Principles

·  CIVIL PROCEDURE — Jurisdiction — Subject matter — Mohammedan marriage alleged cloak for land sale to remove possibility of pre-emption — Civil Justice Ordinance 1929, s. 38 — Civil Court has jurisdiction.

·  PRE.EMPTION — Dowry — Not a cloak (or a sale — Pre-emption not possible.

First respondent was selling land to second respondent when they realised first respondent’s co-owner might pre Thereupon first respondent married third respondent, daughter of second respondent, and gave her the land as dowry. it Is contended that the marriage was a cloak for the sale and that pre-emption was there fore possible.
Held: (I) A Civil Court may examine a transaction covered by Civil Justice Ordinance 1929, s. 38, to see whether the marriage is a cloak for another transaction over which the Court has jurisdiction.

(ii) Because a marriage involves other such factors as the change of status of the parties thereto, it is not legally possible for it to be a cloak for a sale of land, and ‘therefore land passing as dowry in a Mohammedan marriage may not be pre-empted. Pre Ordinance 1928, s. 1(g)

Judgment

Advocates: Hussein 0 Wann………………………. for applicant

Mirghani El Nasri ………………………..for second respondent

B. Awadalla, J, December 16, 1963:— This unfortunate dispute has a long history going back to 1953.

In that year, a certain Abdel Rahman Mohamed El Mubarak and another, who are co-owners in sagia 8 Nafaab, petitioned the Civil Court at Merowe on behalf of all the owners of that sagia for pre-emption. The land in respect of which it was sought to exercise the right of pre-emption was, according to the Land Registry Certificate produced with the petition. then registered in the name of Abdel Rahim .alih Saeed (hereinafter referred to as first respondent)

It was contended by Abdel Rahman and his co-petitioner that first respondent by sanad dated February 20, 1953 (hereinafter referred to as Exhibit A) had disposed of 2 kirats out of his 4 k 22 sahams in the said sagia by way of sale to Osman Ahmed Alloub (hereinafter referred to as second respondent) for a sum of £S.200, but that on discovering that the co-owners of sagia 8 were determined to exercise their right of pre-emption  the sale was ostensibly abandoned and only a few days later first respondent married Aisha Osman Ahmed Alloub, daughter of second respondent (hereinafter referred to as’ third respondent). It was further alleged that the 2 kirats, the subject matter of Exhibit A, were stated in the marriage certificate dated March 1. 1953 to have been given to third respondent as part of her dowry. That petition was dealt with by Ahmed Bedri, then Province Judge, on Febuary 20, 1954 and he rejected it under Civil Justice Ordinance 1929, 56 on the following grounds:

1. That no pre-emption arose in such cases of sadaq
2. ;That even if the disposition was a sale cloaked as a sadaq, no question of pre-emption arose for it was a sale between husband and wife and was therefore excepted under Pre-emption Ordinance 1928, s.7(c)
3. That if Aisha was to sell to her father, no right arose for the same reason;
4. That anyway, the petition was bound to fail because of petitioner’s failure to issue the notices required by Section 11  of the Ordinance.

On December 8, 1954, i.e., more than nine months after their plaind was rejected, petitioners then represented by advocate El Sayem, appliet to this Court for revision, but their application was dismissed as out of time. On November 9, 1954, Mohamed Osman El Muharak (hereinafter referred to as applicant) instituted a civil suit against first respondent alleging a sale by the latter to him of 3 kirats in sagia 8 by sanad dated November 3, 1954 for a sum of £S. 400, and praying for specific performance. The Land Registry Certificate attached to the petition showed that first respondent had then only 2 kirats and 22 sahams, which were slightly less in area than the amount claimed but applicant declared before the learned District Judge that he was content to accept whatever share remained to first respondent. Action on that petition was allowed by the learned District Judge under CS-167-1954 with an order that the case be for warded to His Honour the Province Judge, Ed Damer.

