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
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