Seepersad v Seepersad
| Jurisdiction | Trinidad & Tobago |
| Judge | Maharah, J. |
| Judgment Date | 29 April 1994 |
| Neutral Citation | TT 1994 HC 44 |
| Docket Number | No. SM-160 of 1991 |
| Court | High Court (Trinidad and Tobago) |
| Date | 29 April 1994 |
High Court
Maharah, J.
No. SM-160 of 1991
Mr. Randolph Williams for the petitioner
Mr. Reynold S. Beharrylal for the respondent
Heard on January 11th and 24th, February 4th, 11th and 25th, March 8th and 23rd 1994.
Family law - Husband and wife — Matrimonial home only asset — Lump sum payment to wife ordered as being best course in all the circumstances.
Krishna Seepersad (hereinafter called the petitioner) and Dayah Seepersad nee Rajkumar (hereinafter called “the respondent”) were married on the 7th day of July, 1977 at St. Andrews Village Couva. For ease of exposition I would at times refer to them as “the parties”.
Prior to the marriage the petitioner resided at L.P. No. 51 St. Andrews Street, Couva with his mother and other family members. He is a welder and the respondent is a Hair-dresser.
By Deed dated 9th day of October, 1975 the petitioner and his mother Paramdai Maharaj, purchased 8,234 square feet of land situated at St. Andrew's Village aforesaid at and for the price or sum of $5,000.00 in fee simple as joint tenants. The deed is registered as No: 14965 of 1975.
It appears that from the date of purchase the peitioner his mother and members of his family began to reside in the house standing on the lands purchased.
Paramdai died just after a year of the sale that is, on the 30th October, 1976 and by Jus accrescendi the petitioner became the sole owner of the above property.
The respondent prior to her marriage to the petitioner was married to one Mr. Laloo. They have three children by that marriage, namely:–
(a) Nerick Laloo born on the 3rd day of June, 1966.
(b) Kenneth Laloo born on the 2nd day of May, 1968 and
(c) Vanessa Laloo born on the 30th day of December, 1970.
The respondent was divorced from her first husband and it appears she has care and control of her three children aforesaid.
The evidence disclosed that the parties had had a short courtship. This began about three months before they got married.
By Notice dated 18th day of November, 1991 the petitioner sought a settlement of property Order against the respondent. The property was not described in the summons. No point was taken on this by the respondent's attorney. See Scott v Scott H.C.A. No: M-288 of 1987 at P.1 a judgment of Sealey J. on the 14th day of October, 1991.
The petitioner's affidavit dated the 18th day of November, 1991 (hereinafter referred to as “the petitioner's first affidavit”) clearly sets out at paragraph 3 thereof, the property the subject matter of this application, as L.P. 51 situate at St. Andrew's Street, Couva in the County of Caroni.
Exhibited to the petitioner's first affidavit was the Deed of Conveyance marked “A” and referred to supra. Also referred to and marked “B” was an Estate and Succession Duty's Certificate dated the 28th day of March, 1979. This evinced that no Estate Duty was payable on the petitioner's share; and that the value of the mother's share in respect to the above property was $12,500.00.
So that the whole value of the property in question at the mother's death was $25,000.00.
Apart from the petitioner's first affidavit the petitioner filed a supplemental affidavit dated the 3rd day of January, 1992. In particular at paragraph 7 thereof he exhibited approximately fourteen of his T.D.4––Income Tax remuneration slips between the years 1976 to 1983 showing his salary and income, tax deducted and one slip for 1989. He filed another supplemental affidavit with exhibits annexed thereto and dated the 16th day of March, 1992.
She swore to her affidavit in answer on the 1st day of December, 1991 and exhibited several important documents thereto. Further on the 23 rdJanuary, 1992 the respondent filed another affidavit in answer to the petitioner's first supplemental affidavit aforesaid. She likewise further exhibited many documents thereto. Leave was granted to cross-examine the parties on their affidavits filed.
On the 11th day of April, 1991 the petitioner filed his petition for divorce against the respondent on the ground of the respondent's adultery with a man whose name the petitioner does not know.
On the 23rd day of May, 1991 the respondent filed her Answer and Cross Petition alleging unreasonable behaviour in the petitioner; and in her reliefs thereof she sought inter alia that her marriage be dissolved.
