Case No.:

PC-REV.36-1957 (Ed Darner

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Land Registration—Sale of land registered in ancestor’s name—Not void under Land Settlement and Registration Ordinance, s. 28 Land Law—Sale of land registered in ancestor’s name—Not void under Land Settlement and Registration Ordinance, s. 28

·  Land Law—Co-heirs of vendor without notice have equitable rights -prior to purchaser to land registered in name of deceased ancestor

Defendant sold to plaintiff land, which was at time of sale registered in the name of his deceased ancestor. After the sale the land passed by llam in divided shares to heirs of- deceased ancestor other than defendant as well as to defendant, Heirs other than defendant sold their divided shares to a purchaser who registered. Plaintiff brought this action ‘for specific performance of the sale agreement; District Judge dismissed the action on grounds that the sale by defendant to plaintiff of Land registered in the name of deceased ancestor at time of sale was void under Land Settlement and Registration Ordinance 1925. s. 18. Plaintiff petitioned for revision.
Held: (I) An action for specific performance at an unregistered sale of land is not barred by the Land Settlement and Registration Ordinance 1925. s. 28; registration can be applied for at any time.

Defendant sold to plaintiff land, which was at time of sale registered in the name of his deceased ancestor. After the sale the land passed by llam in divided shares to heirs of- deceased ancestor other than defendant as well as to defendant, Heirs other than defendant sold their divided shares to a purchaser who registered. Plaintiff brought this action ‘for specific performance of the sale agreement; District Judge dismissed the action on grounds that the sale by defendant to plaintiff of Land registered in the name of deceased ancestor at time of sale was void under Land Settlement and Registration Ordinance 1925. s. 18. Plaintiff petitioned for revision.
Held: (I) An action for specific performance at an unregistered sale of land is not barred by the Land Settlement and Registration Ordinance 1925. s. 28; registration can be applied for at any time.

Judgment

                                         (PROVINC COURT)

       SIDDIG BABIKER EL KABIS v. HAMAD MOHAMED HASSAN

                                   PC-REV.36-1957 (Ed Darner)

Osman El Tayeb P.1. September 15, 1957 is an application for revision from order of District Judge. Shendi, dismissing petition of applicant on January 29, 1957. for revealing no cause of action. The petitioner applied for specific performance of an agreement of sale of land. At the time of the sale the land was registered ill the name of a deceased ancestor, and the agreement was said to have been concluded with one of the heirs. Later the land was distributed by an 11am and registered in the names of the heirs individually. Later still the heirs sold their shares to others.

The learned District Judge decided that the sale to petitioner was null and void under Land Settlement and Registration Ordinance, s. 28, in that it was an attempt to transfer otherwise than in accordance with the provisions of the Land Settlement and Registration Ordinance. He also said that specific performance became impossible by reason of the sub sequent sale and registration.

The District Judge had a wrong conception of law as to both points. For the first point the authority of Heirs of Mohamed Zein Abdullah V. Urn el Hassan Saleh. AC-APP” 11 1953. (1954 Digest No. 15 it is clear that Land Settlement and Registration Ordinance, s. 28, does not apply to such a case. It was held as follows: Land Settlement a 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 accord ance with the provisions of the Ordinance. I admit that the, last part of this sentence and the section itself are not clear as to their applicability.

For the second point, I think the law is that the transferee who is entered in the register as proprietor takes the land subject to any equitable interest of which he has notice. A former purchaser for value is a person who has an equitable interest in the land. He must be given a chance to establish that interest which he claims. Under Land Settlement and Registration Ordinance, S. 27, a registered proprietor takes subject ‘to any legal rights that are in the course of being acquired as in the case of prescriptive rights. The difference is that, an equitable interest is not usually registrable and, therefore, it is only effective in case there is notice  in respect of it. Whether there is notice is a question of fact. However specific performance subject to decision on points of fact is not impossible.

The right procedure is that such a claim should invariably be allowed and the points as above, being mainly points of law, should be determined in the issues. The order, dated January 29. 1957, is hereby dismissed, and the petition has to be allowed.