S. ZAHIR ROSHANALI HIRANI v REGISTRAR OF TITLES 1990 TLR 122 (HC)

 

S. ZAHIR ROSHANALI HIRANI v REGISTRAR OF TITLES 1990 TLR 122 (HC)

Court High Court of Tanzania - Mwanza

Judge Sekule J

H 1 October, 1990

Flynote

Power of attorney - Donee transfers to donee's son donor's title to property without

donor's knowledge and consent - I Whether transfer valid.

Power of attorney - Revocation - When complete as against donee.

1990 TLR p123

SEKULE J

This is an appeal under section 102(i) of the Land Registration Ordinance, cap 334. A

Father of the petitioner/appellant, bought property jointly with his brother. When

the latter left the country for England he appointed the former his attorney with

general powers. On 20th June 1987 the attorney transferred the donor's half of the

property to the petitioner. Subsequent to the transfer a subtitle in the name of the

petitioner B appellant was issued by the respondent. Later on, the donor of power of

attorney objected to the transfer and applied for the rectification of the Register. In

order the have his named restored in the register and the name of the petitioner

struck out. The Registrar struck off the name of the petitioner from the register hence

this appeal. C

Held: (i) Transfer of title by the donee of power of attorney done without knowledge

and consent of the donor is invalid;

(ii) consideration of love and affection cannot be attributed to the donor of

power of attorney without his D knowledge and consent;

(iii) revocation of a power of attorney is only effective if brought to the

attention of the donee.

Case Information

Order accordingly. E

[zJDz]Judgment

Sekule, J.: This is an appeal under section 102(1) of the Land Registration Ordinance,

Cap 334 by Zahir Roshanali Hirani against the decision of the Registrar of Titles of

striking the name of the appellant/ petitioner from the register. F

The background of the matter is that the father of the appellant one Roshana Jawal

Hirani is a brother of one Madat Jamal Hirani.

It would appear that the two brothers, i.e. Madat Jamal Hirani and Roshana Hirani

own some real property on Plot No.19 Mwanza Industrial area. It would further

appear in the course of time, Madat Jamal Hirani left the country G and went to

England.

While away in England, Madat did on the 27th of March 1975 execute a general

power of attorney and appointed his brother Roshanali Jamal Hirani a person who

was still a resident in Mwanza his attorney in accordance with section 10 of the

Powers of Attorney Act 1971. H

On the 20th of June 1987, Roshanali Jamal Hirani, using the powers of attorney

granted to him, transferred Madat's half share in the right of occupancy on Plot No.19

Industrial Area Mwanza to the appellant/ petitioner, Zahir Roshanali Hirani, his son.

Subsequent to this transfer a subtitle with registration No.3033050/ I

1990 TLR p124

SEKULE J

A 28 was issued by the Registrar of Titles in the name of the appellant, Zahir

Roshanali Hirani.

It is alleged that the consideration for this transfer was natural love and affection on

the part of donor of the power of attorney to the appellant/petitioner as expressed

through the donee of the power of attorney, Roshanali Jamal B Hirani.

Madat, the donor or grantor of the power of attorney, did however on the 16th of

September, 1987 object to this transfer and applied to the Registrar of Titles, for the

rectification of the Register accordingly. That is to have his name restored in the

Register and the name of the petitioner be struck out. And on the 13th of January

1988, the C Registrar of Titles formally requested the appellant petitioner to

surrender his subtitle for the rectification process. And ultimately the Registrar of

Title struck off the name of the appellant/petitioner from the Register.

The appellant was dissatisfied with this decision, hence his appeal under the

provisions of section 102(1) of the D Land Registration Ordinance Cap 334.

At the hearing of this appeal, the appellant/applicant was represented by Mr.

Nasimire learned Counsel. Mr. Mussa learned state Attorney appeared for the

Registrar of Titles.

E Mr. Nasimire, learned Counsel started off by recapitulating the background of the

matter as reviewed above.

He further submitted that the appellant/petitioner's name was struck out from the

register on the following alleged grounds. Firstly that there was fraud on the part of

the donee of the power of attorney and the petitioner in this F appeal in transferring

the half share in the estate to the appellant/petitioner. And that at the time the

transfer was effected, the power of attorney to the donee, Rashanal Jamal Hirani, had

been revoked. And that allegedly, the revocation was done on the 31st of December,

1986.