Until that time it appears that relations between first respondent and his father-in-law, second respondent, were quite friendly, for on that very day on which applicant petitioned the District Court, second respondent, as agent of first respondent, also petitioned the same Court alleging that the sanad on which applicant was relying was obtained by fraud while his principal, first respondent. was under the influence of drink. Due to the importance of a statement occurring in the last paragraph of that petition in the subsequent proceedings which I am presently to mention, and in which second respondent was plaintiff, I am going to translate that statement in full:

“          When I lost my senses, they made me sign the sanad selling 3 kirats in sagia 8 El Nafaab, of which 2 belonged to my wife Aisha Osman Allouba, from whom I hold no tawkil enabling me to make the said disposition. The rest [of the land] belongs to me. The sale at £S.400 is therefore a forgery

Before the case by applicant against first respondent was heard, second respondent himself petitioned Ed Damer Province Court (on December 28, 954) claiming specific performance of the sale agreement contained in Exhibit A. That petition was referred by His Honour the Province Judge to District Judge, Merowe, on February I4, l955, who after examining the petitioner, allowed action under CS-14-l955 and ordered hearing before His Honour the Province Judge on April 28. 1955. No hearing took place on that date and on May 22. 1956 hot CS-167-1954 and CS-14-l955 were before His Honour Abdel Magid Imam, (then Province Judge) and he ordered that the two suits be amalgamated, that plaintiff in the former “nit (I e., applicant) be made second defendant in the second suit and that third respondent, who until then was not joined as a party in any of the two suits, be joined as third defendant.

This order of amilgamation was in my view quite unjustified and its effect was simply, as will appear later, to blur and confuse the points in controversy  not only in the minds of’ the learned advocate  but also in the mind of the Court itself.

By that time relations between first and second respondents had be come strained and third respondent was no longer the wife of first respon dent, having been divorced by him on February 17, 1955.

Applicant and first respondent joined hands in order to impeach not only the claim by second respondent for specific performance, but also the transfer to third respondent of the 2 kiiats constituting her dowry. Appli cant was represented in the hearing by advocate Wanni Sand second respondent by late advocate Rouchdi.

In the first hearing, first respondent admitted the sale to applicant of 2 kirats and 22 sahams (i.e., his remaining share in the land) for £S.400, which he also admitted to having received. He emphatically der any suggestion that the sale was obtained by fraud. His Honour th Province Judge treated both cases as disputed, but in fact CS-167 was not.

This civil suit, CS-14-1955, was contested on the ground that the 2 kirats forming the subject matter of Exhibit A were nothing but the same 2 kirats given by first respondent to his divorcee, third respondent, at the time of her marriage. It was also contended that the marriage itself was part of a contrivance devised by first and second. respondents (the parties to Exhibit A) in order to defeat the claims of co-owners of sagia 8 to preempt.

Despite the fact that issues were framed, no date was fixed for hearing and no hearing took place until both suits were ultimately dismissed for lack of prosecution under Civil Justice Ordinance 1929? s. 217.

On application to His Honour Osman El Tayeb, Province Judge, on October 17, 1957, both cases were re-opened and referred to District Judge, Merowe, for hearing and determination. On November 4, 1958, i.e., more than a year after re-opening, the learned District Judge made an order for pleadings.

Late advocate Rouchdi made a statement of claim for specific perfor mance of the agreement contained in Exhibit A and advocate Wanni filed a statement of defence reiterating the allegations of fraud made orally in the first hearing.

I take leave to say that in his enthusiasm to overreach the disposition by way of dowry to third respondent, advocate Wanni forgot everything about the original claim of applicant in CS-167-1954, for in what he called his “statement of claim”, he introduced a totally new claim to exercise a right of pre-emption concerning the 2 kirats given by first respondent to third respondent as dowry. He made not the slightest reference to the subject-matter of CS-167-1954. In my view, therefore, it would be correct to assume that the claim in respect of which that suit was instituted was completely abandoned.

