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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(V17) 1 CLR 139
1944 October 27
[JACKSON, C.J., AND HALID, J.]
FATMA MAHMOUD,
Appellant,
v.
ANASTASSIS CHRISTOU,
Respondent.
(Civil Appeal No. 3739.)
Immovable property-Transfer of Undivided Shares without consent of co-owner-Time at which value of property must be assessed-Land Code, Article 41- Estoppel.
The appellant, as one of two co-owners of shares in a certain field and olive trees, claimed against the respondent, as purchaser from her co-owner that he should be ordered to transfer to her the shares he had bought, on payment of their value at the time she claimed them from him. She based her claim on Article 41 of the Land Code. It was contended that the appellant was estopped by her conduct from raising her claim and that she had consented to the transfer to the respondent, and had consequently lost her rights.
Held: When a vendor transfers undivided shares in immovable property without the consent of a co-owner, the latter's rights under article 41 of the Land Code begin from the time of transfer. In such circumstances the co-owner is not bound by an offer made by a person who before the transfer was not in a position to fulfil his offer; and refusal of such an offer would not give rise to estoppel. Where a co-owner has a right to claim a transfer of immovable property it is the value of the property at the time of the claim that must be paid.
Appeal from the judgment of the District Court of Famagusta.
Hakki Suleiman for the appellant.
G. Emphietzis for the respondent.
The facts are clearly set forth in the judgment of the Court which was delivered by:
JACKSON, C.J.: In this case the plaintiff-appellant is the registered owner of an undivided share of 3/12 of a certain field at Galatia village in the District of Famagusta and of an undivided share of 3/6 of three olive trees growing in the field. The defendant respondent is the purchaser of the remaining undivided shares in the field and the trees, and the plaintiff-claimed that the defendant should be ordered to transfer to her the shares the he had bought, on payment by her of their value at the time when she claimed them from him. The ground of her claim was that she had not been given the opportunity, to which she is entitled by law, to purchase those shares from her co-owner before they were sold to a third party, the defendant.
According to the evidence which the trial Court believed, the facts were as follows. On the 27th July, 1942, the shares in dispute were offered for sale by auction at the village of Galatia on behalf of the plaintiff's co-owner. There is no evidence that the shares had been offered to the plaintiff at any particular price before that day, but there is evidence that the plaintiff's husband had previously tried repeatedly to buy these shares, on her behalf, from the co-owner's agents but had not offered a price at which they were willing to sell. There is also evidence that after the sale to the defendant, in July, neither the plaintiff nor her husband again approached the co-owner's agents about these shares.
On the 27th July, 1942, the shares in dispute were put up to auction on behalf of the plaintiff's co-owner at the village of Galatia where she lives. The only bid t the auction of which there was any evidence was one for £75 which was not accepted. But later on the same day, (whether at the auction or privately is not clear) the shares were bought by the defendant, the mukhtar of the neigh bouring village of Tavros, for a sum of £100, made up of £90 for the 9/12 share in the land and £10 for the 3/6 share in the three olive trees. Early in August, before the shares had been registered in his name, the defendant, meeting the plaintiff and. her husband at Tavros, showed them a receipt for the £100 which he had paid and asked them if they wanted the shares that he had bought. The plaintiff's husband, having consulted her, replied that she did not and told the defendant that he could arrange to have the shares registered in his name. There is no evidence whether the plaintiff's refusal was because of price or for some other reason, for she denied the whole ineident it. The defendant I; accordingly had himself registered as the owner on the 10th September.
Both sides agree that in the following December, after the registration of the shares in the defendant's name, the plaintiff came to him, with witnesses, and asked him to transfer the shares to her. Money was offered to the defendant on the plaintiff's behalf and though the evidence does not agree as to the amount tendered, it appears to have been approximately the amount which the defendant had paid, with an addition for his costs. Since the defendant's purchase of the shares in the land their value had increased and, after consideration, he refused the plaintiff's request. She accordingly took action in the District Court.
Consistently with her denial of the defendant's account of his offer of the shares to her in July, the plaintiff maintained that she only became aware of the sale to the defendant shortly before she visited him, with her husband, in December. The District Court disbelieved that part of the plaintiff's story but, according to either the plaintiff's or the defendant's version of the facts, it is clear that the plaintiff first claimed the land in December. This fact is relevant because, where a co-owner has a right to claim a transfer of land it is the value of the land at the time of the claim that must be paid. The finding of the District Court that when the shares were offered to the plaintiff they had been offered to her "at their value" must mean their value at the time of purchase by the defendant. But since in this case it is the value at the time of claim in December that is the relevant factor, the finding of the District Court on this particular point does not affect the issue. The sum paid by the defendant may possibly have represented the correct value at that time, or it may have been more. The only hid at the auction of which there is evidence was £75. In any case the price paid by the defendant was not necessarily the price which the plaintiff would have had to pay even if she had claimed the shares at that time.
