A.D. Mashoto vs A.H. Kaunga [1987] TZHC 10 (9 May 1987)


Chipeta, J.:This is a ruling in respect of objection proceedings.  The background of the matter is that sometime in 1983, the plaintiff in these proceedings, A.D. Mashoto, successfully sued one A.H. Kaunga for a principal   D  sum of Shs. 112,129.20.
Meanwhile, the said A.H. Kaunga, hereinafter referred to as the judgment-debtor, entered into a written agreement with the objector in these proceedings, Fifi M. Fifi, for the sale of the judgment-debtor's house on Plot No. 93, Block G.,   E Kazeh Hill, Tabora, to the objector for Shs. 200,000/=.  The purchase amount was duly paid, and the objector was given possession of the premises as well as the title deed.  Besides the judgment-debtor gave the objector another document to enable the objector to transfer the property into his own name.  Thereafter, the objector embarked upon the   F process of effecting the transfer, a process that is yet, to be finalized.
Some two years later, the plaintiff instituted execution proceedings in execution of his decree against the judgment - debtor and the house in question was attached.  Hence these objection proceedings.  G
Mr. Kwikima, learned counsel for the plaintiff contended that since the consent to transfer by the Regional Land Officer was yet to be obtained, the property was still that  of the judgment-debtor and so is liable to attachment, and that the objector was no more than a mere occupier.
H Mr. Ntabaye, learned counsel for the objector, countered by submitting that since the objector has taken all the necessary steps to effect the transfer and as consent has not been refused, the objector has a claim to the property.
I Since the agreement was with a consideration, and possession of both the property and the title deed passed, it seems to me

A that as long as consent has not been refused the objector has some interest in the property, an interest which, in my opinion, a court of law ought not to disregard with abandon.
I am fortified in this view by a commentary in the Indian Transfer of Property Act by B.B. Mitra (11th Edition) where the   B author states:
   But if the contract of sale is followed by delivery of possession and payment of purchase money, then, though there is no registered conveyance, the transaction is more than a mere contract.  ... In such a case the vendor cannot say that the buyer has Cobtained no interest in the property.  Nor can the property be attached as the property of the vendor in execution of a decree against the vendor.
D With respect, I fully associate myself with that statement.  To hold otherwise in such cases would be to encourage unscrupulous people to "sell" their properties as many times as their whims would permit.
On these grounds, the objection succeeds.  The property in question ought not to be a subject to attachment in execution   E of a decree against the judgment-debtor.  The attachment thereon shall forthwith be raised.  The objector shall have his costs.
Objection succeeds.


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