Doorgadeen et Al v Hosein

• Jurisdiction: Trinidad & Tobago
• Judge: Ibrahim, J.
• Judgment Date: 24 June 1989
• Neutral Citation: TT 1989 HC 84
• Docket Number: No. 517 of 1978
• Court: High Court (Trinidad and Tobago)
• Date: 24 June 1989

High Court

Ibrahim, J.

No. 517 of 1978

Doorgadeen et al

and

Hosein

Appearances:

Mrs. L. Maharaj for the plaintiffs

Mr. H. Seunath for the defendants

Real property - Ownership — Adverse possession — Property originally conveyed to 3 brothers as joint tenants in fee simple — Emigration of one brother and division of property by remaining brothers — Whether brother's title had been extinguished — Finding of court that the title had been extinguished and the plaintiffs had established their title to the land — Judgment for the plaintiffs — Defendant's counterclaim dismissed.

Ibrahim, J.

1 Bekaree and Baktee (husband and wife) had owned a parcel of land comprising five quarries (15 acres), (the lands) at Hindustan. By deed of conveyance dated October 01, 1913, and registered as number 125 of 1923, they conveyed inter alia, the lands to Baktee for life with remainder to three of their children Seudat, Hitnarine and Sookdeo as joint tenants in fee simple. Baktee died on May 19, 1924. On the lands there was a cocoa house and below that cocoa house there was the family residence. Sookdeo lived in that house on the lands with his mother. Seudat was then living at St. Pedro, Rio Claro.

2 Ivy Sookdeosingh moved into that house on April 12, 1924 with Sookdeo and Baktee. She lived with Sookdeo as man and wife until their marriage in 1926. Apparently, Hitnarine migrated to Venezuela in 1919. The case for the plaintiffs is that he never returned to Trinidad. About a month or so after Baktee's death in 1924, Ivy Sookdeosingh (the female plaintiff), said that Seudat came and asked for his share. Sookdeo (also called Sookdeosingh) and Seudat then decided to partition the lands with each taking a one half share. Seudat took the northern half and Sookdeo the southern half. Seudat moved in his half a few weeks thereafter and Sookdeo and Ivy continued to occupy the other half. By deed of mortgage dated February 10, 1933, Sookdeo mortgaged his share, title and interest in the lands to David Mahabir to secure repayment of a loan of one hundred and thirty dollars ($130.00). The schedule to that deed which was registered as number 561 of 1933 was stated in the deed to be – “…all his right, title and estate (being a one third undivided share) in that parcel of land situate at Hindustan Road comprising five (5) quarries”.

3 Apparently no deed of release was ever executed by the mortgage. After the deed of mortgage was executed, Ivy said that Seudat and Sookdeo quarrelled and that Seudat decided to take his five acres share. They took a rod and measured off the five-acre parcel and dug a drain that marked the boundary between Seudat's new one-third share and the remainder of the lands. Ivy claimed that she and her husband Sookdeo occupied the remainder ever since. By his will made on April 15, 1935, Sookdeo appointed his wife Ivy as sole executrix. He totally disinherited her and gave the entirety of his estate to his two children Bernice and Robert. He devised and bequeathed unto Robert, inter alia, his share in the lands. On February 24, 1936, probate of the will of Sookdeo was granted to Ivy. Even though there was a specific devise in the will of the testator's share in the lands to Robert, that asset never formed part of the estate that was probated. There was no supplemental grant and no deed of assent from Ivy to Robert and there was no vesting in Robert of that interest or share in the lands. When Sookdeo died on April 24, 1935, Robert was about five (5) years of age (see deed No. 320 of 1944). By 1944, Ivy was saying that Hitnarine was presumed to be dead because “he has not been heard of or seen since the year 1923”, and by deed No. 320 of 1944 made on the 23rd November, 1943, Ivy claimed to be the sole owner of half the lands being an area of two and a half quarries that was identified in the second part of the schedule to that deed as being the northern half of the lands. By that deed she purported to convey that half share to Robert and herself as joint tenants in fee simple. Robert was then thirteen years of age. But did Ivy have any title or interest in the lands to pass by that deed or was she holding the interest of Sookdeo as trustee for Robert who was then a minor? She was remarried in 1940 to Doorgadeen and that marriage is still subsisting. The 1944 deed was executed some three years after her remarriage.

4 After her remarriage she and Doorgadeen lived in the same old house on the lands. In 1967 she demolished that old house and built a new concrete house on the lands. There is no evidence before me as to where Bernice and Robert lived and where they do live now.

5 Carmen Ramdass is a daughter of Hitnarine. She was born in 1918. She admitted that Hitnarine went to Venezuela in 1919 but he returned here in 1948. He then visited Ivy on the land. Carmen accompanied him, but she stood on the road. Her father spoke to Ivy but Ivy refused to listen to him and abused and assaulted him. He left and went to the offices of John Davis, a solicitor, where by deed of May 08, 1950, registered as number 3503 of 1950, Seudat and Hitnarine partitioned the lands whereby Seudat took a one third portion at the south and Hitnarine took a two thirds portion being the northern portion. By deed of conveyance made on October 18, 1950, Hitnarine conveyed to Carmen his entire interest in the lands comprising three and one third quarries. Carmen said she went into physical occupation of the land thereafter. She contracted people to clean the land and to work on the land. By deed of lease dated July 06, 1961, and registered as number 5318 of 1962, Carmen entered into an oil-mining lease with Trinidad Petroleum Development Company Limited by which she devised the three and one third quarries to that Company for a term of twenty-five years with an option to renew the said lease for a further term of twenty-five years upon the terms and conditions therein contained. By deed of conveyance dated December 12, 1966, and registered as No. 1691 of 1967, Carmen sold the three and one third quarries to Errol Hosein, the defendant.

6 In March 1974, the defendant went on the land and cut three cedar trees growing thereon. The plaintiff was present and abused the defendant saying that he could not cut the trees as the land was not his.

7 In High Court Action No. 63 of 1952, Carmen sued Ivy claiming possession of three and one third quarries and damages for trespass. In her statement of claim she recited the deed of 1950 from Hitnarine to herself and alleged that Ivy had been...