Mahabir v Mahabir

• Jurisdiction: Trinidad & Tobago
• Judge: McShine, J.A.
• Judgment Date: 14 February 1964
• Neutral Citation: TT 1964 CA 18
• Docket Number: Civil Appeal No. 53 of 1963
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 14 February 1964

Court of Appeal

Wooding, C.J., McShine, Phillips JJ.A

Civil Appeal No. 53 of 1963

Mahabir

and

Mahabir

Appearances:

Mr. T. Hosein and Mr, S.G. Maharaj for the appellant,

Mr. Selby Wooding for the respondent.

Family Law - Husband and wife — Matrimonial Property — Matrimonial house of spouses — Whether husband entitle to share in a beneficial ownership of property — Married Women's Property Ordinance Cap 27 No.13 s.20

Facts: Property in dispute was purchased in name of wife by her father. Husband repaid part of loan raised by father to purchase property. Husband spent money on improving and maintaining it. When the dwelling-house on the property was demolished and rebuilt, the husband provided new house with various amenities and paid architect's fees. Entire cost for demolishing and rebuilding was provided by the wife's father from his own resources with the intention of benefiting his daughter alone. Judge held that from beginning to end the beneficial ownership of the property was in the wife alone. Husband now appeals

Held: Lord Denning in Hine v. Hine did not advocate any regard of the statutory requirements that there must be some question between husband and wife as to title of possession of property. It is only when the beneficial interest is shown to belong to both husband and wife and, as well, when no clear intention appears as to their respective entitlements in the event of its having to be divided between them, that the jurisdiction of the court under s.20 becomes “entirely discretionary.” Irrespective of whether the title of the property which is in question is referred in the name of the husband alone or the wife alone or of both, the decisive issue for determination is in whom is the beneficial interest? This is not determined according to strict rules but has to be examined broadly and without regard for niceties. The conclusion of the judge from the facts that the beneficial ownership of the property was in the wife alone ought not be disturbed. Appeal dismissed with costs.

JUDGMENT OF THE COURT:

1 Section 20 of the Married Women's Property Ordinance, Ch. 27 No. 13 (hereinafter called “the Ordinance”), which corresponds with section 17 of the (English) Married Women's Property Act, (hereinafter called “the Act”), provides that –

“In any question between husband and wife as to the title to or the title to or possession of property, either party …… may apply by summons or otherwise in a summary way to any judge of the Supreme Court, and such judge may make such order with respect to the property in dispute … as he thinks fit”.

2 In order therefore to found the jurisdiction conferred by the section, it is essential that some title to or that the possession of property should be in question between a husband and wife. This appeal is concerned only with a question as to title, no issue having been raised as regards possession.

3 Title to land is regulated in this country by registration under the Registration of Deeds Ordinance, Ch. 28 No. 2, or under the Real Property Ordinance, Ch. 27 No.11. Nevertheless, persons may claim in pursuance of some equitable or statutory right which, if established, may prevail over the registered title. Familiar instances and claims for specific performance of sale contracts, or to sot aside improvement conveyances to persons in confidential relation to the grandors, or to avoid dispositions within sections 78 and 79 or the Conveyancing and Law of Property Ordinance, Ch. 27 No. 12, or to confirm title acquired by presumption under the Real Property Limitation Ordinance, Ch.5 No.7o. But in all such cases it is important to observe that the claimant must point to some instrument, fact or circumstance, relating to the land, upon which to rely to establish his claim. No question as to title ever really arises merely because a claimant happens to be kin to the registered holder. Moreover, any such question should be justifiable according to well-recognised principles, otherwise it should be referred to the palm trees and not to the courts.

4 I have said what I have done because I reject, and reject utterly, the revolutionary implications which it was contended flow, from the dictum of Lord Denning, M.R., in Hine v. Hine [1962] 3 All E.R. 345, at p. 347. The dictum was in these terms:

“the jurisdiction of the court over family assets under s.17 is entirely discretionary. Its discretion transcends all rights, legal or equitable, and enables the court to make such order as it thinks fit. This means …that the court is entitled to make such order as appears to be fair just in all the circumstances of the case”.

