IN THE SUPREME COURT OF SEYCHELLES
Civil Side: CS /353/2009

[2017] SCSC 92

Thelma Hall (nee Parcou),
herein represented by Elizabeth Hoareau Plaintiff

versus

Julien Parcou Defendant

Marina Allen (nee Parcou) Intervenor

Heard: 30 January 2013-2016- 25 October 2016.

Counsel: Ms. Teresa Micock and Mr. Conrad Lablache for plaintiff
Mr. Melchior Vidot and Mr. Lablache subsequently for the intervenor
Mr. Charles Lucas for defendant

Delivered: 7 February 2017

JUDGMENT

M. TWOMEY, CJ

[1] No excuse can be offered for the failings of the judiciary which resulted in this matter taking eight years to complete. I therefore begin this judgment by tendering an unreserved apology to the parties for the delay in the completion of this case.

[2] On 29 December 2009, the Plaintiff filed a plaint in the Supreme Court stating that together with Marina Allen (née Parcou) and Hedrick Philip Parcou, they were the heirs of Julien Jean Baptiste Parcou (the Deceased) who died intestate on 22 April 2009.

[3] Prior to his death the Deceased owned land, namely titles V6652, V6650 and V6647 at Pascal Village, Beau Vallon. He transferred to the Defendant Title V 6650 on 17 November 2004 for SR60, 000, V6652 on 24 January 2008 for SR1, and V6647 on 4 June 2008 for SR1 but reserved for himself the usufructuary interests in the latter two parcels.
[4] It is the Plaintiff’s case that the transfer of these properties resulted in the deceased transferring property over and above the disposable portion he was lawfully entitled to and that he thereby unlawfully disinherited her from her rightful share of the estate.

[5] She prayed the Court to declare the transfers made by the Deceased as disguised donations to the Defendant and to order the Defendant to bring back the donations into the hotchpot of the succession of the Deceased or in the alternative to order a reduction of the donation together with costs or any other order deemed fit in the circumstances.

[6] The Defendant filed a Statement of Defence in reply on 17 October 2011 in which he stated that the transfers did indeed take place but insofar as Parcel V6652 was concerned, sufficient consideration of SR100, 000 was paid; for V6647 a sufficient consideration of SR 50,000 was paid and the Defendant also took over the debt of his brother worth South African Rands 80,000.

[7] He further stated that the transfers were made with the knowledge and acquiescence of the heirs who had agreed that the Defendant would continue to provide care of and maintenance of their elderly father and that the family home on Parcel V6652 would be open to all the heirs when they visited.

[8] He prayed for a dismissal of the suit claiming that the Plaintiff had abandoned her share in the properties by agreeing to the transfers and was therefore estopped from claiming any share by way of reduction.

[9] On 3rd May 2012 Marina Josephine Allen, née Parcou intervened in the suit and filed a Statement of Demand in which she joined cause with the Plaintiff, stating that she never agreed to the transfers and that the dispositions of property as effected was contrary to law.

[10] In her evidence, the Plaintiff maintained that it was after the death of the de cujus that she came to know of the transfers of property from her father to the Defendant. She refuted the Defendant’s claim that there was an agreement with the heirs that the house on Parcel V6652 would be an open house for members of the family living overseas when they visited Seychelles or that the Defendant would keep the house as his own. Nor had she ever been invited to live in the house when she visited Seychelles.

[11] In his testimony, the Defendant explained that the consideration price for property transfers were either for nominal or low sums because of the fact that he looked after his father and tended to his needs. He explained that he owned a car hire business, Norman’s Car Hire and sums had been transferred from that company to the Deceased in respect of two of the transfers of land over and above what was stated on the registered documents.

[12] In respect of Parcel V6652, although the transfer price on the notarial deed was SR 1, he actually transferred the sum of SR 100,000 to his father’s account. An objection to this evidence being adduced was rightly taken by Mr. Vidot for the Intervenor under Article 1321(2) of the Civil Code but this was overruled by the trial judge for reasons that are unclear.

