Case No.:

(HC.CS-441, 1958)

Court:

The High Court of Justice

Issue No.:

1960

Principles

·  Land law—Resulting trust—Presumption of advancement between husband and wife---Property paid for by husband, registered in wife’s name presumed to belong to wife. Application for revision to ‘the Province Court (Rev./126/1959) was summarily dismissed. Custom—Meaning of “custom “—Civil Justice Ordinance. s,5 Personal law—Gifts——Gifts between husband and wife—Jewish personal law Civil practice and procedure—Equitable remedies—Equitable suitors to have “clean hands”

·  Evidence—Evidence of personal law—Witness accepted as expert by both sides— Rabbi as expert on Jewish community law

The plaintiff bought two houses, which he registered in the name of his wife, the first defendant, whom he later divorced. He then applied for re fication of the register, and the other two defendants, purchasers of one of the registered plots, were joined.
 (1) The plaintiff contended that tne housd were not a gift to his wife but were in trust for the use of the family.

(2) He also invoked Jewish law as the personal law governing him and his wife on the basis of “custom:’ in section of the Civil Justice Ordinance, but when the evidence given by the Rabbi, who had appeared with the consent of both parties, went against him, he objected on the grounds that such evidence was not expert, and was not applicable on the correct interpretation of section of the Civil Justice Ordinance.
Held: (1) Although a resulting trust was possible (see Had el Zein Ramadan v. Heirs of Abu el Ruda Bakheit (1960) S.L.J.R. where the parties are husband and wife a presumption that the husband intended a gift to benefit the wife arises: Re Eykyn’s Trusts (1877) 6 Ch.D. 115 considered and applied. The onus is on the husband to rebut the presumption, and he had failed to do so:
(i) The mere fact that the husband continued to receive rents, and pay taxes and maintenance on the property is not sufficient to displace the pre sumption: Commissioner of Stamp Duties v. Byrnes [1911] A.C. 386; Grey v. Grey (1677) 2 Swan. 594; and Dunbar v. Dunbar [1909] 2 Ch. 639 applied.
(ii) It cannot be heard that the husband registered the property in his wife’s name to defeat his creditors, for he who comes to equity must come with clean hands: Gascoigne v. Gascoigne [1918] 1.K.B. 223; Emery v. Emery [1959] 1.All E.R. 577 applied.
(iii) Although the wife was favoured by the presumption and under no burden of proving the gift, she produced positive evidence in support of the presumption.
(2)-(i) A party may not object to the expertise of a Rabbi called on thaL party’s initiative and with the consent of both parties as an expert on personal law.
(ii) “Custom” in section5 of the Civil Justice Ordinance includes Jewish personal law and the customs of the religious community concerned where the parties are Jewish and domiciled in the Sudan: Bamboulis v. Bamboulis (1953) Cases in the High Court and Court of Appeal, P. 76 disapproved; Kattan v. Kattan (1957) S.L.J.R. 35 applied; Abdulla Chercheflia v. Maria Bekryarellis (AC-APP- 12-1934) approved and applied.
(iii) In Jewish personal law the transaction in issue constituted an absolute gift to the wife.

Judgment

 (HIGH COURT OF JUSTICE)

MAURICE GOLDENBURG v. RACHEL GOLDENBURG, GEORGE

RIZKALLA SAYIS AND EDWARD MICHEL SIKIAS

(HC.CS-441, 1958)

Action

Advocates: M. A. Mahgoub (Rashid with him) ... for plaintiff.

                   Mi M. Ibrahim……………………. for defendant.

August,9,1959 Michel Corran J. —The facts of this case are simple. Plaintiff and first defendant were husband and wife. They were married in 193, and divorced on December 3, 1958. In 1939, plaintiff bought a house, known as plot No. 3, Block 7 I. West, Khartoum City, and also registered it in the name of his wife, the first defendant. In plaintiff bought another house, known as plot No. 4, Block I. West, Khartoum City, and also registered it in the name of his wife. Defendants 2 and 3were joined, on the application of plaintiff, as purchasers of the first. Plot from defendant No.1. Plaintiff is now applying for rectification of the register in his name on the ground that he did not give the above two houses as a gift to his wife, but as a trust for the benefit and use of the family. The main issue to be decided in the present case is, therefore, whether the two houses purchased by plaintiff and registered in his wife’s name were meant as a gift to her, or only as a trust for the benefit and use of the family in accordance with the recognised custom.

The English law on the subject of gifts from husband to wife is very clear and need not trouble us. Halsbury’s Laws of England, 3rd ed., Vol. 19, specifically states at page 832:

“Where a husband purchases property or takes an investment in the name of his wife, a gift to her is presumed in the absence of evidence of an intention to the contrary

In Re Eykyn’s Trusts (1877) 6 Ch.D. 115 Malins V.-C. said:

“The law of this court is perfectly settled that when a husband transfers money or other property into the name of his wife only, then the presumption is that it is intended as a gift or advancement to the wife absolutely at once’?’

