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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(V10) 1 CLR 91
1916 December 12
[TYSER C.J. AND FISHER, J.]
YUSUF HUSSEIN
v.
MUSTAFA YUSUF FARDO AND OTHERS.
REGISTRATION OF IMMOABLE PROPERTY TRANSFER AND REGISTRATION AS ON SALE REAL INTENTION OF PARTIES.
The Plaintiff advanced money to the first Defendant. Certain property belonging to the first Defendant, including a house which was the subject-matter of the action, was transferred to the Plaintiff and a qochan was issued to him as a purchaser. The parties hot entered into an agreement, embodied in a written document, that, on repayment of the sum advanced, the Plaintiff should re-transfer the house to the first Defendant, and ii was admitted by the Plaintiff that the transfer to him was subject to a condition that he should re-transfer on payment of the sum advanced.
The Defendants remained in occupation of the house and the Plaintiff brought an action to eject them claiming to be absolute and unconditional owner under his qochan. For the Defendants it was claimed that the condition upon which their right to have the property re-transferred was based had been fulfilled by payment of the amount advanced and interest, and they filed a counterclaim for an order to re-transfer to the first Defendant or payment of damages.
The District Court found that the condition had been fulfilled and gave judgment for the Defendants for rectification of the Register.
HELD (affirming the judgment of the District Court): That the true intention having been that the registration in the name of the Plaintiff should be by way of security for repayment of money advanced, to which. intention effect would have, been given had an action for rectification been originally brought, the Court could give effect to the original intention of the parties and hold that the Defendants were entitled to have the registration rectified by the first Defendant being registered as owner.
The facts sufficiently appear from the head note.
Jemal Effendi for the Appellant.
The private agreement is of no value. He cited Arts. 26 and 30 of the Tapou Law (Ongley, p. 71), and Art. 100 of the Mejellé.
Myrianthis, for the Respondent, cited Arts. 118 and 396 of the Mejellé.
Judgment: It is admitted by both parties that their original intention was to mortgage the house. As a fact the house was registered as if on a sale. Something in the nature of mutual mistake took place, something not in accordance with the intention of the parties. It is clear that the Court on proper proceedings being instituted, could order rectification of the Register so as to make the registration accord with the intention of the persons at whose instance the registration was effected. In the present proceedings the Court can treat the registration as rectified, that is to say they can act as if that had been done which both parties admit should have been done, and can make the order for retransfer that it would make if the transaction were registered as a bey'bil vefa. The facts found by the District Court seem perfectly in accordance with the evidence, that is to say that the Plaintiff had received all the money due in respect of the loan for the repayment of which this house was intended to be a security. The judgment must be affirmed and the appeal dismissed, with costs, and a copy of the judgment of this Court will be sent to the proper Land Registry Officer in accordance with Sec. 34 (1) of the Immoveable Property Registration and Valuation Law, 1907.
Appeal dismissed.