(HIGH COURT OF JUSTICE)

JOSEPH TABET vs. ASMA EL MUFTI SHAKIR & OTHERS

(HC/REV/46/1957)

Revision

Principles

·  Land law — lease granted by guardian of lunatic — Ilam of Sharia Court appointing guardian granting unrestricted power of making leases — power restricted by Sharia law to granting three years leases — lease for ten years granted Ilam revoked by Sharia Court - whether revocation retrospective — whether tenant protected by Rent Restriction Ordinance. An Ilam of a Sharia Court appointing the third defendant guardian of the first defendant, a lunatic, granted the power of making leases of the lunatic’s land. This power was unrestricted, whereas by Sharialaw it should have been confined to a power to grant leases not exceeding three years. The guardian granted a ten years’ lease to the plaintiff, but subsequently the Sharia Court, On being referred the case by the Civil High Court revoked the power and declared that the guardian’s power only extended to granting three year leases, unless he obtained the consent of the Court.

Held: that the decision of the Sharia Court was not retrospective and that the ten year lease was binding. If, on the other hand, the lease was not valid the defendant had obtained the protection of the Rent Restriction Ordinance, and could not, therefore, be evicted.
 

Judgment

The facts appear sufficiently in the judgment.

Advocates : Plaintiff in person

Laic Sorial……………….. for the defendants (the respondents).

M.A. Hassib j. The dispute in this case depends upon whether a ten year lease made by a guardian of a lunatic is void, voidable, or valid. The guardian was appointed by 11am No. 19/31 of the Khartoum Sharia Court. The landlord, Asma el Mufti Shakir, was declared insane, and the third defendant, Abdalla Suleiman, was appointed a guardian for taking care of her property. TheIlam described the rights, duties and powers of the guardian, and it provided, inter alia, for the following

1. The guardian has power to

a) receive all the lunatic’s property,

b) lease her property at the market rent, and

c) receive rents.

2. The guardian has no power to sell part or all of the lunatic’s property without the previous consent of the Court.

On behalf of the lunatic it was alleged in the lower Court that though the 11am No. 19/31 appeared to grant general powers to the guardian, yet he acted in contravention of the powers conferred upon him by Sharia law, irrespective of the 11am: It was also alleged that the ten year lease was procured by fraud or collusion. The lower Court found in favour of the plaintiff, and decreed for him.

When the case came up for revision the learned Judge of the High Court (Watson J.) affirmed the conclusions of the lower Court as to all questions of collusion and fraud, except the question whether the Ilam had given the guardian an absolute authority to grant a lease for ten years, or whether he was bound to obtain the consent of the Court for. a lease exceeding three years. The High Court directed the lower Court to state a case for the appropriate Sharia Court for a decision. That was why the case was sent back for retrial.

The Sharia High Court, by its decision in Tanyeez/ 116/1955 decided that the guardian Abdalla Sulemnan had power to make a contract on behalf of the landlord for a three year tenancy without leave of the Court, but that any excess over this was ulra vires. In its judgment the lower Court on retrial stated

“It is evident that the Sharia Kadi is the competent authority to appoint and dismiss guardians for minors and insane persons, bySharia Ilam which are conclusive evidence of their contents unless they are cancelled. The Ilam No. 19/31 which appointedAbdalla Suleiman as a guardian to deal with the property of Asma el Mufti Shakir was only cancelled by Ilam No. 21 /50. Therefore dealings under the first Ilam will not be affected unless they are declared by a competent Sharia Court to be void. It is clear that the said Ilam has been wrongly drafted because it does not restrict the guardian in his dealings to making leases of three years. The Ilam in form is a power of attorney, and all transactions executed within its limits should be binding on both contracting parties.

So I can hardly understand how the decision of the Sharia

Court of Appeal can be binding on a person contracting on the

strength of a valid Ilam, if this 11am has not been officially cancelled.

It appears therefore that the tenancy was binding from 1st. January

1949 to 7 June 1955, the date of the final decision of the Sharia

Court of Appeal.”

Before leaving this point I must emphasize that the Sharia Court is the legal body entrusted with taking care of the property of minors and lunatics. Whenever they appoint a guardian his powers, rights and duties are expressly enumerated in an 11am whichis the power authorizing the guardian to deal with others in respect of the property of the minors or the lunatics. The 11am is in fact a twofold power. It is an arm and a shield. Its objects are not only to protect the lunatic’s property, but also to protect persons who enter into legal relations in respect of the lunatic’s property. Such a person should ask the guardian for his authority, and once the guardian produces an ham the other person is entitled to rely on it.

It is true that it is within the power of the Sharia Court to cancel any power conferred on the guardian, on its own motion, or that of any interested party, if the power is not in the interests of the lunatic. In the present case it might be that the general provisions of Sharia law do not allow a guardian to make a lease for more than three years without the consent of the Court, but that restriction should be embodied in the power given to the guardian in order not to deceive others who wish to enter into legal relations with the guardian. Undoubtedly such a restriction might have been entered in the Ilam No. 19/31, but this Ilam does not appear to have been carefully drafted. The mistake could have been corrected by an application to the Court, but any correction of the mistake could not have retrospective effect and invalidate a contract entered into on the faith of the Ilam as it originally stood. The plaintiff in this case found an express power of leasing in the Ilam, and was entitled to rely on it. I therefore agree with the learned trial judge that the ten year lease was valid.

Even if the lease was only valid for three years, however, there is no doubt that the plaintiff would be protected by the Rent Restrictions Ordinance since he has obtained a statutory tenancy. The lower Court held that there was a statutory tenancy here, and I agree with this finding. Thus the possession of the premises could not be recovered in any event.

This case was very carefully dealt with by the lower Court. The application for revision has no merits and should be summarily dismissed.

                                                                                    Application dismissed. *

(*) An application for leave to appeal was summarily dismissed by the Court of Appeal in ACJREV/i/i and AC/REV/X/1958 which will be reported in (1958)

S.L.J.R.