Desai NO v Desai NNO and Others (718/93) [1995] ZASCA 113; 1996 (1) SA 141 (SCA); (22 September 1995)

Desai NO v Desai NNO and Others (718/93) [1995] ZASCA 113; 1996 (1) SA 141 (SCA); (22 September 1995)

The Supreme Court of Appeal held that the appellant's obligation to procure registration of transfer of the deceased's one-seventh share in the two immovable properties constituted a 'debt' under the Prescription Act 68 of 1969. This debt became due upon discharge of the winding up order in respect of the partnerships, which occurred before the deceased's death in June 1979. The appellant's furnishing of powers of attorney in October 1979 constituted a tacit acknowledgment of liability, interrupting prescription, but prescription recommenced from that date. No further interruption occurred, and the three-year prescriptive period lapsed before the respondents instituted proceedings in...

Citation
[1995] ZASCA 113
Parties
Appellant: Jayantilal Varjivandas Desai NO; Respondent: Rajendra Desai NNO; Respondent: Nagin Desai NNO; Respondent: Ramola Desai NNO; Respondent: Kantilal Desai; Respondent: Ramesh Purshottamdas Desai; Respondent: Pravin Purshottamdas Desai; Respondent: Manilal Desai
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
22 September 1995
Case Number
718/93
Procedural Posture
Civil Appeal / Appeal From Full Bench Judgment of the Natal Provincial Division
Outcome
Appeal upheld; application dismissed on the basis that the debt was extinguished by prescription.
Judges
Corbett, Joubert, F H Grosskopf, Harms, Van Coller
Legal Topics
Prescription Act, Transfer of Immovable Property, Contractual Obligation, Deeds Registries Act
Civil Procedure Land and Property Prescription Act Transfer of Immovable Property Contractual Obligation Deeds Registries Act

Case Brief

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Parties

Jayantilal Varjivandas Desai NO

Appellant

Rajendra Desai NNO

Respondent

Nagin Desai NNO

Respondent

Ramola Desai NNO

Respondent

Kantilal Desai

Respondent

Ramesh Purshottamdas Desai

Respondent

Pravin Purshottamdas Desai

Respondent

Manilal Desai

Respondent

Procedural Posture

Civil Appeal / Appeal From Full Bench Judgment of the Natal Provincial Division

Legal Issues

  1. 1 Whether the appellant's obligation to procure registration of transfer of a one-seventh share in two immovable properties was extinguished by prescription.
  2. 2 Whether the agreement constituted a contract of sale of land requiring compliance with statutory formalities.
  3. 3 Whether the description of the property in the agreement was sufficient for enforceability.

Ratio Decidendi

The Supreme Court of Appeal held that the appellant's obligation to procure registration of transfer of the deceased's one-seventh share in the two immovable properties constituted a 'debt' under the Prescription Act 68 of 1969. This debt became due upon discharge of the winding up order in respect of the partnerships, which occurred before the deceased's death in June 1979. The appellant's furnishing of powers of attorney in October 1979 constituted a tacit acknowledgment of liability, interrupting prescription, but prescription recommenced from that date. No further interruption occurred, and the three-year prescriptive period lapsed before the respondents instituted proceedings in...

Court Disposition

Appeal upheld; application dismissed on the basis that the debt was extinguished by prescription.

Orders

  • The appeal is upheld.
  • The order of the full bench is set aside.