Court OF APPEAL)*

MARIAM HAMMED GUMM v. HEIRS OF DALDOUL BAKHEIT

AC-APP-9-1965

 Principles

·  Equity-Resulting trust-House paid by one person, registered in name of another-Routable presumption of resulting trust arises. Land law –Rectification of registration by Court-Land Settlement and Registration Ordinance s, 85 –applicable by reason of existence of a resulting trust

 
When a person cases a house which he has paid for to be registered  in sumption of a resulting trust which vests the equitable title to the house in person paid for. The Court may intervene to rectify the registration of the house in the  of the person paid for on the found of the existence of a resulting trust, under land settlement and Registration ordinances, 85.
 

Judgment

Advocate: Badr Eddin Suleiman…………………….for applican

Osman Atayeb J August 30.1965:- This is an appeal against the judgment and decree of the learned Acting Province Judge (Mahdi Mohamed Hammed) dated February 25.1965. ordering dismissal of plaintiffs  claim for rectification of the register in respect of a house known as plot No. 4/3/3222 Omdurman Town, comprising 400s q.m, registered as leasehold for a term of 20 years form July 1.1941, in the name of Hawa Bit Bakheit. The defendants are the heirs and successors of the said registered proprietor of the leasehold interest in the said of the said registered proprietor of the leasehold interest in the said house. And further ordered that plaintiff was entitled to  the value of the buildings, after being ascertained.

Plaintiff claimed that she procured the said house in the name of Hawa Bit Bakheit, that she paid the premium, and that she spent on the buildings therein existing out of her money. She further alleged that there was and agreement between her and the late Hawa to assign the lease there was an agreement between her and the late Hawa to assign the lease to her in due course.

Plaintiff and Hawa were living together in that same house. Hawa died in or about 1957 and thereafter her heirs appeared and the disputes about the house started, first in the Sharia Court when plaintiff attempted to prove herself an heir, being a relative, but she failed and defendants to prove themselves and heir, some other cases were instituted by the parties against each other, that we need not go into here.

We have to find out the facts as proved, but before that it is important to repeat that defendants, themselves, knew nothing about the house in dispute before the death of Hawa, they were living away former, and they only appeared as heirs after her death. It was proved that in 1941  when for allotment to herself of a plot, and as she was once before allotted a plot the authorities refused to allot her a second one,. The she went accordingly allotted and registered in the name of Hawa. Plaintiff paid the premium required. Plaintiff started to build and completed the buildings now existing in the plot out of her own money and out of her single effort. They lived together at one time in this house and at another time in another house. it is also proved that some time before the death of Hawa, and on the occasion of the plaintiff’s going to pilgrimage Hawa agreed and declared her intention to transfer and register the house in the January 1.1956 starting that she Hawa had voluntarily gifted that house to plaintiff in consideration of her services to her and for her construction of the buildings. The application is bearing a seal purporting to be that of the buildings. The application is bearing a seal purporting to be that of Hawa. It appears in the evidence that that application was presented to Oumdurman Sharia Court, which directed that no action was taken and plaintiff went to pilgrimage and returned to find that Hawa was dead.

On the facts that plaintiff paid out of her own only the premium for the allotment of the plot to Hawa, also for the building of it as a house learned Judge, decided that there was  created a resulting trust. He said that the general rule was starred in Dyer v. Dyer (1788)  2 Cos.92. and quoted that passage that is often quoted by textbook writers as follows:

“The clear result of all the cases, without a single exception is that the trust of a legal estate, whether freehold, copyhold, or leasehold; whether taken in the names of others without that of the purchaser; whether in one name or several; whether jointly or successive, results to the man who advances the purchase money.”

The learned Judge said that this rule was applied in the courts of the Sudan in the cases of Abbas Hassan v. Sid Hammed Abbas Hassan HC-K-H-CS—1948 and Had El Zein Ramadan v. Heirs of Abu El Ruda Bakheit (1960) S.l.J.R. 34.

The learned Judge went on to decide that since plaintiff applied for a plot for herself, and when her application was refused, she applied in the name of Hawa, by that she acted fraudulently and cheated the authorities. He referred to the maxim of equity quit saying he who comes to equity must come with clean hands  and father said that the Act of plaintiff was against public policy and concluded by saying :

“plaintiff must not be allowed to gather the fruits of he fraud by  the assistance of the Court. Therefore I hold that the presumption (he meant presumption of  trust) in the present circumstances does not operate and plaintiff cannot set up her fraud and consequently Hawa holds the legal title beneficially.”

