(COURT OF APPEAL) * HEIRS OF AHMED KHIDIR NUGUD vs. HEIRS OF NEIMA KHIDIR AC-Revision-, 117-59 Revision Principles Land law—Prescription—Possession as heirs under Mohammedan law effective against registered owner Following the then prevailing custom, land was first registered in the name of a dead man’s son only, although he had also left two daughters. These ladies, however, for many years occupied their correct proportions of the lands in accordance with Mohammedan inheritance law. Held: this possession is adverse the male heir and gives rise to a prescriptive title, which will be recognized by the Civil Courts. Judgment The facts and history of the action appear from the judgment of Abdel Mageed Imam J. 7th August 1959. Abdel Mageed Imam J.: —The lands in dispute are as follows: — (a) 2 Ks., 11 Ss. in Sagia No. 26, Dabbat El Fugara in the name of Khidir Ahmed Khidir. 1 K., Ss. in Sagia No. 26, Dabbat El Fugara in the name of El Zilal Ahmed Khidir. * Court: M. A. Abu Rannat C.J., Abdel Mageed Imam J. (b) 2 Ks., 11 Ss. In Sagia No. 28, Dabbat El Fugara in the name of Khidir Ahmed Khidir. 1 K.,5 Ss. in Sagia No. 28, Dabbat El Fugara in the name of El Zilal Ahmed Khidir. The above lands were registered in the name of Khidir and El Zilal vide llam No. 34/1919 Dabba Sharia Court by way of inheritance from Ahmed Khidir Nugud. (c) 8 Ks. in Gerf No. 2/10, Gara Barra in the name of Ahmed Khidir Nugud. 8 Ks. in Gerf No. 1/15, Gara Barra in the name of Ahmed Khidir Nugud. These were registered by Settlement decision on 1st June 1914. The parties’ predecessor is Khidir Nugud. His sole heirs vide Fetwa No. 6/1957 Dabba Sharia Court are: 1. Ahmed Khidir Nugud—Son 2. Zeinab ,, ,, —Daughter 3. Neima ,, ,, — ” The record shows that the said Khidir Nugud, the parties’ predecessor, died in the Mahdia and that at the Settlement the lands were registered in the name of his son Ahmed—see (c) above. Ahmed died in about 1914, Neima in about 1935 and Zeinab in 1956, her death giving rise to these proceedings. Neima’s heirs instituted CS/227/57 Merowe District Court, claiming one-quarter of the whole lands, viz: 22 Ss. in Sagia No. 26, Dabbat El Fugara 22 Ss. in Sagia No. 28, Dabbat El Fugara 2 Ks. in Gerf No. 1/15, Gara Barra 2 Ks. in Gerf No. 2/10, Gara Barra. They claimed that the lands in dispute were originally the property of Khidir Nugud, that at the Settlement it was registered in the name of his son Ahmed after the then prevailing custom in the locality and that therefore both Neima’s and Zeinab’s names did not appear in the register, but that notwithstanding, and in spite of, the registration the land was held and enjoyed in accordance with Sharia laws of inheritance. In both the Court of first instance and the Court below, the heirs of Neima, respondents (and plaintiffs) succeeded. This application for revision is made by the heirs of Ahmed, the original registered owner, applicants (and defendants). The record shows very clearly that the holdings in the land in dispute were always corresponding to the Sharia laws of inheritance. Neima, respondents’ (and plaintiffs’) predecessor, was in possession of one-quarter of the lands till the time of her death in 1935, and so also was Zeinab as to one-quarter till her death in 1956. This was irrespective of the Settlement registration and the fact that Khidir and El Zilal had the lands in the Sagia divided among them vide the above-mentioned llam; they have always been, and so was their father before them, in possession of half the lands. When Neima died, her heirs were minors. Their aunt Zeinab held the land for them. It is most significant that the 8 Ks. in the Gerfs were mortgaged twice. In the first mortgage the mortgagee took possession of applicants’ (and defendants’) half, the other half remaining in the possession of Zeinab. In the second mortgage the mortgagee did not enter into possession and the mortgage was redeemed by Zeinab’s agent. These facts show that Zeinab was holding in her capacity as owner and in her own right and as guardian of her sister’s heirs. The learned Province Judge was therefore right in treating this as a prescriptive claim based on the right of inheritance. It is evident that both Neima and Zeinab’s possession (for herself and on behalf of Neima’s heirs after the farmer’s death) was adverse to applicants’ (and defendants’) right; a fact which is enough to destroy the presumption that they were holding in a fiduciary capacity arising from their relationship. For the above, I think this application should be summarily dismissed. Both the District Court and the Province Court arrived at the same conclusion, though taking slightly different channels; they found that the lands originally belonged to Khidir Nugud and not to his son, the original registered owner. The District Court gave a general decree that the lands be registered in the name of Khidir Nugud, while the Province Court gave a specific decree that one-quarter of the lands be registered in the name of respondents (and plaintiffs). As Zeinab’s heirs (four daughters and Khidir Ahmed Khidir, the sole litigating applicant (and defendant), see Fetwa No.9/57) were not co-plaintiffs in the suit and were not represented as such, the decree of the Province Court dated 23rd November 1958 should not be disturbed. M. A. Abu Rannat C.J.: —I agree. Application for revision is summarily dismissed. (Application dismissed)