Ramlakhan v Farouk
| Jurisdiction | Guyana |
| Judge | Bollers, C.J.,Cummings, J.A.,Crane, J.A. |
| Judgment Date | 20 May 1974 |
| Neutral Citation | GY 1974 CA 10 |
| Docket Number | Civil Appeal No. 50 of 1973 |
| Court | Court of Appeal (Guyana) |
| Date | 20 May 1974 |
Court of Appeal
Bollers, C.J.; Cummings, J.A.; Crane, J.A.
Civil Appeal No. 50 of 1973
Doodnauth Singh for the appellant.
H. Luckhoo, Vernon Persaud with him, for the respondent.
Real property - Title
CHIEF JUSTICE: Plns. Ruperti, Johanna and Endeavour are three estates adjoining each other in the northern part of Hogg Island, Essequibo. Johanna is situated in the centre with Ruperti on the west and Endeavour on the east which consists of 118 acres. In 1952, Boodnie Farouk, the wife of Mohamed Farouk, entered into an agreement in writing for the purchase and sale of Johanna and Endeavour with Dixie Mortimer and Hannah de Camp whose ancestors and predecessors in title had been in possession of those lands nec vi, nec clam, nec precario for over the statutory period of thirty years. This agreement was subsequently destroyed by a catastrophic fire when in the office of a legal practitioner. Mortimer and de Camp had no transport for the lands at the time of sale, but in 1956 they filed a petition for a declaration of title to the said lands and were successful in obtaining transport in their names, the obvious inference being (and this is not denied) to convey title to the purchaser.
Meanwhile on the execution of the agreement, Boodnie Farouk and her husband, Mohamed Farouk had entered into possession of the lands and had prepared them for cultivation and proceeded to cultivate the land and even to rent to tenants certain portions of the land. There is no doubt that the lands were improved, and kokers were built and trenches dug. Mohammed Farouk was his wife's man of business and was responsible for most of the work done on the land, and indeed it was he who rented portions of the lands to tenants. His claim was that his wife Boodnie exercised all rights of ownership over the land through him and she had not been disturbed in her possession for over a period of twenty years. Transport for Johanna was eventually passed by the vendors to Boodnie Farouk and in 1963 she received transport from Hannah de Camp of the latter's undivided half of Pln. Endeavour. Dixie Mortimer, however, did not pass transport for his undivided half and no reason is forthcoming for his failure to do so.
In 1960 there was a dispute over the north to south boundary that divided Johanna from Ruperti, and Dixie Mortimer and Hannah de Camp and one Ramlakhan, who was in possession of a portion of Ruperti, brought an action for trespass against Mohammed Farouk. In their statement of claim the two former persons made the admission that in January 1952 they had leased acres of land on the south-western portion of Johanna to Mohammed Farouk for a period of five years with a right of renewal and an option to purchase, and had put him in possession, and on the 28 th January, 1955, he had exercised the option and purchased in the name of his wife, Plns. Johanna and Endeavour on the terms set forth in the agreement of that date, and they had given him possession of the lands purchased. They averred that in 1955 a survey of Plns. Johanna and Endeavour had been carried out by one Joseph Phang, a Sworn Land Surveyor. In 1960 Dixie Mortimer purported to sell Pln. Endeavour to one A. P. Singh, but died in 1961 without passing transport, and there was subsequent litigation between A.P. Singh and Ina Mortimer, the wife and administratrix of Dixie Mortimer in which Singh unsuccessfully claimed specific performance of the agreement of sale.
In 1962 Mohamed Farouk entered into an agreement of purchase and sale with Ina Mortimer in her capacity as administratrix of the estate of Dixie Mortimer, deceased, for his one divided half part or share in Pln. Endeavour, whereby he agreed to pay the sum of $1, 500 for the purchase thereof in installments, the last of which was to be paid off before the passing of the transport – possession to be given immediately upon the signing of the agreement in writing. Thus it appears that Mohamed Farouk was purchasing an undivided interest in land which his wife Boodnie had already purchased in 1952 or 1955 and had already entered into possession thereof. At time of the execution of this agreement, Ina Mortimer had yet obtained Letters of Administration to her husband's estate but eventually succeeded in doing so on 16 th March, 1963. In pursuance of this agreement, Mohamed Farouk paid to Ina Mortimer the sum of $160 on the signing of the agreement, a further sum of $150 on the 26 th April, 1966, and the once of the balance purchase price of $450 on the 25 th October, 1972, for which he obtained receipts.
