Case No.:

AC-REV-98-1958

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Land Law—Co-owner in undivided shares—Unanswered demand for share of rental value from resident co-owner is enforceable

Plaintiff, defendant and Abu Zeid were co-owners of a house in undivided shares. Defendant lived in the house and covenanted with Abu Zeid to pay him £S.25 per month for quiet enjoyment of the house. Plaintiff, not a party to this covenant, demanded her share of the rental value by letter received by defendant and unanswered.
Held: Silence of a resident co-owner in undivided shares to his non-resident co-owner’s Jetter demanding a share of the rental value constitutes an enforce able agreement by the resident to pay rent to his co-owner.

Judgment

                                                              A(COURT OF PPEAL) *

     AL! MOHAMED AL-IMED ABU ZEID v. RASMEYA MOHAMED ABU ZEID

                                                                AC-REV-98-1958

Advocate: Fawzi El Tom for plaintiff-applicant

M. 1. El Nur, Acting C.J. July 9, I958: —Defendant-applicant admitted before the District Judge that he was paying his co-owner, Mohamed   Mohamed Ahmed Abu Zeid, a proportionate share in the rent of the house which they both estimated at £S.25 per month. This means that defendant- applicant had entered into a contract of tenancy of his house, in which he had himself a share, with one of the other co-owners, that he, defendant- applicant, should occupy the house on tenancy for £S.25 per month. Plaintiff-respondent even though she was not a party to that contract claims she is entitled to claim her share in the rent so admitted by defendant-applicant to be due on the house in which she had a share. Plaintiff-respondent had actually demanded her share in the rent from defendant-applicant by her letter dated June 13, 1955, which was dispatched to him under a registered cover. If defendant-applicant replied to plaintiff-respondent on his receipt of that letter denying her right to claim a proportionate share of the rent, she might have taken immediate steps for either asking for the partition of her share, which would have necessitated the sale of the whole house, which is incapable of partition, or that the house be given on tenancy to any other person so that she may receive her share in the rent. In my view the silence of defendant- applicant after receiving plaintiff-respondent’s letter of Jun i amounts to an agreement by him to pay her share in the rent as he is doing with her other co-heir, Mohamed.

It is not at all just that defendant-applicant should continue in occupation of the house alone without giving his co-owners their share in its appropriate rent or the opportunity of having it rented to another person so that all the co-owners may share in the rent proportionate to their respective shares.

No doubt partition of the house by selling it and distribution of its price is the best way but why should plaintiff-respondent alone be subjected to the burden of suing for partition, which is in the interest of all, and be made to suffer alone the expenses of suing.

If defendant-applicant does not want to continue in occupation on terms of payment of rent he should surrender the house for tenancy to others.

For all these reasons I think the application by defendant-applicant for the revision of the order of the learned judge of the High Court dated May 12, whereby he summarily dismissed the application for the revision of the decree dated March i i in his CS-’ is hopeless and I therefore hereby dismiss it summarily as such.

Editors’ Note. —The opinion of the High Court in this case is published at (i S.L.J.R. i6. See also Anis Mangarous v. Ramsis Mangarous, HC REV- (1962) S.L.J.R. 248 and El Sheikh Mohamed Nasir v. Osman Mustafa, HC-REV-2 (1962) S.L.J.R. 224.

‘ Court: M. I. El Nur, Acting C.J.

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