Khamis and Others v Bohora (Civil Appeal No. 43 of 1949) [1949] EACA 14 (1 January 1949)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Graham Paul, C. J. (Tanganyika), Edwards, C. J. (Uganda). and SINCLAIR, J. (Tanganyika)

### (1) KHAMIS BIN MOHAMED EL-ISMAILI, (2) SAID BIN MOHAMED EL-ISMAILI, (3) YAHYA BIN MOHAMED EL-ISMAILI, (4) BIMKUBWA BINTI MOHAMED EL-ISMAILIA, (5) BIRAYA BINTI MOHAMED EL-ISMAILIA, (6) FATUMA BINTI MOHAMED EL-ISMAILIA. Appellants (Original Plaintiffs)

#### $\nu$ .

# YUSUFALI IBRAHIMJI BOHORA, Respondent (Original Defendant) Civil Appeal No. 43 of 1949

(Appeal from decision of H. B. M. Court of Zanzibar—Sir John Gray, C. J.)

Wakf—Testamentary or *inter vivos*—Non-registration—Subsequent mortgage and registration of conveyance after mortgage decree—Effect of insolvency of Wakf estate.

On 30th August, 1923, the dedicator executed a writing dedicating his shamba as a wakf for the benefit of himself and his children and thereafter for all their children and posterity and for the Ibathi Mosque, on condition that the income should be divided into three portions, one-third for the Mosque, onethird for the dedicator and one-third for his children; the dedicator's share was to devolve on his children after his death; if all his children became extinct then the remaining two-thirds share was to devolve upon the poor of the Ibathi sect.

After the dedicator's death the wakf was to be administered by trustees.

On 26th January, 1926, the deceased mortgaged part of the shamba with interest at 15 per cent. A suit was filed by the appellant mortgagees and on 15th May, 1931, a preliminary decree was drawn up. The dedicator died on 24th July, 1931, and on 10th November, 1932, the High Court ordered a sale of the property which was bought by the appellants and, in 1934 the shamba<br>was conveyed to appellants by registered conveyance. The estate was then insolvent. The wakf itself was not in fact registered until 26th July, 1941.

The plaintiffs-appellants, heirs of the deceased, disputed the mortgage.

Held $(24-10-49)$ .—(1) If the wakf be considered as an instrument "inter vivos" it must fail under the statutory law as to priority of registered documents affecting land.

(2) Even if it were assumed that the wakf was of a testamentary nature, the fact that the estate was insolvent at the time of the dedicator's death was enough to defeat the wakf.

(3) In any event the granting of the mortgage was sufficient to constitute an implied revocation of the wakf.

Appellants absent, unrepresented.

### **Ahmed Ayub for the respondent.**

JUDGMENT (delivered by SIR GRAHAM PAUL, C. J.).—The first issue raised in this appeal is whether the instrument constituting or professing to constitute the wakf was inter vivos or testamentary. If inter vivos in competition with the respondent's letter it must fail under the statutory law as to priority of registered documents affecting land. Even if it be assumed in the appellant's favour that it was a testamentary wakf, the fact that the dedicator's estate was insolvent at his death is enough to defeat the wakf. The granting of a mortgage which, if enforced, would completely defeat the wakf is sufficient to constitute an implied revocation of the testamentary wakf. The dedicator did grant such a mortgage and so the revocation of this wakf may be assumed by the Court to have been implied.

The appellants attack the finding that the dedicator's estate was insolvent at his death but this cannot be maintained in the face of the specific admission to that effect at the trial. The learned trial Judge was entitled to take into account that specific admission of fact by the plaintiff in arriving at his decision even though as suggested in the grounds of appeal the fact of the insolvency of the dedicator's estate was not specifically pleaded. It is suggested that it is suspicious that this particular shamba, valued by the Administrator-General at Rs. 9,660, was sold about a year later for only Rs. 3,000 to the respondent. The sale, however, was by public auction and the respondent was the highest bidder and the property was knocked down to him. In these circumstances it is impossible at this time of day to query the genuineness of the sale by public auction.

For these reasons we think that the learned Chief Justice's judgment is right and the appeal is dismissed with costs to the respondent.