Monthy v Monthy & Ors (MC 114/2014)  SCSC 235 (02 April 2020);
Application for division in kind - impossibility of subdivision - value of share - payment in cash.
TWOMEY CJ  The Petitioner is the executrix of the estate of the late Lambert Monthy (hereafter the First Deceased) with whom she had one child. The Respondents are the siblings and/or ayant cause of the First Deceased’s siblings. The Petitioner avers that she was living in a house on Parcel B260 at La Misère, Mahé belonging to the late Evangeline Monthy (the Second Deceased), her mother-in -law and the mother of the Respondents or their predecessors. The Petitioner further avers that both she and the First Deceased spent a total of SR1,115, 000 towards the renovation of the said house and that she no longer wishes to remain in a state of indivision with the Respondents. She prayed therefore for her share in the property and the payment of SR 1,115,000 “as per the valuation” by the Respondents. She does not ask for her daughter’s share to be distracted. The present suit was filed in 2014 and encountered numerous delays before two previous judges, mainly over the valuation of the property in issue and the death of some of the parties. I took over the matter on 26 June 2019 after the departure of Nunkoo J from the jurisdiction. The pleadings are not entirely in order and many documents supporting the Petitioner’s application were filed subsequent to the petition: the Petitioner is appearing not in her own right but as the Executrix of the First Deceased’s estate yet she only applies for her share of the property to be distracted; similarly, the First Respondent is appearing as Executrix of Second Deceased’s estate; and subsequent to the applications, both the Third and Fourth Respondents have died. No executors have been appointed to their estates. Further, on 5 July 2019 an affidavit on transmission by death was registered at the Land Registry in respect of Parcels B260 and B285 transferring the undivided ownership therein to Jean Claude Monthy (1/5 share), Celine Monthy (1/5 share), Marie Julie Monthy (1/5 share), Barbara Monthy (1/5 share), Shirin Hoareau (1/20 share), Clint Monthy (1/20 share) and Meryl Monthy (1/20 share). None of these issues were addressed by way of amendments to the petition. At a convened hearing on the issues raised in this matter, the Petitioner in her personal answers stated that she did not agree with the valuation of her share in the house on Parcel B260 at SR 131,840 as proposed by the court appointed valuer, Mr. Michel Leong. She also stated that the rest of the parties had offered her SR 200,000 for her share of the house but she had refused the same. The First Respondent testified that he had bought the property together with his mother, the Second Deceased, at SR 6,000 for the two plots of land, namely Parcels B 260 and B 285. He and the rest of the family all lived in the house. The Petitioner had moved in subsequently when she had had a child with his brother, the First Deceased. The houses they occupy are attached to each other. The land behind the houses is not buildable as there are lots of boulders and a vehicular road. There are also two endemic trees (bwa fer) thereon, the last of their kind in Seychelles that cannot be felled. He was of the view that the value of the Petitioner’s share was set too high. The Petitioner under oath tendered a valuation of Mr. Nigel Roucou, another valuer appointed by the previous judge hearing the suit, Nunkoo J. He had valued the Petitioner’s 1/10 share at SR195, 000 which she thought was too low because she had built the house.  The court appointed valuer’s report dated 26 November 2019 contains the following relevant statements:“4.3 An affidavit on transmission by death states that Marie-Alice Monthy is entitled to 1/10 share of the property. This would translate into 206 square metres which would not be enough to parcel the area of land on which the building is situated.…4.5 Given the size of the entitlement of 1/10 share, it is my opinion that it would not be feasible to distract a parcel of land with sufficient area together with the building for Marie- Celine Monthy (sic) “ In closing submissions, the Petitioner’s Counsel has stated that it is clear that the Petitioner and her daughter have occupied the premises for many years and that she and her deceased husband had invested money to renovate and redo the apartment. He further submits that as the Respondents also have a share in the same that she be paid her share. The Respondents’ Counsel has submitted that the property in question has an area of only 0.356 acres of which the Petitioner is entitled to 1/10 share and as the property is not divisible the Petitioner should be given her share as proposed by the court appointed valuer. She has also urged the court to take into account the sentimental value the property has for the heirs, their willingness to pay the Petitioner her share and the fact that she brought no evidence to support her claim that she had renovated the house on the property. Articles 819 - 821 of the Civil Code provide in relevant part:“819 In the case of immovable property held in co‐ownership, unless all the co‐owners agree to postpone the sale, such property shall be sold. If the co‐owners do not agree to a private sale,.,. the property shall be sold at a public auction.821 1. In the case of immovable property held in co‐ownership, if the fiduciary or a co‐owner decides to proceed to licitation, the court may, upon the application of any interested party, order the postponement of the sale for a fixed period, which may subsequently be renewed. In that case, the Court shall instruct the fiduciary or the executor, as the case may be, who shall be bound by such instructions. The Court may make such order on two alternative grounds – 1st That greater hardship would be caused by refusing to grant the order staying the proceedings in licitation than by granting it; 2nd That the property may be conveniently and profitably divided in kind amongst those entitled. In that case the Court, in order to effect such partition, shall decide the manner of partition and the allocation of the divided property amongst the persons entitled. 2. In respect of this article, the procedure laid down in the Immovable Property (Judicial Sales) Act, Cap. 94, or any law amending or replacing it, shall be applicable.”  Applications for division in kind as indicated by the provisions above are governed procedurally by the provisions of the Immovable Property (Judicial Sales) Act (Cap 94), section 107(2) of which state in relevant part:“2) Any co-owner of an immovable property may also by petition to a Judge ask that the property be divided in kind or, if such division is not possible, that it be sold by licitation.”  As I have stated above, there are many procedural irregularities with the petition, which would have rendered the Petitioner’s claim inadmissible at first sight, but I cannot sit on appeal with respect to my fellow brothers who found the petition in conformity with the rules of procedure. Hence, I only proceed on the documentary and oral evidence adduced and in the light of the legal provisions on the substantive law. On scrutiny of the same, I find that the land cannot be conveniently sub divided to extract only the Petitioner’s share as per her prayer to the court. This is clearly stated by the court appointed valuer in his report. With regard to the house, there is no evidence adduced by the Petitioner to support her claim that she renovated it. In any case, since the house is the property of all the co-owners, Article 555 of the Civil Code of Seychelles would not apply and she would only be entitled to a claim for its resulting enhancement (see Hoareau v Tancrel (1974) SLR 115, Laurence v Lenclume (1976) SLR 216, Belle v Morel (1995) SLR 25). In Belle, Amerasinghe J stated:“The Applicant’s renovations and extensions to the house cannot increase her share or decrease the shares of the Respondents in the house other that giving rise to a claim for the improvements made by her” (at page 27). In the instant case, the court cannot make an award on this issue as no evidence was adduced of the enhanced value to the house made by the Petitioner.  With regard to the co-ownership of Parcel B 260, the legal provisions cited above make it clear that in circumstances where the land cannot be conveniently divided, a sale by licitation should be ordered unless a private sale is agreed. Since the Petitioner has also prayed the court for an order that her share of the property be paid or for any order the court deems fit in the circumstances it can be inferred that she has agreed to a private sale of her share to the other co-owners rather than a public auction. Having considered all the evidence I find that it would be in the interests of all parties that the Respondents purchase the Petitioner’s one-tenth share in the property on the basis of the valuation. Hence, the application for division in kind is dismissed, and I order that the Respondents pay the Petitioner her share of the whole property, that is, SR137, 000 (1/10 of SR 1,370, 000). She is to be paid her share on or before the 1 October 2020, failing which the property should be sold by licitation. Signed, dated and delivered at Ile du Port on 3 April 2020. Twomey CJ