Gayah v Gayah-Cheeranjie et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Rahim, J. |
| Judgment Date | 26 July 2016 |
| Neutral Citation | TT 2016 HC 191 |
| Docket Number | CV 2013-04119 |
| Court | High Court (Trinidad and Tobago) |
| Date | 26 July 2016 |
High Court
Rahim, J.
CV 2013-04119
Ms. C. Sinanan instructed by Mr. A. Misir for the claimant.
Mrs. L. Maharaj S.C. instructed by Ms. S. Allahar for the defendants.
Trust Law - Whether the presumption of advancement had been rebutted — Whether a resulting trust was created.
The claimant seeks, inter alia, a declaration that one third of the proceeds of sale of the property situate at 100 Gooding Village, in the City of San Fernando (“the Gooding Village property”) was held in trust for him by the defendants and/or the late Roopolall Gayah (“the Deceased”).
The claimant, the first defendant and Savitri Gayah (“Savitri”) are siblings. The Deceased is their father. The Deceased died on the 16th July, 2011. By his Last Will and Testament dated the 15th November, 2005, the Deceased appointed Savitri and the first defendant as executors of his Will.
Since Savitri resides out of the jurisdiction, the first defendant applied for and was granted a Grant of Probate of the Deceased's estate on the 25th October, 2013 with power reserved to Savitri, to apply.
By Deed dated the 7th January, 2008 and registered as DE200800557481 (“the 2008 Deed”) the claimant, the first defendant and the Deceased became joint owners in fee simple of the Gooding Village property. Subsequent to its purchase, the Gooding Village property was vandalized on multiple occasions. As a consequence, the Deceased put the Gooding Village property in the hands of a Real Estate Agent, Mr. Larry Benliza to find a purchaser.
By Deed dated the 20th October, 2009 and registered as DE200902447654 (“the 2009 Deed”), the Gooding Village property was sold to K.R.A.T Investments Limited (“K.R.A.T”).
The claimant alleges that it was orally agreed amongst the first defendant, the Deceased and he that they would each receive a one third share of the proceeds of the sale of the Gooding Village property which represented the value of their respective legal interests in the same.
The claimant further alleges that his entitlement of one third of the proceeds of sale amounts to $1,900,000.00 but he has never received payment of this, or of any sum of money in this regard from the first defendant, the Deceased, or his Estate in breach of the Agreement.
The claimant claims that the first defendant has orally acknowledged on many occasions that she in her personal capacity owes the claimant the money but notwithstanding his repeated requests, she has neglected and/or failed and/or refused to pay him his share of the proceeds of the sale.
The defendants claim that the Deceased purchased the Gooding Village property with his own funds as an investment and vested the Gooding Village property in names of the claimant and the first defendant as a matter of convenience until he decided what to do with the property. That the claimant and the first defendant was at all times holding the Gooding Village property for the Deceased on a resulting trust. The first defendant denies that the Deceased ever told her that he wanted both the first defendant and the claimant to benefit from the Gooding Village property nor did he ever tell her to pay the claimant any money. On the contrary, the Deceased instructed her to deposit the proceeds of sale into their joint bank account and repay the loan he had taken to purchase the Gooding Village property as well as all the costs and expenses of sale.
Therefore, it is the contention of the defendants that the claimant is not entitled to, the sum claimed.
The main issue for determination by this Court is the intention of the Deceased at the time of purchase of the Gooding Village property. The presumption of advancement and the presumption of resulting trust operate where there is no direct evidence, that may reveal the Deceased's intentions when he purchased the Gooding Village property, as is the case here. The defendants have agreed that in the circumstances of this case, the presumption of advancement clearly arose and so the burden of proof lies with them to show that the Deceased did not intend that the first defendant and the claimant would become beneficial owners of the property but that he intended that they hold the property on resulting trust for him. The relevant law is set out later in this judgment.
As such the following issues arise for determination by this Court:
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i. Whether the presumption of advancement has been rebutted.
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ii. If the presumption of advancement has not been rebutted, the extent of the liability of the defendants.
