Civil Case (Haifa) 12139-12-23 Wissam Na’amneh v. Mu’taz Na’amneh - part 6

Discussion and conclusions

38. After hearing the testimonies of the parties and being directly impressed by the testimonies, and after carefully examining all the evidence and arguments, I was convinced that the claim should be dismissed.

I reject the attempt by Ali and Mu'taz to deny the deal between them and Mu'taz's forced Ness Yono to deny the sale of the rights he purchased from Ali to Sayid.  I was convinced that the sale transaction between Ali and his two brothers to Mu'taz was a valid transaction.  The same is true of the two transactions between Mu'taz and SaiD.  Ali, apparently, sought to extricate himself from the "guilt" towards the plaintiffs, his cousins, and claimed in his testimony (which was not preceded by a statement of defense) that he had been deceived in the contrary deal and that he did not understand what he had signed.  Mu'taz, who apparently joined the plaintiffs after receiving consideration from Sa'id for the rights he sold, chose at the beginning of his testimony to walk between the drops and claim that Ali's rights were not sold to Sa'id.  At the end of the testimony, he denied everything, including the purchase of the rights from me.

In the competition between the first gift transaction, between Ali and the plaintiffs, and the late sale transaction between Ali and Mu'taz, the latter transaction has the upper hand, all as will be detailed later in the judgment.

39. Let us clarify; Ali entered into two opposing transactions: a gift transaction and a late sale transaction, the second transaction, in which he sold the same rights to Mu'taz. Mu'taz entered into two sales agreements with Said.  In the "third transaction", he sold 3/12 of the plot (3,187 square meters) and in the "fourth transaction", he sold, together with his cousins, a similar total area, with Mu'taz's rights in this transaction being 1/12 of the plot (1,059 square meters).  The other transaction, between Said and Basel, is far from the relevant circle of transactions for the competition, and its fate will be a derivative of the decision in the competition between the rights in the transactions that preceded it.

The first transaction is not reflected in the registry office; not even a warning note.  The third transaction ended with the registration, and the fourth with the registration of a cautionary note only; As stated, Sa'id is today registered as the owner of 3/12 of the plot, and in his favor a warning note is written about the rights of Mu'taz and his cousins, whose shares together amount to 3/12 of the plot.

40. If we ignore at this stage the plaintiffs' later claim that there was no transaction between Ali and Mu'taz, the plaintiffs claimed throughout the proceeding that the rights that Ali sold to Mu'taz were sold to Sa'id in the fourth transaction, and not in the third, and that therights registered today in Mu'taz's name, in an area of 1,059 square meters, originated from the rights that Mu'taz purchased from Ali in the transaction that NogDat (the second transaction). In his testimony, Mu'taz tried to isolate Ali's rights and claim that he did not sell them to Sayid.  On the other hand, Sa'id claimed that the rights that Mu'taz purchased from Ali and his brother were registered in his name after he purchased them in the third transaction, while the rights registered today in Mu'taz's name originated from an inheritance that Mu'taz received, and are not related to the transaction with Ali.  And if we need the argument, then the dispute is on the question of whether the contrary transaction ended in registration, or not.
41. Tracing the relevant actions in the attached historical text shows the following order of actions:

• On March 20, 2022, by virtue of inheritance, the rights of the deceased Ali Muhammad Na'amneh were transferred to his four heirs (sons), who are Ali and his three brothers (Mar'i, Hussein, and Yahya). Accordingly, Ali ben Ali and each of his three brothers became the owners of 1/12 of the plot (1,059 square meters).  This action ("inheritance") was done in accordance with deed number 19522/2022/2.
• On the same day (March 20, 2022), the rights of Yahya Ali Na'amneh (Ali Ben Ali's brother, who was not a party to the agreement with Mu'ataz) were transferred in an act of "sale" to the plaintiffs in equal shares. Accordingly, each of the six plaintiffs became the owners of 1/72 of the plot (one-sixth of what Yahya had) constituting 176 square meters.  The action was carried out in accordance with deed number 19522/2022/3. 
• On December 5, 2022, a warning note was written in favor of Sa'id regarding the rights of Mu'taz and his cousins: Mustafa, Subhi, and Abd al-Hadi. This is an action according to deed No.  74617/2022/1 "in accordance with an irrevocable power of attorney" (the fourth transaction).
• On day 7.6.2023 A (additional) warning note was recorded in favor of Sa'id regarding the rights of Ali (Ben Ali), Hussein, Mar'i and Mu'taz. Action pursuant to Deed No.  31029/2023/1, in accordance with the "Commitment Document dated December 1, 2022.  "Details of the obligor: Mu'taz Na'amneh." This is according to the wording of the registration.

