Estate Osman v Registrar of Deeds and Others

• Jurisdiction: South Africa
• Judge: Broome JP
• Judgment Date: 23 June 1958
• Citation: 1958 (3) SA 580 (N)
• Hearing Date: 21 May 1958
• Court: Natal Provincial Division

Broome, J.P.:

Applicants ask for an order declaring that they are entitled to registration of the transfer into their names from third respondent of a piece of land in Vryheid, and authorising first E respondent to register transfer accordingly. The application is opposed by second respondent, the Minister of the Interior. No opposing affidavits have been filed. I may therefore accept the facts alleged in the affidavits filed by the applicants, which include one by third respondent.

F Applicants are the duly appointed executors testamentary of the estate of the late Dada Osman, an Asiatic, who died in 1944. Applicants are also Asiatics. In or before 1906 Dada Osman purchased the property concerned for £850 and by deed of transfer 425 of 1906 it was transferred by the seller to third respondent, a European, who agreed to hold it as nominee for Dada Osman. At that time Transvaal Law 3 of 1885, G which prohibited Asiatics from owning land in the Transvaal, was in force in the area in which the property was situated, having been continued in force in the Northern Districts of Natal by Proc. 9 of 1903 (N) made under Act 1 of 1903. Third respondent passed a mortgage bond No. 358/1906 for £1,000 over the property in favour of Dada Osman; the H bond purported to be for money lent and advanced but it was in fact passed to secure Dada Osman's rights to the property. In 1923 Dada Osman ceded this bond to Omar Jhaveri and Hajee Jhaveri. The cession purported to be for value received but in fact Dada Osman received no value, the object of the cession being to assist the Jhaveris who wished to borrow money from Gorcoodoo, to whom they in turn ceded the bond as collateral security for the loan. In 1946 after the Jhaveris, Gorcoodoo and Dada

Broome JP

Osman had all died, the bond was cancelled by mistake, the real intention being to recede the bond to Dada Osman's estate by a cancellation of the cessions. In 1948 the applicants reflected the bond as an asset in their second and final accounts in Dada Osman's estate at a value of £350 which was the then value of the property. Their accounts A did not otherwise reflect or deal with Dada Osman's interest in and claim to the property. In 1955 third respondent's duly authorised agent signed a power of attorney to transfer the property to applicants and the deed of transfer was lodged with first respondent who, however, rejected it. It was relodged in 1956 but first respondent refused to register the transfer without an order of Court.

B Thus we are concerned with transactions which include the transfer of land to a person other than the beneficial owner, the passing of a bond which purported to secure a non-existent obligation, a cession of that bond which purported to be for value when there was no value, the cancellation of that bond by mistake and the inclusion as an asset in C the final estate accounts of a cancelled bond and the omission therefrom of an interest in land. Nevertheless...