RAMAR M.J.S.

v THE MAURITIUS COMMERCIAL BANK LTD

2021 SCJ 184

Record No.: 93640

THE SUPREME COURT OF MAURITIUS

In the matter of:-

Mrs Marie Josianne Sylvie Ramar

Plaintiff

The Mauritius Commercial Bank Ltd.

Defendant

In the presence of:-

1. The Conservator of Mortgages

2. Maxo Products Ltd.

Co-Defendants

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JUDGMENT

The plaintiff is praying –

(i) that six fixed charges and one floating charge allegedly created by her
late husband, Anselme Max Ramar, (“late Max Ramar”) in favour of the
defendant be declared null and void to all intents and purposes;
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(ii) for a declaration that the said charge documents are not in law executory
titles or that they cannot in law constitute the basis of a valid seizure and
sale of the properties to which they relate;

(iii) for a permanent stay of the sale by levy of the said properties;

(iv) that the first co-defendant be ordered to erase the fixed charges from his
books and registers.

She is also claiming the sum of Rs 10,000,000 from the defendant as damages.

The defendant has in its amended plea inter alia denied the averments of the
plaintiff with respect to the invalidity of the charges and has moved that the plaint be
dismissed. The first co-defendant has confirmed in his amended plea that the plaintiff
and late Max Ramar have created six fixed charges on their three plots of land. It is
otherwise abiding by the decision of the Court, as is the second co-defendant.

The facts averred in the pleadings were set out in an interlocutory judgment on
the plea in limine litis (see Ramar v Mauritius Commercial Bank Ltd [2016 SCJ 302])
and need not be reproduced again in this judgment.

The plaintiff gave evidence at the trial and called no witness, while the defendant
called five witnesses. The co-defendants called no evidence. The trial spanned over five
sittings.

Case for the plaintiff

The plaintiff gave evidence in terms of her plaint. She stated in particular that,
during his lifetime, and in the course of the legal community of goods and property
having existed between them, late Max Ramar had acquired the following three portions
of land (“the immovable properties”) –

(i) a portion of land of 554.62 m2 in Curepipe;

(ii) a portion of land of 2026 m2 at La Forêt; and
(iii) a portion of land of 819.40 m2 in Trou d’Eau Douce.
 3

She stated that she lived separately from Mr Ramar as from 1993 and was
therefore not aware of his dealings. She claimed that it is only in 2005, after his death in
2001, that she received a writ of execution to the effect that the defendant would, in a
sale by levy, be causing the immovable properties to be seized and sold in execution of
the purported charges due to unpaid debts of late Max Ramar.

She was not aware of any loan agreement entered into by her late husband and
cannot explain how the charge documents sent by the bank bear her signature. She
claimed that late Max Ramar had dealt with the defendant without her knowledge and
added that there are two “mentions” which have been inserted in neither her husband’s
handwriting nor hers. She repeatedly proposed that her son gives evidence in her stead.

She produced a copy of a fixed charge document (Doc P1), registered and
inscribed in Volume CH 1140 No. 16 on 30 January 1995 by late Max Ramar and her in
favour of the defendant for Rs 450,000 in capital plus interest, costs, charges,
commission and accessories, and pointed out that the document bears signatures
similar to hers and that of her husband while the “mention” immediately above the
signatures was definitely not written by either of them. She maintained that she had
never signed that document.

She also produced –

(a) a copy of a fixed charge registered and inscribed in Volume CH 1232

No. 68 on 1 February 1995 by Maxo Products Limited in favour of the
defendant for Rs 5,000,000 (Doc P2);

(b) a copy of a fixed charge registered and inscribed in Volume CH 1244

No. 35 on 14 August 1995 by late Max Ramar and her in favour of the
defendant for Rs 1,000,000 (Doc P3);

(c) a copy of a fixed charge registered and inscribed in Volume CH 11

No. 135 on 29 June 1984 by late Max Ramar and her in favour of the
defendant for Rs 150,000 (Doc P4);

(d) a copy of a fixed charge registered and inscribed in Volume CH 120

No. 35 on 8 August 1986 by late Max Ramar on behalf of Maxo Products
Co. Ltd. in favour of the defendant for Rs 100,000 (Doc P5);
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(e) a copy of a fixed charge registered and inscribed in Volume CH 172

No. 158 on 10 June 1987 by late Max Ramar and her on behalf of Maxo
Products Co. Ltd. in favour of the defendant for Rs 80,000 (Doc P6).

