Principles

·  PARTNERSHIP---Definition - Brothers’ agreement for pooling of income from separate  enterprises for joint support of families not a partnership  -Asset  aquired by one brother not held in partnership.

·  CIVIL PROCEDURE -— Pleading —— Issue of prescription not framed may be not  tried.

An agreement whereby two brothers pooled their earnings over a period of  several years from joint and separate enterprises for the mutual support of their families did not constitute partnership; therefore a house purchased by and regis tered to one brother was not the common property of both merely by virtue of the general agreement.
A Court may not grant title by prescription where the prescriptive right is not pleaded or framed in issue.

Judgment

Advocate:

Hussein Osman Wanni …………..for the Applicants

M. I. El Nur, J.. August 6. 1957:- On October 30, 1954  plaintiff’ respondent instituted Khartoum HC-CS-854-1954, alleging as follows

(a) that defendants’ father, Hassan Mohamed Hassan, who died in 1950, was his brother and partner in a shoe-making business until  1914.

(b) that in 1912. during the subsistance of that partnership. defen dants’ father bought out of that partnership money hosh No. 2-3-395 Omdurman. comprising an area of 1669 square metres. on the express understanding that it should be the common propert of both partners.

(c) that unknown to plaintiff, defendants’ deceased father had upon buying that house registered it in his own name and that plaintiff did not discover that fact of registration until two months before the institution of the suit.

Plaintiff therefore asked for a declaration that defendants’ deceased father held the hosh in question from the date of purchase until his death in 1950 as trustee for himself and plaintiff, and consequently for an order for rectification of the register in plaintiff’s favour in respect of a half-share of the said house.

Defendants resisted plaintiff’s claim and denied that a partnership ever existed between plaintiff and their deceased father until 1914. and  averred that if such partnership could be proved, their father did not buy that house out of partnership money on tile understanding that it should be the common property of both partners.

*Cour!: M. I. El Nur, J and R. C Soni J

The issues as framed were as follows

(a) Were plaintiff and his deceased brother (father of defendants) partners until 1914?

(b) If so, did defendants’ deceased father purchase the said house in or about 1912 out of the partnership money on the express under standing that it would be the common property of both?

(c) Did the plaintiif know of the registration, and if so when?

Upon being examined on oath, plaintiff said:

(a) that the partnership between him and defendants’ deceased father started in 1912 and subsisted until 1930 when it was dissolved.

(b) that the house in dispute was bought and built by him and his deceased brother in 1917 out of partnership money.

(c) that he was 8 years younger than his deceased brother and that according to custom the elder brother registered the joint property in his own name He added that he and his brother had complete confidence in each other and that neither of them had a separate fund or separate movable or immovable property and that every thing was held in common between them.

Consequent on the above statement, which materially -varied from the original statement of claim as far as the dates of the alleged partnership and the purchase of the house in dispute were concerned, plaintiff’s advocate, saying that he based the statement of claim on particulars provided by plaintiff’s agent, applied for the amendment of the first and second issues accordingly. The amendm was made against the objection of defendants’ advocate.

The evidence adduced by plaintiff in addition to his own sworn statement consisted of the following:

(a) P. W. 1, Awad Osman, who said that 20 years ago defendants’ deceased father told him that the house in dispute belonged to him and plaintiff.

(b) P. W. 2, El Awad Khalifa, who said that he came to know plaintiff and his deceased brother in 1917 when they came to live in the house in dispute which adjoined his own. It then seemed to him that they held that house in common between them.

(c) p. w. 3, El Amin Hassan Ahmed, one of the defendants  heirs, said he did not know whether the house in dispute was bought out of any partnership money or not since he was only two years old in 1917 when this house was bought. He further said that in September 1954, plaintiff promised to pay him a capital of £S.l000 and a shop to trade in, if he admitted in writing that the house in dispute was the joint property of his deceased father and plaintiff, and that was why he signed document P. 1 admitting plaintiff’s claim. But since plaintiff failed to fulfil his promises, he withdrew his admission.

(d) P. W. 4, Mohamed Ismail, said that in 1942 he heard from defendants’ deceased father that the house in dispute belonged to him and plaintiff in equal shares.

(e) P. W. 5, Ahmed Mohamed Hassan, one of the defendants’ heirs, who is married to plaintiff’s daughter and who was not born when this house was bought, admitted plaintiff’s claim.

