Albert v Alcindor & Anor (CS 133/2018) [2020] SCSC 542 (7 July 2020)

SUPREME COURT OF SEYCHELLES In the matter between: TARIK HUGHES ALBERT (previously Hoareau) (rep. by Frank Elizabeth) and THE REGISTRAR OF LANDS (rep. by Carmen Cesar HERMINIE THERESE ALCINDOR (rep. by Karen Domingue) Not Reportable [2020] SCSC .3q3 CS 133/2018 Plaintiff Defendant Intervener Neutral Citation: Before: Summary: Delivered: Albert v Alcindor & Anor (CS 133/20 18 [2020] SCSC Carolus J Prescription - Articles 2262, 2265 and 2271 Civil Code of Seychelles Act 7 July 2020 (7 July 2020). (a) The counterclaim of the intervener is struck out. ORDER (b) The plaintiff succeeds in his plea of prescription raised in his answer to the intervener's statement of demand and the statement of demand of the intervener falls. (c) The motion to amend the intervener's statement of demand made in MA40/2020 falls. (d) The matter is to proceed against the Land Registrar. Carolus J RULING Background [1] This ruling arises out ofa plea in limine litis raised by the plaintiff in reply to the statement of demand and counterclaim of the intervener on the basis of prescription. Pleadings The Plaint [2] The plaint was originally filed against Herminie Therese Alcindor (now the intervener) as the 151 defendant, and the Registrar of Lands (now the defendant) as the 2nd defendant. Subsequently the plaintiff withdrew the plaint against Herminie Therese Alcindor and proceeded against the Land Registrar as the sole defendant. The plaintiff did not after withdrawing the plaint against Herminie Therese Alcindor as l " defendant make any amendments to the plaint with the result that the averments in the plaint relating to her still remain. Herminie Therese Alcindor then filed a motion to intervene in the proceedings which was allowed by the Court. [3] In terms of the plaint, the late Mrs. Marie Henriette Prunel!e Jorre de St Jorre, by way of a holographic will, bequeathed to the plaintiff, her nephew's son, her share of what she was to inherit from her mother Grizelda Jorre de St Jorre. The said Mrs. Marie Henriette Prunelle Jorre de St JOtTe("the deceased") died on 151November 1997, and the will was probated by attorney Mr. Serge Rouillon in case no. CS260/1997 on 17thDecember 1997 and registered on 26thJanuary 1998. [4] The authenticity of the will was contested by Charles Verlaque, the husband of the deceased, in proceedings against the plaintiff. [5] The Court, in the case of France Albert v Therese Jorre de St. Jorre and Ors CS No. 346/2007 in which the plaintiff was an intervener and Charles Verlaque was the 2nd respondent, ruled on 26th October 2011 that "parcel V 11154 was to be allocated as per the outcome of the action between Charles Verlaque and Tariq Albert which is pendente lite or such other action as determines the heir to the succession of the late Marie Henriette Prunelle Verlaque (born Jorre de St Jorre)". The "action between Charles Verlaque and Tariq Albert which is pendente lite" hereinbefore referred to meant the action referred to in paragraph [4] above. [6] On 7th October 2015, Charles Verlaque withdrew his action contesting the authenticity of the will of the deceased. [7] As a result on 25th January 2018, the plaintiff submitted an affidavit on transmission by death dated 17th September 2017, to the defendant for the registration of V 11154 in his name and submitted an application for removal of caution on that parcel. He was informed on 5th March 2018 by the defendant that the land was registered to Mr. Charles VerJaque in the rights of his wife, the deceased; that the will made by the deceased in favour of the plaintiff was registered on 26th January 1998; that Mr. Charles Verlaque also made a will in favour of the intervener which was registered on 20th September 2017; and that because there are two wills which have been registered the matter had to be sorted out before the affidavit on transmission by death could be registered. [8] The plaintiff avers that the defendant erred in law and in fact in registering V 11154 in the name of Charles Verlaque and that Charles Verlaque also erred in law and in fact in bequeathing V 11154 to the intervener. He avers that it is urgent and necessary for the Court to order the defendant to rectify the land register and register VII 154 in the name of the plaintiff. He further avers that in not causing Tittle V 11154 to be registered in his name, the acts or omissions of the defendants (which included the intervener who was previously the 1st defendant) amount to a faute for which they are jointly and severally liable to make good to the plaintiff. [9] The plaintiff claims moral damages in the sum of SCR500,0001- with interests and costs against the defendants (which included the intervener who was previously the 1st defendant), and further seeks an order of this Court for the defendant to rectify the land register by registering V 11154 in the name of the plaintiff forthwith. The Defence of the Land Registrar (Defendant) [10] The defendant, in the defence filed on her behalf, basically did not admit or deny the factual aspect of the plaintiff's case, claiming that she had no knowledge thereof. The only admissions were with regards to the withdrawal by Charles Verlaque of his action contesting the authenticity of the