Naidoo v Naidoo

• Jurisdiction: South Africa
• Judge: Gyanda J
• Judgment Date: 29 September 2008
• Docket Number: 5891/07
• Court: Natal Provincial Division
• Hearing Date: 08 September 2008
• Citation: 2008 JDR 1238 (N)

Gyanda J:

[1]

This matter served before me as an opposed application on the 8th September 2008, and having heard Argument from both parties I reserved Judgment. This is that reserved Judgment. In this matter the Applicants seek against the Respondents an Order directing the Respondents to sign all documents and take all necessary steps in order to effect the registration and transfer of their right

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Gyanda J

title and interest in and to certain properties into the name of the Applicant. Failing which the Sheriff and the Registrar of Deeds are authorized to take all steps necessary to effect the registration and transfer of the right title and interest of the Respondents in and to the properties into the name of the First and Second Applicants; and an Order that the First to the Fifth Respondents be directed to pay the costs of the Application jointly and severally, the one paying the other to be absolved.

[2]

The brief history of this matter should perhaps be touched upon for an understanding of the Application. The First Applicants late husband, one Kandasamy Naidoo; his mother Kuppama Naidoo and his brothers Narainsamy Naidoo and the late Subramoney Naidoo are joint owners of undivided shares in respect of three properties described as:-

(a)

Lot 464 Dunn's Grant, registration division FT situate in the Durban entity, province of KwaZulu Natal in extent 927 square metres;

(b)

Lot 430 Dunn's Grant, registration division FT situate in the Durban entity, province of KwaZulu Natal in extent 1157 square metres;

(c)

Lot 431 Dunn's Grant, registration division FT situate in the Durban entity, province of KwaZulu Natal in extent 1157 square metres;"

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Gyanda J

They became joint owners in the ratios five eighths to Kuppama Naidoo and one eighth each to the late Kandasamy Naidoo, the late Subramoney Naidoo, and Narainsamy Naidoo by virtue of their inheriting this property in those shares from the Estate of the late Mari, the husband of Kuppama Naidoo and the father of the late Kandasamy Naidoo; the late Subramoney Naidoo and Narainsamy Naidoo respectively. The First Applicant, Radha Naidoo is the wife of the late Kandasamy Naidoo who sues herein in her own capacity by virtue of her being the joint owner in the one eighth share in and to the properties held by her husband, the late Kandasamy Naidoo, by virtue of her marriage in community of property, and she sues in her capacity as Executrix in his Estate. Likewise the Third Respondent is cited in her capacity as the Executrix in the Estate of the late Subramoney Naidoo, her husband to whom she was married in community of property and, therefore, she is also cited as the Fifth Respondent by virtue of her joint ownership in the one eighth share inherited by the late Subramoney Naidoo in the said properties. Govindamah Naidoo is cited as the Fourth Respondent by virtue of her marriage in community of property to Narainsamy Naidoo, the Second Respondent who, as I have said, inherited a one eighth share in the properties as well.

[3]

As a result of their joint ownership of undivided shares in and to the properties referred to, disputes appear to have arisen between the parties relating to the recovery of certain rentals from tenants that occupied the property and a need to resolve the problems created by their joint ownership of undivided shares in and to the three properties. In consequence of this, two matters were initiated in

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Gyanda J

this Court under case numbers 2088/94 and 870/96 relating to the debatement of accounts and for the payment of a sum of money representing the share of the late Kandasamy Naidoo in rentals recouped by the First and Second Respondents from the tenants occupying the said properties. It appears, that as a result of their litigation in the matter under case number 870/96 wherein the Applicant, the late Kandasamy Naidoo claimed from the First and Second Respondents the sum of (R377 414-42) three hundred and seventy seven thousand four hundred and fourteen rand and forty two cents together with interest thereon at the rate of 15.5 % per anum calculated from the the 1st January 1995 to date of payment, ALTERNATIVELY, that the First and Second Respondents render a full account of all the rentals collected by them in respect of the properties and/or any other income derived by them from the said properties for the period 1970 to date supported by vouchers; a debatement of the said accounts; and payment to the Plaintiff, (Kandasamy Naidoo), of whatever appeared to be due to him upon debatement of the said account together with interest thereon at a rate of 15.5 % per anum a tempora morae; and costs of suit. That action was defended by the First, (Kuppama Naidoo), and Second Respondents, (Narainsamy Naidoo), who joined in the Third Respondent, the late Subramoney Naidoo and counterclaimed for the properties to be sold and the proceeds to be divided between the parties according to their proportionate shares in it.

[4]

As a result of the last mentioned action under case number 870/96 in this Court, the parties to the litigation entered into an agreement which is titled,

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Gyanda J

"Agreement of Settlement", and annexed to the Application papers as, 'RN1'. The effect of the Agreement of Settlement was that the Plaintiff who was then the late Kandasamy Naidoo, would withdraw the action against the Respondents who would likewise withdraw their claim in reconvention against the said Kandasamy Naidoo and that each party would bear their own costs. Furthermore, in terms of the said Agreement, the First and Second Respondents and the late Subramoney Naidoo agreed to transfer their right title and interest in and to the said properties to the late Kandasamy Naidoo.

[5]

In pursuance of the aforementioned Agreement, 'RN1', the late Kandasamy Naidoo had instructed his attorneys, Cajee, Setsubi and Chetty, to attend to the registration and transfer of the shares of the First and Second Respondents and Subramoney Naidoo into his name. In pursuance of the instruction to transfer the shareholding of the First and Second Respondents and Subramoney Naidoo into the name of Kandasamy Naidoo, the Attorneys, Cajee, Setsubi and Chetty, had prepared the necessary documents required for the registration and transfer to take place which documents, are likewise annexed to the Application papers. They are:-

(a)

A document headed, "Declaration by Seller" annexed as 'RN2' to the Application papers wherein Kuppama Naidoo, (the First Respondent), Narainsamy Naidoo, (the Second Respondent), Govindamah Naidoo, (the Fourth Respondent), Subramoney Naidoo, (the Third Respondent) and Yogavathi Naidoo, (the Fifth Respondent), signed the declaration as

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Gyanda J

sellers and undertook to transfer the properties in question into the names of Kandasamy Naidoo and Radha Naidoo, (the Applicants herein), all of them appear to have signed the "Declaration by Seller" which is stamped by a Commissioner of Oaths, "Subash Maharaj", a practicing Attorney of 268 Pelican Drive, Bayview, Chatsworth. In it the Sellers confirm that the sale of the properties to the Applicants was for nil consideration;

(b)

The Applicants signed the necessary "Declaration by Purchaser" in similar terms as to the "Declaration by Sellers" in respect of the self same properties;

(c)

There are in addition several affidavits made by each of the Respondents relating to their marital status and the proper spelling of their names, all of which affidavits were executed and commissioned before the same Attorney, Subash Maharaj;

(d)

Annexed to the application is a document headed, "Power of Attorney", as Annexure 'RN6', in it, Kandasamy Naidoo and the Respondents together with their spouses Govindamah Naidoo, (Fourth Respondent), and Yogavathi Naidoo, (Fifth Respondent), transferred to Attorney Cajee, their power of attorney and authority to transfer their shares in and to the said properties into the name of Kandasamy Naidoo. This document...