Case No.:

PC-REV-94-19589Ed Damer

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Equity—Specific performance—Land sale agreement where land owned by vendor’s father at time of sale—No decree Land Law—Specific performance of land sale agreement where land is owned by vendor’s father at time of sale—No decree although agreement not void under Land Settlement and Registration Ordinance, s. 28

A court will not grant specific performance of an agreement for the sale of land which at the time of sale was owned by vendor’s father and so registered although Land Settlement and Registration Ordinance, s. z8, does not render the agreement void.

Judgment

                                               (PROVINCE COURT)

                        MOHAMED EL KHEIR SAAD v. EL AWAD OMER SULIMAN

                                          PC-REV-94-1958 (Ed Darner)

Osman El Tayeb P.1. February 2, 1959 is an application for revision from decree of District Judge, Shendi, dated May 2!, 1958, refusing grant of specific performance of two agreements of sale of land but granting relief by order of payment of the purchase price paid.

The facts of the case are simple. Defendant agreed and sold to plaintiff 2 uds in share No. 2 in sagia No. 9, Goz Burra, for the price of £S.2o paid and received and the possession of the share was given up to plaintiff. Sanad of the above was written and executed, dated November 25, 1953. Another agreement was made, written and executed on May 12, 1954, between the same parties for another 2 uds in the same share and sagia. Defendant made the two agreements and executed the two sanads in his own name. Defendant was not at the time of the making of the two agreements the proprietor, that is, he was not the registered owner of the shares sold. The registered owner was his father, who died some time between the two agreements. When the first agreement was made the registered owner was alive, and when the second was made he was dead, but the plots were still in his name, as his estate was administered after wards and his name disappeared and defendant became a proprietor as to 4 1/12 uds in the same share on June 6, 1956. Plaintiff seems to have been aware of the position, so when defendant became a registered owner, plaintiff applied for completion of the sales.

Defendant did not contest the agreements, but registered the first one by an allegation that he executed it on behalf of his father and for the second he had nothing to say. The question of agency for his father was not maintainable.

The learned District Judge took the view that the first agreement was for sale of property which the vendor did not own and that the second was a transfer made not in accordance with the provisions of the Land Settlement and Registration Ordinance, which falls under Land Settlement and Registration Ordinance, s. 28, and it is null and void. He concluded that specific performance had to be refused and he decreed the payment of the purchase price to plaintiff.

Dealing with the question of Land settlement and Restriction Ordinance, S. 28, 1 should say it is not applicable to this case and that it was invoked contrary to authorities. Heirs of Mohamed Zein Abdalla V. Urn El Hassan Saleh, AC-APP-II- (1954) Digest No. 15. This was a case of specific performance of an agreement of sale of land in which the agreement took place nine years before the institution of the suit. As Land Settlement and Registration Ordinance, s. 28, was raised by defendant, the Court of Appeal held. “Land Settlement and Registration Ordinance. S. 28, did not preclude plaintiff from applying for registration at any time unless it could be shown that such- an application was not in accordance with the provisions of the Ordinance.” The distinction between the two cases, on which the learned District Judge relied is that in the case cited the land was registered in name of defendant at the time of the agreement and in the present case the land was registered not in his name but in the name of his father; the father was alive at the time of the first and was dead at the time of the second agreement. The distinction is there. But there is nothing in the agreement of sale to prevent the vendor from applying for registration in accordance with the provisions of the Ordinance, after the land sold came to be registered in his name.

It is difficult to define the case in which Land Settlement and Registration Ordinance, s. 28, applies, but in general terms it may apply in a case where the transfer of registered land is made in such a way or with such conditions that are not known to the Ordinance, or that it does not provide for their registration.

In this case the agreements seem to be bona fide made. The father of the vendor was the registered proprietor; he possessed the vendor with part of that land; the vendor sold that part and gave up possession of it to the purchaser, both intending that when the property was registered in the name of the vendor, he would complete the sale by registration to the purchaser. But it seems fair that this sort of transaction should not be encouraged, and it still seems fair for the court in exercise of its equitable jurisdiction to refuse granting specific performance.

Application for revision is summarily dismissed.