will of the deceased, and that the plaintiff had submitted an affidavit on transmission by death to the defendant for the registration of Vll154 in his name as well as an application for removal of caution on that parcel. She denied that she had refused to register VIII 54 in the plaintiffs name and averred that she had simply requested clarification. The defendant further denied that she was liable to make good any faute to the plaintiff or that the plaintiff had suffered any loss and damage, and prayed for dismissal of the plaint with costs and any other order deemed fit by the Court. Statement of Demand and Counterclaim of Herminie Therese Alcindor (Intervener) [II] The intervener has filed a statement of demand and a counterclaim. In her statement of demand, she pleads that the holographic will allegedly made by the late Marie Henriette Prunelle Verlaque is null and void as being contrary to law in that it bequeaths property which did not belong to her at the time of her death. She admits that the plaint filed by the late Charles Verlaque contesting the authenticity of the will of the deceased was withdrawn by his lawyer, but avers that she was informed and believes that this was contrary to his instructions, and that he thereafter sought alternative legal advice but was unable to file another such case because of his untimely and sudden death. [12] The intervener denies that the defendant erred in registering V II 154 in the name of Charles Verlaque and that Charles Verlaque erred in bequeathing V 11154 to her or that it is urgent and necessary for the Court to order the Defendant to rectify the land register and register V 11154 in the name of the Plaintiff. She avers that the property was bequeathed to her and that she is its rightful legal owner. [13] She denies committing and being liable to the plaintiff for any faute in law, and further denies that the plaintiff suffered any loss or damage. She avers that she is not responsible for the acts of the defendant and that she has no control over the registration of any property at the Land Registry [14] In her counterclaim, the intervener essentially contests the validity of the will of the late Marie Henriette Prunelle Verlaque on the following grounds namely: that it was not wholly written by the testator; that at the time of her death, the late Marie Henriette Prunelle Verlaque did not own any defined property and thus could not have bequeathed title V 11154 to the plaintiff; that the late Charles Verlaque, the husband the late Marie Henriette Prunelle Verlaque was a respondent in case no. 346/2007 as heir and representative of his late wife pertaining to partition of property owned by the Jorre de St. Jorre family; and that the late Charles Verlaque was in the process of filing a case to contest the holograph will of the late Marie Henriette Prunelle Verlaque prior to his death. [15] She prays for dismissal of the plaint with costs; a declaration that the purported holograph will of the late Marie Henriette Prunelle Verlaque is null and void; and to maintain the registration of title Vl1154 in the name of the intervener. Plaintiff's Plea in Limine litis [16] The plaintiff has raised the following plea in limine litis: 1. The Plaintiff avers that the Intervener cannot challenge the validity of the Will as the matter is prescribed by law. [17] He has also tiled an answer to the intervener's statement of demand as well as a defence to her counterclaim. In his answer to the statement of demand, he again raises the issue of prescription and avers that "[TJhe Intervener cannot raise issues relating to the validity of the holographic Will since the matter is prescribed and there was no appeal filed against thejudgment of the Supreme Court ". On the merits he avers that the intervener's averments regarding Charles Verlaque's plaint contesting the will of Marie Prunelle Henriette Verlaque is hearsay and therefore inadmissible. He further denies that the intervener is the rightful legal owner of parcel V 11154 and avers that Charles Verlaque could not have bequeathed her the property as he was never the owner thereof in law. The plaintiff maintained his claims made in terms of his plaint. [18] In his defence to the intervener's counterclaim, the plaintiff repeats his plea in limine litis and avers that "the Court cannot revisit or reopen the issue of the validity of the will as the matter is prescribed in law". Su bmissions of Parties on Plea in Limine Litis [19] It was agreed by all parties that the plea in limine litis would be dealt with by way of written submissions before hearing the matter on the merits. Counsel for the defendant declined to make any submissions stating that she would abide with the Court's decision. The submissions of the plaintiff and the intervener are found below. Submissions a/the Plaintiff [20] Counsel for the plaintiff submits that the crux of the Intervener's case as stated in her counterclaim being the invalidity of the will of the late Marie Henriette Prunelle Verlaque, in light of the plea in limine litis raised by the plaintiff, the Court has to rule on whether her action is prescribed by law. [21] He relied on Articles 2219 (definition of prescription), 2271 (1) (5 year prescription) and 2265 (10 year prescription) of the Civil Code of