The judgment of the District Court appears to have been based on two grounds, either of which the Court seems to have considered sufficient:-
(a) that the plaintiff was estopped by her conduct from raising her claim;
(b) that the plaintiff had in fact consented to the transfer to the defendant and had consequently lost her right, under Article 41 of the Land Code, to maintain a claim that the shares should be re-transferred to her.
As to the first ground, estoppel is defined in Haisbury's Laws of England in the following terms: "There is said to be an estoppel where a party is not allowed to say that a statement of fact is untrue, whether in reality it be true or not ". (2nd Edition, p. 398). In this case the issues before the trial Court were, first, to determine the facts from the sharply conflicting evidence offered by the parties and, second, to determine whether the facts, as proved to the satisfaction of the Court, deprived the plaintiff of her rights as a co-owner or not.
In the case of Low. v. Bouverie (1891 3 Ch. Div. at p. 105) Lindley, L.J., said, "Estoppel is only a rule of evidence; you cannot found an action on estoppel. Estoppel is only important as being one step in the progress towards relief on the hypothesis that the defendant is estopped from denying the truth of something which he has said ". In the same case, Kay, L.J., said (at p. 112) "Estoppel is effective where an action must succeed or fail if the defendant or plaintiff is prevented from disputing a particular fact alleged ".
In the present case we can find no ground for any suggestion that the plaintiff was estopped from disputing any particular fact or from denying the truth of anything that she had said. The question was whether or not her denials were to be believed. This was a question of the credibility of witnesses and not of estoppel.
There may sometimes be a very natural temptation to import the doctrine of estoppel into a case in order to remedy something that may seem to a Court to be of the nature of sharp practice. But the doctrine is not so elastic as that and can only be used in eases that fall properly within it.
There can be no suggestion in this case that the plaintiff was estopped from denying that she had agreed with her co-owner the transfer of the shares to someone else, for there was no suggestion that the co-owner had ever asked for her consent. The only question is whether the plaintiff's consent to a transfer to the defendant, expressed to him before transfer in his favour and in the circumstances of this case, deprives her of her rights under Article 41 the Land Code. That is a question of the interpretation of the Article and not of estoppel.
It is quite clear that no atrempt whatever was made by the co-owner vendor to discharge the responsibility cast on a co-owner by Article 41 of the Land Code and to obtain the plaintiff's consent before the shares were transferred. The co-owner's agents were well aware that the plaintiff wished to acquire these shares, for her husband had made repeated enquiries of the agents about them. In putting the shares up to auction without consulting the plaintiff the co-owner's agents deliberately disregarded her rights.
The defendant purchased the shares knowing that they were undivided shares. He must either have known that the plaintiff, as co-owner, had not consented to the sale, or he must, at least, have failed to ascertain whether she had or not. In purchasing the shares in these circumstances he took a chance. Can he afterwards deprive the plaintiff of her right as a co- owner by offering them to her, at a time when he had no power to transfer them to her, for they had not yet been transferred to him, and when, in fact, they might still have been attached and sold for the seller's debts? Had the defendant, indeed, any status' that entitled him, at a moment chosen by himself, and at a price that he had chosen to offer, to put her to her election? We would, for obvious reasons, have felt greater sympathy with the plaintiff if, when put to her election by the defendant, she had told him that she would have no dealings with him, that she would take time to consider her position awl that if he proceeded to registration lie would do so at his own risk. But to say that is not to say that the plaintiff's conduct on that occasion must necessarily deprive her of her rights.
When a vendor transfers undivided shares without the previous consent of a co-owner, the latter's rights under Article 41 begin from the time of transfer. When, after the transfer to the defendant in this case the plaintiff claimed the land from him, she was refused. Though an offer by her co-owner before transfer would, clearly, have bound her under Article 41, she was not bound, in our opinion, by an offer by the defendant who, before transfer, was not in a position to fulfil his offer and who had, in our view, no status that entitled him so to bind her.
We think therefore that the plaintiff had not lost her right to claim the transfer of the shares by the defendant to her at any time within five years of the date of their transfer to him, on payment of their value at the time of her claim, that is to say, on the 27th December, 1942.
This appeal must accordingly be allowed, with costs in this Court and in the Court below, and judgment should be entered for the plaintiff entitling her to a transfer from the defendant of the shares purchased by him, on payment to him of their value on the 27th December, 1942. Since there was no finding by the District Court on the latter point, that Court should now proceed to ascertain the value of the shares at that time.
Appeal allowed.