Case No.:

AC.REV 1958

Court:

Court of Appeal

Issue No.:

1961

Principles

·  Civil procedure—Civil Justice Ordinance . s. 39 (1) (b)—Removal of cases involving a question of a gift between Mohamedans to 5haria Court for decision on that quest ion

·  Civil procedure Justice Ordinance . s. (1) (b)—Decision of Sharia Court to which removed is appealable to Sharia high Court

·  Land Law—Gifts—Interests in government land transferable by gift

·  Land Law Registration Unregistration prior donee has preference over registered bona fide purchaser

·  Land Settlement and Registration—-Unregistered prior donee has preference o registered burnt tide purchaser

·  Land Law—Bona fide purchaser cannot have personal knowledge of had title even if advised to the contrary by Merkaz

·  Land Law—Cift—.Application by registered owner to District Commissioner to change registration is not a binding gift land law—— Bona fide purchaser deprived of title has cause of action against yendor for breach of warranty of title

Gumaa made a gift by sanad of half a plot of lard to Mohamed. Mohamed . with permission from the town Council built a shop on the land. Later Gumaa
* Court: M. A. Abu Ronnat C and M. I. LI Nur J.
petitioned the District Commissioner to have the whole plot registered in the name of Mohamed, The petition was received but not carried out, when eight months later Gumaa sold the property to Ali with approval of the District Commissioner, and the property which had been registered in the name of Gumaa was registered under Ali. Ali knew at the time of purchase that the buildings were Mohamed’s. Mohamed brought this suit against Gumaa and Ali for rectification of the register. The District Court referred the matter to the Sharia Court pursuant to Civil Justice Ordinance, S. 39 (1) (b), since the question involved a gift between Mohammedans. The Sharia Court held the gift valid but revocable, the donor being only entitled to recover the value of the land since buildings had been constructed on it by the donee, The District Judge then granted rectification in the name of Mohamed, and his decision was affirmed by the Judge of the High Court. Ali appealed the decision of the Sharia Court to the Sharia High Court which dismissed on grounds that the opinion of the lower Sharia Court was advisory and not appealable. Ali appealed the decision of the Judge of the High Court. Civil Division, on grounds:
 (1) that interests in government land cannot be transferred by gift ;
(2) that even if the gift of the plot is considered effective, Ali to whom the property was later sold, did not know of the prior gift and registered first, and therefore should be granted title;
(3) that the Merkaz authorities incorrectly told him that Gumaa could sell the buildings, although Ali knew they belonged to Mohamed.
Held: (1) Because the question of the validity of a gift between Mohammedans is outside the jurisdiction of the District Court under Civil Justice Ordinance. s. 38. the case was properly removed to the Sharia Court under Civil Justice ordinance, S. 39 (1) (b), for decision on that question.

(ii) The decision of the Sharia Court under Civil Justice Ordinance. s. g (1) (b), is final, not advisory, and appealable to the Sharia High Court.
(iii) An interest in government land such as a lease or licence may be trans ferred by a gift valid at Sharia Law.
(iv) Ali, a bona tide purchaser of the plot, who registered before Mohamed. donee by a prior gift valid at Sharia Law, does not receive title in preference to Mohamed.
(v) Although told by Merkaz authorities that title to the buildings was clear in Gumaa. Ali had personal knowledge of Mohamed’s ownership of the buildings and therefore was not a bona fide purchaser of the buildings.
Obiter dicta: (i) An application by registered title-holder to the District Commissioner to transfer registration of land to the name of another does not constitute a binding gift between the parties.

(ii) The bona fide purchaser deprived of registered title because of a former binding gift has a cause of action for breach of warranty of title for the recovery of money paid to the former owner.

Judgment

(COURT OF APPEAL)

ALI EL HIWAIRES v. MOHAMED RAMADAN

AC.REV 1958

M. 1. El Nur J. January 1 1959:—The facts of this case are briefly as follows:

1. Gumaa Abdalla was the registered owner of Plot No. 6 Native Lodging Area, Singa, comprising an area of 360 square metres.