On June 20, 2023, the following actions were taken:

• The registration of the rights of Ali (Ben Ali), Mar'i and Hussein (the parties to thesecond, contradictory transaction) was canceled, and on the other hand, 3/12 parts of the rights in the plot were registered in Mu'taz's name under the act of "sale". These two actions were taken first on the same day according to deed number 33700/2023/1.  This means that the second transaction, the counter-transaction, in which Ali and two of his brothers sold the rights to Mu'taz, ended in registration.
• On the same day (20 June 2023), in the second stage (according to deed number 33700/2023/2), the warning note that had been registered in favor of Sa'id regarding the rights of Mu'taz, Ali, Mar'i and Hussein was canceled; the registration of the rights in 3/12 of the plot in Mu'taz's name was canceled, and these parts were registered in the name of Sa'id Khatib. These actions were carried out under the heading "sale".  All under the same deed 33700/2023/2.  This means that the third agreement, between Ali and Mu'taz, also ended in registration.
• As part of the actions taken at this stage (deed 33700/2023/2), Mu'taz's previous registration as the owner of 1/12 of the plot was canceled by virtue of a will (an action originating in 2015).
• In a subsequent action, also on the same day (June 20, 2023), in the third and fourth stages (33700/2023/3 + 33700/2023/4), the rest of Mu'taz's rights were split and rejoined. At the end of the operations, Mu'taz remains registered as the owner of 1/12 of the plot (a "combination of parts").

42. From this sequence of actions, it clearly emerges that the rights sold by Ali and his brother to Mu'taz, and later sold by Mu'taz to Sa'id, are those that were registered in his name on Sa'id. The two transactions, the second and the third, which actually include Ali's shares, ended in registration.  On the other hand, the rights purchased by Sa'id from Mu'taz and his cousins have not yet been transferred to Sa'id's name, and a warning note is written in favor of the latter.

It therefore follows that the contrary transaction that Ali made ended in registration.  If so, we are dealing with a competition between a first gift transaction and a later sale transaction that ended in registration.

43. Since the rights that Mu'taz purchased, in the second transaction, andthe rights that Sa 'id acquired in the third transaction, were registered on the same day at the registry office (one action after the other), and taking into account the dates of the engagement in the second and third transactions, it cannot be said that Sa'id bought the rights in dispute, from Mu'taz, on the basis of Mu'taz's registration, and hence section 10 of the Land Law, 5729-1969, which relates to the Market Regulation, is not relevant to our case.
44. And another note regarding the classification of the competing transactions - the plaintiffs claimed in their summaries, as stated, that the first transaction is not an ordinary gift transaction, and that it is an exchange of gifts between cousins. There is no mention of this claim in the lawsuit or in the plaintiffs' affidavits.  The argument and terminology used by the plaintiffs, in the statement of claim and in the affidavit on their behalf, is that of a gift transaction, without reservation.  In any event, beyond the plaintiff's general statements in his interrogation in court on this matter, this claim has not been proven.  The plaintiffs did not present the alleged inheritance arrangements between their deceased father and his deceased brothers, did not present data regarding all the rights in the estate of their deceased father and brother, did not claim who they were involved in those exchange transactions, and mainly did not show what rights they transferred or acquired to others, including Ali and/or his brother, in the same alleged framework agreement.

And now for the parties' versions

45. After the plaintiffs claimed in the statement of claim that their right was preferable to that of Mu'taz and Sa'id, since this was a previous transaction in time, and after claiming that Ali's rights were not transferred in the registration to Sa'id (a claim rejected above), the plaintiffs denied the contrary transaction. The plaintiffs claimed, with the help of Ali and MoatZ, that all the moves relating to Ali's rights were the product of fraud by Sa'id and attorney Omar Na'amneh.
46. The plaintiff, Wassam, testified that the agreements entered into between Ali and Mu'taz between themselves and between them and others caused problems and conflicts in the family, and that this could certainly be understood. It is not impossible that Ali regretted his engagement in a contrary transaction and his breach of his commitment to his cousins, and that he is now trying to maintain or rehabilitate relations with the plaintiffs, at the expense of others.  It is impossible to know whether this is the reason for the denial of the deal, or whether it is the pressure exerted on him or the fear of dealing with his actions.  Mu'taz, a second-degree cousin, also did everything in the course of the proceeding to help the plaintiffs.  It appears that his work on the matter began even before the filing of the lawsuit, since, as stated above, about a month before it was filed, a warning note was written in favor of the plaintiffs regarding Mu'taz's rights, which were sold to Said.  The deed file relating to the registration of the warning note was not filed, however, in light of Regulation 21 of the Real Estate Regulations (Management and Registration), 5772-2011, it is difficult to conclude that the warning note was registered without the consent or cooperation of Mu'taz, the owner of the registered right.

00In accordance with Regulation 21, the registration of a warning note under section 126 of the Real Estate Law will be based on an application signed by the obligor or the eligible person, to which a written undertaking within the meaning of section 126 must be attached, unless the application is submitted by the obligor and the eligible person together.  Registering a warning note about Mu'taz's rights requires a written undertaking on his behalf or his consent, which is expressed in the filing of a joint application by him and the plaintiffs.