CHATOORY O & ANOR v. CHATOORY H.

2005 SCJ 212

Record No: 59739

IN THE SUPREME COURT OF MAURITIUS

In the matter of:

1. Mrs. Ooma Chatoory

2. Mrs. Gowree Chatoory
Plaintiffs
v.

Heeralall Chatoory
Defendant

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JUDGMENT

The plaintiffs are sisters. They were born in 1922 and 1928 respectively and

the defendant is their brother. They together with their mother Bowaneea Maudhoo

became the co–owners of three plots of land after their father’s death.

They had all been occupying a house made of thatched roof on the first plot

of 4 acres at Montagne Blanche and on which there were also a cowshed, fruit trees

and a sugarcane plantation.

On the second plot of 7 acres, there were partly eucalyptus trees and the

defendant was burning charcoal on part of the land with the consent of his mother.
 The defendant had been growing sugarcanes with the consent of the

plaintiffs and their mother on the third plot of 1 acre 2 perches which was found at a

place known as Terrain Grifis,

Both plaintiffs gave evidence which is substantially to the effect that they had

been living on the land of 4 acres until they got married and, thereafter, plaintiff no.1

went to live with her husband at Melrose and plaintiff no.2 went to live at Vacoas.

Their mother incurred all the expenses for their marriage. They used to visit their

mother and, in fact, their first children were born at their mother’s place. After their

marriage, the defendant continued living with their mother in the thatched roof house

and later in a concrete house which she caused to be built. The defendant had been

administering all the properties belonging to his father’s succession with her consent.

The plaintiffs related that, in the year 1956, the defendant told them that a

neighbour who was of Muslim faith, was encroaching and throwing stones on the

“Grifis land” and that he needed their authorisation to take legal action against him.

In that connection, they all went to the office of a notary where they were asked

either to put a cross or to affix their thumbprint to a paper - which they did -without its

content having ever been read over and explained to them.

Their evidence further reveals that in the year 1995, plaintiff no. 1 decided to

give away her share in the three properties to her children and, therefore, initiated

proceedings for a division in kind. She, then, discovered for the first time, that the

defendant claimed himself to be the sole owner of the properties for having already,

in 1956, purchased the undivided rights of the other three co-owners. The plaintiffs

denied that their mother or they themselves had ever sold their undivided rights in

their late father’s succession and maintained that they genuinely believed that the
document on which they were asked to affix their thumbprint and/or to put a cross

before Mr Vikram Dassyne, Notary Public, in 1956 was in relation to “an

authorisation” they had given to the defendant in their capacity as co-owners in

relation to a case of encroachment. Thereupon, they entered the present action in

December 1996 and subsequently applied for and obtained an interlocutory

injunction against the defendant restraining him from disposing of the properties in

lite pending the outcome of this case.

The plaintiffs have also alleged that the defendant has misappropriated their

mother’s items of jewellery after the latter’s death. However, their evidence on this

issue was hardly sufficient for my consideration.

It is the plaintiffs’ contention now that the acts and doings of the defendant

amount to fraud as they never intended to sell their rights in the lands in lite or had

ever received any consideration for the said alleged sale. They are accordingly

praying for a judgment, inter alia, declaring null and void the deed of sale drawn up in

1956, and ordering the defendant to pay to each of them Rs 1m as damages.

The said deed of sale transcribed in Vol. 691 No. 171 has been produced

and it indeed shows that the defendant had purchased the undivided rights of the

other co-owners in the three plots of land for the total sum of Rs 2,400/ which they

allegedly acknowledged in an affidavit having received “hors la vue du notaire.”

Mr Raghoo, Land Surveyor, assessed the value in 1956 of the plot of 4 acres

at Rs 84,417; the plot of 7 acres at Rs 14,773/ and the plot of 1acre 02 at Rs 6,458.

The defendant has maintained in his defence and in court that the sale in

question was a genuine sale and that the plaintiffs were well aware of the content of
the deed which he again maintained had been explained to them before they affixed

their thumbprint. He stated that he obtained funds to purchase the rights of the co-

owners from his occupation as a vegetable seller and from income he received from

rearing cattle.

I shall first deal with the legal point raised on behalf of the defendant which is

to the effect that the plaintiffs’ action is time barred.

Learned counsel has submitted that Art. 2271 of the Civil Code to the effect

that le delai de prescription court à compter du jour où le droit d’action a pris

naissance, applies in this case and that, therefore, the cause of action arose on the

day of the signing of the deed on 28 May 1956, and hence the present action was

time barred having been entered more than 30 years later.

On the other hand, the submission of learned counsel for the plaintiffs is to

the effect that this is an action en nullité of a contract where the agreement was

obtained by fraud, and that pursuant to Art.1304 of the Civil Code, time runs as from

the day the said fraudulent act is discovered so that, in this case, time should run as

from the year 1995 when, according to the plaintiffs, they discovered that they had

been cheated by having supposedly sold their rights in the properties in lite.

Art.1304 provides as follows:

“Dans tous les cas où l’action en nullité ou en rescission d’une

convention n’est pas limité à un moindre temps par une loi
particulière, cette action dure cinq ans.

Ce temps ne court dans le cas de violence que du jour où elle a

cessé; dans le cas d’erreur ou de dol, du jour où ils ont été
découverts.
…………….”
 The first point that should be made is that the extinctive prescription

mentioned in Art. 2271 relates to Art. 2268 and 2270 of our Civil Code with regard to

the time limit of 30 years for the actions réelles and 10 years for the actions

personnelles.

