[1932] EACA 50

## ORIGINAL CIVIL.

### Before THOMAS, $J_{\cdot \cdot}$ .

# MWANA ARAFAH BINTI JAMBENI & OTHERS (Plaintiffs) $\boldsymbol{v}$ .

#### TAMBAKI BINTI MSHAMU BIN KOMBO EL-BATAVI $\mathcal{O}(\mathcal{A}) \cong \mathcal{O}(\mathcal{A})$ $Defendant$

## C. C. 110/1930 (Mombasa).

- Mohamedan law—Deed of "Nathra"—Inequitable to other children—Revocation—Concealment of revocation $\quad\text{from}\quad$ Recorder of Titles—Fraud—Indian Contract Act. section 17 -The Registration of Titles Ordinance, Cap. 142, Laws of Kenya—Rectification of title—Indian Limitation Act. - $Held(22-7-31)$ : -That where a parent distributes his property in his lifetime it is not essential that the various gifts should be identical or absolutely equal, the more especially where one of the children<br>shows charity or kindness to the parent. If a *nathra* should prove<br>to be sinful it may be revoked and the Court may revoke a<br>*nathra* which is sinful. Wi which gives all the property to one or more children to the ex-<br>clusion of the others would be sinful. - $Hcld$ further: -That there is no objection to the recipient herself agreeing to the revocation of the $nathra$ : - Held further: -- That as more than three years had elapsed since the plaintiffs had notice of the issue of a certificate of title they were barred by Art. 95 of the Limitation Act from obtaining relief on the ground of fraud. $\sim$ 1.1 $\mathcal{L} = \mathcal{L}^{\mathcal{L}}$

Christie for Plaintiffs.

Burke for Defendant.

Christie, for plaintiffs, referred to Indian Limitation Act, Articles 18, 95, 144. Gopi Nath v. Bhuqwat Pershad, 10 Calcutta 708. Debi Prasad v. Jafar Ali, 3 Allahabad 43. Rahimbhai v. Turner, 20 Indian Appeals 1. Cap. 142, sections 23 and 24.

Burke, for defendant, referred to 4 E. A. L. R. $27$ ; 9 E. A. L. R. 167.

The facts so far as necessary appear from the judgment which referred to Hassan Ali v. Nazo, 11 Allahabad 456; Natha Singh v. Jodha Singh, 6 Allahabad 406.

JUDGMENT.—The plaintiffs in this suit are Mwana Arafah Binti Jambeni Bin Bashihiri el-Amin, an Arab woman, and her sons, Feraj Bin Abdulla Bin Feraj el-Mafazi, Jambeni Bin Abdulla Bin Feraj el-Mafazi, Ali Bin Abdulla Bin Feraj el-Mafazi and Hilal Bin Abdulla Bin Feraj el-Mafazi.

The defendant is Tambaki Binti Mshamu Bin Kombo el-Batavi, a daughter of the first-named plaintiff.

In further reference to the parties the first names alone will be used.

2. By a deed of nathra Mwana Arafah gave a house and land to Tambaki. The circumstances relating thereto will be gone into more fully in the ensuing paragraphs. It is claimed that the deed of nathra was unlawful and was set aside by Mwana Arafah with the assent of Tambaki, but notwithstanding Tambaki obtained a certificate of title from the Recorder of The plaintiffs allege that Tambaki, by taking delivery Titles. of the said certificate of title deprived Mwana Arafah of the said house and land and also that Tambaki concealed the fact that such certificate of title had been issued until the month of September, 1927, when the plaintiffs heard of it from other sources. It is also pleaded that Tambaki has refused to surrender the certificate of title or to restore the property.

The plaintiffs pray (1) for an Order requiring Tambaki to restore the property to Mwana Arafah and to execute all necessary deeds at her own expense or (2) alternatively an Order to the Registrar of Titles to rectify the Register of Titles by substituting the name of Mwana Arafah for that of Tambaki and issuing a new certificate in favour of Mwana Arafah; (3) costs: (4) alternatively for judgment for 8,000 shillings damages and $(5)$ costs.

3. The defendant admits that a deed of nathra was made in her favour and denies that it was unlawful or that she acknowledged that it was unlawful or that she expressed her consent to its revocation. Any such consent was obtained by coercion and duress. She denies that she has been guilty of any fraud. She admits the existence of the certificate of ownership and that she has consistently refused to hand it over. She contends that the plaintiff's claim is barred by limitation and that the plaintiffs are not entitled to the relief claimed. She denies that the property is worth 8,000 shillings and says that it is worth considerably less than 8,000 shillings, but not less than 3,000 shillings.

$4.$ The land in question was adjudicated to Mwana Arafah by a judgment of the Court of Titles, dated the 25th April, 1919.