G Mr. Nasimire further contended that the other grounds that are alleged to have

led to the striking off of the appellant's title in the register is that the donee did not

comply with the provisions of section 334. And further that the donee of the power of

attorney as an agent of the donor of the power of attorney acted outside his authority

in H transferring the donor's title in the estate to his son, the appellant.

Addressing himself on the grounds that led to the striking out of the appellant's name

from the register as itemized herein above, Mr. Nasimire, submitted that the power of

attorney to the donee Roshanali Jamal Hirani could have I been revoked as claimed,

he however contended that the pertinent issue was the donee aware of this

revocation. In his view, there was no clear and firm evidence to the effect that the

1990 TLR p125

SEKULE J

donee was aware of the alleged revocation at the time he effected the transfer of the

donor's title to the estate to the A appellant. Mr. Nasimire argued that all there is, on

this issue, is the assertion of the Assistant Registrar of Titles that the power of

attorney to the donee had been revoked and also a letter to that effect from the donor

of the power of attorney which Mr. Nasimire argued, could have been back dated. B

Mr. Nasimire therefore contended that as the donee of the said power of Attorney

was unaware of the revocation, the transfer he effected with regard to the donor's

interest in the right of occupancy in question was valid.

Mr. Nasimire also argued that there was consideration in this transaction as the law

recognizes gifts which are given C for natural love and affection and reference in

this regard was made to section 25 of the Contract Ordinance, Cap 433. Elaborating

Mr. Nasimire submitted that the donor of the power of attorney is the brother of the

donee of said power of attorney. D

On the other hand, Mr. Mussa learned State attorney submitted that the decision of

the respondent, Registrar of Titles to strike out the name of the appellant/petitioner

was justified under the provisions of section 99 (l )(d) of Cap 334 as there was

sufficient material before him indicating that the transfer was fraudulently made. The

donor of the E power of attorney had in his declaration, annexure C dated 26th

August 1987 stated that he had revoked the power of Attorney that was granted to

the donee - on the 31st December 1986. And this declaration is supported by the deed

of revocation, annexure D that was executed and attested by a Solicitor on the 31st of

December 1986 F as stated by the donor in his declaration mentioned above.

Mr. Mussa therefore submitted that this transfer was in these circumstances,

fraudulent and illegal as it was earned out of powers that had ceased to exist.

Mr. Mussa however conceded that there was no clear evidence indicating that the

donee received the revocation G order or/and notice.

Mr. Mussa therefore queried why was the affidavit not filed. And he also argued that

if the donor was in constant touch with donee, then the donee must have been made

aware of the revocation as soon as it was made.

Mr. Mussa seemed therefore to contend that the donee must have been aware of the

revocation before the transfer H was effected. Mr. Mussa further submitted an

alternative argument, and that is, the donee acted beyond the scope of his authority.

He stated that in annexure 'C' to the respondent's case, the donor stated clearly that

he I would not have effected the transfer or/and he would not have transferred the

title in question if

1990 TLR p126

SEKULE J

A he had been present as the exercise carried out was to extinguish his title to the

property in question. Mr. Mussa also contended that there was no consideration with

regard to the transaction, because the donor was not aware of the transaction and as

such the alleged natural love and affection could not be attributed to him.

B As to indemnity, Mr. Mussa urged the court to reject this prayer and invoke the

provisions of section 104 of Cap 336 as the transfer was a result of fraud. Otherwise

the petition should be dismissed.

There is no dispute that Madat Jamal Hirani did grant a general power of attorney to

Roshanali Jamal Hirani, the C father of the appellant/ petitioner in 1975, annexure

'A'.

Roshanali Jamal Hirani under the power of attorney had authority to do or act for the

affairs of the donor of the powers of attorney as generally an agent would do with

regard to the affairs of his principal.

D It is this power of attorney, the petitioner contends that his father used to transfer

the 1/2 share of the donor of the power of attorney in the Right of Occupancy on plot

No. 19 at Industrial area Mwanza. And further petitioner contends the donor of the

power of attorney was aware and assented to the transaction. On the other hand the

respondent to this appeal contends, this transfer was fraudulent in the sense that at

the time it was effected, the E power of attorney to the petitioner's father had long

been revoked.