She stated that she had never been to the bank to sign the above documents
and that the handwriting and signatures on each of the documents resemble, but are
not, hers nor her late husband’s. She maintained that the documents contain flaws
(“manquements”), are forged documents, should be declared null and void and cannot
be used as the basis for seizing and selling the immovable properties. She said at first
that she was not aware of her claim of Rs 10 million in her plaint but, when led by her
Counsel, replied that the claim was for the prejudice suffered as she could not accept
what her late husband and the defendant seem to have done behind her back. Following
receipt of the fixed charge documents, she had filed a police declaration and made a
complaint to the Bank of Mauritius as she had never given her consent for the purported
charges. She is not aware of the outcome following her declaration and complaint.

Under cross-examination, the plaintiff maintained that the signatures on the six
charge documents resemble hers and those of her late husband but are not theirs.
According to her, hers had been forged by her late husband or the defendant. She could
not say whether her husband had signed those documents. She was not aware of the
business affairs of late Max Ramar as they had lived apart as from 1995. They got
married in 1971.

The second co-defendant was previously engaged in cabinet making

(“ébénisterie”) in La Forêt, but the building there was burnt down. She said at first that
she was not aware of the insurance details related to the fire, but then agreed that the
second co-defendant was insured with Swan Insurance and had entered a case against
the insurance company which had dragged over a long period. She denied having
written or signed a letter in September 2004 to the defendant in that connection and
claimed not to understand English and never to write in English. She knows neither Mrs
Anju Ramtohul, nor anybody else, from the office of the defendant. Her children were not
in Mauritius in 2004. She maintained that she knew nothing about the debts of her late
husband and those of the second co-defendant, that the signatures on Docs P1 to P6
are not hers and that the charges have been fraudulently created. She also pointed to
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differences between the signatures on some of the documents. She denied having gone
to the bank upon being informed of the proposed seizure.

It was possible that she had signed letters addressed to the defendant and
written by her son, but she could no longer remember if she had done so. She also
claimed that she was sick at the time and insisted that her son who had been helping her
with the case could answer the questions in her stead. She did not remember receiving
a letter, dated 22 September 2004 and addressed to her, from Mrs Anju Ramtohul,
Special Asset Manager in the Credit Risk Business Unit of the defendant (Doc P7) but
said that it is possible that she had received it and that her son had attended to same.
She stated that she had not tried to find out the outcome of the police enquiry following
the declaration she made in 2006 and was not aware that no further action had been
advised in 2011.

She confirmed however that the second co-defendant had been paid Rs 3
million, instead of the Rs 26 million claimed, by Swan Insurance as compensation but
stated that the money had not been used to reimburse the defendant bank as she
herself owed nothing to the bank. She confirmed that several other cases had been
entered in her name and had been withdrawn or set aside, but she could not remember
all the cases. In one case, an application for an injunction was made in 2006 to prohibit
the defendant from proceeding with the sale by levy of the immovable properties but she
stated that the application had been made by her son. Her husband had also made
several applications to prevent enforcement of his debts by the defendant. She stated
that her son was aware of all the cases. She could not recall whether she had asked for
an adjournment of the incidental application in March 2006 in order to “settle the debt”.

