(PROVINCE COURT)

EL HUSSEIN MOHAMED EL AMIR AND OTHERS v. ZAHARIA KARRAR AND OTHERS

PC-REV-146- Ed Damer

 Principles

·  Pre-emption——Gift to non-relative presumed to be sale—Sale is any transfer for any consideration

·  Pre-emption—co-owner—heir  of registered proprietor is not co-owner—Name must appear in register

Although a genuine gift of land does not give rise to a right to pre-emption, a gift of land to a non-relative may be presumed to be made for some consideration. i.e., to be a sale until the contrary is proved, and the court should inquire whether such a purported gift is a genuine gift.
The donee of a purported gift of land, presumed or found to be a sale to him, who claims to be a co-owner of the land so as to prevent a right at pre-emption arising, must show that he is registered as co-owner. It is not sufficient to show that he is an heir of a registered proprietor.

Judgment

Osman El Tayeb P.J. November 20, 1958 : —This is an application for revision from decree of District Judge, Shendi, dated November 21, 1957, in his DC dismissing the claim of plaintiffs to exercise right of pre—emption in respect of 71/2 uds in share No. 12 Sagia No. 10 Ibreig Shendi District partly gifted and partly sold and registered by first defendant to second defendant.

Vendor was the registered owner of the above-mentioned share; she was living in another village and the said share was left in possession of second defendant, the purchaser. When the vendor made up her mind to sell the said share, she, through her agent, offered it to second defendant. It appears according to evidence of the vendor’s agent himself that an agreement of sale of the whole 7 uds all at once was made and that it was concluded by the preparation of the petition of sale and its presentation to the authorised local authority and that it was approved. This was in 1955. P.W. 1 the Native Court clerk, said that it was at the end of This sale agreement was not brought for registration, as they thought of something else. They tore up that petition of sale and instead made another petition of gift of 2½ uds out of the same share, the latter petition was approved by the local authority on October 20, 1955. without delay they appeared before the Sharia Court and lshad of gift was issued on October 23, 1955, and finally entered in the register on November 9, 1955. On January 15, 1956, a petition of sale for the remaining uds was approved, the deeds executed before the Registrar on the next day and accordingly registered. The learned District Judge dismissed the claim on the following grounds:

(1) no right of pre-emption exists on a transaction made by way of gift; (2) by the gift the purchaser became a registered co-owner on the same share, and so no right of pre-emption exists in respect of the sale to him; and (3) plaintiff had renounced his right of pre-emption by conduct before the sale was registered.

As to the first point truly it is the law that no right of pre-emption exists on a transaction of a gift. But what is a gift and whether the transaction in this case was a genuine gift, remains to be seen. According to Pre-emption Ordinance 1928, s. 5. , the right of pre-emption exists on a sale of land. A sale of land is transference of land on valuable consideration. Valuable consideration is generally taken to mean money or money’s

worth. It is defined in the Land Settlement and Registration Ordinance 1925 thus: “includes marriage but does not include a nominal consideration in money.” Marriage, here, I think, is intended to be the consideration itself, that when one intends to marry, one can transfer property to one’s future wife. In other words the property transferred is the dowry, which is property transferred in consideration of marriage. So the transfer of property by way of dowry may be called a sale. But this sale is of the same nature as the sales mentioned on Pre—emption Ordinance 1928, s. 7 (c), which reads:

“Where a sale of property takes place between ascendants and descendants, between husband and wife or between relatives to the fourth degree.”

In these kinds of sales no right of pre-emption exists. the reason is that in these sales the consideration normally includes another element of love and affection in addition to or in substitution of money or money’s worth. So is a gift, it is a sale the consideration for which is, wholly or partly, love and affection, which are the natural emotions of mankind aroused by the relationship mentioned above. Whether the transaction was sale or gift to any one of these relatives, and whether there was valuable consideration or not, no right of pre-emption exists. When a gift to anyone other than a relative is made, it would be essential to inquire about the consideration. In my opinion when the gift is made on valuable consideration, i.e., money or money’s worth, the transaction is to be considered as sale upon which the right, of pre-emption exists. I do not wish to say that it is impossible to imagine that mere friendship may develop between people such love and affection as would be enough consideration for transfer of land, but I should say that where a gift is made to a non- relative it is to be presumed that it was a sale for money or money’s worth.

