Kursatie v Singh
| Jurisdiction | Guyana |
| Judge | Persaud, J.A.,Cummings, J.A.,Crane, J.A. |
| Judgment Date | 31 December 1974 |
| Neutral Citation | GY 1974 CA 30 |
| Docket Number | Civil Appeal No. 18 of 1973 |
| Court | Court of Appeal (Guyana) |
| Date | 31 December 1974 |
Court of Appeal
Persaud, J.A.; Cummings, J.A.; Crane, J.A.
Civil Appeal No. 18 of 1973
Sir Lionel Luckhoo, S.C., associated with Michael Hamilton, for the appellant
Krishna Prasad for the respondents
Equity - Laches
Inheritance and succession - Will — Property left to plaintiff in will — Plaintiff took 27 years to seek to enforce his rights — Guilty of laches — Claim defeated by time.
Several questions call for determination in this appeal. They will emerge as this judgment progresses.
This appeal concerns a property situate in that part of New Amsterdam, Berbice, called Smythtown. Its history begins with one Nasiban who acquired title thereto in 1922 (Transport No. 269) she having bought the lot with the buildings and erections thereon from Mehdi Husain and Jankee far the sum of $700 (seven hundred dollars). Nasiban lived in concubinage with one Rajkumar for whom she begot two children — the respondent, who was born in 1920, and a sister called Fahiman. Nasiban died in 1933, having made a will in which she bequeathed the property in question to Rajkumar in the following language: “…… to my said reputed husband my property according to Transport No. 297” (the number is incorrectly stated) “situate at lot 15 Cooper's Lane, New Amsterdam, to dispose of same as he thinks fit for the benefit of himself and his children”, and she appointed Rajkumar as her executor.
From 1933 to 1951 when the respondent went to prison, he lived on the premises. In 1950 Rajkumar married Sukpatiya, who had three children by a previous union, one of whom was the appellant Rosaline. In 1952 Rajkumar bought in the property which was then valued at $1,550 for the sum of $5.61 at execution sale. Rajkumar died intestate in 1953, and his wife Sukpatiya took out letters of administration of his estate in 1954. She then proceeded to purchase from Rajkumar's sisters and brothers one-half of the property, and obtained title thereto in 1954. She herself, being the lawful wife of Rajkumar, would have been entitled to the other half on an intestacy, provided her husband was the beneficial owner. Sukpatiya died in 1959 whereupon the appellant took possession, she herself acquiring title to the entire property in 1965 when she bought at execution sale.
The respondent was discharged from prison in 1957, and in 1958 he filed a writ against Sukpatiya claiming one-third of the property. In 1961, Sukpatiya having died in 1959, he sought to join the appellant in her capacity as the administratrix of Sukpatiya's estate. He failed, as she had not yet obtained letters of administration, and the action was deemed dead. The next step did not occur until 1972 when the respondent filed this action again claiming one-third of the property by virtue of the terms of Nasiban's will.
The learned trial judge found that an express trust of the property had been created by Nasiban's will; that the period of limitation did not apply as this was a case where a beneficiary was seeking to recover trust property; that the appellant's actions in dealing with the property as she did was fraudulent; that she was in the position of a constructive trustee; and that she took the property subject to the respondent's beneficial interest. He therefore declared that the respondent was entitled to one undivided third part or share of the property.
The learned judge found that the language used by the testatrix Nasiban, to wit, “to dispose of as he thinks fit for the benefit of himself and his children, was not of a precatory nature, but imperative, and created a binding trust to the extent of one-third of the property in so far as the respondent is concerned. I agree. The courts task when it comes to the construction of a will was stated thus by Lindley, L.J. in re Williams, (1897) 2 Ch. D. 12, at p. 22, and quoted by Douglas, C.J. in Re Codrington, U.S.P.G. v. Attorney-General (1970) 16 W.I.R., at p. 90:
“…… our task is to constrie the will before us, and other cases are useless for that purpose except so far as they establish some principle of law. There is no principle except to ascertain the intention of the testator from the words he has used, and to ascertain and give effect to the legal consequences of that intention when ascertained.”
