Rahieman v Hack
| Jurisdiction | Guyana |
| Judge | Massiah, J. |
| Judgment Date | 23 May 1975 |
| Neutral Citation | GY 1975 HC 24 |
| Docket Number | 2785 of 1972 |
| Court | High Court (Guyana) |
| Date | 23 May 1975 |
High Court
Massiah, J.
2785 of 1972
Mr. Doodnauth Singh for the plaintiff.
Mr. Zaman Ali for the defendant.
Family Law - Matrimonial property — Couple married according to Muslim rites — Marriage not registered as for validity
After having been married according to Muslim rites in 1944 and living together for almost thirty years the relationship between the parties in this matter has become less than harmonious. They are almost at the parting of the ways; the defendant has asked the plaintiff to leave what would normally be called the matrimonial home but she has refused to do so. In turn she has instituted these proceedings claiming one half of the property where she and the defendant still live. I found for the plaintiff, determined that she is the owner of one undivided third part or share in the property and granted her $600 costs.
It should be stated that the marriage was never registered as provided for under the Indian Labour Ordinance (Cap. 104), now the Indian Labour Act (Cap. 98:02), and from a legal point of view the parties are merely together.
The plaintiff claimed that throughout their life together she worked as a peddler. I believed her. The witnesses Enid Arno and Rackmatool Gajraj corroborated that she bought goods from Beepat & Sons Ltd. and the Royal Jewel House, respectively. I accepted their evidence that she bought from their stores from about 1960 and 1964, respectively, but I believed the plaintiff that she was trading much earlier than that, although her business no doubt expanded as time went on. And it must be borne in mind that the defendant agreed that she bought from other stores.
I did not find it difficult to believe her. I was impressed with her; she was frank, never bitter, and did not try to embellish her testimony, in contrast with the defendant who was less than frank, somewhat confusing and vacillating and given to prevarication. He conceded little and such admissions as he made owed nothing to candor but were granted only when persistent questioning compelled him to do so.
I formed the impression that the defendant counted the part the plaintiff played almost for nothing, although it was obvious that she was thrifty and hard-working and deserved to be esteemed. Despite fact that she peddles and runs a cafeteria at the Muslim Education Trust College in Brickdam, she contrives to find time for home-keeping. She is a remarkable woman. Illustrative of this domestic commitment is the following portion of evidence given by the defendant during cross-examination:
“The plaintiff washed my clothes, cooked for me and looked after my household. She was an active partner in the home.”
And although he denied it at first he later agreed that she was the type “who would go out to do things to assist the home.”
I believed the plaintiff that her business was doing well. Indeed, so well was she getting on that she was able to lend the defendant $1,350 for which he gave a promissory note; he denied this transaction and gave a curious explanation about it which I could not and still cannot understand. I believe that he was lying. However, he admitted that he had recorded on a paper, which was received in evidence, that he had given her a promissory note for that sum of money.
The property in question, situated at Vreed-en-Hoop, West Coast, Demerara, was bought in 1955 for $3,500, apparently in the defendant's name. To acquire it the defendant paid $700 of his own money and took a mortgage of $2,800 from the Guyana and Trinidad Mutual Life Insurance Company where he was employed as a salesman. In 1959 the house was renovated and today its value is about $10,000. The mortgage payments were $34.50 per month and the entire loan was repaid in 1972.
I accepted and believed that out of the profits of her business the plaintiff contributed to housekeeping expenses. I believed her when she said in examination-in-chief in reference to the mortgage loan:
“The loan was repaid by deductions from the defendant's salary. As a result I used my money to run the home.”
This, in my view, was a clear assertion that she undertook to defray household expenses to enable the defendant the better to meet the mortgage instalments. Two sentences later, and obviously continuing in the same vein, she said as follows:
“Besides my monthly contributions I used to give the defendant other sums of money. Once I gave him $300, but I cannot remember during which year that happened.”
