(Court OF APPEAL)*

AHMED MOHAMED IBRAHIM v. BATOUL MUSTAFA EL HASSAN

AC-REV-127-1964

 Principles

·  Equity –TRUST –Resulting trust-In absence of fraud or mistake , registration of a house cannot be rectified by the reason of the existence of resulting trust land law-Rectification of registration by Court-land Settlement and Registration Ordinance, s, 85-Applicable only when registration is effected by fraud or mistake-Not applicable by reason of the existence of a resulting trust  

The mother (respondent) claimed rectification of the registration of the house from her son’s name to her own money and caused it to be registered in his name. District Judge gave judgment in her favour. Province Judge confirmed the judgment on the basis of the  existence of resulting trust which vested the equitable title to the house in her.
Held: in absence of fraud or mistake of fact, the Court cannot intervene in order to rectify the registration of the house in the name of the son, under land Settlement and Registration Ordinance’s 85, on the ground of eh existence of a resulting trust, because the provisions of the Ordinance prevent the existence of such trust. Therefore, the decision of the Province Judge confirming that of the District Judge is set aside.
 

Judgment

Advocates: Abdalla EL Hassan and Abdel Whab Abu Shakiema……..for applicant

Babiker Awadalla C.J, March 15.1965:- This an application against the decision of His Honour the Province Judge, Khartoum , dismissing an application to him against the judgment and decree of learned District Judge, Khartoum, in CS/2249/1961. The facts of the case are as follows;

Applicant is respondent’s son and the dispute between them relates

To the ownership of leasehold house No. 29, Block 5 H. East , Khartoum deims, at present registered in the name of applicant.

The suit was instituted by respondent who claimed rectification of the register from her son’s name to her own name. She contended that the house originally belonged to her because it was given to her by the government in 1950 in compensation for and old house which she owned in the old deims of Khartoum . the deims were ordered to be demolished and owners were compensated by the grant of leasehold plots in the new deims. On the lease being granted to her , she contends she asked for it to be registered in applicant’s name because she was afraid if she registered it in the name of her husband who was then recently dead his father and mother would claim that it was part of his estate.

Respondent further claims that she built the plot out of her own money because applicant was then only fourteen years of age and had no income of his own. She contends that since 1950 she was in receipt to the rent house and was paying rates and taxes thereon until today.

Applicant on the other hand contends that the lease was granted to him in his on person and that he built it out of  his own  resources as he was then working in  working in a commercial house and in receipt of about Ł s3.000 /ms . a month . he admitted that respondent was in receipt of the rent as he had given her authority to do so.

The learned District Judge gave judgment in favour of respondent on the ground (a) that respondent had proved her title to lease and (b) that registration in the name of her son (applicant) was not meant to confer any benefits upon him.

Applicant applied to his Honour the Province Judge who dismissed his application relying on the authority of Had El Zein Ramadan v. Heirs  of A Abu El Ruda Bakhit, ADCCCS-440-1959 (1960) S.L.J.R.34. The allegation in that case was similar to the present one, for it was a dispute between heirs of registered proprietor of whom one claimed to be beneficial owner of a house registered in the name of the deceased. Awouda, Province Judge, relying on a previous decision by Hays J. in Abass Hassan  v. Seid Ahmed Abass Hassan KHCCS-1466-1948, gave judgment in favour of claimant on the basis of a resulting trust.

Before us applicant, the son, was represented by Advocate Abu Shakeima but respondent was unrepresented.

Advocate Abu Shakeima contended that the decision of the learned District Judge was against the weight of evidence for the evidence shows that at time of the settlement ,the house was registered in applicant’s name, not by the mother of applicant, but by his father. He further contends that the evidence adduced clearly shows that all the money

needed for the building was provided by applicant and not by any one else. He relied on two decision of the Court of Appeal. The first one was Yassin Mohammed Ahmed ,AC-REV-360-1960. that case was one for recovery of possession of a registered house by the registered proprietor. the occupier contended that registration in the proprietor’s name was obtained by fraud because the house originally belonged to the occupant and defendant ,but that he had transferred it by virtue of a fictitious sale agreement to his brother in order to avoid execution in an alimony  decree in favour of his wife. The learned District Judge accepted that defence and dismissed the case, but on application to the Honourable the Judge of the High Court ,the latter reversed that decision on the ground that defendant could not plead latter reversed that decision on the ground that defendant could not plead his own fraud to defeat and action by the proprietor.

The second case relied upon by Advocate Abu Shakeima was Mourice Goldenberg v. Rachel Goldenberg and Others AC-REV-134-1959,(1960) A,K,H,E,36, That case was one for rectification of register of two plots registered in the name of defendant (who was plaintiff’s divorcee) and alleged by plaintiff to have bee held on trust for plaintiff and his sons. In that case plaintiff, a well-known jeweler in Khartoum. admitted that he had registered the plots in the name of his wife with intent to the case did not justify any conclusion other that that a gift was intended . application for revision to the Honourable the Judge of the High Court was summarily dismissed.

Both cases went up to the Court of appeal , where I had to deal with them , and in both cases I dismissed the application for revision summarily on the ground that , in the case of registered land, any allegation that a gift was to intended by voluntary transfer would be defeated by section 26 of the Ordinance.

In my view the decisions by Hayes J. and Awouda, Province Judge which sought to deprive the register of one of its most important attributes by reading into it the peculiar English principle of  a proprietor, under the provisions of the Ordinance , a trust can only arise in accordance with those provisions, e.g., as a personal representative in accordance with section68, as a receiver under section 72, or as a trustee by virtue of an instrument creating the trust under section 74. otherwise a Court cannot intervene in order to rectify the register unless it is proved that entry of the name of the proprietor was procured by fraud or made under a mistake of fact (land Settlement and Registration Ordinance s. 85.

In the present case , therefore , the statement of his Honour the Province Judge that in the absence of fraud the absence of fraud the register of this plot can be rectified.

By reason of the existence of resulting trust cannot be accepted . in fact the provisions of the Ordinance prevent the existence of this sort of trust save prevent the existence of this sort of trust save perhaps as a result of fraud.

For the above reasons, the decision of His Honour the Province Judge confirming that of the learned District Judge is hereby set aside.

Abdl Magid Imam  J. March 15.1965:- I concur.
 

* Court : Babiker Awadalla c.j. and Abdel Magid  Imam J.