[13] Ms. Maria Monthy from Barclays Bank supported the Defendant’s account on this score. She produced a letter to the Bank from the Defendant (Exhibit D1 A) in which the Defendant asked the bank to transfer SR100, 000 in favour of the Deceased for the purchase of Parcel V6652 on 8 August 2007. The letter from the Bank dated 23 September 2011 (Exhibit D 6), also confirms that SR100, 000 was transferred from Norman’s Car Hire to the Deceased’s account on 13 November 2007.

[14] The Defendant also stated that he had guaranteed a bank loan from Barclays Bank on behalf to his brother Hedrick Philip Parcou. The Bank had enforced the repayment of the loan against him. In this respect, the Deceased recognised the fact that it was the Defendant who had paid his brother’s bank debt and the transfer of Parcel V6650 was effected onto the Defendant for SR60, 000.

[15] As regards Parcel V6647 he explained that the land was to be sold to his brother Hedrick Philip, and the Deceased had sought a waiver of the stamp duty owed on the transfer. In the event, none was ever granted and his brother died before the transfer was ever made. Consequently, the Defendant took over his brother’s debt (money owed to his father for the purchase and importation of ice cream powder) and his father transferred the land to him instead. He explained that the sum of SR1 was stated as the consideration price in the transfer document but that he actually paid his father SR 50,000 for it together with the repayment of his brother’s debt. Ms. Maria Monthy, an employee of Barclays Bank produced a letter in which the Bank confirmed that on 21 April 2008 the sum of SR 50,000 was drawn by Norman’s Car Hire and deposited into the Deceased’s account.

[16] In cross-examination, the Defendant stated, contrary to his pleadings, that his sisters, the Plaintiff and the Intervenor had not agreed to the transfers. Nor had they agreed that in return for Parcel V6652 being transferred to him, they could stay in the family home whenever they visited Seychelles. He stated that his sisters always stayed in hotels when they visited (See Page 60 of the court transcript dated 30 July 2015).

[17] The Defendant has submitted that the Plaintiff’s and Intervenor’s cause of action cannot be maintained as the law relating to a donation déguisée does not extend to bona fide sales for valuable consideration. He has maintained that not only did he look after his father with the agreement of his siblings to secure his pre-emption rights but that he paid good and valuable consideration including the payment of his brother’s debts for the transfer of the properties.
[18] The Plaintiff and the Intervenor have submitted that the evidence against and beyond the notarial (authentic) documents cannot be admitted under Article 1321 (3) of the Civil Code. It has been stated in several judgments, most recently in Guy vs Sedgwick and another (unreported) [2014] SCCA 5, that evidence cannot be adduced against an authentic document.

[19] The legal presumption of challenging the veracity of proof contained in such a document lays a burden on the party who impugns the document to prove its falsity. Such proof is subject to the rules of evidence as contained in the provisions of the Code. These provisions include those relating to back-letters. Back letters can only nullify an authentic document when they have been registered in accordance with Article 1321(4).

[20] I cannot sit in judgment on the trial judge in regard to his admitting the evidence of the back letters. However, although the rebutting evidence in relation to the deeds of transfer has been admitted, I am perfectly able to consider whether it can trump the authentic documents. As the evidence of the back letters referred to by the Defendant has not been reduced in writing and registered pursuant to Article 1321(4), I find that the authentic documents in relation to Parcels V6652, V6650 and V6647 continue to have validity and full effect.

[21] In the circumstances I have to consider whether the transfers of the properties as they appear in the authentic documents amount to a donation deguisée.

[22] In Reddy & Anor. v Ramkalawan (unreported) [2016] SCSC 3, the Supreme Court stated:
“An owner of property is not precluded by law from selling his land or giving it away. A disguised sale is also valid if the sale respects the conditions of form, the rules of contract and public policy (see Article 931, Civil Code of Seychelles). Similarly the de cujus can sell or make a gift to an heir - as long as that sale or the gift does not so diminish the estate that the reserved rights of the heirs are not satisfied.”