Case for the defendant

Sub-Inspector Burumdoyal, Police Document Examiner at the Central CID,

stated that he reckons more than 28 years’ experience in the field of examination of
documents and has followed advanced courses in the subject. Following a declaration
made by the plaintiff on 25 May 2006, he examined the original charge instruments,
bearing questioned initials, writings and signatures, that were brought to the Central CID
by PS Dawoojee, the Enquiring Officer on 17 July 2006, and he prepared a report dated
1 November 2006, which he produced (Doc D1). He compared the charge instruments
to documents bearing the standard initials, writing and signatures of late Max Ramar and
 6

of the plaintiff, as well as other documents containing signatures attributed to each of

them, and concluded after analysis that the said initials, writings and signatures had in
essence been authored by the same persons, that is, late Max Ramar and the plaintiff
respectively. He had understood from PS Dawoojee that there had been no prosecution
following the police enquiry.

Under cross-examination, he replied that –

(a) most of the signatures on the instruments correspond to the signatures of

either late Max Ramar or the plaintiff;

(b) he has compared the plaintiff’s specimen signature with the six signatures
on the original charge instruments and there is no indication that the
signatures have been imitated, copied or simulated as they were fluent
signatures;

(c) his investigation started when the plaintiff gave a declaration to the police,
claiming that her signature had been forged on some documents at the
bank. He examined the sets of instruments submitted by the defendant
bank and returned them to the bank. He was not aware that there was
another set of documents at the office of the first co-defendant; and

(d) he has not compared the plaintiff’s signature with any other person’s
handwriting and has only examined the plaintiff’s signature on the
documents submitted by her and other documents submitted by the
defendant.

He was shown alleged variations between the signatures of the plaintiff but
maintained that there was no big variation and pointed out that a person does not sign in
exactly the same manner every time. He stated that his report would not have been
different if he had been in possession of all the original instruments at the time.

Under re-examination, he confirmed that, when preparing his report, he had been
working on the originals of Docs D2 to D7 submitted by the defendant and on
documents provided by the plaintiff. He maintained that the signatures attributed to the
 7

plaintiff on Docs P1 to P6 and Docs D2 to D7 are authored by the same person (the
plaintiff).

Mr Eshan Lallmohamed, Bank Officer, stated that from 1980 to 1995 he was
working in the Credit Operations Department at the office of the defendant. He explained
the procedure followed by the defendant before granting banking facilities to a customer,
which is as follows – the customer makes a request to his Relationship Manager. If it is
approved, the bank prepares documents for signature by the customer and the
guarantor. The Facility Letter and the Fixed and Floating Charge Document are signed
in duplicate by the customer and the guarantor. The Credit Operations Department
verifies the signatures on the documents and, if they are found correct, the two original
Charge Documents are signed by the bank and sent to the office of the first co-
defendant for registration. The first co-defendant keeps one original and returns the
other original to the defendant, which then verifies if it has been duly registered before
making any disbursement.

He produced certified copies of the originals which had been returned to the
defendant (Docs D2 to D7) and confirmed that they were the same as Docs P4, P5, P6,
P1, P2 and P3 respectively. He stated that when the client also acts as guarantor, he
may sign only once or both as client and as guarantor. The practice of including the
“mention” “Read and approved. Good for the sum of (...)” on the signed documents
dates from 1995.

Under cross-examination, he stated that, for an amount of Rs 100,000 or above,

the client and the guarantor must write in their own handwriting that they have read and
approved the documents and must insert the relevant amount that they pledge to pay
the bank. At times the client and the guarantor may ask that the documents be sent to
their place of residence for them to write the said “mention” and sign the documents.
When the documents are returned to the bank, a verification of the authenticity of the
signature is conducted against the specimen signature of the customer at the bank or his
signature on his identity card. If the guarantor does not have an account with the bank,
he has to attend in person with his identity card for the bank to verify his signature.

Mr Jean Marc Poisson, Team Leader, Corporate and Institutional Banking,

at the office of the defendant stated that between 1994 and 1998 he had worked on
the “Ramar/Maxo Products” file. As Bank Officer, he was responsible for following up on
 8

the commitments of the debtor and had to keep the Credit Committee informed of the
file’s progress.

