Gounder v Dulari [1979] FJSC 11; Civil Action No. 177 OF 1979 (25 October 1979)

IN THE SUPREME COURT OF FIJI (WESTERN DIVISION)
AT LAUTOKA

Civil Jurisdiction
Action No. 177 of 1979

BETWEEN

KRISHA GOUNDER
f/n Appau
(Applicant)

AND

RAM DULARI also known as
SHEELA WATI
f/n Jai Karan
(Respondent)

Mr. M. Tappoo, Counsel for the Applicant
Mr. V. Kalyan, Counsel for the Respondent.

JUDGMENT

This is a summons for possession under S.169 of the L.T.A. 1971.

The applicant’s first affidavit dated 16.7.79 and annexed certificate of tile show that he is the registered owner of the house possession of which is sought. It was not a satisfactory affidavit in that although it claimed that the respondent was a trespasser it did not indicate when or how she came to be in possession of the house.

The respondent’s affidavit in reply stated that she was not aware that the applicant had become the owner of the house until she received a letter dated 26.6.79 from the applicant’s solicitors informing her of the change of ownership. Her affidavit explains that she is the wife of Shyam Jeet the former owner from whom the applicant received his title. She says that she has been deserted by Shyam Jeet and that the sale of the house is a mere sham so that the respondent can evict her whereas her husband as owner would not have been able to do so.

On 15/8/79 the applicant filed a further affidavit stating that he had purchased the house for $12000 and wants the house for his own family use and occupation. He says that the transfer was made on 26.4.79, however the certificate of title shows the transfer was registered on 15.6.79.

Shyam Jeet, the respondent’s husband, filed an affidavit dated 15.8.79 stating that he was married to the respondent on 12.12.76 but he had taken possession of the house from the Lautoka Housing Authority in 1960. The marriage was so unhappy that he left the matrimonial home on 16.8.78 on which date he had told her to leave and that on 24.8.78 he gave her written notice to quit.

The respondent’s affidavit claims that she paid $2,500 towards the purchase of the house. Shyam Jeet, her husband, denies that she paid anything.

The picture which emerges from the affidavits is of a husband and wife married in 1976 rapidly becoming unhappy and the husband leaving the house of which he is the registered owner on 16.8.78. Not unnaturally the wife is not prepared to leave the matrimonial home and the husband is not in a position prepared to evict her as a landlord but he nevertheless gives her notice to quit which she ignores. On the face of it the only way to dispossess her is by selling the house over he heard and leaving it to the now owner to evict her.

As was said by McGarry J. in Miles v Bull 1968, 3 A.E.R. 632 at 635 –

“As against her husband, a wife has a right to occupy the matrimonial home by virtue of her status as a wife, but this is a mere personal right which does not amount to any proprietory interest or clog on the husband’s ownership of the home, and so will not bind a purchaser from the husband, even if he has full knowledge of the wife’s claim.”

He then pointed out that that general rule was qualified where the sale of the matrimonial home is not a genuine sale but a mere sham.

In that case a husband had likewise sold a matrimonial home over the wife’s head. The price of 10,000 pound was not unreasonable. When the wife refused to vacate the new owner issued a writ for possession and applied for summary judgment under 0.14. The wife obtained leave to defend against which the owner appealed.

McGarry J. observed that even though the purchaser knew of the wife’s occupation and that even if the sale was a device to get rid of the wife it was not bound to be a sham as long as the sale itself was proper sale. He concluded that the transaction was not a sham. The learned judge referred to 0.14 r.13(1) which states that the defendant should have leave to defend if the court is satisfied that there “ought for some reason to be a trial.” He concluded that there was something in the circumstances which needed investigation and he approved the wife’s leave to defend. He pointed out that the transaction was put through at unusual speed and that the plaintiff was the person in possession of most of the facts.

Under S.172 of the L.T.A. if the wife shows a right to possession the summons will be dismissed.

What circumstances are there which could prompt one to say that the transaction in the instant case is suspicious? The plaintiff knows both parties and must have been aware when he purchased the house that they were separated and that the husband was refusing to live in the home. From 16.8.78 to 15.6.79 the date of transfer of title to the plaintiff the wife was in occupation. Having regard to that lapse of time the husband and the plaintiff can scarcely be said to have been in a suspiciously great haste to achieve the transfer. The price of $12,000 is not absurdly low. The husband’s motives in selling the house are no doubt unpleasant and even hostile towards his wife (respondent) but such conduct does not prove that the sale is fraudulent or a sham. Even if the wife has contributed $2,500 towards the cost of its purchase this gives her no rights as against the plaintiff in whom the legal title is vested. She has of course the right to sue her husband for that money.

I fail to see that the respondent has shown that as against the applicant she has a right to possession.

The applicant succeeds.

The respondent will give up possession to the applicant on or before 31/12/79, and will pay the costs hereof.

(sgd) (J.T. WILLIAMS)
JUDGE

LAUTOKA,
25^th October, 1979