This presumption of advancement—as it is called—applies to all cases in which the person providing the purchase money is under an equitable obligation to support, or make provision for, the person to whom the property is conveyed. Accordingly, if a husband purchases property and registers it in his wife’s name, prima facie this is a gift to her. It must be remembered, however, that this presumption of advancement is rebuttable—it can be rebutted by evidence of the actual intention of the purchaser. I have to ascertain, therefore, what was the real intention of the plaintiff at the time of the purchase of the two houses in dispute. I shall deal with plaintiff’s evidence and decide whether it is sufficient to rebut the presumption of a gift to his wife.

The first point raised by plaintiff is that he receives the rent of the houses, paid the rates and taxes and expended money on maintenance, reconditioning and repairs. I hold that all these acts by plaintiff are not sufficient to rebut the presumption of a gift to his wife. When husband and wife are leading a happy life-and in this case it is admitted that they were—it is only normal and natural that the husband should manage the proprietary affairs of his wife. This, to my mind, does not in the least indicate that the husband did not intend the houses purchased by him to be a gift to his wit:e. It is only the routine, which takes place in everyday life. Indeed, I should be surprised if a wife personally received the rent of her properties, paid the rates and taxes and carried out repairs, when she has normal relations with her husband. And, apart from logic and common sense, it is established law that the presumption of a gift from husband to wife is not rebutted by evidence that he received the income from the property, paid the taxes or carried out repairs. Thus, Halsbury’S Laws of England, 3rd ed., Vol. 18, speaking of the presumption of advancement to wives or children, says on page 386:

“The presumption that a gift is intended may exist notwith standing that the husband or father has actually received the income during his life and made leases of the property.”

In Commissioner of Stamp Duties v. Byrnes [1911] A.C. 386, a father bought property in the names of his two sons and subsequently received the rents and paid for rates and repairs. It was held, following the old case of Grey v. Grey (1677) 2 Swan.549, that the receipt by the father of the rents and the payment by him for rates and repairs did not operate to convert a presumption of advancement in favour of the sons into a trust in favour of the father. And again, in Dunbar v. Dunbar [1909] 2 Ch. 639, it was held that the presumption in favour of advancement is not rebutted by the fact that the husband paid mortgage interest or building society instalments.

Plaintiff also tried to rebut the presumption of a gift to his wife by claiming that he registered the houses in the name of his wife as a precaution against bankruptcy. Thus, in answer to a question by the court as to why he did not register the houses in his own name since that would have been equally beneficial to the family, plaintiff said at page 42 of the record:

“I agree that the family benefit to which I referred could have been derived if the houses were registered in my name, but there is another aspect. As a merchant, there is always a danger of my getting bankrupt, and if the plots are registered in my wife’ name, they could be saved for the benefit of the family.”

In other words, plaintiff is saying that he registered the houses in his wjfe’s’name in order to defeat his creditors should he go bankrupt. 1 cannot allow this clear admission by plaintiff to rebut the presumption of a gift to his wife, for it is a settled rule that he who seeks the assistance of equity must come with clean hands. In Gascoigne v. Gascoigne [ I918] 1K.B. 223, where a husband put property in his wife’s name, it was held that he cannot be heard to say that he did so to defeat his creditors, even if his wife knew this. Also in the recent case of Re Emery’s In vestments Trusts; Emery v. Emery [1959] 1All E.R.577 in which Gascoigne v. Gascoigne was followed, it was held that the court will not allow presumption of advancement to be rebutted where the purpose was to contravene foreign revenue law.

While it is no part of first defendant’s case to prove that a gift of the houses was intended to her, since such gift is presumed by law, she has nevertheless adduced evidence showing that the plaintiff intended that she should take the houses for herself. The fact that the parties were on good terms with each other, that the plaintiff’s financial situation was good, that first defendant gave plaintiff a power of attorney to mort gage the houses, all clearly point to the direction that a gift was intended. Furthermore, there is the evidence regarding the will by which first defendant bequeathed her property in the houses to her children, but allowed plaintiff to live in one of the houses provided he took no wife after her death.

Having considered all the evidence adduced, and having regard to the clear law on the subject, I am fully satisfied that plaintiff intended to give the houses in dispute to his wife, that the legal presumption of a gift has arisen and that plaintiff has failed to discharge the onus of a contrary intention.