Referring to Docs D2 – D7, he explained that loans had been extended by the
defendant to late Max Ramar, Ébénisterie Max Ramar and Maxo Products, with
properties owned by late Max Ramar as security. The charge had been inscribed in each
case by late Max Ramar and the plaintiff.

On 18 November 1996, he received a letter dated 4 November 1996 (Doc D11)

from the plaintiff and copied to Mr Max Ramar, in which the plaintiff gave her consent for
the sale of properties in the legal community of goods and property having existed
between her husband and herself, subject to specified conditions listed in Doc D12.

He also related that, following long discussions on Mr Ramar’s debts, the

defendant had decided that the only solution was to sell his assets in a “vente à
l’amiable” and use the proceeds to repay his debts to the bank. The purpose of Doc D11
was therefore to obtain the consent of Max Ramar’s wife in order to dispose of the
assets since he was married under the regime of legal community of goods and
property. He specified that the written consent of the plaintiff was required for the file.

Under cross-examination, Mr Poisson said that he was aware of the inscription of

charges on the assets of late Max Ramar and the plaintiff, but that a different department
had dealt with the documentation process. He had never seen the plaintiff attending the
office of the defendant for signature purposes. He stated that although Mr Max Ramar
had not paid back his previous debts, the defendant continued to lend him money as his
company was doing well at that time and required the money to expand its business.
Further the bank’s preference was for the debtor to repay his debt by his own means. He
could not explain why the bank waited until 2005 to initiate proceedings although the file
was transferred to the Litigation Department in 1997.

Mrs Anju Umrowsing Ramtohul, stated that she was responsible for the
Litigation Department of the defendant in 2005.

She produced copies of several letters between the plaintiff and herself,
including –
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(a) a letter dated 4 October 2004 from her to the plaintiff, which mentions a
meeting which they had on 14 September 2004 and states, in order to
clear a misunderstanding disclosed from the plaintiff’s letter dated 24
September 2004 (Doc D14), that the bank would not await the insurance
indemnity, and was expecting the plaintiff to propose a repayment plan by
15 October 2004, in respect of the liabilities of late Max Ramar, Maxo
Products Ltd and Ébénisterie Max Ramar (Doc D13);

(b) a letter dated 24 November 2004 in which the plaintiff stated that the
information communicated in the bank’s letter dated 22 October 2004
(Doc D16), pertaining to the accounts of Mr Max Ramar and Ébénisterie
Max Ramar, was unclear and that she would refer the case to her legal
representatives for appropriate action to be taken (Doc D17);

(c) a letter dated 2 December 2004 from her to the plaintiff (Doc D18), with
copy to the defendant’s attorney, in which she notes with regret that the
plaintiff had failed to submit a proposal to the defendant for settling the
outstanding accounts amicably. Consequently, the defendant would refer
the case to its attorney to initiate legal proceedings for recovery of the
money due.

She recalled having had a meeting with the plaintiff at the office of the defendant
on 14 September 2004, the purpose of which was to seek an amicable settlement in
order to avoid court proceedings. She believed that the application for sale by levy had
only been made in 2005 as several applications had been made by the plaintiff with a
view to prohibiting the defendant from proceeding with any sale by levy. She also stated
that the defendant always tries to find an amicable settlement first in such cases.

When cross-examined, Mrs Ramtohul could not say whether the charge
documents had been shown to the plaintiff at the bank at the meeting of 14 September
2004 or forwarded to her before the proceedings before the Master’s Court.

