Magadan v Chardan

• Jurisdiction: St Lucia
• Judge: Manning, J.
• Judgment Date: 02 October 1959
• Neutral Citation: LC 1959 HC 18
• Date: 02 October 1959
• Court: High Court (Saint Lucia)
• Docket Number: No. 60 of 1959

Supreme Court of the Windward and Leeward Islands. (Civil Jurisdiction)

Manning, J.

No. 60 of 1959

Magadan

and

Chardan

Appearances:

V. A. Cooper for plaintiff

K. A. H. Foster for defendant

Husband and wife - Right of wife to bring action

Will - Residuary Clause

Facts: The issue was whether wife was competent to bring an action without her husband's consent by virtue of article 146 of the Civil Code.

The deceased died in 1917 and by will in 1914 he devised to his wife the usufruct of certain land to be divided after her death between five of his illegitimate children. There were pecuniary legacies to four children. To the plaintiff who was an illegitimate daughter he devised and bequeathed the residue of his immoveable and moveable property. The issue was whether the defendant illegitimate son had a claim of ownership to the land in question.

Held: The plaintiff was not domiciled in St. Lucia and therefore the provision did not apply to her.

The land in question formed part of the residuary estate devised to the plaintiff by will of the deceased.

Manning, J.

1 This action has been heard during the Legal vacation at the request of counsel for the plaintiff and counsel for the defendant.

2 Leyakatalie Sheikh died on the 3 ^rd May 1917. By his will dated 11 ^th September 1914, he devised to his wife the usufruct of certain land, to be divided after her death between five of his illegitimate children; and a bequest with the same limitations was made of half of his cattle, horses and stock. There were pecuniary legacies to four of these children. To his legitimate daughter, Magadan, the plaintiff in this Suit, he devised and bequeathed the residue of his immovable and moveable property.

3 Leyakatalie had been the owner of many portions of land during his lifetime. The defendant in this action, Joseph Chardan, has produced a document which he says shows that Leyakatalie disposed of some of this land before his death. The document (Exhibit G.C.1) is written in Hindi, and the agreed translation of it is as follows:

4 “Begora Dennery, 15 August, 1915.

I receive from Chardan Maraj the sum of £10 in the presence of my wife, the balance of £2 to pay in one year's time, is August 1916, for 3 ¹/₂ carrÉs of land sold to him, and gave him the possession of the same land, legal paper will be given when all the money is paid”. It purports to be signed in Hindi characters by Leyakatalie Sheikh.

5 The defendant is the illegitimate son of Chardan Maraj; he does not make any claim to the land on the strength of this document; but he pleads that the document is genuine, that his father was put into possession of the land on the 15 ^th August 1915, after he had paid part of the purchase price; and that therefore the relevant land never formed part of the residue devised to the plaintiff Magadan by Leyakatalie. She must therefore tail in any action for possession.

6 I do not believe, as suggested by counsel for the plaintiff, that the document (G.C.1.) has been forged for the purpose of this action. I think that if the defendant had wished to perpetrate a forgery to assist his case he would have produced a more detailed document written in English and signed by Leyakatalie in English characters. Evidence was given that Leyakatalie could sign his name in English characters and that he had done so frequently. I believe the document is genuine, that it was written and signed by Leyakatalie at the time it purports to have been written, and that there was nothing unusual in a person of his race using his own language when executing a memorandum such as Exhibit G.C.1. But, I am unable to find that the document is of any assistance...