5 For a proper appreciation of that dictum it should be noted, I think, that the case then before Lord Denning was one in which the legal title to the property was vested in a husband and wife as joint tenants and that he spoke specifically of “family assets”. It should be borne in mind also that he went on almost immediately to add as resulting from his consideration of the authorities that –

“Two principles have …emerged in exercising this discretion. The first is that, when it can clearly be seen that the parties intended that one piece of property or one amount of money should belong to one amount of money should belong to one or the other in any event, that intention should prevail. The second principle only arises where no such intention appears. I venture to state the principle in the words which I used in Rimer v. Rimer: “‘It seems to me that when the parties, by their joint efforts, save money to buy a house which is intended as a continuing provisions for them both, the proper presumption is that the beneficial interest belongs to them both jointly. The property may be bought in the name of the husband alone or in the name of the wife alone, or I would add in this case in the name of husband and wife jointly but, nevertheless, if it is bought with money saved by their joint efforts and it is impossible fairly to distinguish between the efforts of one and the other, the beneficial interest should be presumed to belong to them both jointly’”.

6 Manifestly, Lord Denning had in mind property the beneficial interest in which or the established facts might properly be held to belong to the spouses jointly. Hence, in applying the two principles which he said had emerged for the due exercise of the court's discretion, he dissected the purchase transaction so as to segregation the £2,000 paid as part of the price from the balance thereof which had been raised on mortgage. The judge having found that the whole of the £2,000 comprised “moneys coming from her own father or from her legacy and ….. indubitably her own”, Lord Denning applied the first principle thereto and held that it was the wife's in any event and that she was accordingly entitled to receive it back. But the remaining interest in the property he held to have been acquired by their joint efforts and intended as a continuing provision for them both: to this, therefore, he applied the second principle with the result that he divided it equally between the husband and wife.

7 I do not therefore read the dictum as advocating any disregard of the statutory requirement that there must be some question (and, as I think, justifiably question) between husband and wife as to the title to or possession of property. I agree that such a question may arise no matter in whose name the title is registered. That must be so since the decisive issue is: in whom is the beneficial interest? But, in my view, it is only when the beneficial interest is shown to belong to both the husband and wife and, as well, when no clear intention appears to their respective entitlements in the event of its having to be divided between them that the jurisdiction of the court becomes “entirely discretionary”. This emerges, I think, from the concurring judgments in Hine's case. Thus, Donovan L.J. commenced his very brief judgment with the significant statement that - “There is no question in this case but that the house was held by the husband and wife as joint tenants”; and he ended it with this observation:

“I might, perhaps, add this, that I myself see no conflict between Allen v Allen and Rimmer v. Rimmer. The question in all these cases is whether the house was bought as a joint venture or not; and one has to look at the facts of each individual case in order to decide it. The problem does not arise in the present case where a joint tenancy was created at the outset”.

8 So also, after reviewing the authorities and the conclusion of the judge that the wife, having given instructions that a joint tenancy should be created by the conveyance, must be taken to have intended to pass a joint beneficial interest in the house to her husband, Pearson L.J. said:

“In my judgment, however, the fact that the husband and wife took the property in joint tenancy does not necessarily mean that the husband should have a half interest in the proceeds of the sale now in contemplation. The parties agreed, expressly, or by implication from the creation of the joint tenancy, that the house should be the matrimonial home and should belong to both of them (totally to each of them in its entirety) and that on the death of one it would belong to the other by right of survivorship. They did not, however, make any agreement, or have any common intention, what should happen in the event of the marriage breaking up and the property then being sold. That event was outside the contemplation of the parties. The proper division of the proceeds of sale in that event is left to be decided by the court in this application under s. 17”.

9 In Wilson v. Wilson [1963] All E.R. 447 which went before the Court of Appeal in England eight months after the decision in Hine v. Hine (supra), the wide terms of Lord Denning's dictum would seem to have been a cause of embarrassment and the members of the...