Chand v Maharaj [1983] FijiLawRp 1; [1983] 27 FLR 91 (26 August 1983)

[1981] 27 FLR 91

SUPREME COURT OF FIJI

Civil Jurisdiction

JAI CHAND

v

SHEILA MAHARAJ

Rooney J.

26 August 1983

V. H. Kalyan for Plaintiff
A. Singh for Defendant

Conduct encouraging woman with children to live with a man treating them as his family may provide a licence to remain in his house or estop him from obtaining an order for ejectment.

Application for possession of dwelling house being sublease of Lots 24and 25 on D.P. 4107 situated at Samabula against the defendant and her elder children as second defendants.

The facts undisputed or found by the Court included that plaintiff was the legal tenant of the Housing Authority (the Authority) under the registered sublease which was for a term of 94 years commencing on 21 November 1973 but executed on 18 July 1978 and registered on 19 September 1978. The plaintiff as the registered owner of the sublease was entitled in law to the possession of the demised premises.

The defendant contended that she and her children had a right to remain in possession of the house for the rest of their lives by reason that plaintiff had granted to her an irrevocable licence; that by reason of the conduct of the plaintiff he was estopped in equity from asserting and enforcing his legal right as owner against her asserting and that this court should intervene and prevent the plaintiff from obtaining possession because it would have been inequitable to permit him to do so.

Facts which the court found included the following:

In or about 1967 the plaintiff was employed as a Foreman in a small factory at 73 Suva Street. The defendant joined the firm in 1968. She and the plaintiff became lovers and their association had continued until October 1980, during which period their relationship was stable and had the appearance of permanence.

The defendant became the de facto wife of the plaintiff and a child was born to them on 29 April 1970. In the early period of their relationship the parties lived at her brother's house at Samabula. In 1973 the defendant moved to a flat at Navua. Although plaintiff denied that he lived there with her on a permanent basis, but the court accepted that the parties lived there as man and wife until they moved to the new house in Kinoya.

Although plaintiff denied that he lived there with her on a permanent basis, but the court accepted that the parties lived there as man and wife until they moved to the new house in Kinoya.

The plaintiff showed an apparent anxiety to play down the nature of his association with the defendant.

Defendant's earnings in employment were modest. She said she gave her wages to the plaintiff for household expenses. The plaintiff told her that he was paying for the new house instalments. She was unaware of the loan arrangements made by the plaintiff in connection with the house. For a time the couple maintained a joint account in the A.N.Z. Bank Suva. The plaintiff denied that defendant gave him her wages but did admit that sometimes she contributed to the family expenses.

The court was satisfied that the defendant as a working housewife, used her earnings for the support of the family as a whole and the plaintiff financed the purchase of the land and construction of the house from his own savings and money borrowed from his employers.

On 29 October 1973 the plaintiff submitted a tender to the Authority for various lots available under a scheme called the Kinoya Stage Housing Authority 7 Plan B. In the tender he gave his wife's name as Sheila Maharaj and his residential address as Samabula 3 miles. The tender contained the following declarations:

"I hereby declare that I am married and that I or my wife own no other house or land or share or interest in a household land within ....... Fiji ........."

It is not in dispute that the Housing Authority plan provided for the allocation of the land for which tenders were required to married couples only. The plaintiff as a single man (his legal status) could not have obtained a sublease; his tender would not have been considered by the authorities if he disclosed he was not married.

The tender was accepted. The plaintiff completed a formal application for land in which the defendant was named as wife of the applicant, the couple again being described as married with 2 children.

Though it was not so found, the impression of the learned trial judge was that the names of both the plaintiff and defendant were signed by the same person. Apart from a letter of 14 November 1973 addressed by the Authority to the plaintiff and defendant jointly all further business relating to the land and the construction of a house was carried on by the plaintiff.

Evidence supported that the policy of the Authority had been that the applicant's wishes in regard to whose name a lease was to be granted would be acceeded to by the Authority.

Defendant's evidence in relation to the acquisition of house was consistent with the above facts. She said that the plaintiff told her that the property would be for both of them and she believed him. When she moved to the new house with the plaintiff she did so because their relationship was permanent and she expected to remain with the plaintiff for the rest her life.

In October 1980 plaintiff left the house whilst the defendant and her children had continued to remain in occupation. The plaintiff denied ever telling the defendant that the house would belong to her as well but did tell the Authority that the defendant was his wife.

Evidence disclosed that he said:

"I knew that I would not get the property as a single person. I put the application in that way in both our names but I applied for myself as they were not interested to stay with me."

In 1981 plaintiff married again, had a child and lived with his parents.

There was no doubt, as the court found that when the plaintiff obtained the lot and later set about constructing a house he told the defendant that he was building it for what was in fact for his family at that time; in that defendant was under the impression plaintiff was providing home for her and her children. As she was uneducated, she took no steps to protect her interest.

Held: The defendant as a mistress did not enjoy the same rights as if she were a wife.

As the defendant made no contribution either to the purchase price of the land or to the cost of constructing the house no resulting trust could arise in her favour as happened in Hussey v. Palmer (1972) 3 All ER 744.