It appears that by letter dated 1st day of May, 1991 the respondent's previous advocate attorney suggested to the petitioner's attorney to amend his petition, and to pursue the ground of five years' separation or two years' with consent, as the marriage had broken down irretrievably.
As such by summons dated the 20th day of June, 1991 the petitioner sought the leave of the Court pursuant to the M.C. Rules 1973 to file a further petition. The petitioner's affidavit dated the 20th day of June, 1991 was filed in support thereof. A draft was annexed and the ground sought was five years' separation immediately preceding the presentation of the petition.
On the 16th day of July, 1991 this Court granted leave to the respondent to withdraw her Answer and Cross-petition with no order as to cost. Further, leave was granted to the petitioner to delete paragraph 9 of the original petition, that is the ground of adultery by the respondent and the particulars therein set out. In its place was inserted:– “That the parties to the marriage lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.” The summons above dated 20th day of June, 1991 was withdrawn. The above orders were made by consent with no orders as to costs.
On the 7th November, 1991 this Court granted the decree nisi to the petitioner on the ground above and held that the marriage had broken down irretrievably.
In paragraph 5 of the petition, the petitioner pleaded that there were no children of the family now living. The answer and cross-petition was withdrawn previously. It pleaded, however, that the three children above were accepted by the petitioner as children of the family as they resided with the parties at the former matrimonial home at all material times.
All the respondent's children were above age 18 years and were not attending any school or training. As such, I declared that I was satisfied that for the purposes of section 47 of the M.P.P.A. 1971 there were no children of the family to whom section 47 applies.
It was not in issue:–
PARAMDAI
1. That the respondent did not know the petitioner's mother Paramdai Maharaj, who died on the 30th October, 1976.
VALUE
2. That the value of the property in question and situated at L.P. No: 51 St. Andrew's Street, Couva was $25,000.00 on the mother's death.
SHORT COURTSHIP
3. That the parties had a short courtship for about three months before they were married.
FIRST PLAN
4. That the petitioner submitted a first plan for permission to build a dwelling house on the lands described in the schedule to Deed dated the 9th day of October, 1975 which was registered as No: 14965 of 1975 and during the life time of his mother, and of course after the lands were bought.
SECOND PLAN
5. That a second plan was submitted to the relevant authorities in the year 1977 for permission to construct a dwelling house on the lands aforesaid and that both plans were submitted in the petitioner's name alone.
CONSTRUCTION OF MATRIMONIAL HOME
6. That the construction of a new dwelling house (hereinafter referred began to as “the matrimonial home”) began on the aforesaid lands after the parties were married and in the latter part of 1977.
BUILDING OF MATRIMONIAL HOME
7. That up to October, 1980 the petitioner borrowed no monies with respect to the construction of the dwelling house on the said lands or the matrimonial home.
VALUATION OF MATRIMONIAL HOME
8. That on the 1st December, 1980 Mr. Clyde W. Morris of Hart and Leonard Ltd, Chartered Quantity Surveyors, visited the lands above and valued the building under construction at $97,500.00 and materials on and off site at $9,800.00, totalling $107,300.00; That the estimated final cost of the matrimonial home was $126,200.00 when completed.
SEPARATION
9. That the parties separated in early 1982 and lived apart although the petitioner occupied a back room in the matrimonial home and that he finally left in February of 1984.
SHORT MARRIAGE
10. That the marriage lasted from 7th May, 1977 to early 1982 and for a period of 4 years and about seven months or thereabouts before the separation took place.
MORTGAGE IN 1980
11. That the petitioner mortgaged the property in question or the matrimonial home by deed of mortgage dated the 10th day of November, 1980 to the National Commercial Bank Trinidad and Tobago Ltd in the sum of $40,000.00. That both the petitioner and the respondent were borrowers to the said loan and signed the mortgage deed dated the 10th day of November, 1980. The petitioner's attorney preferred to call the respondent ‘a surety’, with regard to the loan.
POLICY OF INSURANCE
12. That the respondent took out a life insurance policy with respect to the said loan above and assigned the said policy to the lenders above.
CHILDREN'S NATURAL FATHER SUPPORTED THE CHILDREN
13. That Mr. Laloo, the children's father, financially supported the respondent and his children. No evidence was given that Mr. Laloo supported the respondent.
CHILDREN CONTINUE TO 0CCUPY HOME
14. That from February, 1982 or thereabouts...
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