I pause here to observe that as Ina Mortimer had not obtained Letters of Administration to the estate of her ceased husband, she could not legally have disposed of the property of the estate, but having obtained the Letters in 1963 she could quite properly under the doctrine of relation back have ratified the sale when she wrote the receipt of 6 th April, 1966, which she did in fact do.
On the 24 th March., 1972, Ina Mortimer again purported to sell all her right, title and interest in Pln. Endeavour to Sarabjeet Ramlakhan, the son of Ramlakhan, already mentioned in this narrative, for the sum of $4, 000, and the recital of the agreement in writing stated that she was the administratrix of the estate of her deceased husband. Under this agreement in writing possession of the land was to be given by the vendor to the purchaser upon the signing of the agreement, and there was a special condition that in the event the vendor failing to obtain title to the aforesaid land all monies less one half share in the expenses of and incidental to the passing of transport to the purchaser by the vendor shall be forthwith refunded, all of which suggests that Mortimer realized that she might experience difficulty in effecting the conveyance to the purchaser.
It was in these circumstances that Boodnie Farouk, not having received transport for the undivided half part or share of Dixie Mortimer in Pln. Endeavour (which is now the subject of dispute and which has now been clearly demarcated as the specific portion of land by a survey carried at the instance of the petitioner in 1970), filed a petition in the High Court of the Supreme Court of Judicature claiming a declaration of title in respect of a specific half of the property described as follows:
“A piece or parcel of land described as 59.0 acres of land situate at Plantation Endeavour, Northern Hogg Island in the County of Essequibo, Guyana, the said land being laid down on a plan by G. M. Rayman, Sworn Land Surveyor, dated 16 th April, 1970, and recorded in the Lands and Mines Department as No. 14017 on 20 th June” 1972.”
Opposition to the petition was at first filed by Mortimer and it appears that after she received the aforementioned sum of $450 being balance of the purchase price under the agreement between Mohamed Farouk and herself, she withdrew the apposition. It was then in November 1972 that Sarabjeet Ramlakhan sought and obtained an extension of time which to enter opposition to the petition which opposition was filed on 8 th February, 1973, under an order of court of that date.
At the hearing of the petition, Boodnie Farouk (hereinafter referred to as ‘the petitioner’) dad not give evidence but was represented by her husband Mohamed Farouk under power of attorney dated 21 st September, 1972, who in his evidence admitted that when he entered into the agreement of 1962 with Ina Mortimer he recognized Ina Mortimer as the owner of the undivided half of Pln. Endeavour and that was his reason for entering into the agreements and he give the evidence that it was not until the petition was advertised for the second time that Sarabjeet Ramlakhan (hereinafter referred to as ‘the opposer’) went on the land accompanied by other persons and reaped his cultivation.
The opposer did not give evidence, but at the close the case for the petitioner his case was closed, and learned counsel made submissions, the main being that the petitioner out of court because, he said, the petitioner's entitlement to possession was based on a sale and purchase and was in fact consensual and there could therefore be no adverse possession. He referred to the receipt given by Ina Mortimer to Mohamed Farouk for the balance of the purchase price of the land under the 1962 agreement between Mohamed Farouk and Dixie Mortimer in her capacity as administratrix, and urged at this was a payment made subsequent to the filing of the petition and was in itself sufficient evidence which would negative adverse possession.
The learned Commissioner of Title on the facts as out above was of the view that the short answer to counsel's submission was to be found in the judgment of Persaud, J. A. in Gobind v. Cameron et al, [1973] 17 W. I. R. 132, at p. 138, where the learned judge, after reciting s. 3 of Title to Land (Prescription and Limitation) Act, Cap. 60.02, stated: “In my judgment, a sale or an agreement to sell could not be consent or agreement within the meaning of the section, and there is no evidence of fraud between 1921 and 1943.”
The Commissioner was of the not unreasonable view that Ina Mortimer was an unscrupulous and fraudulent woman when she purported to sell her husband's interest to Mohamed Farouk and later to the opposer. He was satisfied that the petitioner had been in undisturbed and exclusive possession of the said 59 acres of land since 1952 up to the present time, and proceeded to dismiss the...
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