[23] Reddy followed the jurisprudence constante of Contoret v Contoret (1971) SLR 257 and Clothilde v Clothilde (1976) SLR 245 which authorities relied on the Mauritian case of Gya v Gya (1970) M.R. 91. In Clothilde, Sauzier J stated that even a réserve d’usufruit was a donation and should not exceed the quotité disponible.

[24] There are instances where the alienation of the réserve is permitted. Article 918 of the Civil Code provides that:
“The value of full ownership of the property alienated, whether subject to a life annuity or absolutely or subject to a usufruct in favour of one of the persons entitled to take under the succession in the direct line, shall be set against the disposable portion; the excess, if any, shall be returned to the estate. This calculation and return shall not be demanded by other persons entitled to take under the succession in the direct line who have agreed to the alienation, and in no circumstances by those entitled in the collateral line (emphasis added).

[25] Had the Defendant been able to prove that the Plaintiff and Intervenor had acquiesced to the transfers, his submission that their action for a rapport à la masse was futile would have succeeded. However, his submission is not supported by evidence. They were both emphatic that they were not told about the transfers. Their evidence was that they did not enjoy good relations with their brother, so much so that the Plaintiff had revoked a power of attorney in his favour in 2004.

[26] Mr. Lucas for the Defendant has further submitted that it was not the object of the Defendant to deprive the heirs of their share of the inheritance. Good faith is however not apparent when the consideration for the transfer was of nominal or low value or when the Defendant’s pleadings are at variance with his evidence relating to why the transfers took place.

[27] Even if the authentic documents had stated the sums of SR 100,000 and SR50, 000 for the two transfers, they would still have reflected a low value for the properties in question even in 2008 since it must be also noted that some of these parcels of land had buildings thereon. How could those sums in the mind of any objective person represent real consideration? I also cannot see what benefit was conferred onto the remaining heirs by the said transfers to the Defendant. Looking after one’s elderly father whilst residing with him in the family home cannot be viewed as a duty requiring compensation and the reduction of the shares of other family members in the patrimony.

[28] In any case, whether the Defendant cared for his father or not or whether he undertook his brother’s debts is of no effect. The fact remains that the sales were donations deguisées as far as the remaining heirs are concerned.
[29] In the circumstances, as has been pointed out by Mr. Lablache for the Plaintiff and the Intervenor, there is no rebuttal of the irrefragable presumption contained in Article 918.

[30] The transfers made to the Defendant by the Deceased must not diminish the estate in terms of the reserved rights of the heirs. From the evidence adduced it would appear that the Deceased had four children. Article 913 in relevant part provides:

“Gifts inter vivos or by will shall not exceed one half of the property of the donor, if he leaves at death one child; one third, if he leaves two children; one fourth, if he leaves three or more children; there shall be no distinction between legitimate and natural children except as provided by Article 915 ? 1. …”

[31] The transfers of property to the Defendant should therefore not have exceeded one quarter of the Deceased’s estate. The evidence before the court is that outside of the three properties transferred to the Defendant there is no other property left to distribute among the heirs. Hence, the entire estate has been transferred unlawfully to the Defendant. The three quarters share of the estate transferred in excess has to be brought back into the hotchpot for redistribution into four equal shares. It must be emphasised that Article 918 refers to the value of the property and not the property itself being returned to the hotchpot.

[32] The value of the estate comprising of the three alienated properties has not been established. In the absence of such value being established, I am only in a position to make limited orders.

[33] In accordance with Articles 913, 914 and 918 of the Civil Code, I therefore Order that the market value of Parcels V6652, V6650 and V6647 be valued at the point in time that they were transferred and returned into the hotchpot. After the deduction of one quarter of the value of the estate to the Defendant, the remainder of the value of three quarters of the property should be distributed into four equal parts to the Plaintiff, the Intervenor, the heirs of Hedrick Parcou and the Defendant.

[34] I also grant the costs of this suit to the Plaintiff and the Intervenor.

Signed, dated and delivered at Ile du Port on 7 February 2016.

M. TWOMEY
Chief Justice