Principles

·  LAND LAW — Trespass — mesne profits — Widow becoming co-owner by operation  of  Sharia.

·  LAND LAW— Trespass—Co-owner not a trespass unless in possession to total exclution of co-owners.

·  SHARIA — Inheritance — land –widow of owner receivers one-eighth share

The widow of an owner of land becomes by operation of Sharia a co-owner with the other heirs, and therefore cannot be liable to them for mesne profits as a trespasser. A co-owner is not a trespasser unless his possession is to the total exclusion of the other co-owners.

The widow of an owner of land becomes by operation of Sharia a co-owner with the other heirs, and therefore cannot be liable to them for mesne profits as a trespasser. A co-owner is not a trespasser unless his possession is to the total exclusion of the other co-owners.

The widow of an owner of land becomes by operation of Sharia a co-owner with the other heirs, and therefore cannot be liable to them for mesne profits as a trespasser. A co-owner is not a trespasser unless his possession is to the total exclusion of the other co-owners.

Judgment

Advocate: Abdel Rahman Yousif ………for defendant applicant

Salah  El Din Hassan P.J April 3. 1962. :— Applicants are the sons of deceased Abdel Hadi Osman, who died in 1958. Respondent is the widow of deceased. Upon his death  deceased left the following real property.

* Court: Babiker Awadalla, J. and Salah, El Din Hassan, P.J.

I.                   Plot No. 14, West Dueim Town, comprising an area of 640 square metres, registered in his name.

II.                Plot No. 7, Block 5, West Dueim Town, comprising an area of 340 square metres, registered in equal undivided shares in the name of deceased and his widow (respondent)

Before the death of Abdel Hadi Osman, Plot No. 14 was the marital house, and respondent was accordingly occupying it. She continued to do so after he died until this suit was raised in the District Court. Plot No. 7 was occupied by tenants, and respondent continued to receive the rent after her husband died.

Applicants brought this suit in Dueim District Court against respondent, asking for mesne profits in respect of Plot No. 14, occupied by respondent, and for the rents collected by respondent from the tenants occupying Plot No. 7 since the death of their father up to the time of suit, which period was reckoned  to be 30 months.

The District Judge passed judgment in favour of applicants for the following reliefs: £S.104 rent for plot No. 7, calculated at £ S. 3.500m/ms. per month for 30 months, and £S. 150 rent for plot No. 14, calculated at £ S. 5 per month for 30 months.

Respondent applied for revision to the Province Judge. The Province Judge rightly divided the rent of Plot No. 7 by two, as respondent is a registered co-owner in respect of half the plot, and gave judgment  in favour of applicants for £S. 52 only.

The Province Judge dismissed the claim in respect of Plot No. 14 on the ground that it was the marital house and it would be unjust and contrary to our custom to demand rent from the widow.

There is in my view no reason to disturb the decision of the learned Province Judge in respect of Plot No. 7, as respondent is admittedly a registered co-owner of half the plot. In fact after the death of her husband respondent would be entitled as an heir to one-eighth of the other half of the plot, which would affect the calculation of her share in the rent, but so long as this point was not raised by respondent in this revision, the Court decided to ignore it.

As regards the decision of His Honour the Province Judge in respect of Plot No. 14, I am of the opinion that this decision should be upheld, although on different grounds from those given in his judgment. Immediately upon the death of respondent’s husband, respondent becomes by operation of Sharia a co-owner of one-eighth of Plot No. 14, in undivided shares with the other heirs (applicants). As such she is not a trespasser and accordingly she is not normally bound to pay mesne profits.

It has been recently decided in Naima Hassan and Mohamed Abdo v. Mursi Hassan  (1962) S.L.J.R. 86,88, that in law, the plaintiff”can sue his co-owner in an action of trespass unless the act of the (defendant) amounts either to the total exclusion or ouster of the(plaintiff) or to destructive waste of common property. . . .“ In my view we are bound by that decision, and therefore this appeal should be dismissed.

No order as to costs.

Babiker Awadalla, J., April 3, 1962:— I concur.