Seychelles Act ("the Civil Code") to submit that prescription started to run from the date of the death of the late Marie Henriette Prunelle Verlaque i.e. l" November 1997, and that since the intervener filed her counterclaim in July 2019, she is caught by the 5 year prescription period as she is clearly challenging the validity of the will. [22] He observed that the late Charles Verlaque also filed an action challenging the validity of the will on 11th October 2013, but on different legal grounds and that the plaintiff also raised a point of law based on prescription. [23] He submitted that any right of action rested with Charles Verlaque and since he did not pursue his legal action in case no. CIS 346/2007 challenging the validity of the will, the cause of action lapsed by prescription and cannot be revived by the intervener. Further the intervener's action not being one in which she seeks real a right in land but rather to invalidate the will, the applicable prescription period is that of 5 years provided for under Article 2271(1) of the Civil Code, rendering filing of the action out oftime by 12 years. [24] In conclusion he submitted that the intervener has clearly lost any rights that she may have had through the application of Article 2219 of the Civil Code and the passage of time. He relied on the cases of Nourrice & Ors v Nicette es No. 57/2015 [2016] sese 208 (29 March 2016) and Reddy and Anor v Ramkalawan es No. 97/2013 [2015] sese 31 (26 2015) in support of his contention that the 5 year prescription period is applicable January to this case. Submissions of the Intervener [25] The position of the intervener as set out in her submissions is firstly, as stated in paragraph 6 thereof, that "that the Will may be challenged beyond the period of five years if a Will relates to real property as in the present case. It is obvious that the subject matter of the Will relates to the late Mrs. Verlaque's share that she was to inherit from her late mother Grizelda Jorre de Sf. Jorre". [26] Secondly, the intervener also submits, that in the event that the Court finds in favour of the plaintiff on the issue of prescription and therefore that the validity of the will cannot be challenged at this stage, and as a result finds that it cannot entertain the counterclaim, it should still hear the intervener on the issues raised in her statement of demand. [27] In that respect it is submitted that it was averred in the statement of demand that the late Mrs. Verlaque did not specify a specific property in her will and therefore title VI 1154 cannot form part of her bequest to the plaintiff, given that at the time of her death she did not own title V 11154, and that the said title has never belonged to her of formed part of her estate. It is further submitted that although the will was registered, no property was ever registered in the name of the plaintiff or of the late Mrs. Verlaque. On the other hand up to mid-January 2018, Title V 11154 was still registered in the name of Charles Verlaque as "the representative of the rights of his wife Marie Henriette Prunelle Jorre de St. Jorre" and hence the bequest of Mr. Verlaque to the intervener cannot be reproached. [28] In the same vein, the intervener submits that although the Court finds that the validity of the will cannot be challenged at this stage, in order to decide whether her prayer to maintain the registration of title V 11154 in her name is sustainable, the Court has to hear the matter. [29] It is further submitted that the statement of demand must stand on its own as it is pleaded therein (paragraphs 4 & 5 and in the prayer) that the intervener is the legal owner of title V 11154. The intervener argues that registration of property in a person's name gives that person a real right which does not fall within the ambit of Article 2277(1) of the Civil Code. On that basis, she submits that the Court must hear her and cannot bar her from leading evidence on her statement of demand which clearly raises the issue of her real rights in title V11154. [30] On the basis of the above, the intervener submits that she can canvass her right as pleaded in her statement of demand if not under her counterclaim under Article 2262 which sets a 20 year period of prescription for all real actions in respect of rights of ownership or other interests in land. [31] She contends that the case of Reddy and Anor v Ramkalawan relied upon by the plaintiff is irrelevant to the present case as the issue of prescription in that case was raised in relation to the issue of a donation deguisee. [32] In conclusion she submits that the Court should not dismiss the intervener's case but should hear it in order to maintain the registration of title V 11154 in her name. Analysis [33] The main issue for determination of this Court is whether the counterclaim of the intervener is prescribed. Secondly, if the Court finds that the counterclaim is prescribed, whether the Court can still make a finding that the intervener can be heard on her statement of demand. However before addressing the above, Iwish to address the crucial question of whether an intervener can file a counterclaim. Counterclaim [34] Section 117 of the Seychelles Code of Civil Procedure ("SCCP") sets out the purpose for which a "person interested in the event