I accepted that evidence. I took the view, on the whole, that the parties had jointly acquired the property and by their joint efforts over the years had repaid the loan, although the plaintiff did not directly contribute to the mortgage payments or the expenses for renovations. (When property has been jointly acquired but purchased in the name of one party only the legal position is that there arises a resulting trust in favour oh the other Party in respect of his contribution.) See Halbury's Law, Volume 38, (3 rdedition), 868. I found that the defendant is holding the property on a resulting trust and that effect must be given to the beneficial interest of the plaintiff therein as cestui que trust.
It is a misconception to think that this cannot arise in relation to unmarried couples who are living together. In Cooke v. Head [1972] 2 All E.R. 38 the plaintiff who was the mistress of the defendant when they acquired a home by their joint effort was awarded one-third of the net proceeds of sale of the property. The parties in that matter were never married, and indeed left each other before their house was completely built, the defendant thereafter occupying the house alone. See also Diwell v. Farnes [1959] 2 All E.R. 379.
In my opinion the position should be no different where the parties are actually living together when the property is acquired, and where, as in this case, their relationship is of some permanence and flows from a marriage in accordance with their religion. This view appears to be consonant not only with reason and palpable justice but also with the culture and way of life of so many of our citizens. George, J, reached the same view in Ramkalia v. Ramdval and Siriah (No. 31/67 — Demerara, Civil Appeal 23/69) and Jumratia Khan v. Philomena Khan (No. 2567/67-Demerara Civil Appeal 12/71).
To assert this is not to champion the cause of immorality or permissiveness or to hold the state of lawful wedlock in derision but rather it is to take account of the condition of society today. Whatever may be the reasons and whatever some may think, the hard facts are that many people today are living together as man and wife, though not legally married, and many persons who are married according to their religion appear not to be interested in registering their marriages according to law. I can see no reason why one such party cannot be said to be the trustee of the other where they have both worked and jointly acquired property with the intention of sharing the beneficial interest therein.
What has to be remembered is that there is no special approach to the question of joint ownership in relation to a lawful husband and wife, although that relationship is always to be taken into account. There is to be found neither in our law, at present, nor in the law of England the concept of community of property known to European continental jurisprudence, and courts in England have had occasion to stress that s.17 of the Married Women's Property Act, 1882, which corresponds to s. 15 of the Married Persons (Property) Act (Cap. 45:04), is merely procedural and does not establish a substantive and different jurisdiction for division of property between spouses.
It is the general principles of the law of trusts that require to be applied in all cases. Thus in Gissing v. Gissing [1970] 2 All E.R. 780 Lord Diplock said as follows, p. 789:
“Any claim to a, beneficial interest in land by a person, whether spouse or stranger, in whom the legal estate in the land is not vested must be based on the proposition that the person in whom the legal estate is vested holds it as trustee on trust to give effect to the beneficial interest of the claimant as cestui que trust. The legal principles applicable to the claim are those of the English law of trusts and in particular, in the kind of dispute between spouses that comes before the courts, the law relating to the creation and operation of ‘resulting, implied, or constructive trusts’”.
Viscount Dilhorne agreed with this view. In his speech he observed as follows, p. 785:
“I agree with my noble and learned friend Lord Diplock that a claim to a beneficial interest in land made by a person in whom the legal estate is not vested and whether made by a stranger, a spouse or a former spouse must depend for its success or, establishing that it is held on a trust to give effect to the beneficial interest of the claimant as a cestui que trust.”
See also Pettitt v. Pettitt [1969] 2 All E.R. 385 (at pp. 408–9) and the judgment of the Court of Appeal of the West Indies Associated State in Davis v. Davis (1969) 14 W.I.R. 141 (at p. 143).
I consider it necessary to refer to the position of the lawfully married woman to emphasize that the position of the woman not lawfully married can be no better than hers and to make it clear that the court must always be guided in these matters by the principles of the law of trusts, whether the parties are married or unmarried.
In my view, the principle to be extracted from the relevant authorities is that a trust can be said to have arisen only...
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