Principles

·  Trust—Resulting trust—Resulting trust in favour of co-purchaser where land registered in other’s name

When two parties together advance purchase-money for the erection of buildings, and the land is registered in the name of one only, there is a resulting trust in favour of the other as to so much of the purchase-money as be advanced, and he is entitled to recover this amount when ordered to vacate the premises.

Judgment

      H. M. Abul Gasim P.J. March 4, 1964:—I am dealing with two consolidated applications for revision against decree dated August 20, 1963, passed by District Judge, Khartoum, in CS-23 whereby he ordered defendant to vacate premises known as Plot No. 28, Block N.W., registered in the name of plaintiff; and in the counterclaim ordered plaintiff to pay defendant the balance of expenses incurred by her in erecting buildings in the premises in question, together with costs.

      Plaintiff is applying for revision on the ground that the findings of the court below were against weight of evidence in respect of defendant’s counterclaim, which ought in essence to be dismissed.

      Defendant on the other side by her advocate is applying for setting aside the order against his client for eviction from the premises; and the rectification of the register thereof, citing the case dealt with by District Judge Atbara, Had El Zein Ramadan v. Heirs of Abu El Ruda Bakheit (196o) S.L.J.R. 34, which he considers to be identical with the present

one to the effect that despite the fact that Land Settlement and Registration Ordinance, s. 85 is inapplicable as the registration was not effected by fraud or mistake, nevertheless plaintiff holds the legal title as a trustee for defendant because the facts of the case indicate the existence of a resulting trust which vests the equitable title to the land in her as she caused the property which she has paid for to be registered in the name of plaintiff.

      Having heard both parties and perused the proceedings it is evident that defendant had been absolutely divorced by her husband, the plaintiff. The issues of the marriage are two daughters and a son. All are adult and one daughter is unmarried and at present residing with her father. The history of the land in dispute is that plaintiff had a plot in the old Dueims which was demolished. He left for Saudi Arabia and stayed for three- and-a-half years. During his absence new allotments of plots were made in 1951 and his then wife was given the plot the subject of dispute. She paid the premium and registered the land in question in the name of her absent husband. Defendant admits that plaintiff in his absence used to remit to them money for their maintenance. Plaintiff has established that he in fact remitted the sum of £S.132 for the carrying out of buildings which were apparently carried out by defendant. Defendant contends the cost of erection of buildings amounted to £S.297 She paid the local rates up to 1959 and was given receipts in her name but after that plaintiff paid the local rates.

      It seems that the dispute ensued as a result of the complete breaking of the family home. The married daughter and the son are on bad terms with their father.

      The learned District Judge is presumably of the opinion that delay defeated defendant’s equity. I am of the opinion that the original allotment of alternative plots was made as compensation for the owners of the houses which were demolished as a result of the town re-planning. Taking into consideration the fact that the parties matrimonial link was not then severed, the wife has held out herself impliedly as her absent husband’s agent. In the circumstances of the case I believe that both advanced purchase-money and pooled for the erection of the buildings although the land was registered in the name of plaintiff. There is therefore a resulting trust in favour of defendant as to so much of the money as she advanced, which she is entitled to recover according to justice, equity and good conscience. Accordingly, I see no grounds to disturb the findings of the court below and therefore both applications for revision are hereby dismissed with costs.