 2.  Some time in 1954. the said Gumaa Abdalla made a ‘gift by sanad of half of that plot to Mohamed Ramadan (respondent) who, on producing that sanad of gift to the Town Council. asked for permission to build on the half of the plot gifted to him a shop. The Council having given its consent on July 13. 1954. Mohamed Ramadan built the shop, a gutteya and a sareef.

. On August 3. 1957. Gumaa Abdalla petitioned District Commissioner singa to have the whole of Plot 65 Native Lodging Area, registered in the name of Mohamcd Ramadan. This petition was received in the District Commissioner’s office but for no explainable reason the transfer of the plot as requested was not carried out.

.4 In April 1958 Gumaa Abdalla sold the said plot to Au El Hiwaires for £S.15 and the sale was approved by the District Commissioner and registered on April 8. 1958.

. 5On September 17, 1958, Mohamed Ramadan (respondent) instituted Singa DC-CS-255-58 against Gumaa Abdalla and Au El Hiwaires asking for rectification of the register of Plot 6 Native Lodging Area, in his favour on the grounds set out above.

. 6Before the District Judge, first defendant t Abdalla) admitted having made the gift of half of Plot 65 which was then unbuilt to plaintiff. and the plaintiff relying on that gift built a shop and a sareef, and denied that he on August 3, 1957, petitioned District Commissioner Singa to transfer the whole plot to plaintiff. He added that having in 1958 changed his mind about the gift he sold the whole plot to second defendant (Au El Hiwaires) for £S.15 which he received. Second defendant (Ali El Hiwaires). however, while denying that he knew of the gift by first defendant to plaintiff admitted that the latter had built since 1954 the shop standing therein which plaintiff was renting to certain El Amin Osman.

.7On the above facts the District Judge came to the conclusion that the whole case turned upon the fundamental issue whether the gift by first defendant to plaintiff in 1954 of half of Plot 65, Native Lodging Area, was a valid deed of gift. The District Judge therefore, deciding that questions relating to gifts did not come within his jurisdiction, referred the matter of the gift to the Kadi of Singa under Civil Justice Ordinance, s. 39 (1) (b), for his decision. The Kadi investigated the matter in presence of both plaintiff and first defendant Gumaa Abdalla and made the following decision:

" Whereas the legator (Gumaa Abdalla) admitted the genuineness of the deed of gift and admitted that he made that gift, I hereby declare that the said gift was a valid one, and whereas it was a beneficial gift, ‘i.e., Hibat Thawab’ and whereas the legator had since changed his mind. he is entitled to revoke the gift but whereas the legatee had since erected buildings on the land gifted, the legator is only entitled to the value of the land at the time of the gift.”

. 8Consequent. on the above decision, the District Judge issued his decree on November 11, 1958. ordering that the whole of Plot 65, Native Lodging Area, Singa should be transferred from the name of second defendant (Ali El Hiwaires) to the name of plaintiff without giving any remedy to Ali El Hiwaires i respect of the £S.15 paid by him to first

defendant on the purchase of that plot. On October 10. I 958 A Ii  El Hiwaire  (applicant) appealed to the Kadi of Blue Nile Province High .Sharia court against the decision of .Singa .Sharia Court declaring that the gift by Gumaa Abdalla (first defendant) to plaintiff Mohamed Ramadan, was a valid one.

. 9Without awaiting the result of his appeal to the high ,Sharia Court. Blue Nile Province. Ali El Hiwaires applied on November 22. 1958, to the Judge of the High Court, Blue Nile Province, for the revision of the District Judge’s decree of November ii, 1958, on the following grounds that:

(a) Plot 65. Native Lodging Area, was government property and Gumaa Abdalla cannot transfer it by way of gift.

(b) Even if the gift by first defendant to plaintiff was proved to by genuine, it was not registered.

(c) The buildings on the said plot were said to him on the recommendation of the Merkaz authorities, and consequently the plot was registered in his name.