And that the donee of the power of attorney acted without authority in effecting this

transfer which had the effect of extinguishing the title of the donor of the power of

Attorney in the property, without the express authority of the said F donor.

And further, as the donor of the said power of Attorney was not aware of this

transaction, there was no consideration with regard to this transaction, as the natural

love and affection could not be attributed to him.

G I have carefully read and considered the petition, the submissions of both counsel

and the documents the parties have filed.

It would appear to me after a careful examination of the petition and the documents

that have been filed by the parties, the crucial issue for determination in this appeal,

is, whether or not the donor of the power of attorney was H aware and consented to

the transfer of his 1/2 share in the property in question. For this seems to be the case

for the petitioner that is, apart from the existence of the power of attorney, at the

material time, Mr. Madat Jamal Hirani was informed of this transaction and that he

consented to it. This to me appears to be the most crucial question in I this matter.

1990 TLR p127

SEKULE J

The petitioner has for example stated in paragraph 6 of his petition as follows: A

The petitioner is ready to affirm by way of affidavit that the donor had constantly

been informed of the disposition complained of and that he had assented to the same.

B

Again in paragraph 3 of the petitioner's letter to the Assistant Registrar of Titles dated

23rd May 1988 enclosed in this file, the petitioner stated as follows: C

Mr. Madat was contacted on telephone just before and after the transfer and he had

given his consent unreservedly. I am prepared to swear an affidavit to support this

fact. Surprisingly Mr. Madat did not notify me or Mr. Roshanali of his revocation. D

The question is, what evidence has the petitioner tendered to support his claim in this

regard. I dare say apart from his mere assertion as indicated above, nothing. Even the

affidavit he had promised to make, it appears it was not so made as it has not been

filed. E

The lack of substantial evidence on the part of the petitioner to support this claim i.e.

the donor was aware and consented to the transfer has caused me considerable

anxiety and concern.

This was an important disposition and if the donor had been informed of it and

consented to the disposition, one F would have expected the petitioner or the donee

of the power of attorney to say at least when the donor was contacted about this

matter and would probably have required some written record from the donor

signifying his assent to the transaction. As already said this was an important

disposition the cause and effect of which was the donor to divest himself of his

property. And further as the donee of the power of attorney saw the need to contact

G the donor before the disposition was effected, one would have expected him to

require a more formal authorization from the donor. This as already said was a deal

involving real property, I am thus inclined to the view that it would not have been

that casually hand led even between relatives as the petitioner seems to contend. H

There is also another feature which has equally caused me some anxiety. And that is,

for reasons that were not made known to this Court, the donee of the power of

Attorney has not given his word by affidavit or otherwise about this matter. He was

the principal actor in this transaction. He was therefore the person in a position to

throw I

1990 TLR p128

SEKULE J

A more light on this issue. But as already stated he has not done so, and no reasons

as to why he has failed to do so have been given.

There is another important question and that is, who initiated this transaction. Going

by the statements of the B petitioner as stated in paragraph 6 of the petition and in

paragraph 3 of letter dated 23rd May, 1982, paragraphs which have been referred to

above, the donor does not appear to have been the initiator of this transaction.

According to the petitioner, the donor was contacted or informed of the matter and

assented to the transfer. It would therefore appear the donor was not the initiator of

this move. It was the donee of the Attorney.

C In have found this to be rather strange, because if the donor was giving a gift to

the petitioner, the son of his brother, for natural love and affection as claimed, one

would have expected him (the donor) to be the initiator of the transaction. He would

not in the circumstances be the person to be contacted and required to give his

consent to D this transfer. He was supposed to be the giver of the gift. I am therefore

satisfied that there is no evidence at all to support the petitioner's claim that Mr.

Madat was contacted and that he gave his consent to this transaction All there is is

the petitioner's bearer assertion in that connection. And this in my view is not

enough.

E On the contrary, the evidence available seems to support the claim of Mr. Madat,

to the effect that he was not informed of this transaction before it was effected.

As already said, if Mr. Madat was surrendering his title in the property to the

petitioner as a gift for natural love and F affection as claimed by the petitioner - he

should ordinarily had been the prime mover or the initiator of the transaction and not

the person to be informed of the intended transaction.

There is also the conduct of Mr. Madat, the donor of the power of attorney. And this

is, he took what could be G said to be immediate action for some one who was out of

the country to object to the transfer.

