Case No.:

(HC-CS-564-1958) .

Court:

The High Court

Issue No.:

1960

Principles

·  Land Iaw—Purchase under mistake as to number of co-vendors__Coownershjp of unequal und shares-. —Partition-civil Justice Ordinance s. 527

·  Civil practice and procedure—Matters not raised by the parties cannot be taken by the court

A purchaser bought a plot of land from “the heirs of X,” supposing they’re to be six of them. The heirs’ agent did not disclose the existence of a seventh heir, who claimed that the sale did not affect his share, remaining with the purchaser as co-owners of unequal undivided shares. In an action for partition, the effect of the earlier fraud or misrepresentation (and semble the possible negligence of the purchaser’s lawyer in not making a thorough investigation of title) cannot be considered by the court, the petition having simply asked for partition. Partition decreed, the purchaser to buy the seventh heir’s share at a value fixed by the court

1

Judgment

(HIGH COURT)

HASSAN FADL SAEED v. SAAD AHMED MOHAMED EL HAG

(HC-CS-564-1958) .

Petition for partition

The facts appear from the judgment. The court took judicial notice of the rule of Sharia that title vests in the heirs as co-owners of undivided shares eo instante the death, any subsequent 11am of heirship being merely evidence of such vesting having taken place.

Advocates:                Abdin Ismail………… for the petitioner

                     Obeid Hassan Hamid ….for the defendant

March 16, 1960. Tewfik Cotran Acting I.: —The case for the plaintiff is as follows: in I9 the plaintiff bought shop No. 81 Block 5 D.W. from the lawfully appointed agent of the heirs of Saad Ahmed Mohamed El Hag. At the time of the sale of this plot the plaintiff thought that the heirs of the late Saad Ahmed Mohamed El Hag were six in number. The agent did not disclose to the plaintiff the existence of a seventh heir who was then in Dhahran, Saudi Arabia. The plaintiff paid the agent £S.425 for the whole plot. In order to register the plot in his name the plaintiff had to obtain a “certificate of heirs” from the Sharia Court and it was then that he discovered jhat there was a seventh heir, the present defendant. The defendant had in the meantime returned from Dhahran. The plaintiff had also completed the building of the plot at a cost of some £S.285 The plaintiff finally registered the plot in his name leaving the defendant as a co-owner and petitioned the court for partition. This is the course, which was recommended by plaintiff’s counsel. The plaintiff holds seventy-eight metres and defendant holds seventeen metres, in undivided shares. The plaintiff has been in occupation since 1954. He has improved the plot by extending the building. The defendant has done nothing and is on the register only through the fraud or misrepresentation of his co-heirs. But the case having been brought in this form, the court must give defendant some compensation. I therefore order, under section 127 of the Civil Justice Ordinance, that plaintiff should buy the defendant’s share on the assumption that the value of the plot is £S.425 which is the price he paid when he purchased the plot. The whole plot is ninety-five metres. Defen dant’s share is seventeen metres. Therefore if plaintiff pays defendant (or into court) the sum of £S.76 calculated as follows:

17  X  425

95

The whole plot will be ordered to be registered in plaintiff’s name. Decre accordingly. No order as to costs.

                                                                                     (Order accordingly)