Advocate Rouchd in my view quite rightly, objected to the procedure of a defendant in a suit furnishing a statement of claim, but he was over ruled by the Court on the ground that the statement of claim would be treated as a counterclaim for pre-emption. Nonetheless, no fees were paid on this completely new cause of action and no mention was made as to whether the notices required to be given under Section 11 of the Ordi nance were so given or, if not, why not.

However, advocate Rouchdi replied denying applicant’s right to pre empt, and issues were framed as appear at page 41 of the record.’

 learn ed District Judge dismissed both claims. He believed the story of appli cant throughout, finding as a fact that the marriage was simply part of a contrivance to cover the sale evidenced by Exhibit A, but he based his dismissal of the claim for pre..emption on the ground that it was barred by lapse of time under Pre-emption Ordinance, s.17. Both applicant and second respondent applied for revision to His Honour the Province Judge, Ed Damer, against the decision of the learned I1 Judge. His Honour the Province Judge summarily dismissed the application regarding the pre-emption claim on the ground that the land passed to third respon dent as sadak or, alternatively, that the application for pre-emption was barred by lapse of time under Pre-emption Ordinance, s.17. He there fore appeared to have impliedly found the learned District Judge wrong in his finding of fact that the “transaction is not a ‘dowry,’ but a mere sale.” (Cf., page 3 of the judgment)

Strangely enough, he did not in any way deal with the application by second respondent against the dismissal by the learned District Judge of his claim for specific performance of Exhibit A.

Both parties are now seeking the help of this Court. Applicant is questioning the correctness of the summary dismissal, and second respon dent is apparently cross-appealing against the failure of His Honour the Province Judge to deal with his application.

Before us, advocate Wanni appeared on behalf of applicant and ad vocate M. El Nasri, who has taken over second respondent’s case since the death of advocate Rouchdi, on behalf of second respondent. First respondent, Abdel Rahim Salih Saeed, appeared in person.

Advocate Wanni raised the following points:

(i)              That a plea of resjudicala is not available to respondents because a rejection of a plaint does not conform to the conditions laid down by Civil Justice Ordinance, s. 40, and in any case applicant was not a party to the earlier petition;

(ii)           That Pre-emption Ordinance, s.l7 does not operate in this case because no sale was registered and what was registered was simply a gift in lieu of dowry;

(iii)        That it applicant failed to comply With the requirements of pre-emption Ordinance, s. 11, the reason was that there was fraud on the part of respondents, which was only discoverable after the, divorce of third respondent.

Advocate Nasri replied as follows:

(i)              That the plain English meaning of the word “suit” as used in Civil Justice Ordinance, s. 40 is wide enough to cover the earlier rejection of Petition-98-l953 which was submitted on behalf of all co-owners, of whom applicant was one;

(ii)           That the learned advocate for applicant should not be allowed to blow both hot and cold, for if he contends that Pre-emption Ordinance, s. 17 does not apply because there was no sale, then he must admit that the case is outside the ambit of the Ordinance;

(iii)        That the transaction was well known to all the people in the locality, and if the co-owners contended that it was a sale, they ought to have invoked Section 11 of the Ordinance.

The question regarding the impossibility of pleading of Civil Justice Ordinance, s. 40 in this case was never raised by respondents or any of them at any stage of the proceedings, but it was simply suggested by advocate Wanni himself at page 11 of his written submission to the District Court. But although he is now giving as one of his reasons for the non-applicability of that section, that applicant did not join in the earlier petition, advocate Wanni admitted in his statement of defence before the District Court that applicant did apply for pre-emption at the first instance, and D.W.1, Abdel Rahman El Mubarak, applicant’s brother, corroborated this admission at page 72 of the proceedings when he stated that he had submitted the earlier petition both for himself and on behalf of applicant.

