Case No.:

(ADCC-CS-44o-1959)

Court:

Province Court

Issue No.:

1960

Principles

·  Land settlement and registration—Property paid for by one person, registered in name of another—Land Settlement and Registration Ordinance, s. 85

·  Equity—Resulting trust, when arising

A plot of land was bought by a married woman. To keep it from her husband’s control she had it registered in the name of her mother, continuing herself to pay taxes and to make other payments in respect of it. After the mother’s death, she claimed it as hers. This claim was contested by her mother’s other heirs as having been registered property of the mother at the time of her death.

held: The registration cannot be attacked under the Land Settlemciic and Registration Ordinance, s. 8 not having been affected by fraud or mistake. But the facts indicate the existence of a resulting trust, which arises, inter alia, when A causes property which he has paid for to be registered in the name of B. The equitable title to the land, never having belonged to the deceased. Cannot be claimed by her heirs. They hold the legal title as trustees for the plaintiff, and must on her request transfer the registration to her name.
Abbas Hassan v. Seid Abbas Hassan (KHC-CS-1466-1948) applied.

Judgment

(DISTRICT  CIVIL COURT, ATBARA)

HAD EL ZEIN RAMADAN v. HEIRS OF ABU EL RUDA BAKHEIT

(ADCC-CS-44o-1959)

Action

Had this been a true case of disputed succession to a Mohamedan deceased, the Sharia Court, and not the Civil, wquld have been the proper tribunal. But it was a claim that certain property never bene ficially belonged to the deceased, i.e. not a true succession case at all. And as such properly cognisable in the Civil Court.

July 21, 1959. Fatih Awouda, District Judge: —Plaintiff and defen dants are brothers and sisters of half blood, i.e., their mother is one and the same while each one or more of them came from a different father.

Their mother, namely the late Abu El Ruda Bakheit, the registered lessee o plot No. 21 Bk. 11-C Atbara Town, died in April 1958. On March 8 1959 plaintiff instituted proceedings asking for rectification by sub ctituting her name for that of their predecessor in title on the register. She claims that the present registration was affected in the name of her mother for the purpose of securing the house against the selfishness of her then.husband and that she was the concealed purchaser. Defendants Fragalla Ramadan and Gubratalla Ramadan have pleaded that the house was the sole property of their late mother and thus they were entitled to their legal shares in their capacity as heirs of Abu El Ruda Bakheit while the remaining heirs have admitted plaintiff’s claim.

The history of the said plot is as follows.:

A plot in Bk. 11-C Atbara Town was originally the leasehold of a certain Hamid Hamad Gubralla and another. On September 10, 1942, and in consideration of Ls.50 the said plot was assigned and registered in the name of Abu El Ruda Bakheit. On September 1, 1943, another plot in Bk. 11-C was assigned and registered in the name of Abu El Ruda Bakheit. On replanning the two plots were joined together and given the number 21 Bk: 11-C and registration thereof remained in the name of Abu El Ruda Bakheit.

Plaintiff has tendered convincing evidence to prove that she alone paid the purchase price of the two plots and that she alone paid for buildings erected thereon and for repairs. On the other hand, the con testing defendants did no more than say that they are the sons of Abu El Ruda Bakheit the registered lessee of the plot and that their mother used to work with plaintiff in the indaya owned by the latter, while it has been proved to the satisfaction of the court that Abu El Ruda was very old when she was brought to Atbara by plaintiff and she was a woman of Straw.

Neither plaintiff nor defendant pleaded any law that would or would not entitle the former to rectification of the register and indeed they were not expected so to do.’ Nevertheless, I find myself bound to refer to the appropriate law that deals with such a case as the one before me.

The relevant part of our law is section 85 of the Land Settlement and Registration Ordinance. Section 85 speaks of the various instances in which the court may order a rectification of the register.

In my opinion plaintiff cannot succeed under the provisions of section 85 for taking registration in the name of Abu El Ruda was effected volun tarily with full apprehension of the circumstances of such registration on the part of the plaintiff. But notwithstanding this I think the courts are cmpowered to e their equitable jurisdiction “to prevent any person obtaining an unfair or fraudulent advantage over another by shielding himself behind a registered title.” The words in inverted commas appear in the judgment of Hayes J. in the case of Abbas Hassan v. Seid Ahmed Abbas Hassan, KH-HC-CS-1466-1948. In that case plaintiff and defendant were father and son. Plaintiff bought a house with his own money and caused the house to be registered in the name of defendant as a matter of convenience to prevent delay, without intention that the house should pass into the beneficial ownership of defendant. I find that case more or less identical to this case. What then is the solution? The learned judge found the answer in the law of trusts. I adopt the same answer and I quote hereunder without reserve the relevant part therefrom:

“Resulting trusts may be subdivided thus:

“(1) Not applicable; (2) Where a purchaser of property takes a conveyance of the legal estate in the name of a third person, but there is nothing to indicate an intention of not appropriating to himself the beneficial ownership.”

It remains to consider whether on the facts plaintiff had intended to abandon her beneficial ownership in the house to her mother, through whom defendants are now claiming, and there is evidence sufficiently strong to prevent a resulting trust. Plaintiff has, to the satisfaction of the court, proved the reason why the house was registered in the name of her mother and why it continued to be so after her mother’s death on renewal of the lease agreement. She paid for buildings, she paid for repairs and she paid taxes. She brought up her sisters and brothers and supported her mother until the latter’s death. She has always been looked upon by others as the owner of the house and supporter of the family and nobody besides her was paying local taxes levied on the house. No evidence to contradict her has been adduced by defendants. In the result I pass a decree in favour of plaintiff without an order as to costs.

                                                                        (Judgment for the plaintiff)*