Milne, NO v Singh, NO, and Others

• Jurisdiction: South Africa
• Citation: 1960 (3) SA 441 (N)

Milne, NO v Singh, NO, and Others
1960 (3) SA 441 (N)

1960 (3) SA p441

Citation	1960 (3) SA 441 (N)
Court	Durban and Coast Local Division
Judge	Caney J
Heard	September 4, 8, 1959; May 2-3, 1960; May 4, 1960
Judgment	May 27, 1960

Flynote : Sleutelwoorde

C Administration of estates — Marriage in community — Surviving spouse effecting sale contrary to sec. 57 of Act 24 of 1913 — Effect — Sale not prohibited — Purchaser protected if bona fide — Time to determine bona fides — Onus of proof of bona fides — Meaning of bona fides.

Headnote : Kopnota

Section 57 of Act 24 of 1913 does not prohibit or render illegal, D invalid or void, or indeed voidable, a transfer actually passed contrary to its terms. A surviving spouse, as such, has not at Common Law the authority to give transfer of immovable property, the registration of which in his name took place prior to the death of the first dying spouse; nevertheless, if he does give transfer to a bona fide purchaser, the latter's title is protected. The relevant time for determining the purchaser's bona fides must be at the time he receives E transfer. If at any earlier time he has bona fide paid the purchase price, or any part of it, he has a condiction for its recovery should he come to know of the absence of authority on the seller's part before transfer is carried out. The onus of proving bona fides i.e. an honest belief that he was obtaining lawful transfer of the property, is on the purchaser. F

Case Information

Action to set aside and cancel the transfer of certain property sold to the second respondent. The facts appear from the reasons for judgment.

D. J. Shaw, Q.C., (with him J. F. Hewat), for the applicant.

J. Gurwitz, for the first respondent.

A. B. Harcourt, Q.C., (with him J. Gurwitz), for the second respondent on September 4, 8. G

J. J. Friedman, Q.C., (with him J. Gurwitz), for the second respondent on May 2 - 4.

R. C. P. Allaway, for the third respondent.

Cur. adv. vult.

Postea (May 27th). H

Judgment

Caney, J.:

The applicant is the executor dative of the estate of Mary Chinnamah, who died on 26th December, 1949. From 29th January, 1941 (on which date their marriage was registered by the Protector of Indian Immigrants), until her death she was the wife of Maduray, who

1960 (3) SA p442

Caney J

survived her until he died on 4th March, 1953, and of whose estate the first respondent is the executor testamentary. Maduray and his wife were married with community of property, but it appears that they had been A living together as husband and wife for many years before the registration of their marriage. Amongst the assets of their joint estate was an immovable property, some three hundred acres in area, the subject of the present proceedings. On 11th March, 1949, Maduray and Chinnamah executed a joint will which, although it purported to dispose of the whole of the joint estate and to create a massing, it is common cause B did not have the effect of creating a massing, but was the will of the first dying of them, Chinnamah. Although by this will Chinnamah purported to dispose of the whole of the joint estate, there is no information before me nor any contention that Maduray adiated or made an election to accept benefits under it, with the consequence that the will operates only in respect of Chinnamah's half of the joint estate. The C will made certain specific bequests and left the residue of the estate, including the immovable property mentioned, to the four children of Maduray and Chinnamah, all of whom survived Chinnamah.

The immovable property in question was registered in the Deeds Registry in the name of Maduray, the husband. He held it under two deeds of D transfer, one for a five-sixths share and the other for a one-sixth share of the title, dated respectively in 1945 and 1947. The joint will nominated the survivor of the spouses to be the executor, that is to say, in the event that happened, Maduray. The estate was, however, not reported, as required by sec. 13 (1) of the Administration of Estates Act, 24 of 1913, nor the will delivered to the magistrate of the district or to the Master until after Maduray's death, namely in April, E 1953, and thereafter the applicant was appointed executor dative on 18th May, 1954. (Hereafter in this judgment sections to which I refer are of the Administration of Estates Act, unless otherwise indicated). During his lifetime, however, and after the death of Chinnamah, Maduray entered into an agreement on 12th March, 1951, with the second F respondent to sell him the property (and cattle and implements), and subsequently (in 1952), by two transfers, he transferred the property to the second respondent, who in the same year passed a mortgage bond against it in favour of the third respondent. The object of the present proceedings is to set aside and cancel the transfer to the second respondent and the mortgage bond in favour of the third respondent; both G these respondents oppose the application, whilst the first respondent abides the result.

