(COURT OF APPEAL) *

ALl SAEED DEIF vs. ABDEL RAHIM SAEED DEIF

AC-Revision-144-59

Revision

Principles

  Land law—Occupation of property, owned by co-heirs, by one of the heirs with consent of the others—No presumption of tenancy—Intention to create legal relations

Court: M. A. Abu Rannat C.J., M. I. El Nur J:
                                                                                                                                
   Where property owned by co-heirs in various proportions under Mohammedan inheritance law is occupied by one of such co-heirs with the consent, express or implied, of the others, there is no presumption of a tenancy or of rent to be paid. Within the same immediate family, the intention to create legal or commercial relations is not to be presumed. butmust be established by clear affirmative evidence.
   Held: in this case no such evidence having, been produced, the claim for rent against the occupier by one of his co-heirs must fail.1

Judgment

    The facts appear from the judgment of M. I. El Nur J. The case was decided on written statements of the parties and the record under Civil Justice Ordinance, s. 177.

    19th August 1959  M. I. El Nur J.: —The facts of the case are briefly as follows: The late Saeed Deif, father of applicant and respondent, died sometime in 1947 leaving an estate which included a house known as Plot 73 in the Tukuls quarter of Gism-el-Mirghaneya, Kassala Town: the estate was not administered by the Sharia Court until 1954 when by virtue of Kassala Sharia Courtllam No. 33/1954 the above plot was ordered to be registered in the name of the heirs in the following proportions:

1. Saadeya Rizgalla                    12/96

2. Doka Saeed Deif                   14/96

3. Ajab                                      14/96

4. Abdel Rahman Deif (pltf.)     14/96

5. Au Saeed Deif (deft.)           14/96

6. Sit El Ahal Saeed Deif            7/96

7. Sit Aboha Saeed Deif             7/96

8. Zeinab Saeed Deif                    7/96

9. Nafeesa Saeed Deif                  7/96

   Until 1952 the said house was alleged to have been given on rent to various tenants at a monthly rent of £S., 1.200. It was not clear, however, which of the heirs collected the rent or in what proportions it was distributed amongst them.

   In 1953 applicant (Ali Saeed Deif), having got married, occupied the said house with the consent of all his co-heirs, none of whom had then demanded that applicant should pay any rent in respect of that occupation.

   In 1954, when the said house was still occupied by applicant, the Sharia Court issued its llam ordering its registration in the names of the heirs in the proportions mentioned above, yet none of the heirs, after they realized their respective shares, had applied for his share to be partitioned or demanded rent in respect thereof from applicant.

  1 Accord Shawgi Khalil Akasha vs. Heirs of Khalil Akasha (1958) S.L.J.R. 67. Cp.

   Ali Mohamed Ahmed Abu Zeid v. Rasmeya Mohamed Abu Zeid (I957) S.L.J.R. 16.

     On 1st November 1958, however, respondent instituted Kassala DC/CS/ 501/58 claiming recovery from applicant of £S.14.960m/ms, alleged to be his share in the rent of the house occupied by the latter for the period from 1st March 1953 to 3 October 1958.

   Defendant (applicant) admitted before the Court that the house was the joint property of all the heirs, including himself and plaintiff (respondent), and that it was, since the death of their father, rented to others, but contended that since February 1952, when he got married, he occupied it with the consent of all his co-heirs, and that he had since undertaken its maintenance and made some additional buildings in it.

   On that admission of sole occupation by defendant, the learned District Judge calculated the rent ought to have been paid on the house at £S.I.200 m/ms per month for the period from 1st March 1953 to 16th October 1958 as £S.95.400m/ms, and as plaintiff was entitled to a share of 14/96 of the house he passed his decree on 2nd February 1959 against defendant, ordering him to pay plaintiff: —

             £S.9.275m/ms arrears of rent claimed

                 1.500m/ms fees

                 0.030m/ms petition

                 -----------------

                  £S. 10.805m/ms

     On 3rd February 1959 applicant (defendant) applied to the Province Judge, Kassala Province, for revision of the above decree on the grounds that he occupied the house not as a tenant but as a co-owner and with the consent of the other co-owners who never then signified to him that he had to pay any rent in respect of their shares. The learned Province Judge not only summarily dismissed the application for revision, but went further and re-calculated the amount of arrears of rent to which, in his opinion, plaintiff was entitled on the basis that the rent was £S.I.200m/ms per month for a period of eighty months from 1st March 1952 to 30th October 1958 = £S.96, as £S.14, and granted the District Judge leave to review his decree accordingly.

     On 25th June 1959, defendant applied to the Chief Justice for revision of the above order by the Province Judge. The grounds of appeal put forward by the applicant were exactly the same grounds put by him before the learned Province Judge (see above). The Court of Appeal having decided to determine this application on the written statements of the parties and the record of the case in accordance with Civil Justice Ordinance, s. 177, sent a copy of the memorandum of appeal to respondent and required him to reply to it in writing, which he did. In his said reply respondent said that he left Kassala immediately after the death of his father in 1947 and returned to it in 1950 and then found that the house in

dispute, which devolved on him and his co-heirs by inheritance from their father and which was since the death of their father rented by his elder brother to others for

 £S.1 .200m/ms per months, occupied by the applicant alone (all the other heirs having houses of their own), and that in 1958 he instituted the civil suit under revision, claiming recovery from applicant of rent in respect of his share of the house from the date of his occupation, and got a decree for it.

   On the above statements and on perusal of the record of the case before the District Judge we think that this application must succeed.

    It is quite clear that applicant occupied the house which is the subject- matter of this dispute not as a tenant but as a co-owner and with the connivance, if not with the consent, of all his co-heirs, none of whom had since 1952 objected to his occupation nor intimated to him that he had to pay rent in respect of his share. Respondent himself admits that when he came back to Kassala in 1952 he found applicant in sole occupation of the house. There is nothing in the evidence to show that he then objected to that occupation. Further, according to Kassala Sharia Court llam No. 33/1954, issued on 31st October 1954, the house in dispute was ordered to be registered in the names of the heirs according to their legal shares enumerated in paragraph 1 above. According to that decision respondent was entitled to a 14/96 share of the house. Since that date respondent neither demanded from applicant to pay him rent in respect of that share nor applied to the Sharia Court for its partition. Instead he kept passive until 1958, when he instituted the suit under revision.

    In our view it was never the intention of applicant’s co-heirs, including respondent, when they agreed to his occupation of this house since 1952 to enter with him into a contract of tenancy. It was only a family house and applicant occupied it as a member of the family. If any of the co-owners was not in agreement his only remedy was to apply for partition of his share.

    For all the above reasons, we hereby reverse both the decree by District Judge, Kassala, dated 2nd February 1959 and the decree on revision issued by Province Judge, Kassala, on 29th March 1959.

   We make no order as to costs.

   M. A. Abu Rannat C.J.: —I concur

                                                                                                     (Application allowed)