Principles

·  Civil Procedure—Jurisdiction—Subject-matter—-Gift is alleged cloak for a sale to remove possibility of pre-emption——Civil Justice Ordinance, 1929, s. 38—Civil Court has jurisdiction

·  Pre-emption——Gift——Cloak for sale—Pre-emption possible

A Civil Court may examine the substance of a transaction in land purporting to be a gift and decide that the transaction was in fact a sale subject to the provisions of the Pre-emption Ordinance, 1928.

A Civil Court may examine the substance of a transaction in land purporting to be a gift and decide that the transaction was in fact a sale subject to the provisions of the Pre-emption Ordinance, 1928.

Judgment

   Advocate: Bashier Abd el Rahim Bashier for plaintiff-applicant

   Babiker Awadalla J. April 12, 1964: —This is an application against the decision of His Honour the Province Judge, Ed Darner, dismissing an application to him against the order of the learned District Judge, Merowe, rejecting applicant’s petition dated October 17, 1962.

   In that petition, applicant, Abdel Aziz Ahmed El Gorashi, claimed that Fatma Ahmed El Gorashi, respondent, sold her share in sagia 70 (Tangashi Island) to a certain Hassan Ahmed Batoul and that when the applicant applied to pre-empt, they abolished the sale and later on respondent assigned her said share by way of gift to the purchaser. The learned District Judge refused to entertain the claim and His Honour the Province Judge said that as applicant was admitting that the transaction was a gift, the matter was within the jurisdiction of the Sharia Courts. It is against this application that this court is now called upon to decide.

In my view this application should be allowed. Claims of this sort are not uncommon in this country and often a sale is cloaked in a garb of gift in order to defeat possible pre-emptors. A Civil Court is therefore entitled to go into the real substance of the transaction and if it is satisfied that the transaction was a sale to make a declaration accordingly and adjust the rights of the claimants in accordance with the provisions of the Pre-emption Ordinance, 1928. Ibrahim Saleh v. Ahmed Salih, AC-REV-45-1933.

      This application is therefore allowed with costs, and the decision of His Honour the Province Judge confirming the rejection of plaint is hereby set aside and petition sent back to the learned District Judge for determination.

      It is noticed that no certificate of search was obtained. This has to be done before the petition is accepted.

      M. A. Abu Rannat C.J. April 12, 1964:—I concur.

      Editors’ Note. —See also Mohamed Osman El Mubarak v. Abdel Rahim Salih Saeed, AC-REV-143-1963; (1963) S.L.J.R. 209.