(COURT OF APPEAL)*

FATMA EL ZUBEIR AND (YrHERS v. AZIZA AMIN

AND OTHERS

 AC-REV-529-1966

Principles

·  Pre of right of pre-emption—Pre-emption Ordinance, s. 16 (c)— Right cannot be renounced before sale is completed—Sale is completed by registration

The right of pre.emption arises when the sale is complete, i.e., actual registration of the land. Therefore a person loses his right of preemption under Pre-emption Ordinance. s. 16 (C), within i days from the date he has cognisance of the sale, i.e., knowledge of all particulars of sale as registered

Judgment

Advocates: Abdel Wahab and El figani for applicants

Osman El Tayeb J. December 28. 1966: —This is a suit of pre-emption, in which it is important to see first how the sale, the subject-matter of it, took place. It is in respect of leasehold plot No. 7 Bk. 10 HJ, Atbara Town, comprising 581 sm. The lease was registered, perhaps, in the name of El Zubeir Mohamed Hussein, and then it was transferred to his heirs. The area in which this plot exists, was subject to a replanning scheme, in about 1959, and as a result of that scheme the plot was granted to the same heirs. The deeds concerning the plot were registered on September 30, 1963.

In 1960 the first defendant in the suit (first responaent in this revision) instituted a suit applying for specific performance of an agreement of assignment of part of the said plot amounting to 303 sm. against three of the leaseholders, namely, Osman, Ahmed and Ali, sons of El Zubeir Mohamed Hussein.

The decree in favour of first defendant was passed on December 26, 1963. For the purposes of that suit the plot was on February 25, 1964, registered in the name of the heirs as follows:

1. Batul Ahmed Hassan as to 73 sm.

2. Osman El Zubeir Mohamed Hussein as to rot sm.

3. Ahmed El Zubeir Mohamed Hussein as to 101 sm.

4. Ali El Zubeir Mohamed Hussein as to 101 s.m.

5. Fatma El Zubeir Mohamed Hussein as to 51 s.m.

6. Gudalia El Zubeir Mohamed Hussein as to 51s.m.

7. Zahra El Zubeir Mohamed Hussein as to 51 s.m.

8. Khadiga El Zubeir Mohamed Hussein as to 51 s.m.

The decree of specific performance was sent to the Acting Registrar of Lands and was duly entered in the register, thereby the sale of shares of second, third and fourth defendants—as vendors—was registered to first defendant—as purchaser on March 4, 1964.

This is the sale the subject of the pre-emption suit. The pre-emptort were and are still co-owners in undivided shares in the leasehold plot. They were so with their co-heirs——the vendors—and they remain to be so with first defendant—the purchaser. They have jointly—the four of them—278 s.m.and the purchaser has 303 s.m, the latter is the s of the sale and the subject of the pre-emption suit.

The suit was dismissed in the court of first instance on the g that the agreement of sale took place in 1958, and that plaintiffs have had cognisance of it ever since, and they commenced the pre-emption proceedings only in 1960. By that it was decided that they lost tk: right under Pre-emption Ordinance, ss. 16 (c) and 17. The application for revision by plaintiffs (the applicants in this revision) was summarily dismissed by the learned Province Judge who agreed with the District Judge.

There is no doubt that both of them failed to see the correct meaning and applicability of the Pre-emption Ordinance. It has now become settled that no right of pre-emption arises until and unless the sale has been completed, and the completion of the sale means the actual registra tion thereof. The leading case on the point is Au Mohamed Au v. Mohamed Salih and Beshir El Nifeidi (Digest No. 20, Cases in the Court of Appeal and the High Court, 1953—54, page 66). The right of pre emption when it exists on sale of property subject to co-ownership in undivided shares (see section 5), is never lost, whether by renuncia tion or by failure to give notice to claim, under section 16, or by failure to institute a suit under section 17, if any of these were attempted or sought to be effected, before registration of the sale.

It is clear that the notice to claim pre-emption cannot be given before registration, according to Pre-emption Ordinance, s. 16 (c), it has to be given within fifteen days from the cognisance of the sale, which means knowledge of all the particulars of the sale as registered. In the case of renunciation under Pre-emption Ordinance, s. 16 (c), El Fatih Awouda J. said in Zeinab El Musbah v. El Malka Osman, AC-REV-578-1965, (1967) S.L.J.R. 112.

“A right to pre-empt arises only On sale of the land and not at any time before it. If a would-be pre-emptor renounces the right to pre-empt whether verbally or by conduct before the sale takes place he is not debarred from exercising the right to claim pre-emptiort when the sale is completed.”

The rule in section 16 (b) is considered as an exception to the general rule; that no claim of pre-emption can have any effect before completion of the sale. It requires the potential pre-emptor to notify his intention to claim when the sale is completed, if he is given notice that an agree ment of sale was made, and an application was sent to the registrar, but the registration was not yet completed. See section 15.

In this case the sale was completed by registration on March 4, 1964 by Deed/No./19/64 and the petition to serve notice to claim pre emption was filed on March 16, 1964, and the pre-emption notices after being duly served on the vendors and purchaser, were entered in the register on April 29, 1964, and sent to the court by letter dated May 7, 1964, of which plaintiffs were informed on May 20, 1964. Plaintiffs apeared before the court on May 26, 1964, to commence the proceedings of the pre-emption suit.

The law requires that the notice to claim pre-emption be served within fifteen days of cognisance of the sale, and that the proceedings be commenced within thirty days from service of the notice. These requirements have been compied with, and the plaintiffs have not in any way lost their right.

For these reasons the orders of the courts below are hereby set aside, and he pre-emption decree has to be issued in favour of plaintiffs (applicant) with costs.

Sa1ah E. flassan J. December 28, 1966: —I concur.