Mathurasingh et Al v Ackbarali et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Permanand, J. |
| Judgment Date | 04 March 1985 |
| Neutral Citation | TT 1985 HC 34 |
| Docket Number | No. 2938 of 1980 |
| Court | High Court (Trinidad and Tobago) |
| Date | 04 March 1985 |
High Court
Permanand, J.
No. 2938 of 1980
Mr. A. Fitzpatrick for plaintiffs.
Mr. R. Nelson and Mr. N. Mohammed for defendants.
Real Property - Landlord and tenant — Contractual tenancy — Evidence of its existence.
On July 24, 1980 the plaintiffs herein filed a Writ of Summons claiming that the said plaintiffs are the owners of all and singular that building situate at Saddle Road, San Juan on land rented from Fazal Chan (hereinafter referred to as the said promises), possession of the premise mesne profits at the rate of $500.00 per month from June, 1977 until possession is delivered up.
Pursuant to leave granted by this Court on November 1, 1984 paragraph 1 of the Writ of Summons was amended to include paragraph 1 of the prayer in the second re-amended Statement of Claim namely,
“A declaration that the plaintiffs are the tenants of all and singular that parcel of land situate at Saddle Road San Juan comprising approximately one lot and the owners of the chattel building standing thereon,” and also to include at paragraph 4,
“Further or in the alternative damages and or compensator.”
By their second re-amended Statement of Claim the plaintiffs plead that prior to 1943 and until his death Philip Jaggassar hereinafter referred to as the “deceased” was a yearly tenant of a lot of land situate at San Juan and the owner of a building standing thereon and together with his family he carried on business paying the sum of $36.00 per year inclusive of rent, water rates and taxes.
On December 3, 1943 the deceased died intestate leaving him surviving six illegitimate children, namely the four plaintiffs Dandan and Frankie.
The Statement of Claim further pleads that on the death of the deceased the second and third named plaintiffs and Dandan continued in occupation of the said premises paying the said sum of $36.00 per annum but on behalf of all the deceased's said children. In or about 1948 and 1962 respectively the third and second-named plaintiffs left the said premises leaving Dandan and his common-law wife Dhania in occupation with the consent of all the said plaintiffs and that on 13th March 1975 and 18th July 1975 respectively both Frankie and Dandan died leaving the plaintiffs as the sole surviving children and that with the consent of all the plaintiffs Dhania continued in occupation.
On November 25th, 1976 letters of administration of the estate of the deceased was granted to the Administrator General and on 26th June, 1977 the Administrator General waived all rights to the deceased's estate and, transferred the said premises and tenancy to the plaintiffs. However according to paragraph 7 of the Statement of Claim on 28th February 1975 by deed of conveyance No, 6573/75 the first defendant became the owner in fee simple of a parcel of land including the said lot of land and at some time prior to June 1977 the first-named defendant entered and took possession of the said premises despite the requests of the plaintiffs on several occasions to vacate the said land and that further by Deed No, 12041/79 the first-named defendant transferred the said lot of land to the second-named defendant and as a result the plaintiffs have been deprived of the use of the land and claim mesne profits at S500.00 per month.
The defendants by their re-amended defense delivered on October 17, 1984 denied that Dandan paid the sum of $36.00 per year or any other sum on behalf of the deceased's said children. The defendants contended that on the death of the deceased as tenant of half lot of land in possession of the chattel house thereon the tenancy became extinguished and merged in the freehold when the plaintiffs ceased to occupy the said chattel house and upon the death of Dandan in July, 1975.
In the alternative the defendants pleaded that in respect of the occupation of Dandan and Dhania the plaintiffs are estopped from denying that Dandan held a contractual tenancy from Boodoo Chan and his successors paying $144.00 per annum or from relying on any rights derived from the Administrator General. In the further alternative, the defendants pleaded that Dandan as sole tenant of the said premises became absolute owner and sold same to himself and his wife Dhania as joint tenants an April 19, 1971 and that after the death of Dandan in July, 1975 Dhania sold the chattel house and tenancy on 6th August, 1975 to the first defendant and the said tenancy merged into the freehold.
In support of their claim the first named plaintiff hereinafter referred to so this plaintiff and one Ralph Pierre gave evidence.
