Case No.:

HC-REV-296-12

Court:

The High Court

Issue No.:

1962

Principles

·  Land Law—Co-owners in undivided shares—Rent agreement between co-owners unenforceable for no consideration unless non-resident asks for residence Landlord and Tenant—Co-owners in undivided shares—Rent agreement between co-owners unenforceable for no consideration unless non-resident asks for residence

Plaintiff and respondent were co-owners in undivided shares of the house in which defendant lived. Plaintiff asked defendant for rent for the use of his share, but did not ask to reside in the house. Defendant agreed in writing to pay the rent. Plaintiff here sues for the rent defendant agreed to pay.
Held: Because defendant has the right as a co-owner in undivided shares to enjoy the use of the entire house, and plaintiff expressed no desire to live in the house, there was no consideration given by plaintiff for defendant’s offer to pay rent, and the agreement is thus unenforceable.

Judgment

(HIGH COURT)

EL SHEIKH MOHAMED NASIR v. OSMAN MUS

HC-REV-296-12

Advocates: Abdel Wahab El Khidir ... for plaintiff-respondent

Abdel Mageed Imam 1. February 20, 196 is an application for revision submitted by defendant-applicant against the decree of the District Court, Omdurman, dated July, I962, in which he was ordered, to pay plaintiff-respondent a sum of £&40 being arrears in respect of house No. 260/2/5, Omdurman.

The facts accepted by, the court below were that the defendant- applicant is a co-owner in the said plot as to 32 square metres in undivided shares and the plaintiff-respondent a co-owner in undivided shares as to the remainder, 337 square metres; that the defendant-applicant has been residing alone throughout the period claimed in the said house, and that by doc. B the defendant-applicant showed willingness to pay rent to the plaintiff-respondent.

The point for determination is whether a co-owner in undivided shares is liable to pay rent and if so under what conditions.

It was argued by the learned advocate for plaintiff-respondent that the

defendant-applicant is liable to pay such rent since doc. B. creates a

tenancy between them. He cited Ali Mohamed Abu Zeid V. Rasmeya

Mohamed Abu Zeid, AC-REV-98-1958, (1962) S.L.J.R. 40.

As I see it this application should be allowed. I think this is not one of instances in which a co-owner should be made to pay rent to his other co-owner. An agreement by one co-owner as such to pay rent to the other cannot be binding for lack of consideration for he is entitled to enjoy the whole property. Rasmeya’s case is not on all fours with this

one- I think a clear case where rent should be ordered to be paid is where the other co-owner wants to share the occupation of the premises and is prevented by the other who is actually in possession, in which case the court may force the latter to accept or to pay reasonable rent in lieu. In the present case the plaintiff-respondent asked for payment of rent from the start and did not ask defendant-applicant to allow him to share residence in the premises.

For all the above the application ‘is allowed. The decree dated July . 5962, is set aside by reversal.

No order as to costs.