Mrs Karine Sooriah, representative of the defendant bank, gave an account

of related actions and proceedings, including –
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(a) following seizure of the plaintiff’s assets by the defendant in 2005, sale by
levy proceedings which were scheduled for 20 July 2006;

(b) an application in 1996 by Maxo Products, late Max Ramar and the plaintiff
for an injunction prohibiting the defendant from enforcing the alleged debt
of Rs 18,473,718.05 pending the determination of their claim against
Swan Insurance, which was set aside on 23 October 1998. An appeal
against the decision was subsequently set aside with costs by the
Supreme Court on 17 October 2005. The related statement of claim
which was lodged on 16 May 1997 was withdrawn on 15 March 2006.
She did not know whether the plaintiff had later received any sum of
money from the insurance company but she confirmed that the plaintiff
has not settled the debt to the defendant;

(c) an incidental application by the plaintiff in 2006, which was made to

suspend the sale by levy until the determination of the present plaint with
summons and which was set aside on 26 July 2011.

She stated that the present action should be dismissed with costs and that Maxo
Products Ltd, Succession Max Ramar and Ébénisterie Max Ramar had become
indebted to the defendant in the sums of Rs 25,567,560.69, Rs 6,300,161.03 and Rs
6,229,843.96 respectively.

Under cross-examination, she agreed that no Court order has been issued
restraining and prohibiting the defendant from enforcing the alleged debts of the plaintiff.
She was responsible for the file at the Litigation Department as from the year 2016. An
internal enquiry had been held at the bank following the plaintiff’s police declaration
regarding her signature. She did not agree that the plaintiff had not signed the charge
documents, but agreed that she did not know herself if the plaintiff had signed the
documents at the bank or copied the “mention” herself.

Submissions

Learned Counsel for the plaintiff stated that it is the plaintiff’s case that she had
never signed the charge instruments (Docs P1-P6), nor copied the “mention” on Docs
P1-P3, and had therefore not consented to the inscription of those charges on the three
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immovable properties. He highlighted that none of the witnesses called by the defendant
had established that the plaintiff had signed the instruments at the bank in the presence
of bank officials or even outside bank premises. He was also of the view that the
defendant had failed to establish compliance with the statutory requirements relating to
“cautionnement” with regard to the plaintiff’s consent.

He submitted that the evidence of SI Burumdoyal was “irrelevant” in view of the

confusion as to the precise documents that he had examined and the fact that he only
had specimen signatures from the plaintiff; further, he had not examined the handwriting
in the “mentions”. In his view the defendant had acted with levity in relying on the alleged
signature of the plaintiff as spouse in connection with large sureties.

Learned Senior Counsel for the defendant submitted in reply that the charge
instruments are valid and the defendant was entitled to proceed with the sale by levy of
the three immovable properties. He relied on inter alia the report and evidence of the
handwriting expert, the outcome of the police enquiry, the fact that the plaintiff had
adduced no expert evidence to rebut the report from the experienced Police Document
Examiner, the meeting which the plaintiff had with Mrs Ramtohul on 14 September 2004
with a view to finding an amicable settlement and the correspondence between the
plaintiff and the defendant, and submitted that there was clear evidence that the plaintiff
had signed the charge instruments and given her consent for the fixed charges to be
inscribed.

He also submitted that the charge documents are valid and enforceable despite
non-compliance with all conditions laid down in Article 1326 of the Code Civil
Mauricien since it is the existence of the loan, and not the amount of the loan, which is
in dispute. Non- compliance would in any effect only affect the probative value and not
the validity of the charge instruments (see MCB Ltd. v Benichou & Anor [2003 SCJ
241], Bissessur & Anor v R [1982 MR 77] and Atcha v Ramchurn [1880 MR 71]) and
they would amount at least to a “commencement de preuve par écrit”. The obligations in
the charge documents would therefore continue to bind the debtor since the defendant
can back them up with “la preuve complémentaire” in the form of the expert’s
handwriting report, a letter from the plaintiff dated 4 November 1996 (D12) in which she
gives her consent for the sale of the immovable properties, the exchange of letters
between the plaintiff and the defendant and evidence of the meeting which she had with
Mrs Ramtohul.
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Analysis

I have carefully considered the evidence on record, including the documentary

evidence, as well as the submissions of Counsel.