of a pending suit" may intervene in such suit. This is "in order to maintain his rights". [35] It is clear from the above provision that an intervener does not have the same status as a defendant. A defendant is someone who is liable to the plaintiff for whatever relief he is claiming in his plaint and in terms of section 109 SCCP someone "against whom the right of any relief is alleged to exist, whether jointly, severally or in the alternative". An intervener, on the other hand, whilst not necessarily liable to the plaintiff is merely there as a "person interested in the event of a pending suit" "in order to maintain his rights ", that is, to ensure that his rights are not adversely affected. [36] Further, an intervener has to safeguard his rights within the limits of the action brought by the plaintiff. In my view this means that he cannot bring a counterclaim, which although "arising out of the subject matter of the action" in which it is filed, brings in new matters not pleaded by the plaintiff. [37] Ialso take note of section 120 SCCP provides that: 120. If leave is granted to intervene by the Court, the intervener shall, within the period fixed by the Court, file a statement of his demand and of the material facts on which to the other it is based and shall at the same time supply a copy of such statement parties to the suit. Underlining is mine. [38] While section 120 makes it clear that the only pleadings to be filed by the intervener is a statement of demand, the wording of section 80(I)SCCP leaves no doubt that only a defendant may file a counterclaim. 1t provides as follows: 80. (1) Subject to subsection (2), where a defendant in any action wishes to make any claim in respect of anything arising out of the or seek any remedy or relief against a plaintiff subject matter of the action, he may, instead of raising a separate action make the claim or seek the remedy or relief by way of a counterclaim in the action; and where he does so the counterclaim shall be added to his defence to the action. Underlining is mine. [39] The counterclaim of the intervener must therefore be struck out. Consequently it is not necessary for the Court to deal with the issue of prescription raised in the counterclaim. Prescription [40] Although the counterclaim is struck out, prescription still remams a live issue in the statement of demand which in paragraph 1 thereof, the intervener "pleads that the Holographic Will allegedly made by the late Mrs. Verlaque is null and void as it does not conform with the law and it bequeaths property which did not belong to the late Marie Henriette Prunelle Verlaque at the time of her death". In so doing she challenges the validity ofthe will of the late Marie Henriette Prunelle JOtTede St. Jorre in terms of which she bequeathed parcel V 11154 to the plaintiff, and as a result also challenges the right of the plaintiff over such property. In addition to his plea in limine litis raising the issue of prescription, the plaintiff in his answer to the intervener's statement of demand avers that issues relating to the validity of the will cannot be raised by the petitioner since the matter is prescribed under Article 2271(1). [41] Counsel for the intervener also submits that the intervener's claims in her statements of demand that she is the rightful, legal owner of the property gives her real rights therein so that the 20 year prescription period under Article 2262 would apply and not the 5 year prescription period under Article 2271(1), as claimed by the plaintiff. It is clear from the intervener's statement of demand that her claims of being the rightful legal owner of the property is based on the fact that Charles Verlaque bequeathed the property to her in his will. In his answer, the plaintiff avers that Charles Verlaque could not have bequeathed the property to her as he was never the owner of the property in law. This is because if the will of Marie Henriette Prunelle Jorre de St Jorre was found to be valid, the owner the property would be the plaintiff. [42] To decide the issues raised in the statement of demand the Court would necessarily first have to make a determination as to the validity of the will of Marie Henriette Prunelle Jorre de St Jorre which was registered first in 1998. If the will is found to be valid, then the registration of parcel Vll154 on Charles Verlaque in the rights of his late wife, his subsequent bequeathment of the property to the intervener by will and registration of that will would have been wrong. It is only if the will of Marie Henriette Prunelle Jorre de St Jorre was found to be invalid that the intervener could be found to be the rightful owner of the property. However the plaintiff by his plea of prescription is saying that the intervener is prescribed from raising issues pertaining to the validity of the will by which the plaintiff claims title to the property. The Court therefore has to determine whether the 5 year prescription period under Article 2271 (1) or the 20 year prescription under Article 2262 of the Civil Code applies to the case in hand i.e. where the validity ofa will which bequeaths immovable property to a third patty is challenged. [43] The relevant provisions for the purposes of the issue before the Court namely Articles 2271(1),2262 and 2265 of the Civil Code are reproduced below: All rights of action shall be subject to prescription after aperiod offive years except as provided in articles 2262 and 2265 of this Code. ARTICLE 2271 1. roo.