There is no doubt therefore that applicant’s claim for pre-emption was only a repetition of the previous claim, which was already disposed of by His Honour Ahmed Bedri, Province Judge, whose decision on the matter became final by the refusal of this Court to intervene.

The claims that were referred by His Honout the Province Judge (Osman LI Tayeb) to the learned District Judge for disposal, did not at all include the pre-emption claim but were only concerned with the two adverse claims for specific performance. Nonetheless, advocate Wanni raised the preemption issue in what he calls his statement of claim, well knowing that the Court below was bound by the earlier decisions of the Province Court which, in turn, was bound by the decision of the Court of Appeal on the matter. I regret to say that the learned advocate, by forestalling a plea of resjudicata, had failed to see the real reason why his present claim ought not to have been entertained the res judicata rule is not the only rule in the Civil Justice Ordinance that aims at preventing repetition of claims already disposed of by the Court, for there are plenty of other rules that give finality to decisions of the Courts even though based on technical or procedural grounds. In the present case, unless this Court chose to review its order rejecting advocate Sayem’s petition of December 8, 1954, a step which this Court would of course never take, the matter can in no way be revived.

But I do not want to dispose of the issue solely on a procedural ground, because on the one hand the point is interesting and important, and on the other, the two learned advocates have exerted such effort for and against the claim that a pronouncement by this Court on the substance appears to me to be desirable.

But in order to arrive at a correct decision on the law, one must in my view always have the facts straight in one’s mind. Therefore, one has to discern with absolute, accuracy the nature and effect of the transactions which the parties are alleged to have entered into.

The parties to Exhibit A, i.e., first and second respondents are first 5 to have entered into a sale agreement of the two kirats for £S.200. fearing interference by the co-owners of first respondent, they declared they had given up the idea, and a contract of marriage between first and third respondent was concluded. I was contended for applicant since 1953 that the said marriage was nothing but a cloak for the sale. In fact advocate Wanni in paragraph 14 of his submissions to the District Court suggests that the marriage agreement can be invalidated, for he says:

"In fact the right to impeach the validity of the marriage transaction is not limited to the second defendant, who was not a party to the fraud, but even the first defendant, who was a party to the fraud and who signed the marriage deed, is not estopped from impeaching it

Now the question suggests itself whether a civil court can decide on a matter of this kind without offending Civil Justice Ordinance, s 38. which says

‘‘Civil Courts shal not be competent to decide in a suit in whIch all parties are Mohammedans except with the consent of all the parties, any questions regarding succession, inheritance, wills, legacies gifts, matriage, divorce family relations or the constitution of wakfs.

In Ibrahim Saleh v Ahmed Saleh and others AC-REV.45-1933 the court was held entitled to question the validity of a gift where it appeared that such a dealing didi not represent the true nature of the transaction one can not indeed fail to see the wisdom of that decision because the sudan courts being courts of equity should not allow a statutory provisoin limiting jurisdiction to stand in their of nullifying fraudulent dealings concluded with the sole object of avoiding the effects of another statutory provision enacted for the protection of co-owners of immovable property.

Civil Courts would therefore in my view be quite within their jurisdiction if, for the purposes of giving effect to the provisions of the Pre-emption Ordinance, they unveil a transaction in order to expose its true nature.

it therefore remains for us to consider whether it is legally possible for a sale to be cloaked as a marriage. It is easy to attack a gift and prove that the parties thereto have fraudulently suppressed the true consideration with a view to taking the case out of the ambit of the Pre-emption Ordinance but how can a sale walk under the mantle of a marriage? I think that this is a legal impossibility, the proof of which would be apparent on an examination of the legal incidents underlying both types of contract.