I have seen and heard the plaintiff depone in Court and I was not impressed at all
by her demeanour and evidence. I am, in particular, not convinced by her assertion that
she never gave her consent for the charges to be inscribed and that the impugned
signatures on the charge documents were not hers.

I have carefully examined the said signatures, taking into consideration the
expert report and the submissions of learned Counsel for the plaintiff. I note that the
expert was lengthily and meticulously cross-examined by Counsel but no counter-expert
evidence was adduced on behalf of the plaintiff. I am alive to the weaknesses in the
evidence of the Police Document Examiner as highlighted by learned Counsel for the
plaintiff but I am satisfied that I may in substance rely on his evidence. In any event I am
not bound by the evidence of the expert witness and may determine the value and
weight to be given to his report (see Dwarika v R [1972 MR 120]). I have myself
therefore carefully examined the impugned signature and handwriting of the plaintiff on
both sets of charge documents produced by the parties, including all the variations
highlighted by learned Counsel for the plaintiff.

True it is that the impugned signatures are not always identical but, basing
myself on the specimen signature given by the plaintiff and being alive to the possibility
of error, I am satisfied that they are substantially the same and I find that the impugned
signatures on the charge documents can be said on a balance of probabilities to have
been authored by the plaintiff. On the other hand, I find that the “mention” above the
signature of the plaintiff and of late Max Ramar in Docs P1-P3 is written in the same
handwriting which is neither that of the plaintiff nor that of her late husband.

I am also of the view that the plaintiff, far from being a hapless victim of
questionable bank transactions between her estranged husband and the defendant, was
dishonestly, and often clumsily, trying to establish in Court that she had never signed the
charge instruments. Her repeated claims that she could not read the documents put to
her in Court, either because she did not have her glasses or because she does not read
 13

English, did not ring true. She further seemed to have been briefed to repeat over and
over again some matters, for example, in relation to the “mentions”, often without
replying to the precise question put to her by Counsel. When cornered, she would
appeal to the Court to allow her son to reply in her stead. In particular, she did not deny
that her son may have written to the defendant in connection with a possible settlement.
She also conceded that she may have signed letters written by her son to the defendant,
but alleged that she could not remember doing so. It is unfortunate in the circumstances
that her son was not called to give evidence and try to support the plaintiff’s testimony
which was weak, appeared to be rehearsed and did not ring true.

The plaintiff was also not consistent as to whether the signature of her late
husband had also been forged on the charge instruments, while in effect accusing him of
causing her signature to be forged on the said documents. She further appears to have
withheld information on the insurance claim and she alleged that she knew neither Mrs
Ramtohul, nor anybody else at the bank, but was given the lie by the straightforward
evidence of Mrs Ramtohul, backed by copies of correspondence between them,
including a letter signed by the plaintiff, which refers to a meeting between Mrs Ramtohul
and the plaintiff on 14 September 2004. She deliberately failed to disclose that she had,
presumably with her son’s assistance, embarked on negotiations with the bank for
repayment of the debt of her late husband. I must in that regard state that I have
completely ignored the contents of any “Without Prejudice” correspondence between the
plaintiff and the defendant, but find relevant the evidence of Mrs Ramtohul as to the fact
that the said negotiations had taken place. I further find that the plaintiff, acting upon
advice from her son or otherwise, has entered a series of applications and cases with a
view to preventing the defendant bank from proceeding with the sale by levy of the
immovable properties. It is revealing that, as pointed out by learned Senior Counsel for
the defendant, it is only when the said negotiations and all the other court applications to
stay the sale by levy failed that this present action purporting to challenge the validity of
the charge instruments was entered in 2006.

