(COURT OF APPEAL)*

HAMMED IREIBI v. HEIRS OF IREIBI HAMMED

AC-APP-15-1965

 Principles

·  Prescription-Co heirs-on behalf of another-prescription and limitation Ordinance, s, 4(3) –Presumption is rebutted by open and hostile denial of co-heir right-length of time is insufficient

Presumption that a co-heir is holding possession not on behalf of his co-heirs, must be rebutted by open hostility which amounts to an ouster. Length of time alone is insufficient to rebut such presumption. Presumption and limitation Ordinance s. 4(3).

Judgment
 

Advocates: Henery Raid…………………….…for applicant

                  Abdel Basit Abdel Moneim……….for respondent

Osman EL Tayeb J. September 6.1965:-This is an appeal form the judgment and decree of Acting Province Judge Khartoum (Mahdi Mohamed Hammed) dated January 19.1965, dismissing plaintiff’s claim for rectification of the register in respect of shop No. 6 Block 3 Omdurman main Market on the ground of mistake or prescription.

The parties  are brothers or issues of deceased brothers. Their common father Hammed lreibi died in 1905 and left a shop in Omdurman Main Market comprising 11 s.m. registered in his name. In 1919 there was preplanning in that market, as a result of which that shop was  lost and by way of compensation another shop comprising 25.8 s.m was given to the heirs of the deceased proprietor, on paying to the Government the sum Ł s. 3.720 m/ms being the difference between the values of the old shop and the new shop. Plaintiff signed the deed of transfer, in his capacity as the elder and the representative of the other heirs. The transfer was made conditional on the payment of that sum of money in 1926,that sum was fully paid and so another final deed of transfer was made and was again signed by plaintiff in his capacity as the elder and representative of the heirs, and the shop was registered in the Heirs of Hammed Ireibi. The shop was thereafter built by plaintiff and he has been continuously hiring it to others and has been receiving the rent, until the start of this dispute when some of the heirs applied to the Sharia Court for administration of the estate of the common father and the said shop appeared as part of the estate.
 

Plaintiff claimed rectification of the register on the ground of mistake as to 14.8 s.m alleging the this additional area in the shop to the of the demolished shop was sold by the Government to him personally and he paid that sum of Łs 3.720 m/ms. Required to be paid to the Government and that the Registrar was mistaken in effecting registration of the whole shop in the name of Heirs of  Ah med Ireibi. He alleges that Heirs of Ireibi were entitled to 11 s.m and he was entitled to 14.8 s.m. of the said shop. The learned Acting Province Judge rightly dismissed this claim as being unfounded. However this point is not raised in this appeal, and we need not deal with it.

The alternative claim the subject of this appeal is that based on prescription. The learned Acting Province Judge after referring to the case of Heirs of Hassan Mohamed Hammed Fadlalla v. Heirs of Hammed Fadlalla, AC-REV—19656 (1963) S.L.J.R.142. decided that the presumption that plaintiff has been in possession of that shop for and on behalf of his co-heirs has not been rebutted and so according to the prescription and limitation Ordinance s, 4 (3) his possession has been the possession of the heirs of Hammed Ireib. The learned Judge found in support of this decision that plaintiff had been playing the role of a self-appointed guardian of the co-heirs and continued to Act on their behalf  in the transactions of 1919 and 1926 and thereafter.

It is submitted by advocate Raid for plaintiff that he has shown himself out  publicly form 1919 as the sole owner and the land lord of that shop that as it is proved that he was hiring it to others and receiving the rent not prevent a relative to prescribe against the others, and he refereed to Heirs of Hassan Mohamed Hammed Fadalla case.

It is submitted by advocate Abdel Moneim for defendants that the relationship is too close and that plaintiff has been action  as a guardian for his co-heirs and so his possession has been that of the defendants .

In 1905 when the father died plaintiff and the  widow were the only two persons of age the others sons and daughters, were infants the eldest one of them was only three years old until 1919 they were still minors. The father was a merchant and his eldest son plaintiff succeeded him to the business, and continued also to be in charge of supporting and bringing up his brothers and sisters and generally looking after their affairs. When the incident of the shop arose, in 1919 and 1926 he acted and was so accepted by the authorities as the representative of his co-heirs strictly speaking he acted as guardian of those he were minors, and agent of those who were of age. He signed in the deeds of transfer of the shop on behalf of the heirs and had the shop registered in their name. He had thereby acknowledged the legal right in the shop to be vested in the heirs. the facts that he paid the difference of the compensation to
 

The Government and that he built the shop do not change the situation, or create any right or interest in the property to the benefit of plaintiff or vest any such right or interest in him in so far as he was acting on behalf of the registered owners, and perhaps out of funds in which they had an  interest. Plaintiff has been in receipt of the rents of the shop. From the close relationship between the parties, and from the special position of plaintiff with regard to the co-heirs, that he was acting in the general affairs a very strong presumption arises, that he was receiving those rents on their behalf, and when acting in the capacity of a guardian and representative as to the shop and as to their general affairs, a very strong presumption arises that he was receiving he was acting for them and on their behalf. In order to rebut this predates, but the length of time alone is not sufficient. Plaintiff proved nothing to rebut the presumption. The rule laid down in Heirs of Mohamed Ibrahim v. Mustafa El Rayah and Others, AC-REV-464-1964, (1966)  S.L.J.R.42,as to the presumption and its rebuttal in such a case plaintiff were appropriated, it is plaintiff who could tell about them. The inference is that he was spending them on the affairs of the family, cannot succeed in his claim  of prescription.

For these reasons this appeal is dismissed with costs.

M.E.S Gassouma J. September 6.1965;-I concur.

Hassan Abdel Rahim J. September 6.1965:-I concur. I cannot see how applicant can succeed in his claim for ownership of the plot by prescription when it is clear form the evidence that in 1919 he signed the deed of transfer of  the plot in his capacity as the eldest son of Ireibi Hammed and not in his private capacity. Since then  he continued in possession of the plot for and on behalf of the heirs as guardian and at all material times he was quite conscious that the plot was the sole property of the heirs of his father.
 

* Court : Osman El Tayeb J. M.E.S.Gassouma J. and  Hassan Abdel Rahim J