. 10On November 23, 1958, the learned Judge of the Nigh Court summarily dismissed the above application without giving any reason why he did so.

11. On December 4, 1958. after the Judge of the Nigh Court dismissed the application for revision, the Kadi of the Sharia High Court, Blue Nile Province, wrote saying that the declaration by the Kadi of Singa that the gift by Gumaa Abdalla to Mohamed Ramadan was a v one, on the strength of which the District Judge gave his decree, was only the expression of an opinion, given in the form of n advice to the District Judge at his request, and therefore it did not amount to a decision which can be appealed against. The learned Judge of the High Court made no comment on this erroneous view of the Sharia High Court.

.12On December 17, 1958, Au El Hiwaires applied o the Chief Justice for the revision of the Judge of the High Court’s order summarily dismissing his application for the revision of the District Judge’s decree dated November 11 1958. He gives as his ground the same points put in his application to the Judge of the High Court.

. 13Now as it appears from the above facts, this case insignificant as it is. raises very important and interesting points of law, viz.:

)a) The learned District Judge was certainly correct in referring the question of gift to the Kadi of Singa under Civil Justice Ordinance, S. 39 (1) (b ).

(b) The decision given by the Kadi on the validity of that gift is subject to appeal to the Blue Nile Province Sharia High Court as stated in Civil Justice Ordinance. s. 39 (2). Therefore the Sharia High Court Judge was wrong in saying because the Singa Sharia Court Judge

gave his decision in the form of an advice, and not in a case instituted by the parties.

(c) The decision of the Kadi of Singa said two things. In the first plat e it said that the gift was a valid one. In the second place it said that the legator had the right to revoke that gift, and therefore added that since the legatee had already built on that land the legator is entitled to the value of the land at the time of the gift.

The learned District Judge accepted the decision that the gift was valid and rejected the decision that the legator had the right to revoke the gift and he was therefore entitled to the value of the land.

From a Sharia point of view the Kadi w wrong in his latter decision. A legator has no right to revoke his gift after the thing gifted had changed its shape. The building erected by the legatee on the land had certainly changed its shape. The Grand Kadi to whom I showed this case confirms this. Therefore the learned District Judge was quite correct in rejecting the latter part of Kadi Singa’s decision.

(d) The learned District Judge went further than accepting the gift .which concerned only half of Plot 65. He also accepted the application dated August 3. 1958. by Gumaa Abdalla to District Commissioner Singa to transfer the whole of Plot 6ç to the name of Mohamed Ramadan (legatee) as a binding agreement. and consequently decreed that the whole of the said plot should be transferred to the name of Mohamed Ramadan. In my view this decision was not correct but since Gumaa Abdalla did not object to it or appeal against it. I see no reason why we should interfere

14. Now we come to the application for revision by Au El Hiwaires of the District Judge’s decree. In my view there is nothing in the grounds put forward which justifies the disturbance of the District Judge’s decision. He said that Plot 65. Singa, Native Lodging Area, was government property, and therefore Gumaa Abdalla cannot make a gift of it. This is certainly not correct. Gumaa had a lease or a licence from the government on that plot which was registered in the District Local Register in his name. Such lease or licence is an interest which can be transferred by gift or sale.

Again Au said what Gumaa sold to him for £S.15 on the recommenda of the District authorities was the buildings on that plot. He admitted he knew that buildings and particularly the shop were erected in the said plot by Mohamed Ramadan. It is clear therefore that Gumaa cannot sell to him a thing which he did not own himself.

15. In my view therefore the District Judge’s decree is generally correct

and this application should be, subject to the agreement of the Chief Justice. summarily dismissed as hopeless.

16. Applicant should be advised to raise a civil suit against Gumaa Abdalla if he wants for recovery of the £S.15 paid by him on purchase on breach of warranty of title.

M. A. Abu Rannat C January 21, 1959:—I agree and the application for revision is summarily dismissed.