Case No.:

AC-REV-448-1963

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Trust—Family house—Wife and children allow registration in father’s name— Constructive trust to prevent his sale against their will

A wife and children allowed a house given to the family by the Government to be registered in the name of the father. When the father tried to sell the house against their wish, the wife and children applied for rectification of the register in their names.
Held: When a wife and children allow their share of a family house to be registered in the name of the father and the father thereafter wishes to sell the house against their will, the court will construct a trust on behalf of all members of the family in equal shares to protect the house from sale by the registered father, and rectify the register accordingly.

Judgment

                                                   (COURT OF APPEAL) *

     ABDEL FARRAG SALIH v. ADAM ABDEL FARRAG SALIH AND ANOTHER

AC-REV-448-1963

El Mahdi El Fahal D.J. February 10, 1963, HC-CS-92-1961: —The plaintiffs, who are the respective children and wife of the defendant, are suing him for rectification of the register of the house known as plot 47, Block 2, H West Khartoum Deims (comprising an area of 202 squaremetres), which is now registered in the name of the defendant.

The plaintiffs alleged that they are in fact the real owners and that they actually constructed and spent the money on the building and paid out the rates and that the defendant had already promised to transfer the registration in their names but failed to fulfill his promise.

The defendant denies their claim in tote.

The gist of the evidence adduced shows that the seventh plaintiff, Tayeba Mursal, who is the defendant’s wife, was, during World War IL, working as a floor sweeper at the Public Health Office and was the holder of a ration card in her name (P.D.2), according to which rations of sugar, etc., were issued monthly. The evidence of P.W.2, Mirghani Babiker, who is the Sheikh of the Deims, shows that the new plots were given to families according to their ration cards and that as the card of Tayeba contained a large number, two plots were given to her as her family was relatively large, and that her children asked that the plots should be registered in the name of their father, the defendant, and this was eventually done by the Mamur.

The buildings were mostly constructed by the defendant with the help of his elder son, the second plaintiff, Suleiman (in whose name the other plot, No. 48, was transferred and who has now rebuilt it, as seen by the court when viewing the sites), and little was done by his wife.

In my view this is a case of trust. The house is in fact a family house, which was transferred in the name of the father. According to English law as the transfer was not made to the wife or children, then there is a reputable presumption that it is the property of the transferor.

We find in Maitland, Equity 78—79 (2nd ed. Brunyate 1949) the rule stated as follows:

if X is my wife or my child the presumption is that I intend a benefit for X and therefore that there is no resulting trust for me, though this presumption may be rebutted by parol evidence, on the other hand if X is a stranger there is a presumption, though a rebut table presumption, that I do not intend to benefit him but intend that he shall hold as a trustee for me.”

In the case before us, the presumption is in favour of the plaintiffs and was not rebutted by the defendant. Therefore the house being the property of all the family should be registered in their names, i.e., in the name of the defendant and of all the plaintiffs, except Suleiman, who is now holding the adjacent plot (No. 48) in his own name and who has newly reconstructed it. The division should, in my view, be in equal shares, as the house is their joint property and as equality is equity.

Application for revision to the High Court, HC-REV-i was dismissed by Hashim Mohamed Abul Gassim P.1. on November 27, 1963, for non-appearance.

M. A. Abu Rannat C.J. January 23,1964: —Defendant-applicant claims that the house in question was built by him alone, while there is over whelming evidence that his children and wife contributed by paying for the builders or building materials or by working themselves when they were off duty.

I am satisfied the District Judge reached the right decision when he decided that the house be registered in the name of the family, including defendant-applicant

Application is hopeless and is summarily dismissed.

Editors’ Note.—Because there was no error, fraud or prescription here claimed, the Court cannot order rectification of the register under Land Settlement and Registration Ordinance 1925. s. 8 Had El Zein Ramadan v. Heirs of Abu El Ruda Bakheit, DC-CS-440-1959 (Atbara), (1960) S.L.J.R. 34, 3ç, affirmed, PC-REV- (Ed Darner) (Osman El Tayeb P.j.). A purchase of property by a father or husband in the name of his child or wife is presumed to be an absolute gift, but the presumption is rebuttable. 38 Halsbury, Laws of England 867—870 (3rd ed. Simonds 1952). Thus, Abbas Hassan v. Ahmed Abbas Hassan, HC-CS-1466-1948, held that the presumption of the father’s gift to his child was rebutted by the Sharia law that a gift unduly favouring one of a number of heirs must be clearly proved. But the presumption as between husband and wife was not re butted in Goldenburg v. Goldenburg, (1960) S.L.J.R. 36. where the husband showed only that he had handled the proprietary affairs of the property in question and also argued that he had registered the property to his wife to protect it from possible bankruptcy proceedings.

• Court: M. A. Abu Rannat C.J.