Two cases which illustrate the applicability of Art. 2271 may conveniently be

cited here. First, in Marie v Congrégation des Hindous de Maurice [1916 MR 53],

the plaintiff (an heir of the donor), sought to recover a property from the defendants

who were in possession thereof on the ground that the original donation made in

1858 was of no effect. The defendants pleaded, inter alia, that the action was time

barred by the “prescription extinctive” which at the time was 20 years by virtue of

Art. 2262 of the Civil Code. The court held that Art. 2262 effectively bars the “action

en revendication” of a claimant to whom the defendant opposes a deed at least 20

years old which on the face of it embodies a legal transfer by the plaintiff etc. of the

property sued for by such claimant. It precludes the court from investigating or

deciding on the nullity (or non-existence) of that transaction on whatever grounds the

nullity is invoked.

Similarly, in Sewruttun v Mahadewoosing & Anor [1982 MR 166], the

plaintiffs sought to challenge a deed purporting to be a sale of property by father to

son alleging that the said sale was a disguised donation and therefore a ‘simulation

frauduleuse’. The defendant pleaded that the action was time barred invoking the

prescription of 20 years as, again, it then was under Art. 2262 of the Civil Code. The

court referred to the Marie case (above) and held that the long prescription of

Art. 2262 applied to an action in which it was sought to question a deed of transfer

even where that deed was itself void.

 As for the prescriptive period imposed by Art 1304, this should be read for

the purpose of this case in conjunction with Art. 1109 which provides that

“Il n’y a point de consentement valable si le consentement n’a été

donné que par erreur, ou s’íl a été extorqué par violence ou
surpris par dol.”

In other words, there is no consent at all if it has not been given voluntarily,

and when it has been obtained by fraudulent means, as alleged in the present case,

the limitation of action should run from the time the alleged fraud has been

discovered.

We read from Dalloz Nouveau Code Civil – Art. 1304 at -

“Note 40: L’action en nullité, telle que le présent Code la réglemente,

s’applique non pas à l’acte radicalement nul, à celui qui par lui-
même n’est susceptible d’aucun effet juridique, mais
seulement à l’acte qui, entaché d’un vice relatif, n’est point
inexistant en lui-même et produit ses effets tant que
l’annulation n’en est pas provoquée.”

Note 291: C’est à celui qui prétend que le délai n’a pas commencé a
courir du jour du contrat qu’importe la charge de prouver que le
délai n’a commencé à courir que d’un jour postérieur. …. …..”

We further read from Dalloz Code Civil – Ed 2004 under Art. 13 at page
1092 at –

“6. Autres prescriptions. La prescription édictée par l’art. 1304 ne

pouvant être opposée qu’aux demandes en nullité ou en rescision
d’un acte entaché d’un vice ou d’une nullité que seul un consentement
exprès ou tacite peut couvrir, la seule prescription à opposer en cas
d’absence d’acte par le défaut d’existence légale est la prescription de
trente ans. Civ. 6 nov. 1895: DP 1897. 1.25.”
 (Vide Deruckpaul v B. Nunkoo [1987 MR 176]).

The present case would, no doubt, have been time barred as from the year

1956 by virtue of Art. 2268 and 2271 had the plaintiffs not grounded their action on

their lack of consent and the defendant’s alleged fraud and accordingly claimed the

annulment of the deed invoking Art 1304 of the Civil Code. This being the case, the

plaintiffs had five years as from the year 1995 to enter the case provided that they

satisfactorily establish that they had genuinely discovered the fraud at that particular

time.

On this score, the plaintiffs explained how and in what circumstances they

discovered the existence of the deed of sale. They were truthful when they

vehemently maintained that it was only in 1995 when they decided to petition for a

division in kind that they learnt about the alleged deed of sale of the 3 plots of land to

the defendant. The present action therefore cannot be said to be time barred having

been entered in 1996.

On the facts of the case, the plaintiffs have favourably impressed me by their

spontaneity and their sincerity as they deposed in court. I believe their testimony that

they had never consented to sell their undivided rights in the properties in lite or

received any payment from the defendant for the alleged said sales. They were

convincing when they insisted that the purpose of going to the notary was for a mere

“authorisation” to their brother to take legal action against a neighbour who was

allegedly encroaching on the land in lite. In this connection, the defendant’s own

evidence confirming as true the fact that a person of the Muslim faith had once

entered the Grifis land shows to a certain extent that the plaintiffs had not been
talking through their hats. Given the plaintiffs’ version, I am also not prepared to act

on the affidavit acknowledging receipt of payment mentioned in the deed in the

absence of evidence with regard to the circumstances in which it was drawn up and

solemnly affirmed. Furthermore, the plaintiffs appeared to be sincere when they

conveyed to the court that they had always believed that the defendant had merely

been acting as administrator of the properties with the consent of their mother who

passed away in 1976. They did not strike me as having initiated the present action

against their brother merely because of the considerable increase in the value of the

three plots since 1956 as it has been suggested to them in cross-examination.

For the above reasons, I find that the plaintiffs had never consented to sell

their undivided rights in the three properties in lite.

I accordingly declare null and void to all intent and purposes the deed

drawn up by Notary V. Dassyne on 26 May 1956 transcribed in TV 691 No. 171.

The Conservator of Mortgages to take note of my judgment and to show

compliance.

I order the defendant not to sell, dispose, charge or mortgage his rights in

the properties in lite.

I further order the defendant to pay to the plaintiffs damages in the sum of

Rs100,000 which I consider fair in the circumstances.

With costs.

P. Balgobin
Judge
2 September 2005

For Plaintiffs:
Mr. M. Mardemootoo, S.A
Mr. M. Dulloo, of Counsel

For Defendant:
Mr. Attorney M.I. Dauhoo
Mrs. R. Jaddoo, of Counsel together with Mr. A.R Jaddoo, of Counsel