$\tilde{\mathbf{o}}.$ The deed of nathra from Mwana Arafah to the defendant was dated the 22nd of November, 1922. A translation has been exhibited (attached to Exhibit 1) which sets out that Mwana Arafah nathraed to Tambaki her house-with land-at Lamu, and the reason of giving her because she does charity to her mother and after taken possession of the said nathra Tambaki nathraed to her mother, Mwana Arafah binti Jambeni, the said house during her life time.

At the time of the execution of the deed of nathra Mwana Arafah, according to the evidence of the defendant, had already parted with all her properties either by gift or sale. Each of her children with possibly one exception had by such means secured a shamba. However that may be at the time of the nathra there remained only the big house and possibly some furniture. At p. 17 of the notes the defendant says "My mother had no little house that is a second house at the time that she gave me the big house. She had already given her shambas to us, at the time she gave me the big house. When she gave me the big house she only had furniture."

The defendant registered the deed of nathra and about $7.$ the 24th of March, 1923, the Deputy Recorder of Titles at Lamu found that the defendant had become the owner by virtue of a deed of gift (see notes, $p. 10$ ).

On the 16th of July, 1923, a deed of revocation of the $\sim$ 8. nathra was executed by Mwana Arafah and Tambaki (Exhibit 2). It has been objected that the consent of Tambaki was obtained by duress and coercion. She has given her account of the force that she alleges was used to herself; she alleges further that her husband was also beaten. I should have considerable hesitation in accepting Tambaki's uncorroborated evidence as to the alleged force or threats. When the District Commissioner arrived she might have protested; she or her husband might have obtained protection from threatened assaults. No action was taken either at the time or subsequently to set aside the deed of revocation. It is only in this suit that the defence of duress has been raised. I do not consider that the defence of duress or coercion has been proved. My finding in this paragraph is subject to my remarks in paragraph 18 hereof.

9. I have consulted the Chief Kadi as to the legality of revoking a deed of nathra under Mohammedan law. He advises me that where a parent distributes his property in his life time it is not essential that the various gifts should be identical or absolutely equal the more especially where one of the children: shows charity or kindness to the parent. If a nathra should prove to be sinful it may be revoked and the Court may revoke a nathra which is sinful. Without other considerations a nathra which gives all the property to one or more children to the exclusion of the others would be sinful. There would seem to be no objection to the recipient herself agreeing to a revocation.

Now the evidence is not clear whether the distribution of the shambas was by way of gift or sale, but in any event one of the sons would appear to have been excluded. Therefore there had not been such a distribution as is contemplated by the Sheriah. The deed of revocation is in itself an admission by the defendant that the nathra was illegal. Apart from this there is no objection to the defendant herself revoking the nathra. Therefore I hold that the deed of revocation was a lawful act.

10. It has been urged that the deed of revocation was based upon a mistake of law and that it was therefore conditional upon the assumption as to the law being correct and further that Mwana Arafah recognized the condition in not registering the deed of revocation.

Now Mwana Arafah had never taken up her original title deed. In that she had shown negligence as also in not registering the deed of revocation; but I do not consider that I should be justified in deducing therefrom that she had recognized that the deed of revocation was bad. I have held that the deed of nathra was invalid. But apart therefrom by section 21 of the lnauan Contract Act "a contract is not voidable because it was caused by a mistake as to any law in force in British India " which would in this Colony, of course, refer to Kenya Colony and Protectorate. On this ground also I am of the opmion that the deed of revocation was a valid act.

11. The detendant knew of the existence of the deed of revocation and it would seem that there was an equal duty imposed upon her of drawing the attention of the Recorder of Titles thereto before taking further action. She, however, did not do so, but applied for and obtained a certificate of title, No. 6475. This document was produced towards the close of the hearing. The advocate for the plaintiffs asked that it should be made an exhibit. The advocate for the defendant objected to this being done chiefly on the ground of expense. I see no reason why it should not be made an exhibit. The question of costs of making it an exhibit I am ready to reserve for argument if it be so considered necessary.

12. It is alleged that the defendant was guilty of fraud in obtaining that certificate and in keeping it secret until its existence was discovered by the plaintiffs. It has been urged on behalf of the defendant that she had been advised that the deed of nathra was lawful and that the deed of revocation being conditional was therefore of no effect. Such advice would depend upon the statements made by the defendant and especially the statements as to the property owned by Mwana Arafah at the time she executed the deed of nathra. She should have taken steps to set aside the deed of revocation legally: at any rate she had no right not to disclose the document to the Registrar of Titles. On such disclosure it is extremely unlikely that the certificate of title would have been granted, registered or delivered. That concealment in my opinion comes within the definition of fraud set out in section 17 of the Indian Contract Act.

There is also a definition of fraud in the Registration of $13.$ Titles Ordinance, Chapter 142, viz.: "Fraud shall on the part of a person obtaining registration include a proved knowledge of the existence of an unregistered interest on the part of some other person whose interest he knowingly and wrongfully defeats by such registration.