According to the evidence of the claimant, he has six siblings, namely, Taran, Sylvia, Savitri, Carol, Nadira and Dooreen. His older sister Sylvia died a few years before the Deceased passed away. The claimant's parents separated when he was still in elementary school. He assisted his father in taking care of the home and his siblings for many years. The Deceased met his common law wife, Dularie also known as Judy when the claimant was a teenager. The Deceased has three daughters with Dularie namely Sabita, Indira and Nayantara.
The claimant testified that the Deceased was a private person. That he was not a man prone to showing excessive emotion and the claimant respected him very much. The claimant assisted his father in his business. Initially, they had a trucking business called Gayah's Transport Service, and a customs brokerage business. Taran was involved with the Deceased and the claimant in the trucking business. Around the 1970's the Deceased decided to branch off into a compressor business. They gradually closed down the trucking business and started with the compressors. They kept the customs brokerage part of the business alive. In the early 1970's, Taran left the Deceased's business to start his own trucking business. The claimant remained with the Deceased and helped him with the compressor business.
It is the evidence of the claimant that the Deceased and he had a good relationship as the Deceased was the head of the family. The Deceased was a staunch Hindu and a traditional man. In or about 1975, the claimant met his present wife, Marlene. Marlene was of Islamic faith. The claimant and his wife began to see each other regularly and he eventually took her home to meet the Deceased. The claimant could tell from the look and the attitude of the Deceased that he did not approve. The claimant nevertheless continued to see her despite not having received the Deceased's blessing. Eventually, the claimant decided to assert his independence and in June of 1976 he went to live at Marlene's family home. Several months later they got married.
Within a short space of time after leaving home the claimant's brother, Taran assisted him in buying a Compressor and he started his own Compressor business. In 1983, the claimant decided to return to work for the Deceased and his business.
According to the evidence of the claimant, he simply went back and the Deceased accepted him as though he had never left. The claimant took his four compressors and used it in the Deceased business.
When the claimant went back to the Deceased's business, he did not discuss salary or terms of employment with him. By this time the first defendant was acting as the secretary/accountant/paymaster of the business. According to the claimant the Deceased fully accepted him and he went back on the understanding that the Deceased would take care of him in the future. The claimant took whatever salary the first defendant gave him without any complaint. His starting salary was $300 per week until increased in the 1990's to around $500 per week. By the time the claimant left the business he was paid approximately $1,000 per week.
Around 2002 the claimant began to have serious health problems. In September, 2007, the claimant developed a growth at the base of his spine which needed to be removed. The Deceased provided the funds to pay for the claimant's medical care.
In 2007, the Deceased also had to have a pace maker implanted. According to the evidence of the claimant, by this time he and the Deceased became closer and the Deceased appeared to no longer harbour reservations about Marlene. She would visit the Deceased in the nursing home where he had surgery, and she was alone with him when he woke up after surgery. It appeared to the claimant that the Deceased had fully accepted her by then.
Sometime in or about January 2008, the Deceased instructed the claimant and the first defendant to visit the legal offices of Dipnarine Rampersad. The Deceased told the claimant that he was buying the Gooding Village property and that he wanted the claimant to have a share in it along with he and the first defendant. On or about the 7th January, 2008, the claimant, the first defendant and the Deceased visited the offices of Deceased's attorney to execute the 2008 Deed.
It is the evidence of the claimant that at no time was he told of any loan. Further, that at no time did the Deceased tell him that he was putting his name on the Deed for convenience until he decided what he wanted to do with the Gooding Village property. The claimant understood the Deceased to be giving him a one third share in the Gooding Village property.
According to the evidence of the claimant, on several occasions after the Gooding Village property was purchased, the claimant would take a crew of workmen to clean up the place. In the course of cleaning up the building on the property, the claimant noticed that vandals started to damage the same. The claimant reported this to the Deceased, they discussed the situation and decided to sell the property and divide the proceeds of sale.
It is the evidence of the claimant that during the year 2009, he, the Deceased and the first defendant...
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