In that case the words used by the testator were “in the fullest trust that she will carry out my wishes in the following particulars”. It was held that those words did not create a trust. And so in Lamb v. Eames, (1871) 6 L.R. Ch. 597, the words “but desired her at or before her death to give the same unto and among such of his relations as she should think most deserving and approve of,” were held not to create a trust. Similarly, in In re Adams & Kensington Vestry (1884) 27 Ch. D 394, where the words used were, “in full confidence that she would do what was right as to the disposal thereof between his children, either in her lifetime, or by will after her decease”, it was held that the widow took an absolute interest in the property, unfettered by any trust in favour of the children. But in Malim v. Keighley, 30 E.R. 760, the testator used the words “hereby recommending it to my daughter” and in Pierson v. Garnet, 29 E.R. 20, the words were, “it is my dying request”. In each case the court interpreted, the words as giving rise to a trust.
In the instant case, it is clear that ire testatrix intended that the property should go to the benefit not only of the father but also of the children. It would be strange indeed to think that the testatrix would have been willing to pass the entire property over to her reputed husband for his sole use and benefit and overlook her two children one of whom (the respondent), the evidence discloses was, at the time of the making of the will, only 13 years of age. I am of the opinion that the judge was right in his conclusion on this aspect of the matter.
The next submission was, even though faintly argued, that ‘children’ in the will could only mean legitimate children. If this is correct, then such portion of the property as might have been held in trust would fall into residue for a failure of the trust. In Re Brown, Penrose v. Manning, (1890) L. T. 159, it was held that a bequest to ‘children’ referred to legitimate children, as there might have been legitimate children to whom the gift could refer. But there are cases where it has been said that the word ‘child ‘or ‘children’ means prima facie legitimate children, but such meaning can be brushed aside to make room for illegitimate children also. For example, in Morris v. Britannic Assurance Company Limited, [1931] 2 K.B. 125, Mckinnon, J. said 9at p. 131 ibid.):
“Prima facie I agree that where in legal documents the word ‘child’ is used it means legitimate child, but no doubt a consideration of the context may require one to give it a wider meaning so as to include both legitimate and illegitimate children.”
In the instant case, there is no evidence that Rajkumar had any children other than the respondent and his sister. And one cannot turn a blind eye to the background and the circumstances which attended the life of the testatrix. It is evident that she was seeking to make provision for the children she bore for Rajkumar. I do not doubt that she meant the respondent and Fahiman by the expression ‘his children.’
And I do not accept the proposition advanced on behalf of the appellant that Fajkumar's buying in the property at execution sale in 1952 was a disposal of the property within the meaning of the terms of the will, even though the respondent continued to benefit by continuing to live there. Indeed, Rajkumar's purchase was contrary to the terms of the will; and if it was not, nevertheless, the property remained impressed with the trust in favour of the respondent and his sister. Rajkumar committed a breach of trust, and therefore he could not have acquired an indefeasible title, with the result that his title is not protected by s. 29 of the Deeds Registry Ordinance, Cap. 5:01. I think it must be accepted that the trust followed the property, Rajkumar having been a constructive trustee. ‘Where a person has the management of property, either as an express trustee …… or as a guardian, or other person clothed with a fiduciary character, he is not permitted to gain any personal profit by availing himself of his position.” [See Underhill's Law of Trusts and Trustees, 12 th Ed., at p. 230.]
The appellant argued, through junior counsel, that when Sukpatiya bought the undivided half share from Rajktumar's brothers and sisters, who would themselves have been constructive trustees of that interest but without notice, she was a bona fide purchaser for value without notice, in which event the trust chain was broken; so that thereafter she held at least one undivided half free of the trust. It is also said that when Rajkumar died in 1953, Sukpatiya would have been holding the other half in accordance with the trust, and she became a constructive trustee of that half when she took out letters of administration of her husband's estate. Very attractive, but, in my view, unconvincing argument, because Sukpatiya became a constructive trustee of the whole property as soon as her husband died, and she stepped into his shoes by dealing with it. Similarly, when Sukpatiya died and the present appellant took over the property, the trust remained in force, but whether she had knowledge of the trust is debateable; in fact, I am, not at all convinced the evidence led that she had. There is nothing to show that she knew of the contents of Nasiban’ s will, nor of the circumstances surrounding the acquisition of title either by Rajkumar or Sukpatiya. But she must be taken to have received notice of the respondents claim, and the basis for such claim, at least by 1961 when the pleadings in the action which the...
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