MAURICE GOLDENBURG v. RACHEL MALKA AND OTHERS

(COURT OF APPEAL)

AC-REV-134-1960

Principles

· Land Law—Gift—Registration to donee protected from attack under Civil Justice Ordinance 1929, ss. 5 and 9—Land Setttlement and Registration Ordinance 1925, s.26

· Land Law—Gift—Registration to donee—Land Settlement and Registration Ordinance 1925 s. 26—Provision concerning unregistered rights of third parties not applicable in action between donor and donee

The facts of the case and the lower court judgment are set forth in Maurice Goldenburg v. Rachel Goldenburg and Others, HC-CS-441-1958 (1960) S.L.J.R. 36, dismissing plaintiff’s claim to certain houses given to his wife. Plaintiff’s theory of resulting trust was rejected in that judgment. On plaintiff’s application for revision on the ground that relief might be had under Civil Justice Ordinance 1929, ss. 5 and 9.
Held: (1) A transfer of land by gift may not be attacked by the transferor in an action for rectification of the register, either on grounds of personal 1aw or custom (under Civil Justice Ordinance 1929, S. 5) or as a matter of justice. equity and good conscience” (Civil Justice Ordinance 1929, S. 9), since Land Settlement and Registration Ordinance 1925, s. 26, protects registration of such voluntary transfers as though they were made for valuable consideration.
(ii) The provision in Land Settlement and Registration Ordinance 1925, S. 26. that a transferee shall hold land transferred without valuable consideration subject to any unregistered rights or interests subject to which the transferor held the same” is not applicable in an action between transferor and transferse, but only between transferee and third.party claimants.

Judgment

Advocates: M. A. Mahgoub ... for applicant

Ali M. Ibrahim ... for respondents

B. .Awadalla J. August 14, 1960 :—In my view this application has no hope of success, and is therefore summarily dismissed.

Neither English law nor personal law are relevant to the facts of this case. Both Civil Justice Ordinance 1929, ss. 5 and 9, are inoperative by reason of the specific provision contained in Land Settlement and Registration Ordinance 1925, S. 26, which says:

“Where the proprietor is entitled to the land by a transfer made without valuable consideration, he shall hold the same subject to any unregistered rights or interests subject to which the transferor held the same and subject to the powers and provisions contained in any Bankruptcy Ordinance for the time being in force, but save as aforesaid such transfer when registered shall in all respects and in particular as regards any registered dealing on the part of the proprietor have the same effect as a transfer of the same for valuable consideration.”

To all intents and purposes, this transfer by applicant to respondent was therefore a transfer for valuable consideration.

REVIEW. Babiker Awadalla J. January 31, 1961 :—This application has been referred to me by the Honourable Chief Justice I regret I am unable to reconsider my decision of which a review is now sought.

I shall deal with the points raised by the learned counsel in the order in which they appear in his application.

I do not agree with the learned counsel that because I considered the matter governed by Land Settlement and Registration Ordinance, s. 26, I ought to have ordered a retrial of the issue in the light of the said section. In truth, the law which I think governs the case prevents there being any cause of action at all and the court of first instance ought, in my view, to have rejected the plaint under Civil Justice Ordinance 1929, S.56.

It is true that section 26 says that the proprietor shall hold the land subject to unregistered rights or interests subject to which the transferor held the same, but I fail to understand the relevance of this argument to the point in controversy. This provision is only relevant when a third person is claiming, as against the transferee, a right which he held against the transferor. I am unable to see how it can be applicable between transferor and transferee. Even between a third person and the transferee, the only unregistrable rights to which it relates are those specified in section 27 of the said Ordinance.

Section 27 (h) of the Land Settlement and Registration Ordinance speaks about “customary” rights of occupation of houses and is not at all relevant to the facts of this case. Further, the case in hand is one for rectification of the register, and a right of occupation, even though based upon “custom,” can never form the basis of such a relief as is claimed.