The agreement of sale and purchase between Maduray and the second respondent bears to be made

'by and between Maduray in his personal capacity and also in his capacity as executor testamentary in the estate of his late wife Mary Chinnamah'

H and the second respondent. The only clauses of it which call for specific mention are clauses 8 and 9. These read as follows: -

'8.

The purchaser acknowledges that he is aware that the things sold hereunder are assets in a deceased estate and that there will be a delay in his receiving registration of transfer of the said land into his name.

9.

The costs of this agreement together with all costs of and incidental to the transfer of the said land shall be borne by the purchaser who appoints Mr. J. O. Blamey of Umzinto to draw all documents in connection with such transfer'.

1960 (3) SA p443

Caney J

At the foot of the agreement, after the signatures of the parties, appears the following: -

'And we, David Paliam, Maggie Paliam, Govindammah and Anna Paliam, do hereby consent to and confirm the foregoing agreement of sale
David Paliam	Anna Paliam; Govindammah'
Maggie Paliam

These are the names of the four children, the beneficiaries of the A residue under Chinnamah's will.

When he came to transfer the property to the second respondent, Maduray purported to do so in his own name alone, with no reference whatsoever B to Chinnamah, her estate or his capacity as executor of it. This was so in respect of the documents in connection with the transfers of the one-sixth and five-sixths shares respectively; the powers of attorney to transfer were given by Maduray simply as the person holding the property under the deeds of which the numbers and dates were stated; the second respondent swore 'declarations by purchaser' to the effect that he had C bought the property from Maduray, and the numbers and dates of his title deeds were stated. The date of sale was stated to be 6th (not 12th) March, 1951. The deeds of transfer to the second respondent recorded sales to him of the respective shares on that date by Maduray and transferred them to him.

No letters of administration had been issued to Maduray by the Master, D either at the time he made the agreement of sale and purchase or when he gave transfer of the property because, as I have said, Chinnamah's estate had not been reported, and indeed was not reported to the Master until after Maduray's death.

In these circumstances the applicant avers in para. 14 of his affidavit launching these proceedings:

'The said transfers took place contrary to the provisions of sec. 57 of E Act 24 of 1913 and were unlawful in that the transferor, the said Maduray, was not an executor to whom letters of administration had been duly granted by the Master and had not obtained a certificate from the Master authorising him to deal with the property'.

The applicant then makes the submission that the transfers were void and F of no force or effect and that the mortgage bond was invalid because the second respondent could not lawfully mortgage the property. The second respondent in para. 10 of his affidavit says:

'I admit that the said transfers were not in accordance with the provisions of sec. 57 of Act 24 of 1913, but I do not admit that they were otherwise unlawful.'

The third respondent in his affidavit, para. 10, says:

'I do not dispute that the transfers were not in accordance with the G provisions of sec. 57 of Act 24 of 1913. I deny that they were otherwise unlawful.'

Both these respondents dispute the submissions made by the applicant.

In addition, the applicant says in his affidavit that, unless the transfers by Maduray and the mortgage bond are set aside, the heirs of Chinnamah will suffer irreparable damage. He says it is his duty as H executor of her estate to obtain possession of her assets and distribute them in terms of her will, and this he will be unable to do unless he obtains the relief he seeks in these proceedings. He has filed an affidavit by two of the children, namely Govindammah and Anna Paliam, in which they say their brother David Paliam conducted the affairs of their father for some years before his death and that he asked them to sign a document, saying

1960 (3) SA p444

Caney J

3.

'. . . that the family business was in financial difficulties and that it was necessary to raise money to pay off the liabilities. We understood from him that he intended to raise money by passing a mortgage bond over the farm property and that it was necessary for us to sign the document in order that he could do so.'

A They go on to aver

4.

'We did not read the form before signing it as we left all business transactions in his hands and accepted his word as to the contents of the agreement.

5.

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