required by law. The maxim "he who avers must prove" obtains and prove he must on a balance ofprobabilities. " In Re B [20081 UKHL 35, Lord Hoffman using a mathematical analogy explaining the burden of proof stated: "Ifa legal rule requires afact to he proved tafact in issue ), ajudge or jUly must decide whether or not it happened. There is no room/or afinding that it might have happened. The law operates a binary system in which the only values are a and 1. The fact either happened or did not. Leftin doubt, the doubt is resolved by a rule that one party or the other carries If the party who bears the burden ofprooffails to the burden of proof If the tribunal is discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated a shaving happened". Similarly in Rhesa Shipping Co SA v Edmunds and Another [J 98512 All ER 712 the house of Lords held that if' the judge. regarded both competing causes as improbable. then it ItlClS perfect], appropriatefor him to hold that the claimant had failed to establish his case on the balance ofprobabilities. " xvi. Moreover contrary to what {he Plaintiff averred, that the purported transfer of SRI, 000, 000 was a sham, evidence was led before {he Court to prove that the consideration price ofSRJ, 000, 000 was indeed paid and also the reason as why the price was fixed at SR 1,000, 000. Mr. Krishna Chetty, thefather of the 2nci Defendant, explained that in keeping 'with the Indian tradition, it was the wish of the IS/ Defendant that the shop should be given to the 2nd Defendant as his only male grandchild and that the price ofSRi,OOO, 000 was agreed so that the 2nd Defendant would attach certain values to the property. xvii. It is further submitted that the I" Defendant transferred the property to the 2nd Defendant in accordance with his right under Article 26 of the constitution and Article 544 ofthe Civil Code. it is also pertinent to note that that whilst the Plaintiff was making a claim to the lSI Defendant's property she wasfreely disposing her own property. [9] Learned counsel submitted that on the basis of all the above, this Honourable Court is prayed to be pleased to dismiss the plaint with costs. Analysis - The Law [10] lt is doubtful whether the property acquired well before the union in marriage of Lea and Srinivasen and there having been no divorce can be treated as matrimonial property under the Matrimonial Causes Act. In fact both counsel agree though lor different reasons that it should not be so treated. [11] Learned counsel for the Plaintiff argued that this is a situation where the Court should consider the property as jointly owned based on the intention and contributions of the parties to the acquisition and development of the property; common intention and joint contribution underpinning the concept of there being a de facto partnership or a "societe de fait ". One shou Id be carefu I not to juxtapose a domestic partnersh ip or a de facto partnership to a societe defait. [12] A societe de fail is def ned in Dalloz, June 2021 as; "La societe defait correspond CI la situation oil une societe, voulue par les parties et ayant fait l'objet d'une immatriculation. se trouve entachee d'un vice de constitution et a he annulee. Elle est consideree comme ayant existe avant son annulation a/in d'eviter les inconvenients normalement attaches a la retroactivite de la nullite " Which literally translates into; "The de facto company corresponds' to the situation where a company, desired by the parties and having been the subject of a registration, is vitiated by a defect of constitution and has been canceled. It is considered to have existed before its cancellation in order to avoid the inconveniences normally associated with the retroactivity of the nullity ". Both counsel have addressed in extenso the specifics of a domestic partnership in their respective submissions, and referred the Court to considerable extracts ofliteratures mainly Dalloz and case laws in that context in support of their respective contention. [13] A domestic partnership is a legal relationship between two people of the same or opposite sex who live together and share a domestic life, but aren't married or joined by a civil union nor are blood relatives. It may be established by contract or by registration according to procedures established by relevant jurisdiction but can also be by the simple act of the patties living together as partners. The French refer to the same as concubinage or concubinage notoire. [14] Domestic partnership property division is inapplicable if the property division in question is the equitable division of marital assets. This is governed by statute, namely the Matrimonial Causes Act. Domestic partnership property division is also inapplicable to property disputes between unmarried parties not in or intending to be in a domestic partnership. Consequently, it is important to determine first whether a domestic partnership existed; when the partnership began and when the partnership came to an end. The factor to be considered by the Court are various but fundamentally, property acquired by domestic partners during a domestic partnership should be distributed according to the partners' intent. Whether such intention existed and when a domestic partnership began and ended is a question 0 f fact. Analysis - Facts [15] The facts of the case have been extensively rehearsed above by the witnesses and both learned counsel who have given their take on the assessment from their respective perspectives. The evidence gives a tirneline that shows that Srinivasen Chetty was employed in a shop on Market Street in early 1950s but shortly afterwards he was engaged in business as a sole trader running his own shop. In 1955 when Mersia Chetty was born, Srinivasen Chetty had his own business. In May 1957, he purchased amongst others, parcel V5497 situated on Albert Street in his sole name. He constructed the building now standing thereon known as Srinivasen Cherty and Son. A son Levi Krishna Chetty was born in 1959. [t is not clear which year Lea Chetty and Srinivasen Chetty actually started co-habiting but it appears to be after Mersia and before Krishna were born. Srinivasen Chetty married Lea Chetty in 1965. [16] A domestic partnership cannot be assumed only on the basis that the parties lived together in concubinage. Proof must also be brought establishing that such was the intention of the parties and that it was the intention of the parties that properties acquired during the concubinage would be share equally or in such proportion as was agreed between the parties. As stated by the Supreme Court of' the State of Alaska in the case of Dewayne Tomal v Jeannette Anderson S-16720116760 Superior Court No.1 WR-16-00034 CIa P 1 N JON No. 7282 -August 31,2018: "...absent a controlling statute or a valid contract between the parties, property must be classified strictly according to the parties' intent. In some cases, the parties' intent with respect to all or broad classes a/property will be easy to infer based on evidence that share in the fruits 0/ their relationship as though married justifying 'the parties/armed a domestic partnership and intended to an equal division of their property. . But 1101 011 property acquired during a partnership necessarily is intended to be partnership properly: .. We emphasize that simply living together is not sufficient to demonstrate intent to share property as though married, and, moreover, that parties who intend to share some property do not presumptively intend to share all property .... "And parties may not intend to share property equally; for instance, a couple who purchase real property together may intend to share it according to their respective investments. 771e trial court must be attentive to ensure that it properly determines the parties ' intent for each disputed property item, In this case, the onus was on the Plaintiff to prove her claim that the acquisition and development of land parcel V5497 was in the context of a domestic partnership or agreement. Findings [17] Having analysed that evidence adduced. I find that the evidence adduced by the Plaintiff was not sufficient to establish when or if at all a domestic partnership started between Srinivasen Chetty and Lea Chetty. It is unclear how long the partnership lasted although it can safely be said that in 1965, the parties entered into matrimonial status until the death of the Defendant in 2007. There is no evidence to establish that land parcel V5497 was partnership property whilst the other properties acquired around the same time were not. The Defendant's evidence has established that it was more likely than not that the parties never intended that the property in question was to be domestic partnership property. [18] In view that in 2006 the I st Defendant had sole and absolute title to land parcel V5497, and that the land and building thereon did not form part ofa domestic partnership property, the transfer of the land by the late Srinivasen Chetty to the 2nd Defendant in 2006 was not unlawful, null or void. [19] Consequently, the prayers and remedy sought by the Plaintiff cannot be granted as it has not been established on the balance of probabilities that land parcel V5497 and the business thereon were partnership property destined and designed to be managed and shared accordingly at the end of the partnership. [20] The Plaint is therefore dismissed with costs to the Defendant. Signed, dated and delivered at lie du Port on 12 October 2021. Dodin J 25