[1946] EACA 9

# COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), PEARSON, J. (Uganda) and AINLEY, J. (Uganda) $\mathcal{L}$

#### (1) JOOSAB JACOB.

$\mathcal{A}^{\text{max}}_{\text{max}}$

#### (2) KASSAM JOOSAB JACOB,

(3) ABDULLA JOOSAB JACOB,

## Appellants (Original Defendants)

## THE ADMINISTRATOR GENERAL OF ZANZIBAR, Respondent (Original Plaintiff)

# Civil Appeal No. 2 of 1946

# (Appeal from decision of H. M. High Court of Zanzibar)

Trust—Father and son—Property transferred by father to son—Intention to defeat creditors—Presumption of ownership—Rebuttal of—Custom of Benami—

Application in Zanzibar.

The respondent as administrator of the estate of H. J. J. deceased instituted proceedings to recover as part of his estate certain properties, in particular four motor vehicles which were in the possession and control of the deceased at the time of his death and registered in his name. The appellants sought to establish that the vehicles in question were actually the property of the first appellant. deceased's father. The evidence disclosed that if in fact the deceased was holding the property in trust for his father the whole object of the transaction was to mislead, delay or defeat creditors. The defence did not prevail and the appellants appealed.

*Held* (1-6-46).—(1) That assuming the evidence to be correct the appellants could not be allowed to set up the fraudulent purpose of the first appellant in transferring property to his son to rebut the presumption that th

(2) That the custom of Benami is not accorded legal recognition in Zanzibar.

Appeal dismissed.

Cases referred to: Gascoigne v. Gascoigne (1918) 1 K. B. 223.

Burke for the appellants.

Administrator General absent served.

SIR JOSEPH SHERIDAN, C. J.—This appeal concerns a claim made by the Administrator General, as Administrator of the estate of Kassam Joosab Jacob, for the recovery of certain property alleged to belong to the deceased, from the defendants who are the father and the brothers of the deceased. The items of property are set out in paragraph 4 of the plaint and those with which we are concerned in this appeal are (1) four motor cars or buses Nos. 1303, 1353, 1518 and 1759—tools and spare parts—four new tyres and other tyres, (2) household furniture and sewing machine, (3) a large sum of cash in the house at Makunduchi.

With regard to the motor cars it is admitted that they are registered in the name of the deceased who used to drive them and carry out repairs on them as and when required. The learned Chief Justice held on the assumption that the first defendant had supplied the money for the purpose of the four cars, as he alleged was the case, that in law they must be held to be the property of the deceased. He based his decision on the case of Gascoigne v. Gascoigne (1918) 1 K. B. 223, quoting the following passage from the judgment: —

"The plaintiff brought an action against his wife in the Kingston County" Court for a declaration that she was trustee for him of certain leasehold property. The learned Judge decided in his favour, and the defendant has $appealed...$

The plaintiff, with his wife's knowledge and connivance, concocted this scheme of putting the property in her name, while retaining the beneficial interest, for the purpose of misleading, defeating, or delaying present or future creditors. This was the whole basis of the plaintiff's case, and it could not be put in any other way consistently with his claim to be the owner of the property. It was the reason he himself gave for his conduct. Now, assuming that there was evidence to support a finding that the defendant was a party to the scheme which the plaintiff admitted, but without deciding it, what the learned Judge has done is this: he has permitted the plaintiff to rebut the presumption which the law raises by setting up his own illegality and fraud, and to obtain relief in equity because he has succeeded in proving it. The plaintiff cannot do this; and whether the point was taken or not in the open (? lower) court, this court cannot allow a judgment to stand, which has given relief under such circumstances as that. If authority is required for the proposition that relief cannot be granted in such a case as this, there is ample authority to support it. (After citing the cases of *Cottington v. Fletcher* (1740) 2 Atk. 156, Muckleston v. Brown (1801) 6 Ves. 52, 68 and Davis v. Otty (1866) 35 Beav. 208 the learned Judge proceeded to say) This appeal must be allowed and the declaration discharged.

