Farrar v Adamji (No Case No) [1934] EACA 17 (1 January 1934)

### APPELLATE CIVIL.

# Before WEBB, J.

## HENRY WILLIAM FARRAR, Appellant (Original Plaintiff)

#### YUSUFALI ABDULHUSSEIN ADAMJI, Respondent (Original Defendant). $\mathcal{L}_{\mathcal{A}}$ $\mathcal{F}_{\mathcal{A}}(x)$

Registration of Title—Certificate of Ownership—Building owned by person other than the registered owner—Site or building increased in the probability of the probability of the probability of the probability of the probability of the probability of the probability of the probability of the probability of the probability of the probability of on Certificate of Ownership—Land Titles Ordinance, sections 20 and 21—Registration of Title Ordinance, section 41.

Held (28-1-34).—That sections 20 and 21 of the Land Titles Ordinance must be construed, so far as regards certificates of title issued after the 21st January, 1920, subject to the provisions of section 41 of the Registration of Titles Ordinance, and that a person holding a portion of the land comprised in such certificate under a lease for a term not exceeding twelve months, or for any lesser interest, has not such an interest as requires a memorandum thereof to be noted on the certificate of ownership, which, to that extent, is not conclusive proof that the person to whom it was granted is the owner of a building on such portion.

Patel for the Appellant.

Budheo for the Respondent.

JUDGMENT.—The respondent, in execution of a judgment obtained by him against Albert Farrar, effected attachment upon a house (No. L 181) occupied by Albert Farrar but standing upon a plot of land which was registered on the 21st November, 1923, in the name of the appellant. The appellant thereupon instituted the present proceedings by originating summons under Order 19 r. 60 claiming the release of the house from attachment, and the present appeal is taken from the decision of the Resident Magistrate dismissing the claim.

The "house" in question is a wattle and daub hut which was erected on the site in place of a similar structure which had become ruinous and was demolished. The demolition and rebuilding took place in 1927 or 1928. On the facts the question was whether the rebuilding had been done by the appellant or by his brother, Albert.

The magistrate, after hearing the evidence of the workmen and taking into account the registration of the house in the Tax Register in the name of Albert, its continued and exclusive occupation by him without payment of rent, and the comparative financial condition of the two brothers at the time of the rebuilding, came to the conclusion that the appellant had failed

to establish his claim of ownership. In my opinion there was evidence to support that finding, and, even if I thought that I would have come to a different conclusion (which I do not say is the case), I would not be justified in reversing it—(Gulamhusein Abdulla v. Tatu Binti Rubia, 7 E. A. L. R. 73). The second and third grounds of appeal therefore fail.

The first ground of appeal is that the magistrate erred in holding that the certificate of title was not conclusive proof of the appellant's title in the land and house standing thereon.

It is well settled that by Mohammedan law a building erected by one person—even by a trespasser—on the land of another does not become attached to the land but remains the property of the person who erected it, see Hamilton's Hedaya (Allen's Ed.) p. 539; Secretary of State v. Charlesworth (1 E. A. L. R. 24), but the argument here is that where a person is the registered owner of a plot of land there is a conclusive presumption that he is also the owner of all buildings of whatever kind thereon, unless the person claiming such buildings holds a certificate of interest under section 20 (2) (c) of the Land Titles Ordinance, and there is an exception in the Certificate of Title to the land. In other words, that the Land Titles Ordinance (Ch. 143) has, to this extent at all events, abrogated the Mohammedan law.

I understand that buildings or huts of the type with which the present case deals are commonly erected upon the land of others in Mombasa and its neighbourhood either in consideration of a monthly rent for the stie, or, as here, by the permission of the landowner. In such circumstances the owner of the building stands in the relation either of monthly tenant or of licensee to the landowner, and I understand that it has never been the practice for the owners of such buildings to have their interest (whatever it be) noted in the Land Registry, although the buildings are frequently made a security for loans by the deposit of some sort of memorandum of charge in the Registry of Documents, and, if they are sold, the purchaser either becomes tenant of the site or removes the materials.

