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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(V3) 1 CLR 149
1895 April 16
[SMITH, C.J.AND MIDDLETON, J.]
SOTIRI PIERI ON BEHALF OF HIS INFANT
CHILDREN, ETC.
Plaintiffs,
v.
KOUMI HADJI PIERI
Defendant.
ARAZI-MIRIE-SALE OF, TO AN HEIR BY A PERSON DURING THE COURSE OF AN ILLNESS OF WHICH HE DIES-ASSENT OF CO-HEIRS-DONATIO MORTIS CAUSA-THE LAND CODE, ARTICLE 120-MEJELLE, ARTICLE 393.
By Article 120 of the Land Code alienation of arazi-mirie by a person during the course of an illness of which he dies made with the permission of the competent authority is valid, whether such alienation be made to an heir of the alienoer or to a stranger.
APPEAL from the District Court of Kyrenia.
Rossos for the appellant.
Sevasli for the respondent.
The facts and arguments sufficiently appear from the judgment.
Judgment: The point presented for our decision in this case is an exceedingly short and simple one. The question is what construction is to be placed on Article 120 of the Land Code which states that alienations of arazi-mirie made by a person during the course of the illness of which he dies are valid, having regard to the provisions of Article 393 of the Mejelle, which provides that if a person upon his deathbed sells "a thing" to one of his heirs, this sale cannot take effect without the consent of the other heir.
The facts are, that Hadji Pieri Koumi, when on his deathbed, caused certain arazi-mirie property to be transferred into the name of his son, the defendant. This transaction took the form of a sale, and the registration was effected by means of a power of attorney given by the deceased to one of the witnesses, Papa Yanni Papa Theodulo.
This transaction is attacked on behalf of the plaintiffs, who are the grandchildren of the deceased, on the ground that it is invalid, as made by the deceased on his death-bed and not assented to by the plaintiffs. It was argued for the plaintiffs that Article 120 of the Land Code was not intended to alter, and had not altered, the general principle to be found in the Mejelle as to the restriction on gifts and sales made by a person during the course of his last illness, whether to heirs or strangers; and that the language of this article shows that it is intended to apply to the case where transfers are made to strangers only.
We have considered the meaning of the article, and have come to the conclusion that we cannot place upon it the meaning attached to it by the appellant's counsel. The wording appears to us to be perfectly general and to include all transfers, whether made to an heir or a stranger.
If it was not intended to alter the general principle of the Sheri Law which is contained in Article 393 of the Mejelle (assuming that that article includes the case of the sale of arazi-mirie property), there does not appear any reason why the article should be enacted in the Land Code at all. It is quite explicit in its terms and it appears to us to have enacted that such a transfer as that made in this case shall be a valid one.
For these reasons we think that the judgment of the District Court was right, and that this appeal must be dismissed with costs.
Appeal dismissed.