The other point that he took was that the decision that there was a resulting trust, attacked the other points, that have been taken by the learned Judge against the presumption of the trust. He argued that the facts as stated doe not constitute fraud; that there was nothing to warrant describing plaintiff as not coming to equity with clean hands and lastly that the principle of public policy has been wrongly invoked. Unfortunately defendants have not been represented by counsel in order to have been benefit of his argument.

The rule of the implied or resulting trust is started by Snell, principles of Equity (25th ed, 1960) P. 162, AS follows:

“By and implied trust is here meant a trust founded upon the unexpressed but presumed intention of the settler. Such trusts are also “resulting” because the beneficial interest in the property comes back (or results) to the person or the representatives of the person, who transferred  the property to the trustee or provided the means of obtaining it.”

One class of such an implied or resulting trust is the case of the person who purchases by money advanced by him the property, and causes it to be reregistered in the name of another. There is a presumption that  the purchaser has a beneficial interest in that property but this presumption is reputable by proof of an intention in the purchaser other that that of the creation of a trust. The rule was applied in the Sudan in Maurice Golden bury v. Rachel Golden bury (1960) S.L.J.R.36 , where it was held party  in the name  of his wife, was of making a gift to her, and the presumption of a resulting trust was rebutted, in the case of Abdel Frrag Salih v, Adam Abdel Farag Salih and Others (1962) S.L.J.R .256, where a wife who was a working woman, obtained the plot first granted members of the family contributed in the bleeding the presumption that a resulting trust was created to the benefit of the whole family was not rebutted by the husband.

In these cases the rebutting of the presumption that there was a resulting trust or not depended on the evidence that proved the intention of the purchaser at the time of sale and registration. In the case of Abdel Farrag the wife was not a purchaser in the ordinary sense, since the house was leasehold first granted by the Government and registered in the name of the husband. But she was the person, who made the effort and provided the small premium that was payable and also  the registration fees etc. and that led to the acceptance of her evidence in saying she intended it to be a family house.

In our present case plaintiff paid for and caused the plot to be granted but registered in the name of Hawa according to the above rules and authorities, the presumption  of a resulting trust existed. The learned Province Judge did not proceed on the line as to whether there was evidence in rebuttal of that presumption. He took another line that as she thought the transaction of obtaining the lease was against public policy and that plaintiff acted fraudulently and deceived the authorities, equity should not come to her aid. I do not think that he was right in this line of thought. I think that an Act of fraud which is envisaged by maxim of clean hands is that which has been perpetrated against the other party to the transaction, or the trustee, Hawa, in this case. There is nothing to show that there was any Act of fraud against Hawa. It appears that she was well aware of what was happening. The proved  fact of her attempt to transfer the house to plaintiff by gift is of significance in establishing the good faith of plaintiff.

The second point that plaintiff deceived the authorities and thereby obtained a plot in the name of Hawa does not appear tome as justifying invoking the rule of public policy. It is concerned with certain contracts that are ruled to be contrary to the policy of thee law . and when so ruled, it is not only that equity would not help the party relying on the contract, but that the contract is void. However if we take it that there was a contract between Hawa and the Government, was that contract contrary to public policy, “because plaintiff intended that Hawa probably the grant of the plot was  made with the agreement and consent of Hawa. It is important to mention that the land authorities in the exercise of their administrative function of disposal of Government land exercise of their administrative function of disposal of Government land care about legal rights that the allotted is the lease, but they do not care about beneficial of equitable rights that may be created in favour of third parties whether from the start or afterwards.

For these reasons, I am of opinion that the presumption of a resulting trust in favour of plaintiff had not been refuted. The trust was created and is still subsisting in her favour, the important element in the creation of this trust was the intention of plaintiff at the time of obtaining the plot as proved by direct evidence. And that intention was further proved by the two facts; (i) that plaintiff built the plot out of her own money, and (2) that Hawa intended and attempted before her death to transfer the house to plaintiff by gift.

The appeal is allowed and the decree of the Court below has to be varied by the passing of the declaration of the trust, and an order for rectification of the register in favour of plaintiff.

Hassan Abdel Rahim P.J. August 30.1965:-I concur.

S.M.A.Attig p. J. August 30.1965:-I concur

Editor’s Note But see Hammed Mohamed Ibrahim V. Batoul Mustafa Al Hassan AC-REV-127-1964, (1966) S.LJ.R.50,

* Court : Osman El Tayeb J. and  Hassan Abdel Rahim J. and S. M.  Attig J.