} ARTICLE 2262 All real actions in respect of rights of ownership of land or other interests therein shall be barred by prescription after 20 years whether the party claiming the benefit of such prescription can produce a title or not and whether such party is in good faith or not. roo.} ARTICLE 2265 If the party claiming the benefit of such prescription produces a title which has been acquiredfor the period of prescription under Article 2262 shall be reduced to ten years. value and in good faith, [44] Although it does not deal with the challenge of the validity of a will which bequeaths immovable property to a third party, I find the case of Reddy & Anor v Ramkalawan (an action for reduction of a disposition in excess of the disposable portion of a succession on the basis that the disposition was a donation deguisee) helpful in establishing the applicable prescription period in cases such as the present one. The Court, in that case, explained the reason for the difficulty in establishing the prescriptive period in cases such as the one before it, as follows: (17) The perceived conflict between Articles 526 and 918 has been the cause of in establishing the prescriptive period in actions for much argument excessive gifts where the gift is immoveable property. The Civil Code does not state the position clearly. In the absence of clear legislative direction, the Court has sought to balance the conflict between what may be perceived as an action to recover property and an action to recover the value of the property. (18) in France and in There is now ajurisprudence Seychelles but in other countries where the French Civil Code has formed the basis of civil law to the effect that an action for the reduction of a gift constante not only and its return to the hotchpot or collation as it is called in Louisiana, is regarded as an action relating to the value of the donation to the succession, and not in terms of the actual donation itself. Hence it is not the immoveable property that is the subject of the action but the value of the immoveable property ... [ ... J (24) is the nature of the inheritance that has been The question that follows alienated ...it is the value of the donation that matters in actions such as the present one. There is therefore no question of returning the immoveable property itself to the hotchpot but rather it is the value of the property in excess of the quotite disponible that must be returned. [45] The Court, at paragraph 16 of its judgment, stated that when ascertaining the correct prescriptive period applicable to an action, one must first classify the nature of the action. It made a distinction between an action to recover property and an action 10 recover the value of the properly and held that the five-year prescription period applies in cases where the action seeks to recover the value of the property and the twenty-year prescription period applies when the action is designed to recover the immoveable property itself. Several cases before the Reddy and Anor v Ramkalawan decision have also dealt with the issue confirming this position although there is no uniformity in how these cases were decided. [46] In the case of Savy v Rassool (1982) SLR 191, the plaintiff in 1974, transferred to his daughter (the defendant) his rights in the succession of his late wife by a deed under private signature. In 1975 the plaintiff had issued a plaint against his daughter alleging that at the time of signature of the deed of transfer he was intoxicated and misled by his daughter and that his signature on the deed was obtained by dol. Judgment was given in his favour declaring the deed of transfer null and void but on appeal the Court set aside the judgment of the Supreme Court, effectively finding that the deed of transfer was val id. In 1981 the plaintiff sued the defendant anew, this time for the recovery of the purchase price of the transfer, relying on the deed of sale but alleging that he was never paid the R30,OOO which was the consideration for the sale. The defendant raised the defence that the action was time barred by prescription of 5 years since prescription began to run on the date of signing of the deed. It was held that the right of action for recovery of the purchase price of the transfer of rights in immovable property was subject to prescription after a period of five years. The court held that in terms of Article 2274, prescription ceases to run when there are legal proceedings still pending on the same matter, and found that prescription started to run on 14thSeptember 1974, date of signing of the deed; that it ceased to run from 28th November 1975, date of the judgment of the Supreme Court and 3rd June 1978, date of the judgment of the COUliof Appeal; and therefore the matter which was filed on 25th May 1981 was not time-barred [47] Similarly, in Hoareau v Contoret (1984) SLR 151, an action for reduction of disposition in excess of the disposable portion of a succession, was held to be an action for recovery of compensation and therefore not an action in respect of rights of ownership in land. Therefore, similar