That was all the evidence adduced by plaintiff to prove the issues set up in paragraph 3 above.

Defendant No. 1, Mohamed Hassan Mohamed, the eldest heir, who spoke for himself and on behalf of his co-heirs, stated on oath that:

(a) Plaintiff had never been at any time a partner of his father.

(b) The house in dispute was bought by his father in 1917 and built in 1918 out of his own money.

(c) Plaintiff was away at Saboni of Singa District, doing work of his own from 1915 to 1921, and that he accompanied his father when the latter went to Saboni in 1921 and brought plaintiff back to Omdurman.

(d) D. W. 2, El Obeid Hassan, and D. W. 3, Babiker Abdalla, both elderly relatives of both parties, testified that when the house in dispute was bought and built by defendants’ father, plaintiff was far away at Saboni of Singa District.

On giving his judgment on the above evidence, the learned District Judge rightly said that the main points that plaintiff had to establish  in this case Were whether plaintiff and the deceased father of.defendants were partners and whether the house in dispute was bought and built out of the partnership money, yet without saying that the evidence adduced by plaintiff had established these two facts, went on to say in paragraph 8 of his judgment that “from the admissions of defendants it is clear to the Court that plaintiff was in actual possession of a part of the plot in dispute which he occupied with his family for more than the prescriptive period, and that his possession was adverse and therefore he acquired title to half of the plot in dispute by prescription.”

Consequently the learned District Judge passed his decree on June 26, 1956 ordering rectification of the register of the house in dispute in plaintiff’s favour accordingly.

On July 31, 1956 defendants applied to the Judge of the High Court, Khartoum, for the revision of the above decree on the following grounds:

(a) that the District Judge was wrong in allowing plaintiff to amend his claim after 8 months from the institution thereof and after he himself had given his statement on oath, and this was prejudicial to defendants.

(b) that the District Judge was also wrong in trying a point which was not in issue and granting plaintiff a remedy which he never claimed, when he said “the main is framed in this case are to establish that plaintiff and deceased were partners and that the said house was purchased and built out of the partnership money; but in my view an important issue of prescription has been ignored.”

(c) plaintiff failed to establish his allegation that he was a partner of deceased, or even if he was one, that the house in dispute was bought out of the partnership money with the express understanding that it would be the common property of both.

On August 2, 1956 the learned Judge of the High Court summarily dismissed defendants’ application for revision saying

“On the evidence before him the District Judge found that plaintiff was entitled to ownership of one half of the house as claimed; whether this be on partnership or prescription was immaterial. I do not think this application should succeed in view of the weight of evidence.”

This is an application to the Court of Appeal for the revision of the decree of the learned Judge of the High Court, dated August 2, 1956. The grounds of appeal as put before us are nearly the same as those put before the learned Judge of the High Court.

In reply to those points the learned advocate for respondent said that:

(a) the amendment of the statement of claim was rightly allowed by the Court under Civil Justice Ordinance, Order II, r. 8.

(b( the Court was right in giving respondent remedy on prescription even though it was not pleaded because in its discretion it found that it was just to give such remedy.

(c) a partnership between plaintiff-respondent and applicants’ deceased father existed until 1930 and was sufficiently established on the evidence of respondent himself and P. Ws 2,3 and 4.

The first ground of appeal concerning the amendment of the statement of claim to show that the alleged partnership between plaintiff and defendants’ deceased father continued until 1930 instead of 1914, as was stated in the original statement of claim, is in our opinion insignificant as it did not in any way prejudice the defence.

As regards the other grounds of appeal, the issues before the District Judge were:

(1) Were plaintiff and his deceased brother (father of defendants) partners until 1930?

(2) If so, did defendants’ deceased father purchase the said house in or about 1917 out of the partnership money on the express under standing that it would be the common property of both?

(3) Did plaintiff  know of the registration and if so when?

Instead of dealing with these issues one by one, the learned District Judge said in paragraph 7 of his judgment that “in view of the evidence adduced by the plaintiff there was an existing partnership between the plaintiff and the deceased in trade as in daily livelihood.”

