Professional Documents
Culture Documents
Defendants
JUDGMENT
in May 1994 the said property served as logement de la famille to the plaintiff
and defendant No. 1 when the latter sold it by notarial deed to his brother-in-law,
defendant No. 2, husband of his sister who is defendant No. 3.
The plaintiff is praying the Court to (1) decree as being null and void and of
no effect the sale of that property by defendant No. 1 to defendant No. 2 and (2)
order defendant No. 2 to pay to the plaintiff the sum of Rs 500,000 as damages.
The question is whether defendant No. 1 could dispose of his bien propre
which was being used as the logement de la famille without the consent of his
wife.
Article 216 alina 1 of our civil code is similar to article 215 alina 3 of the
French Civil code.
rights over the property where the family actually lives in order to protect the
family from being forced to vacate.
the property en propre unless the spouses are governed by a matrimonial r gime
of separation de biens as provided in our article 216 alina 3. No doubt that as
3
far as the bien propre of a spouse is concerned, the spouse remains the sole owner
thereof but he cannot exercise his rights to dispose of that property without the
consent of the other spouse if that property is being used as the logement de la
famille.
192.
En rgime de communaut, il ny a pas lieu de
distinguer selon que limmeuble est commun ou propre, encore que
larticle 1424 entre en concurrence avec larticle 215.
Le cas
chant, lpoux qui na pas consenti aura intrt se recommander
de ce texte plutt que de larticle 215, le d lai pour agir tant plus
long
The rights of a spouse to dispose of his bien propre under article 1428
of the civil code has certain limitation when it concerns the protection of the family
interests.
Dalloz
Civil
Communaut :
726.
727.
Il y a mieux.
III
189.
I am satisfied from the evidence adduced that the plaintiff and defendant No.
1 were in effect living in the property in question as the logement de la famille
when defendant No. 1 sold it to defendant No. 2.
the aforesaid sale and was not present before the notary.
of sale defendant No. 1 is stated to have declared that he was a widower by a first
marriage and had not re-married.
issued proceedings to evict the plaintiff and defendant No. 1 from that property.
Defendant No. 2 pretended that he was not aware that defendant No. 1 was married
to the plaintiff, and I do not believe him.
Now that he is no
longer living with the plaintiff he is putting all the blame on her, saying that she
had her claws on him in the whole matter.
wanted to give the land and the house to his sister and brother-in-law, meaning the
other two defendants.
It was submitted by Counsel for defendants No. 2 and No. 3 that the sale
should not be annulled since there is no family as such as the plaintiff and
defendant No. 1 are now living separately.
190.
is pertinent
7
made, the property, subject-matter of the sale, was the logement de la famille
and defendant No. 1 could not exercise his rights to dispose of it, though it was his
bien propre, without the consent of his wife with whom he was married under the
system of communaut.
legal delay.
I further find that the defendants were of bad faith and the omission
to disclose in the deed of sale that defendant No. 1 was at the time married to the
plaintiff was deliberate.
As regards the damages claimed by the plaintiff, I make an order in the sum
of Rs 5,000 which I order defendant No. 2 to pay to her.
Defendants No. 2 and No. 3 did not pursue their counterclaim which is
dismissed.
S. Peeroo
Judge
19 November 1999
For Plaintiff