In the present case there is no such relationship as may fall within Pre-emption Ordinance 1928, S. 7 (c). It is presumed that the gift of the 2.5 uds was not a genuine gift in the sense that the consideration for it was substantially love and affection; that the consideration was money or money’s worth. The facts of this case are not difficult to reconcile. There was an acquaintance between the vendor and the purchaser. It was said that there was an old friendship between their ancestors. The purchaser had been for some time holding the same plot on behalf of the vendor. There is nothing more. It is proved by the agent of the vendor and other witnesses that the bargain was sale of the whole 71/2 uds all at once. The petition of sale was written and sigited by both parties, and approved by the Native Court. Then they changed their minds and abandoned the approved petition and made a gift for 21/2 uds and afterwards made a sale

 of the remaining 5 uds we do not know the exact date of the first sale, but the gift was approved on October 20, 1955, and applicant had submitted his petition to exercise his right of pre-emption on October 27, I955 It seems that applicant was after the vendor and purchaser in this matter. The clear inference is that the transaction was in essence sale. It was for money or money’s worth and to a non-relative. The intention of vendor and purchaser was to defraud applicant, by depriving him of the exercise of his right of pre-emption. The agent of the vendor stated that he agreed with the purchaser on sale of the whole plot, but as the purchaser could not pay the price for the whole, they agreed to give him 2.5 uds for no price and that he should pay the price for the rest. This is an urisatis factory and an inverted explanation. It shows the intention stated above.

The second point on which the learned District Judge dismissed the case: that the purchaser is a co-owner in the same sagia, is now clear. The purchaser has no land other than the 2 1/2 uds given. We found above that this was not a gift or a sale upon which the right of pre-emption does not exist and when this transaction of the 21/2 uds was made the purchaser was not a co-owner in the same sagia, while applicant was. The purchaser stated that his grandfather is a registered owner in the same sagia, if this was true, it would not be accepted to make him a co-owner. A co-owner is the person whose name appears in the register as the proprietor of land.

The last point is the allegation of the purchaser that applicant had renounced his right to claim pre-emption. This point depends on the evidence recorded. The purchaser adduced two witnesses to support him in his allegation. He himself said that he consulted first applicant about the sale and first applicant informed him that he did not want it and advised him to buy. D.W 1 and D.W. 2 made similar statements as follows:

At the end of I955 while they were at harvest, the purchaser informed both applicants that the vendor’s agent wanted to sell him the uds, and both applicants amongst the others blessed the sale and first applicant offered to complete to him the purchase price if he had not had it at all. In my opinion this evidence is not to carry any weight for the following reasons:

(1) One of the witnesses is full brother of the purchaser.

(2) The two witnesses relate one incident, while it was not the same incident relied on by the purchaser himself.

(3) The vendor’s agent, whose evidence was given much weight, stated that after the gift first applicant approached him and blamed him for selling to the others and showed that he wanted the land and was ready to purchase it.

(4) Applicants made their first petition to claim pre-emption after the making of the gift but before the sale.

(5) The fact clearly emerged from the evidence that the gift was only fictitious, and that it was made thus in order to deprive applicant of the right of pre-emption, shows that agent of the vendor and the purchaser felt and saw that applicants were keen to have the land for themselves.

On the whole everything shows plainly that applicants did not do anything consistent with an intention to renounce their right to claim by pre-emption.

As to the price, the uds were registered for the price of £S.47-500m/ms. at £S.9-500m/ms. for one ud. and this same price was put by plaintiffs in their claim as the price for the 2.5 uds.

Though there is evidence to prove that the price first agreed upon between the vendor’s agent and the purchaser for the whole plot was £S5  an ud it seems reasonable to consider the price on which the sale was actually registered and on which applicants presented their case, and that they did not dispute. That price is £S.71.250m/ms., which applicants have to pay to the purchaser within 15 days from today.

The decree of District Judge, Shendi, dated November 21, 1957. is set aside and the decree for right of pre-emption to issue in favour of applicants.

As respondents were not clear and innocent in the making of the gift, second respondent, the purchaser, shall pay the applicants the court fees in the District Court and in this court, to wit £S.I4400m/ms.