Even if this finding of partnership was based on sufficient evidence which was not clear from the evidence before the Court, there remains to answer the second question, whether deceased’s father purchased and built the house in dispute in 1917 out of the partnership money on the understanding that it would be the common property of both. In our view plaintiff failed to establish this very important issue. The only evidence adduced to prove this issue consisted of plaintiff’s own statement on page 14 of the record, when he said, “The land in dispute was purchased from the partnership money and it was agreed and understood that it should be registered in both our names. We erected buildings on the land which we paid for ‘from the partnership money.” But this evidence was rebutted by the evidence of D. W. 1, ‘Mohamed El Hassan, who said that plaintiff was far away’ at Saboni village from 1915 to 1921 and was not present when the said house was purchased and built in 1917. D. Ws. 2 and 3 corroborated that plaintiff did not come back from Saboni until after the house was bought and built and occupied. Plaintiff himself said he did not come back from Saboni, where he said he worked as a contractor till 1924.

On the evidence in the record we are not even satisfied that a partnership in the legal sense of this word has ever existed between plaintiff and his deceased brother. Plaintiff himself let alone his witnesses, never alleged a partnership in that sense. No mention of the capital or terms of the alleged partnership was made. Plaintiff himself said while he was at Saboni until 1924 he worked as a contractor. His deceased brother in Omdurman was working in the shoe business. It may be as one could gather from the evidence as a whole that plaintiff and his elder brother (father of defendants) were, cooperating in their effort of earning a living. They perhaps worked together in the same business when they happened to be in the same place, or when separated each of them worked at his own, and they brought together their earnings for the support of their family. But such a relation does not in our view prevent any one of them from acquiring a property of his own. A property acquired and registered by any of the two in his own name in the course of that relation cannot merely by virtue of such relation be presumed to be the common property of both of them. Indeed defendants, to rebut the possibility of any such presumption had produced in Court the Land Registration Certificate of plot No. 2-1-484, Omdurman, which was bought and registered by defendants’ father in his own name in 1926 in the course of the alleged partnership, and plaintiff never claimed any share in the plot by virtue of that relation,which he alleges extended up to 1930.

For all above reasons we are not satisfied that the claim by plaintiff to half of the house in dispute by virtue of the alleged partnership was established.

The learned District Judge, apparently not being himself satisfied that plaintiff had sufficiently established his claim to half of the house on a partnership basis, said in paragraph 5 of his judgment:

“The main issues framed in this case are to establish that plaintiff and deceased were partners and that the said house was purchased and built out of ‘the partnership money; but in my view an important issue of prescription has been ignored.”

The learned District Judge went on to say that “from the admissions of defendants it is clear to the Court that the plaintiff was in actual possession of a part of the plot in dispute, which he occupied with his family for more than the prescriptive period.”

The District Judge ultimately came to the conclusion that plaintiff’s possession of the part occupied by him was not permissive but adverse possession and therefore gave judgment in favour of plaintiff, declaring that he acquired half of the house in dispute by prescription and ordered rectification.

We agree with applicants’ advocate that the learned District Judge was wrong in engaging himself in trying a point which was not in issue and giving plaintiff a remedy which he neither pleaded nor asked for.

Still we cannot see how a claim by prescription can be sustained in this case. It is not in dispute that plaintiff, together with his family consisting of seven sons and daughters, had been residing in the house in dispute since it was bought and registered by defendants’ father in his one name. It cannot be said that a brother allowing another brother and his children to live with him is doing anything more than a brotherly and courteous act. He is not admitting the other’s right, nor is the other living in adverse possession. The learned District Judge said, “I believe that there was a partnership between the two brothers which made the plaintiff possess as owner.” We say that such partnership was not proved. It was on evidence that a dispute arose between plaintiff and defendants’ father in 1940 about the partition of a shop they inherited from their father. Referring to that evidence the learned District Judge said, “If this fact is believed it means that deceased father of defendants was not disputing the ownership of plaintiff; otherwise he would have ejected him at once.” We cannot agree to the inference that because defendants’ father did not eject plaintiff on the occasion of their dispute in 1940 he was admitting his right of possession, particularly when we notice that three of the Sons and daughters of the former were married to the sons and daughters of the latter and lived with them in the same house in dispute.

For all the above reasons we are of the opinion that a claim by plaintiff to any part of the hosh in dispute though not pleaded by him cannot be sustained.

Therefore this appeal. succeeds and we hereby reverse the decree in CS-3188-1954 by District Judge, High Court, as well as the decision on revision, HC-REV- 90-1956 dated May 2, 1956.

.R. C. Soni, J., August 6, 1957:- I concur.