A sale is a contract in which ownership of property is transferred from one person to another for a money consideration. Marriage in Moham medan Law, on the other hand, is at least in its inception, a permanent union between man and woman for the legalization of intercourse and the procreation of children. Its three essentials are: (1) offer (ii) acceptance and (iii) witnesses Dower is payable by the husband but need not be named at the time of the agreement. Whether it be a sum of money or other property, dower belongs absolutely to the wife. A marriage contract brings about a complete change in the status of both parties and it is this aspect of it which rendered the Sharia law so strict about its formation that it considers a marriage as absolute valid even though the parties to it were not serious in concluding it, as motive is absolutely irrelevant. Assuming, therefore, that a lady, in order to avoid the effects of the Pre-emption Ordinance, got married to a man who gave her his land in lieu of her dower, such a marriage would be completely valid and the dower cannot be over reached by reason of Pre-emption Ordinance, s.7(g)

It is contended in the present case that the sale between first and second respondents was cloaked in a marriage between first and third respondents. Quite apart from what I stated above, it is impossible to conceive the idea of one form of contract being cloaked in another form when not only the parties are different, but also the subject-matter and consequences are completely at variance.

What the parties did in the present case was quite legitimate. Even though second respondent might have paid money to first respondent in consideration of the land being give as dower to his daughter, there is noth ing wrong in that. The land would still be the property of the wife under the marriage, and she cannot be compelled to part with it to her father by way of gift if she does not want to.

In view of the consideration passing from third respondent to first respondent, I am of the opinion that the case is covered by Pre-emption Ord inance, s.7(g) and that both the original rejection of the plaint by His Honour Ahmed Bedri, Province Judge, in 1954 and the finding by His Honour the Province Judge in these proceedings are in my view correct.

Before I finally leave this matter, I should like to make a warning about references to Indian authorities on the question of pre-emption. In India, the Courts apply the Mohammedan principles as a matter of “justice, equity and good concience” save in two States where pre-emption is governed by statutory provisions. Mulla, Transfer of Properly Act, 1882, 60 (4th ed. Das and Dhurandhar 1956). Various Islamic schools of thought have wide differences concerning the details of the rules on the subject of pre-emption Our law is based on an Egyptian Act of 1901 which in turn, was a combination of Sharia rules and decisions of Egyptian Courts. Indiscriminate reference to Indian or Sharia authorities on the subject would, in my view, be repaid by nothing but confusion.

I now come to the claim by second respondent for specific performance of the agreement contained in Exhibit A and on which there is a cross- application for revision.

In my view this application is bound to fail. There is no doubt in my mind that the facts as found by the learned District Judge are true and that Exhibit A was either discharged by accord and satisfaction or rescinded by another document secreted by P.W.3. I had mentioned earlier in this judgment that second respondent was at one time the agent of first respondent and on November 9, 1954, i.e. nearly two years after the date of Exhibit A, he petitioned the civil court attacking the second sale to applicant not on the ground that the land, or at least more than two thirds of it, was his own, but on the ground that it belonged to the principal, i.e., first respondent. If the allegation that the 2 kirats mentioned in Exhibit A were in fact different from the two kirats given to third respondent, one would certainly have expected second respondent to fight the case in his own name and not in the name of first respondent.

This cross-revision is accordingly dismissed.

There shall be no order as to costs but full scale percentage fees must be collected from applicant on the counterclaim.

M.A. Abu Rannat, C.J., December 16, 1963:— I concur.

Editors’ Note: In Ibrahim Saleh v. Ahmed Saleh and Others, AC-REV- 45-1933, cited above, Mr. Chief Justice Owen held: “In these circumstances therefore, having, regard firstly to the fact that the document of gift did not represent the true nature of the transaction,and secondly to the fact, that the real transaction was one which was so vague and uncertain in its terms as to be unenforceable and unregisterable, the proper course to take was to declare the gift invalid merely and order its registration to be expunged. The Judge went too far in declaring that the real transaction was such that the right of pre-emption arose for the benefit of the co-owners. There was not sufficient evidence before him to enable him finally to declare what such rights were, and therefore he should have contented himself with saying that this so.called gift was made in circumstances that prevent ed its registration as such.”