Continuing the learned Chief Justice said:

"In the present case I can only hold that these vehicles were not the property of the deceased by holding that the deceased held them in trust for his father and that, as is admitted, the sole object of the transaction was to mislead, delay or defeat creditors. Equity very rightly does not allow me to do this and in the circumstances I hold that the father is not entitled to these vehicles as against his deceased son."

With this decision and the reasons therefor I respectfully agree.

Mr. Burke on behalf of the appellants contended that the custom of Benami applied to the facts of the case and that accordingly the property in the cars remained in the first defendant, even though they were registered in the son's name. Benami is a custom common amongst Hindus in India whereby property is acquired and held by a person in trust for another, the former merely lending his name for the purpose. In the 3rd edition of Gour's Hindu Code at p. 1034. this custom is referred to as "The habit of acquiring and holding property, Benami so inveterate in India is not merely confined to the Hindus" and at p. 1055 "The case for Benami may arise—where (for instance) the father or manager acquires property in the name of the junior member for the benefit of the family". There was no mention of Benami in the pleadings in this case though reference was made to a joint family. Incidentally the family is Mohammedan.

The learned Chief Justice referred to the defence in the following terms: —

"The defence to this action reduces itself to this. The deceased never owned any property at all. Any property, which may have been ostensibly or otherwise in his possession or under his control at the time of his death, was actually the property of the father. The second and third defendants professed that neither they nor their deceased brother possessed any property. I endeavoured to ascertain the precise legal grounds upon which the defendants claimed this property. I was referred in the final address to the Court to certain Indian cases, which deal with the custom of Benami, and I was also referred to the custom in certain Indian communities of a joint family.

With regard to any possible allegation of a joint family, it was not shown, or even alleged, that the defendants belong to a community which recognizes a joint family and it appeared to me from their evidence that what the defendants were seeking to allege was a *patria potestas* of the nature known to early Roman Law and, at that a *patria potestas* of their own making by family arrangement. How far any such arrangement, if made, can bind third parties is of course a question of law. With regard to the custom of Benami, that is no doubt a custom which has been recognized as having the force of law in British India, but I have not been referred to, and have been unable to discover, any case in which that custom has been accorded legal recognition in Zanzibar, and it would be a somewhat startling, and in my opinion dangerous, innovation for me to give legal recognition to such a custom in applying the law to the facts of the present case."

On the facts of the case I am not prepared to differ from what is said in this passage. So that assuming the evidence for the defence to be correct, the defendants cannot be allowed to set up the admitted fraudulent purpose of the first defendant in transferring property to his son to rebut the presumption that the property was the son's and alternatively and quite apart from any question of fraud, the presumption arising from the property being in the name of the son and his having used it was not, in the opinion of the Chief Justice rebutted by the evidence. He said that he must not be taken to hold that the father and the two surviving sons were to be believed when they said that the deceased never at any time possessed in his own right the means to acquire property for himself and the wordly possessions of the family belonged at all times to the father as head of the family. With regard to the claim for Sh. 3,000, the fact that it was referred to in the plaint as "a large sum of cash in the house at Makunduchi" and no specific sum mentioned is not fatal to the claim. Adequate reasons why the widow should be believed as to this item are given in the judgment. Similarly with regard to the furniture and the sewing machine. As for Mr. Burke's submission that the appeal should be allowed in favour of the second and third defendants, I am of the opinion that they so identified themselves with the defence, contending that they were members of a joint family whose possessions belonged to the first defendant, the father as head of the family, an order for costs was rightly made against them. It does not appear that Counsel for the defendants at the trial submitted that there should be any distinction as between the father and the sons in this matter.

I would dismiss the appeal with costs.

PEARSON, J.—I agree.

AINLEY, J.—I agree.