One further point remains to be examined, namely the applicability or otherwise of the personal law of the parties, i.e., plaintiff and first defendant. At the hearing of April 29, 1959, learned counsel for plaintifi moved the court to call evidence to prove the personal law of the parties. Submitting that section of the Civil Justice Ordinance should be invoked. Learned counsel for first defendant raised no objection. In consequence. Rabbi Massoud Ishak El Baz (D.W.4) was, by consent of both sides, recalled to give evidence as to the Jewish law. The Rabbi clearly ex plained the Jewish law, viz., that in cases of gifts by husband to wife, there need not be an independent deed of donation, and that in the present dispute, the position in the Jewish law is that the wife has received a gift which is irrevocable. This evidence, having turned against the plaintiff, learned counsel for plaintiff, in his final submissions, not only changed his mind with regard to the applicability of the personal law, which he himself invoked, but also attacked the evidence of the Rabbi on the ground that he is not an expert. I totally disregard the latter contention since the Rabbi was recalled by the express agreement of learned counsel for plaintiff, and he is bound by his evidence. As to plaintiff’s counsel’s argument that the Rabbi’s evidence was shaky, I do not agree that this was so. On the contrary, he gave a clear and straightforward testimony, which dearly sets out the provisions of the Jewish law on the subject and with which I am fully satisfied.

With regard to the applicability of the personal law, learned counsel for plaintiff contends that this case should be governed solely by English law, relying on the controversial case o Ramboulis v. B’ambou!is ( Cases in the High Court and Court of Appeal, p. 76—in which it was held that the word “custom” in section ç of the Civil Justice Ordinance cannot be interpreted to mean personal law. Section 5of the Civil Justice Ordinance has given occasion to much controversy in the past. It reads as follows:

“Where in any suit or other proceeding in a Civil Court any question arises regarding succession, inheritance, wills, legacies, gifts. Marriage, divorce, family relations, or the constitution of wakfs, the rule of decision shall be:

“(a) Any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished and has not been declared void by the decision of a competent court.”

Two conflicting judicial interpretations have been given to the word custom” in the above section. In Abdulla Chercheflia v. Maria Bekry arellis (AC -App-12-34)Gorman J., following previous cases, held that where the parties are domiciled in the Sudan, then “ it is the customs of the religious community to which they belong which are to be looked to and comprise their personaI In Bamboulis v. Bamboulis, on the other hand, Lindsay C.J. gave a different interpretation to section5 of the Civil Justice Ordinance and held that the religious.law of the parties is not included within “custom.” He aid:

“Ci is an established usage which by recognition in Sudan Court of law acquires the force of law. The section envisages that such custom can be altered or evei abolished or declared void.

“The ecclesiastical rules of a church, and civil law of oreign countries are in my view incapable of being ltered, abolished or declared void, and clearly not contemplated by the wording of the sectioli to be within the meaning of the word ‘custom.’ ‘Custom’ in its context refers to local custom originating by usage in the Sudan, and is not applicable to imported rules or laws of foreign origin.”

In the recent case of Kattan v, Kattan (1957) S.L.J.R. 35 the Courtof Appeal, in reviewing the above two decisions, has commented that the restrictive interpretation of section5 of the Civil Justice Ordinance adop ted in Bamboulis v. Bamboulis “is no doubt novel and is certainly not the view which has always been taken by the Sudan courts with regard to this section” (page I3 of the judgment). The Court of Appeal went on to say at the end of the same page:

“Bamboulis v. Bamboulis thought to lay down a principle of its own, the efficacy of which it is not for us to consider in this case, and it is our respectful opinion that until an opportunity for an exhaustive analysis of the principles underlying it arises, this case should be cited with great reserve.”

In, view of these remarks by the Court of Appeal, I think that Lindsay C.J.’s decision in Bamboulis v. Bamboulis on which learned counsel for plaintiff relies, has become of very doubtful authority.

Having carefully considered all the relevant authorities with special regard to the wording of section of the Civil Justice Ordinance, I am definitely of opinion, as was held by Gorman J. in Abdulla Cher v. Maria Bakryarellis, that the word custom” in section includes the personal law and the customs of the religious community concerned where the parties are domiciled in the Sudan. In the present case, both plaintiff and first defendant have a Sudanese domicile, and their personal law, which is the Jewish religious law, is clearly applicable.

In the result, I hold that whether judged by principles of English law, or by the personal law of the parties, or by justice, equity and good conscience, the decision in the present suit is the same. I am satisfied that the plaintiff, by registering the two houses in his wife’s name gave them to her as a gift. and not as a trust for the benefit of the family.

The case against first defendant is accordingly dismissed with £S.3o advocate’s costs. The case against defendants 2 and 3 is also dismissed. I am of the opinion that they were bona fide purchasers from first defendant of the house known as plot No. 3, Block 7 I. West, Khartoum

City.

                                                                        (Judgment for defendants)*

 *An application for revision (AC.Revision.143,1960) was summarily dismissed on different grounds; a further application for review was also refused. The two notes by Babikir Awadalla J. considering these applications will be reported in (1961) S.L.J.R.