to Savy v Rassool (supra), the prescription period was held to be a period of five years according to Article 2271(1) of the Civil Code. [48J On the other hand, in Armand Khany & Others v Leone' Cannie (1983) SLR 65 the defendant had purchased portions of land from the deceased in 1958 and 1960. The plaintiffs who were heirs of the deceased alleged that the sales were not valid, but were disguised donations made under the influence of the defendant to usurp the rights of the plaintiffs. The defendant raised a plea in limine litis that the action was prescribed under Article 2271(1) of the Civil Code (5 year prescription). The defendant argued that Article 2262 (20 year prescription) could not apply as the action was to set aside two deeds of sale and not an interest in land. In rejecting this argument, the court held that the whole basis of the plaintiffs' claim was their rights of ownership by succession in the disputed parcel of land, hence the action was a real action in respect of rights of ownership and subject to Article 2262. The Court treated the plaintiff's claim as falling under the longer prescription period of 20 years under Article 2262 since they were enforcing rights in ownership of property by succession although it still dismissed the plaint as being time barred. [49] The cOUIiin Lorta Gayon & Anor v Antoine Collie (2001) SCA 8 of 2001 distinguished the Khany case and noted that any person seeking to enforce a right of ownership of land must have a real or vested right or must have a right of ownership by succession. In the Gayon case the claim failed to pass the Article 2262 (20 year prescription), since it was only a contractual claim, with no rights In land and as such fell under the five-year prescription period. [50] The Nourrice case relied upon by the plaintiff is closely related to the present case. However it is not without problems. The plaintiffs challenged the validity of a will by the deceased which bequeathed all the property of the deceased to the defendant excluding the plaintiffs who were the testator's children and his reserved heirs. The plaintiffs contested the will as being fraudulently obtained and sought a declaration to that effect and that they were the only legal heirs of the testator entitled to inherit; or in the event of the Court holding that the will was valid, that the disposition in favour of the defendant be reduced to the disposable portion and a declaration that the plaintiffs were entitled to the reserved portions in equal shares. The defendant raised a plea of prescription in limine litis under Article 2271 of the Civil Code claiming that the 5 year prescription applied to the action of the plaintiffs. The Court stated the following: [17] [18] [...} [2I} Now, this matter pertains to the challenge of A Will and Last Testament of the deceased by his children, legal heirs of the donor, and the right to inherit in favour ofa third party, being the Defendant ... The right of action in this case as clearly set out above, arises out of a right to inherit accruing to the Plaintiffs, heirs, by virtue of the provisions of Article 718 (The opening of the succession and seisin of heirs) as read with Article 731 of the Code (latter entitled The Various orders of succession). In view of the nature of the action as above enunciated, it is obvious without need that the cause of action falls squarely within the for any stretch of imagination, prescriptive period offive years as provided for by Article 2271 of the Code hence, the prescriptive period of five years to start running from the death of the deceased. [51] I observe that the plaintiffs' case was twofold. They claimed firstly that they were the rightful heirs of the whole estate of the deceased, the will which disposed of the estate having been obtained fraudulently. This part of the claim challenged the bequeathal of the whole estate to the defendant, which included immovable property. It is therefore not clear how in the words of the learned Judge the matter fell "squarely within the prescriptive period of.five years as provided for by Article 2271 of the Code". On the other hand, the second leg of the claim as prayed for by for the plaintiffs, was to reduce the disposition to the amount ofthe disposable portion ifthe will was found to be valid. In my view, it is only the second leg of the claim that falls squarely under Article 2271 of the Civil Code. The first part of the claim was seeking to set aside the will based on the plaintiffs right of ownership in the immovable properties which emanated from succession. That part of the claim is therefore similar to the Khany case. [52J The Khany and Nourrice cases were based on largely similar facts and causes of action, but were decided differently. Tn my view, the Khany case seems more accurate, since the Court considered the nature of the action in question which it found to be in the nature of an action for the enforcement of rights ofownership in immovable property by succession. The ultimate objective of such an action being the recovery of immovable property, such action would fall in the category of "action]s] to recover property" which is subject to the 20 year prescription period as stated in Reddy and Anor v Ramkalawan. [53J On the basis of the above, in cases