After careful consideration of the evidence on record, I reject the evidence of the
plaintiff and find that she has utterly failed to prove on a balance of probabilities that her
signature has been forged on the impugned charge documents, that she did not give her
consent for the inscription of the charges and that the said charge documents are null
and void as a result.
 14

I further agree with learned Counsel for the defendant that any non-compliance
with Article 1326 of the Code Civil Mauricien, in terms of the “mentions” not having
been inserted in the plaintiff’s own handwriting, does not affect the validity of the charge
instruments and render them null and void. It is in fact questionable whether Article 1326
would find its application with regard to fixed charges which are derived from “le droit
réel”; even if it does, it would only, at best, affect their probative value (see Khadaroo &
Ors v Union International Bank Ltd [1996 SCJ 246], Mauritius Commercial Bank Ltd
v Benichou & Anor [2003 SCJ 241] and Aumeer v Mootoo [2008 SCJ 352]).

Having said that, I cannot help observing that I am puzzled as to why the
defendant has not so far proceeded with the sale by levy of the seized immovable
properties, especially after protracted negotiations did not succeed and after applications
to prohibit or suspend the sale by levy were set aside.

I must also add that, after having considered the evidence on record and the
submissions of Counsel, I requested further submissions on the issue of whether the
consent and signature of the plaintiff, as the wife of late Max Ramar at the material time,
were required by law for charges to be inscribed on the three plots forming part of the
community property. It was not disputed by all Counsel in their further submissions that
the consent of the plaintiff was not required for a charge to be inscribed on the plot in La
Forêt, which had been acquired, and already belonged to the community of goods and
property existing between her and late Max Ramar, before 31 October 1980 (see
Articles 1421 and 1424 of the Code Civil Mauricien, as amended by the Code
Napoléon (Amendment) Act 1980 [Act No. 8 of 1980], the Code Napoléon
(Amendment No. 2) Act 1980 [Act No. 26 of 1980] and the Code Napoléon
(Amendment) Act 1999 [Act No 26 of 1999], as well as the judgments of the Court of
Civil Appeal in Mungroo v MCB Ltd. [2004 SCJ 106] and Pulluck v Ramphul & Ors
[2005 SCJ 196], which were referred to by all Counsel in their further submissions). It
was also submitted that the same reasoning would apply to the property in Curepipe
which was acquired in 1975, although learned Counsel for the plaintiff also belatedly
pointed out that it was used as a “logement principal” (see Article 216 of the Code Civil
Mauricien and Ovide v IOIB Ltd. [2008 SCJ 58]).

Article 1424 of the Code Civil Mauricien now reads as follows –

« Les époux ne peuvent, l’un sans l’autre, aliéner ou grever de droits

 15

réels les immeubles, fonds de commerce et exploitation dépendant de la

communauté, non plus que les droits sociaux non négociables et les
meubles corporels dont l’aliénation est soumise à publicité. Ils ne
peuvent, sans leur conjoint, percevoir les capitaux provenant de telles
opérations. »

It is worth recalling that the relevant provisions of the Code Civil Mauricien
(then Article 1421) read as follows before the amendment brought by the Code
Napoléon (Amendment) Act 1980 –

« Le mari administre seul les biens de la communauté. Il peut les vendre,

aliéner et hypothéquer sans le concours de la femme. »

Following the amendments brought by the Code Napoléon (Amendment No. 2)

Act 1980 [Act No. 26 of 1980], the relevant provisions of Article 1421, as introduced in
the Code by the Code Napoléon (Amendment) Act 1980, were transposed to Article
1424, which read as follows –

« Le mari ne peut, sans le consentement de la femme, aliéner ou grever

de droits réels les immeubles, fonds de commerce et exploitations
dépendant de la communauté (...). Il ne peut sans ce consentement
percevoir les capitaux provenant de telles opérations (…)».

(the underlining is mine)

These provisions however have to be read together with sections 19(5) and (6) of
the Code Napoléon (Amendment No. 2) Act 1980 which read as follows –

“(5) Subject to subsection (6), articles 1400 to 1474 of the Code

Napoléon as amended by this Act shall, from the commencement
of this Act, apply to the matrimonial regime of spouses who,
before the commencement of this Act, were married under the
legal regime of community of goods and property.

(6) The provisions of this Act shall not apply to –

(a) property which, before the commencement of this Act, had

already become part of the legal community of goods and
property existing between the spouses;

(b) (…).”