The transfer was effected on the 20th June 1987 and Mr. Madat made a formal and

attested declaration objecting to the transfer. On the 26th August 1987, annexure C.

This was about two months from the date the disputed H transfer was effected.

If Mr. Madat was informed and assented to the transaction as claimed by the

petitioner, I have found it difficult to believe, in the absence of real evidence that Mr.

Madat - would have changed his mind so shortly after he had I approved the

transaction. And would have taken such formal steps to repudiate his consent with

such a short time.

1990 TLR p129

SEKULE J

I am therefore on this evidence and the conduct of Mr. Madat satisfied that he was

not aware of this transaction A and he never consented to it.

And in the circumstances, I am of the view the consideration which is attributed to

him with regard to the transfer of his half share in the property i.e. natural love and

affection to the petitioner cannot on the evidence tendered be B attributed to him.

He was not aware and he has also stated in his declaration that he had no intention of

transferring his title in the property to the petitioner.

I am therefore of the view that there was no consideration in this transaction - in as

far as Mr. Madat was C concerned as the issue of natural love and affection cannot

on the evidence tendered be attributed to him.

The next issue for consideration is this, could the petitioner's father, i.e. the donee of

the power of Attorney have validly effected the transfer using the general power of

Attorney he had. I have considered this matter, and I am of D the view that since

the transfer in essence meant to extinguish the donor's right and title in the property,

the donee of the power of Attorney, in doing so could hardly be said to have been

doing or managing his principal's affairs to his advantage.

Therefore if Mr. Roshanali Jamal Hirani purportedly used the power of attorney alone

to effect this transfer then in E the circumstances of this case and in the absence of

express authority from the donor of the power of attorney to effect such transfer, he

did in my view exceed his authority. And the effected transfer was therefore in my

opinion not valid and particularly in the absence of any consideration as pointed out

hereinabove. F

And as a matter of fact, for the set of facts and circumstances as discussed in the

course, of this judgment, and since, I have not been able to see real evidence from the

petitioner explaining how exactly this transaction came to be effected. I have found it

difficult to rule out the possibility of fraud on the part of the donee of the power of G

Attorney or/ and the petitioner in this transaction.

Next, there is the issue of the revocation of the power of attorney. It is true according

to annexure, Mr. Madat revoked the General Power of attorney granted to Mr.

Roshanali Jamal Hirani on the 31st December, 1986. This H was before the transfer

was effected. The deed of revocation was executed by a Solicitor in Britain. In the

absence of evidence to contrary I have no reason to doubt its authenticity. I cannot

therefore accept the petitioner's claim to the effect that the document may have been

back dated. I

1990 TLR p130

SEKULE J

A The petitioner claims however that the donee was not aware of this revocation.

The donee himself has not personally given his word on this. Likewise, the donor, has

not explained how he communicated the notice of revocation to the donee. There is

therefore no real evidence establishing that the donee was aware of this revocation.

B I am therefore of the view that if the transfer had been otherwise valid, this

transaction could not have been vitiated by reason of the revocation as the donee

claims to have not been aware of it and there is no clear evidence pointing to the

contrary. As rightly pointed the deed of revocation itself, nothing contained in the

revocation deed C would have effected the validity of any act or thing done by the

said Attorney by virtue of the powers conferred on him before he had received notice

of the said revocation thereof.

I am otherwise satisfied for the reasons given hereinabove that the transfer was not

valid.

D Lastly, there is the question of indemnity to the petitioner, I have considered this

issue, and I am of the settled opinion that the petitioner cannot be indemnified, firstly

because there is no evidence that the petitioner had effected any new development of

the property or has incurred any expenses with regard to the property in question.

And in E any case Mr. Madat registered his objection only about two months after

the transfer had been effected I am therefore of the view that within that short time,

the petitioner could not have effected any development or incurred expenses with

regard to that property.

F Lastly, the petitioner and the donee of the power of attorney appear to me to be

the persons who are blameworthy in this transaction, the donor cannot therefore in

my opinion be the person to compensate or to indemnify them for a situation which

they appear to have the authority and which appears to have been purposely carried

out without the knowledge or/and consent of the donor or the power of Attorney and

was not to his advantage or interests.

G The Register of Titles was therefore right to make the rectification. This

appeal/petition fails and it is hereby dismissed.

H Appeal dismissed.

1990 TLR p131

A