Pillay and Others v Pillay and Others (6 of 2005) (6 of 2005) [2006] SCCA 12 (28 November 2006);


IN THE COURT OF APPEAL OF SEYCHELLES


SCA No: 6 of 2005



V. T. PILLAY & OTHERS Appellants


v.s


RAMESH PILLAY & OTHERS Respondents

===========================================

Before: Bwana, Domah, Renaud, JJA

Counsel: Mr. Bonte for the Appellants

Mr. Chang Sam for the Respondents


Date of Hearing: 16 November 2006

Date of Judgment: 29 November 2006



JUDGMENT OF THE COURT


Bwana, Ag. P.


1. The Appellants are the heirs of one V. Thirumeny Pillay while the Respondents are children from another relationship (not marriage). It was averred before the trial (Supreme) court that the late Thirumeny had given a power of attorney to Ramesh Pillay to be his agent with power to deal with matters concerning his (Thirumeny) businesses in Seychelles. The said power of attorney did not authorize Ramesh to transfer the said businesses, money or to sell the said businesses to himself. What transpired subsequently following the death of Thirumeny is that Ramesh has just done what was not authorized under the said power of attorney.


2. Following the death of Thirumeny, two joint executors were appointed namely Messrs T. Pandiyan Pillay and S. Rajasundaran. Having failed to reach an agreement between the two joint executors, the matter was referred to the trial court for determination of the allocation of the assets forming part of the estate of the late Thirumeny. The plaintiffs also requested the court a quo to declare the sale agreement (initiated by Ramesh to sell the businesses to himself) void ab initio. The court was also to make an order to Ramesh and the rest of the defendants to account to the plaintiffs as concerns the estate for the material period of five years.


3. It would appear in our view and with much respect to the trial judge, that the court a quo did not consider all those issues comprehensively and judiciously. Instead, the trial court ended up in making orders which are in themselves confusing unimplementable as well as contrary to law. The Appellants now request this Court to have those errors rectified.


4. In their appeal, the Appellants request this court to -

    1. Find that the allocation made by the trial judge (Juddoo) to be void and to further order that all assets and the businesses to be shared by the heirs according to law.


    1. Ask the Respondents to account as regards Ramesh Pillay running of the business under the power of attorney.


    1. Order for the assets/properties and businesses to be valued prior to distribution.


    1. To consider the position of the law with regard to distribution of such assets to children born out of wedlock.


5. The following facts seem to be uncontroverted. First is that the Respondents were born out of (wedlock). Second, the appointment of the two joint executors is not challenged. Third, Ramesh has not only failed to account for money and other assets realized from the time he was given a power of attorney but also that he has sold such businesses to himself.


6. It does not need to take much of our time to rule that the action of Ramesh to sell the businesses to himself was void ab initio and further, it was not sanctioned under the power of attorney he had. We therefore order that the properties and businesses so sold should be returned to the estate of the deceased Thirumeny.


7. It appears to us that while ordering for the distribution of the assets to the parties, the trial judge did not take into account the provisions of the law relating to succession. Article 760 of the Civil Code clearly states:


“Natural children whose father or mother, at the time of their conception was married to another person, shall be entitled to succeed together with any legitimate children of that marriage, in that case, however, the share of each such natural child shall be one half of what it would have been if all the children of the deceased had been legitimate …(Emphasis provided).


It is evident therefore that the trial judge did not comply with the law. Instead, he made two fundamental errors. First error was his order “to share the property and businesses equally amongst the heirs.” This could not be possible in view of the clear provisions of Article 760 quoted above. Second error was to pass over the responsibility “upon the executors to ascertain whether the heirs are in agreement as to the sharing ratio.” That could not be seen that way. The parties had come to court for a definite decision to resolve their differences. The Court’s role therefore, could not be passed over to the joint executors.


8. In view of what transpired in the whole matter, there is need for the whole exercise to be carried out de novo. It means therefore that the distribution of the assets has to comply with the provisions of Art. 760 supra. In case a share of one of the natural children does not accrue to him then guidance should be sought from the second paragraph of the said Art. 760 which states:-


“The part of the share of each such natural child which does not accrue to him by reason of the foregoing provisions of this article shall accrue to the legitimate children of the marriage which is affected by the adultery: it shall be divided amongst the legitimate children of that marriage in the proportion to their hereditary parts.” (Emphasis added).


9. Therefore the appeal is allowed to the extent shown herein. The allocation made by the trial judge is void and is therefore set aside. The case is remitted to the Supreme Court with the following order.


    1. All businesses and assets sold by Ramesh Pillay to himself should be returned to the estate of the late Thirumeny.


    1. Ramesh Pillay should give account (to the executors) of the running of the business and assets from the time he was given the power of attorney, to date.


    1. All the assets and businesses be valued de novo before their distribution to the parties hereto.


    1. The natural children (the respondents herein) to get one half of what the legitimate children will be entitled to get (Art. 760 of the Code, Supra).


    1. The joint executors to appoint a surveyor to evaluate the land and buildings situated thereon and the executors to distribute the same to the heirs in accordance with the law.


    1. The joint executors to supervise the implementation of the 9.1 to 9.5 above.


    1. The Supreme Court to place this matter before another judge for the implementation of the above directions.

It is so ordered.



…………………………………….

S. J. BWANA

AG. PRESIDENT




I concur: …………………………………….

S. B. DOMAH

JUSTICE OF APPEAL




I concur: …………………………………….

B. RENAUD

JUSTICE OF APPEAL




Delivered on 29 November 2006, Victoria, Seychelles