$14.$ I find that the registration by the defendant was obtained by fraud. $\mathcal{L} = \mathcal{L}$

15. The Registration of Titles Ordinance, Chapter 142, section 23, states that the duplicate certificate of title shall be taken by the Courts as conclusive evidence that the person named therein as proprietor shall not be subject to challenge, except on the ground of fraud or misrepresentation to which he is proved to be a party. Section 24 says: "Any person deprived of land in consequence of fraud ... may bring and prosecute an action at law for the recovery of damages."

Therefore apart from any other circumstances the 16. plaintiffs would be entitled either to obtain rectification of the Register or damages. Now the defendant has advanced a plea that the suit is barred by the Statute of Limitations. This is the next point for consideration.

The evidence shows that the certificate was granted on $17.$ the 26th of September, 1923. On the 28th of June, 1927, a telegram was sent by Mr. Burke, the advocate for the defendant, to the District Registrar at Lamu. A carbon copy of this telegram has been put in and it reads as follows: "Re Tamboke Binti Msham Bin Kombo and Arafa Binti Jambeni. Have been retained on account Tamboke. $_{\rm Shall}$ be pleased answer inquiries."

On the 1st of July, 1927, a letter was written by the acting Deputy of Titles, Lamu, to Mr. Burke requesting that the certificate of title should be submitted for inspection. Mr. Burke answered on the 30th of July, 1927. It is obvious that this correspondence resulted from inquiries which were being made by the plaintiffs. Jambeni has stated that he went to the Registrar; presumably to obtain his mother's certificate. $\rm He$ was informed that the Registrar had received a telegram from Mr. Burke, but he was not told the contents. He did not know that Mr. Burke was a lawyer (notes, p. 6). According to the evidence of the Clerk to the Court of Titles (notes, p. 10) the D. C., Lamu, wrote on the 9th of May, 1927, to the Recorder of Titles, Monibasa, and requested him to send the certificate. Thirty shillings were enclosed. On the 19th of May, 1927, the Recorder of Titles replied that certificate had been delivered to Tambaki on the 23rd of April, 1924. On the 1st of July, 1927,

an application was received asking that the cause file should be sent to Lamu. It was sent on the 8th of July. It was returned on the 2nd of September, 1927.

I am satisfied from this evidence that the plaintiffs between the end of the month of June and the beginning of the month of July, 1927, knew that a certificate of title had been issued to Tambaki.

The suit was filed on the 29th of July, 1930, that is, more than three years after the plaintiffs were aware of the certificate of title having been issued to Tambaki.

According to the evidence of Jambeni, Ahmed Bin Ali, $\cdot 18.$ the husband of the defendant, died more than a year ago (notes, p. 7). That is at the time that that portion of the evidence was taken, viz.: on the 27th of November, 1930. Whether the death was actually before or after the commencement of the suit is not clear. It is unfortunate that owing to the delay in bringing the suit the Court has not had the advantage of hearing hisevidence. He may not have supported his wife's statement, but in matters where the Court has found against the defendant for want of corroboration his evidence might have been of assistance.

19. It has been argued for the defendant that the case comes within Article 95 of the Limitation Act and that therefore the suit is barred under the three year rule. For the plaintiffs it has been argued that even if three years have elapsed the suit relates to an interest in land and that therefore the article applicable is 144, which gives twelve years. The advocate for the plaintiffs has cited Gopi Nath Chobey v. Bhugwat Pershad, 10 Calcutta 697. That was a suit to obtain a declaration of the plaintiffs' right to malikana money of dearah Afzulpur. That matter had already been decided in favour of the defendant's benamidar and no dispossession had been alleged. It was held that the suit was barred by limitation under either Article 144, 131 or 120. There does not seem to have been any intervening transaction in that case.

Mr. Christie also cited Debi Prasad and others v. Jafar Ali, 3 Allahabad, p. 40. In that case it was held that the Revenue Court had given a decision which it was not competent to entertain and that therefore it was not valid and that under such circumstances the correct article of the Limitation Act to be applied was Article 145. I do not consider that either of these cases assist in the case at present under consideration.

In the case of Hasan Ali and another v. Nazo and another, XI Allahabad 456, it was held that the cancelment of a deed was a substantial and necessary incident of the claim and that therefore the proper article was Article 91 of the Limitation Act.

In the case of Natha Singh v. Jodha Singh, 6 Allahabad 406. it was held that the law of limitation applicable to the case was. not that contained in Article 12 nor Article 144, but that contained in Article 95 of schedule of the Limitation Act, inasmuch as fraud vitiates all things, and prevents the application of any other law of limitation than that specially provided for relief from its consequences. I come to the conclusion that Article 95' applies to the present suit and that the suit not having been filed within three years the plaintiffs fail. There will therefore be judgment for the defendant with costs.