Delpeche v Gregoretti & Anor (CS 305/1996) [1998] SCSC 5 (28 May 1998)

Delpeche v Gregoretti & Anor (CS 305/1996) [1998] SCSC 5 (28 May 1998)

The petitioner, as heir and legatee, has locus standi to seek division in kind of the reserved portion of parcel V1112, as the reservation in the transfer deed was valid and enforceable against the first respondent, who took title subject to it. Prescription was not pleaded by the first respondent and is deemed waived. The second respondent, having purchased and possessed 400 square metres in good faith, acquired prescriptive title to that portion, which must be excluded from partition.

Citation
[1998] SCSC 5
Parties
Petitioner: Monique Denis nee Delpeche; First Respondent: Marie Ange Gregoretti; Second Respondent: Mary Morel
Court
Supreme Court
Jurisdiction
Seychelles
Judgment Date
28 May 1998
Case Number
CS 305/1996
Procedural Posture
Application for Division in Kind (succession/partition) / Judgment at First Instance
Outcome
Application for division in kind allowed in part
Legal Topics
Division in Kind, Executor's Powers, Prescription, Reservation of Title, Partition of Land
Source Language
English
Succession Law Property Law Division in Kind Executor's Powers Prescription Reservation of Title Partition of Land

Case Brief

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Parties

Monique Denis nee Delpeche

Petitioner

Marie Ange Gregoretti

First Respondent

Mary Morel

Second Respondent

Procedural Posture

Application for Division in Kind (succession/partition) / Judgment at First Instance

Legal Issues

  1. 1 Whether the petitioner as executrix/heir can seek division in kind of parcel V1112
  2. 2 Whether the reserved portion in the transfer deed was valid and enforceable
  3. 3 Whether prescription bars the petitioner's claim

Ratio Decidendi

The petitioner, as heir and legatee, has locus standi to seek division in kind of the reserved portion of parcel V1112, as the reservation in the transfer deed was valid and enforceable against the first respondent, who took title subject to it. Prescription was not pleaded by the first respondent and is deemed waived. The second respondent, having purchased and possessed 400 square metres in good faith, acquired prescriptive title to that portion, which must be excluded from partition.

Court Disposition

Application for division in kind allowed in part

Orders

  • Order for division in kind of parcel V1112 by an appraiser, excluding 400 square metres held by the second respondent by prescription and purchase.
  • Costs of the petitioner and second respondent to be paid by the first respondent.