The object of introducing registration of title is, it may be presumed, to simplify titles and to provide a means by which an intending purchaser may easily and accurately ascertain the incumbrances and interests to which the lands are subject, and it is usual, I think, for registration laws to exempt from the necessity for registration tenancies or interests of such a temporary nature as not to constitute any real incumbrance on the vendor's title. But, perhaps by an oversight, the Land Titles Ordinance, under which the title of the appellant was registered, contains no such exception and its provisions seem to be wide enough to require registration or mention of even so slender an interest as this. $\tilde{g} \neq \tilde{h} \tilde{g} + \tilde{g} \cdot g \tilde{h} \tilde{g}$

By section 3 "Immovable property" includes "Land and things attached to the earth or permanently fastened to anything attached to the earth", and "Proprietor" means "any person seized or possessed of any freehold or other interest in immovable property."

By section 15 all persons claiming to have any interest whatever in immovable property are to make a claim, and, by section 17, all land concerning which no claim shall have been made shall be deemed to be Crown Land subject only to such right or interest as may be evidenced by a Certificate of Title.

Section 20 deals with the Certificates of Title which may be issued, one of which is a Certificate of Interest (sub-section $2(c)$ ) which is granted "to persons whose rights as owners of immovable property (other than land) or whose rights by way of lease ... contract or other interest in any immovable property have been upheld." Now one would have expected to find here some limitation of the persons to whom a Certificate of Interest may be granted, such, for example, as would exclude persons holding under a lease for a term not exceeding one year or any lesser interest.

Then section 21 gives the effect of a Certificate of Title; "save as in this Ordinance otherwise expressly provided" (i.e. mineral rights, water rights, rights of way, section 28; fraud and mistake, section 34; rights of the public, section 38) "a certificate of ownership shall be conclusive proof that the person to whom such certificate is granted is the owner of the cocoanut trees, houses. and buildings on the land ... at the date of the certificate unless there shall be noted thereon a memorandum to the contrary effect". Section 27 (2) deals with this memorandum; "The Recorder of Titles shall note thereon" (i.e. on the Certificate of Title) "a memorandum of the particulars . . . of the right or interest in the said property existing at the date of the certificate of any person other than the person to whom the certificate is issued".

So far, then, as the Land Titles Ordinances goes, one might think that, if (as is the case here) there were no such memorandum, the appellant's Certificate of Title would be conclusive proof, under section 21, that he is the owner of all the buildings on the land comprised therein.

Now I come to the Registration of Titles Ordinance (Cap. 142), which came into force on the 21st January, 1920.

"Land" includes "benefits to arise out of land or things embedded or rooted in the earth or attached to what is so embedded... or any estate or interest therein..."

By section 3 the "registration provisions"-i.e. Part II dealing with the registration of transfers, leases, etc.-of the Land Titles Ordinance cease to apply in respect of the lands comprised in any certificate of title issued after the 21st January, 1920, and, by section 20, such lands can only be dealt with under the Ordinance (i.e. by duly registered instrument), and any -attempt to deal with them otherwise shall be null and void. But by section 41 a lease granted for a term not exceeding twelve months is valid without registration. $A$ fortiori a mere licence does not require registration.

The appellant's Certificate of Title was issued on the 21st November, 1923.

I am of opinion that sections 20 and 21 of the Land Titles Ordinance must be construed, so far as regards certificates issued after the 21st January 1920, subject to the provisions of section 41 of the Registration of Titles Ordinance, and that a person holding under a lease for a term not exceeding twelve months, For for any lesser interest, has not such an interest as requires a memorandum thereof to be noted on the Certificate of Ownership under section 21.

For the foregoing reasons I hold that where, by virtue of a licence or a letting of the site which, under section 41 of the Registration of Titles Ordinance, is valid without registration, buildings have been erected by a person other than the landowner upon land comprised in a Certificate of Ownership issued after the 21st January 1920, such Certificate, even though it contains no "memorandum to the contrary effect", is not conclusive proof that the person to whom it was granted is the owner of such buildings.

The first and fourth grounds of appeal, therefore, also fail, and the appeal must be dismissed with costs.