This historical evolution of Article 1424 of the Code Civil Mauricien was clearly
and comprehensively set out and analysed in Mungroo, in which the Court of Civil
 16

Appeal summarised the position in law with regard to disposal of community property by
the husband without the wife’s consent, following the amendments brought in 1980 and
1999, as follows –

“(1) Prior to 6 June 1980 –

The husband could dispose of community properties without the

participation [concours] of the wife;

(2) With effect from 7 June 1980 and until 30 October 1980 –

The husband could not dispose of community properties without

the consent of the wife;

(3) With effect from 31 October 1980 –

The husband can on his own dispose of properties vested with the
community prior to 31 October 1980 but not the properties vested
with the community with effect from that date. Further, rights
acquired by third parties before 31 October 1980 are not affected
by the Act;

(4) With effect from 10 December 1999 [Act No. 26 of 1999] –

The wife and the husband can individually administer and dispose
of community properties subject however to the serious limitations
imposed by articles 1422 to 1425 of the Code Napoléon.”

In Pulluck, the Court of Civil Appeal further held that the transitional provisions at
sections 19(5) and (6) of the Code Napoléon (Amendment No. 2) Act 1980 [Act No.
26 of 1980], by virtue of which a husband can still dispose of property vested with the
community prior to 31 October 1980 without his wife’s consent, were not in breach of
sections 3 and 8 of the Constitution. The Court of Civil Appeal also declined to apply the
relevant provisions of the International Covenant on Civil and Political Rights
(ICCPR) and of the Convention on the Elimination of all forms of Discrimination
Against Women (CEDAW) in the absence of any evidence that these important UN
human rights instruments – to which Mauritius has been a party since 1973 and 1984
respectively – have been incorporated in our domestic law.

While not questioning the decisions of the Court of Civil Appeal, I can only
observe that the Human Rights Committee and the CEDAW Committee have repeatedly
expressed concern that these treaties have still not been given full effect in the domestic
legal order and have further recommended their full incorporation in national law to
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ensure their due implementation (see their latest Concluding Observations on the
periodic reports of Mauritius (CCPR/C/MUS/CO/5 and CEDAW/C/MUS/CO/8
respectively), available on the website of the United Nations Office of the High
Commissioner of Human Rights at www.ohchr.org).

It may be recalled in that regard that Article 15 of CEDAW requires States parties
to the Convention to accord to women “equality with men before the law”, including a
legal capacity in civil matters identical to that of men and the same opportunities to
exercise that capacity, while Article 16(1)(h) of the Convention prescribes the same
rights for both spouses in respect of the ownership, acquisition, management,
administration, enjoyment and disposition of property, whether free of charge or for a
valuable consideration. The CEDAW Committee has further deplored, at paragraph 31
of its General Recommendation No 21 on Equality in marriage and family relations
(1994), the absence of a legal requirement in many States, including those where there
is a community-property regime, that a woman be consulted when community property is
sold or otherwise disposed of; this, according to the Committee, limits the wife’s ability to
control disposition of the property or the income derived from it.

I need not however elaborate further on the issue of whether the plaintiff’s
consent was required for the inscription of charges on all the properties, or only the
property acquired after 1980 since, for the reasons given above, I have already found
that the plaintiff has failed to prove that the six charge instruments were invalid on
account of the reasons invoked in her plaint.

The plaintiff having failed to establish her case on a balance of probabilities, the
plaint is set aside. With costs.

A.D. Narain
Judge
09 June 2021

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For Plaintiff : Mr. T.M. Ponambalum, Attorney-at-Law

Mr. G. Bhanji-Soni, of Counsel

For Defendant : Mr. T. Koenig, SA

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Mr. P. De Spéville, SC

For Co-Defendant No. 1 : Miss S. Angad, Senior State Attorney

Mr. M. Beeharry, Principal State Counsel
together with Miss N. Pem, State Counsel