where a party challenges the validity of a will which bequeaths immovable property, it appears more accurate that such a claim would fall under the 20 year prescription. I therefore find that the challenge to the validity of the deceased's will by the intervener in the present case is subject to the 20 year prescription period under Article 2262 of the Civil Code. [54J I note however that, the matter would still be prescribed whether the present action was held to be subject to the 5 year prescription period under Article 2271 (1) or to the 20 year prescription period under Article 2262 of the Civil Code. [55J Art 718 of the Civil Code provides that "A succession shall open upon the death ofaperson ... " The Court in the Nourrice case, stated that it follows from that Article that - [20J ... the right of the heirs, plaintiffs would have accrued upon the opening of the succession more particularly the death of the deceased ... [56] In the case of Confiance & Ors v Mondon (CS 35/2017 [2018] SCSC 777 (17 August 2018) at paragraph 30, the Court cites the cases of Contoret v Contoret (1971) SLR 257 and Hoareau v Contoret (1984) SLR 151 as authority for the principle that the heirs' rights vest at the moment of death. Therefore, prescription starts running from the time of the opening of the succession of the testator, that is at the death of the deceased. [57] Mrs. Marie Henriette Prunelle Jorre de St Jorre died on 1st November, 1997 on which date prescription started to run. The challenge to the validity of her will by the intervener was prescribed 20 years later in November 2017. I therefore find that when the intervener filed her statement of demand and counterclaim on 17lhJuly 2019 she was already prescribed from contesting the validity of the will. Even if prescription had been interrupted by the filing of the present case on 241hSeptember 2018 against the intervenor as ISI Defendant in terms of Article 2244 of the Civil Code, she would still have been out oftime. [58] Having found (I) that the prescription period applicable to the present case is 20 years (as provided for under Article 2262) starting from the date of opening of the succession of Mrs. Marie Henriette Prunelle JOtTede St JOtTeupon her death on l" November, 1997, and (2) that the intervenor is prescribed from raising issues as to the validity of the will of the deceased, I further find that her whole case as set out in her statement of demand being based of the invalidity of such will, her statement of demand falls. Consequently the plaintiff succeeds in his plea of prescription raised in limine litis as well as in his answer to the intervener's statement of demand. Are the proper parties before the Court [59] Another matter which arises, although not raised by any of the parties but which may be raised by the Court, is the issue of whether the proper parties are before this Court. I note from paragraph 10 of the plaint that Title no. V 11154 the ownership of which is being disputed is registered in the name of Mr. Charles Verlaque in the rights of his wife Marie Henriette Prunelle Jorre de St. Jorre. Further I take note of paragraphs 14 and 15 of the plaint in which the plaintiff avers respectively that the Land Registrar erred in law and in fact when she registered the said title number VII154 in the name of Charles Verlaque, and that the said Charles Verlaque also erred in law and in fact when he made the will in which he bequeathed title number V 11154 in the name of Herminie Therese Alcindor. In my view therefore the estate of the late Mr. Charles Verlaque's should have been made a defendant in this matter especially as a property registered in his name, albeit in the rights of his late wife, is sought to be registered in the name of the plaintiff in terms of the plaint. Having said that, r am mindful that joining the estate of Mr. Charles Verlaque as a defendant would be a purely academic exercise which would serve no useful purpose, as any challenge as to the validity of the will by the representative of Charles Verlaque's estate will meet the same obstacle of prescription. Decision [60] In view of the above findings: (a) The counterclaim ofthe intervener is struck out. (b) The plaintiff succeeds in his plea of prescription raised in his answer to the intervener's statement of demand and the statement of demand of the intervener falls. (c) The motion to amend the intervener's statement of demand made in MA40/2020 falls. [61] However, I note that certain matters averred in the plaint cannot be determined at this juncture and on the pleadings alone. These are matters alleged against the Land Registrar which are denied and to which the plaintiff is put to strict proof, namely that the Land Registrar erred in law and in fact when she registered the said title number VI] 154 in the name of Charles Verlaque; and that the acts or omissions of the Land Registrar in not causing title number VII J 54 to be registered in the name of the plaintiff amounts to a faute in law for which she is liable to make good to the plaintiff. The plaintiff also claims loss and damages in the sum of SCR500,000 against the Land Registrar. Consequently the matter must proceed against the Land Registrar. Signed, dated and delivered at lie du Port on 7 July 2020. f['()v.ol~ Carolus J 17