The plaintiff who is a market vendor and lives at upper St. Francois Valley Road Belmont testified to the following affect, that her father and mother were married according to Hindu rites and their marriage was not registered and at about age 7 she, together with her parents, brothers and sisters moved from Princes Town to the said premises at San Juan which was rented from Boodoo Chan. Her father was a Goldsmith and carried an his business on the said premises which originally was a wooden structure, but which subsequently her father broke down and built a house partly in wood and partly of concrete. The rent payable was $36.00 per annum. At their father's death in 1943 Nathaniel, Carl and Frankie were living at the said premises, the plaintiff was married and had already moved out from the said premises. Dandan who is the eldest was at that time married to one Tate and lived at El Socorro Road but at the request of all the brothers and sisters Dandan returned to the said premises and looked after the silver jewellery business, but returned to his home an evenings. Nathaniel was a qualified Goldsmith and also worked in the jewel shop. After their mother's death (some 17 years after) their father lived with someone else whom this plaintiff referred to as their “step-mother” and she also lived at the said premises after their father's death.
This plaintiff also testified that she gave Dandan $18.00 towards the rents and Carl also gave $18,00. In 1948 Nathaniel moved out of the said premises then Carl married in 1962 and he also moved out. Dandan and Dhania who were both married though not to each other, then lived as man and wife on the said premises and there no objection to their living on the said premises.
In March, 1975 Frankie died., In July 1975 Dandan died and in July, 1984 Nathaniel died. Carl the second-named plaintiff lives in the United States of America and Soonadaye the fourth-named plaintiff is ill.
This plaintiff testified that during the time Dandan lived on the premises, she and Carl still continued to give him money to pay for the rental of the said premises and after Dandan's death she, her brother and sister allowed Dhania to live on the said premises, but she discovered two weeks after Dandan's death that Dhania had moved out. It is to be noted that there is no allegation that Dhania was given any money to pay the rental of the said premises. From information she received she approached the first defendant and requested the sum of $120,000.00 for the purchase of the chattel house and the first defendant promised to get in touch with her and he did not. He did not tell her he was the owner of the land.
Under cross-examination this plaintiff stated that her father was a tenant of a lot of land at the time of his death and the building which is no longer on the said premises was partly concrete and partly wooden. That although she was not a market vendor and was unemployed at that time she gave Dandan $18.00 per annum towards the rent and she and Carl gave Dandan rent up to 1975 when he died i.e. $18.00 each end as far as she knew the receipts were made cut in the name of Philip Jaggassar. She stated the rent was not 144.00 per annum, but was $36.00 per annum.
Ralph Pierre, a Chartered Valuation Surveyor attached to the firm of Messrs. Raymond and Pierre testified that in 1983 his firm prepared a valuation of the said premises i.e. valuation of the tenancy interest and the building which was no longer on site. His firm placed no value on the building as the building was described as “an encumbrance to the realization of the full potential of the land. He placed a value of the plaintiff's interest at $135,000.00 as this witness took into consideration the provisions of the Land Tenants (security of Tenure) Act.
On behalf of the defendants one Faizal Chan testified, he stated that his grandfather was Boodoo Chan and his father was Rahim Chan and they had owned the relevant parcel of land which was subsequently conveyed to his mother Tabijan Chan (Exhibit ‘E’ refers). During the lifetime of his mother she collected rents from Dandan and sometime after she became ill and this witness, used to collect the rents and gave Dandan receipts. Previous to that Philip Jaggassar was the tenant.
This witness testified as follows:–
“Mr.. Philip Jaggassar died around 1943. At the time he died there was a wooden structure of the lands. Rents were paid by Dandan for the parcel of land to my mother arid myself. We got $6.00 per month at first and then Dandan broke down the wooden structure and put up a concrete structure and my mother took him to court and after the court matter the rent was raised to $12.00 per month. It use late 50's or early 601s. Myself and my mother collected rents and I prepared receipts.”
Two receipts stubs were put into evidence as ‘F.C.I’ and ‘F.C.2’ and identified by this witness as being prepared and signed by him. ‘F.C.1’ and ‘F.C.2’ show that on 2nd December 1966 and 2nd December, 1967 respectively the sum of $144.00 were received by this witness from one Dandan Jaggassar for land rent. Faizal Chan also testified that at...
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