Limitation of Action-Laches-Right of cestui que trust-Whether affected by
lapse of time-A cquiescence

Mohammedan Law-c-llam=-Egyptian ilam and a subsequent Sudan i/am-
Rights of heirs under Sudan ilam against recipient of estate under Egyptian
ilam

Succession-Estate paid to guardian of one heir-Rights of other heirs-Effect
of ilam

Trust and Trustee-Fiduciary relationship-Estate paid to guardian of alleged
sole infant heir-s-Claims by other heirs-Whether guardian trustee for heirs

In 1886 HUSSEIN EL NUR EL KHABIR obtained an ilam from the
Egyptian Sharia Court declaring that the sole heir of lORIS EL NUR EL
KHABIR was his infant son Ornar, and appointing HUSSEIN EL NUR
his guardian. In 1889 HUSSEIN, as guardian, obtained payment from the
Egyptian Ministry of Finance of a sum of £E3,835.879 mlms, which sum
lORIS had deposited in the Government Treasury at Khartoum. In 1900
a Sudan Sharia court issued another ilam stating that there were actually
seven surviving heirs of lORIS. These persons brought proceedings in the
Egyptian Civil Court in 1901 against HUSSEIN and the Ministry of Fi-
nance, but in 1902 the court stayed proceedings until the Shari a courts
had determined which of the two Hams was correct. No such determina-
tion was ever made. In 1909 a further Ham was issued by the Omdurman
Sharia Court to the same effect as the former Sudan ilam. HUSSEIN died
in the Sudan in 1931 and the appellant, according to the Bam of 1909,
claimed against the respondents the sum of £E.3,853.879 m/ms.

Held: (i) No fiduciary relationship existed between the appellants and
HUSSEIN and therefore lapse of time was a complete answer to their claim ..

(ii) HUSSEIN, however, made himself a trustee for Omar and Omar's
heirs by obtaining the money from the Ministry of Finance, and the rights
of those beneficiaries against him were Dot affected by lapse of time, unless
HUSSEIN proved that they had acquiesced in this conduct.

Evans R.G.L., dissenting.

Appeal

1934. Owen C.J.: The short facts of this remarkable case are
as follows: Idris Bey El Nur El Khabir was killed at the fall of Khar-
toum in 1885. Shortly before his death he had deposited for 'safe

• Court: Owen C.1., Gorman J.P., Evans R.G.L.

custody in the Government Treasury there a sum of £E.3835.879ml
ms. The following year, in 1886, his half brother El Sayed E1 Hussein
E1 Nur El Khabir, who was then living in Egypt, obtained froin the'
Giza Mahkama Sharia an ilam which, after declaring, inter alia, that
the only surviving heir of ldris Bey was his minor son Omar, went on
to appoint El Sayed El Hussein guardian of the boy. This ilam was
dated 7 Gamad El Thani 1303 (1886).

In March 1889, Hussein, as duly appointed guardian of the
surviving heir Omar, claimed and obtained from the Egyptian Minis-
try of Finance the sum which his late brother had deposited in Khar-
toum. The record of the Central Treasury contains, under the head
of "expenses out of the Budget included in the remaining million for
the Sudan, Item Personal Claims" the following entry:

"£E.3835.879 m/rns paid to El Sayed Hussein El Nur,
guardian for the son of his late brother ldris Bey El Nur, paid by
the deceased into Khartoum Treasury owing to the siege, vide
an order dated March 19, 1889."

In 1900, shortly after the reconquest of the Sudan, there was is-
sued, apparently by the Khartoum Mahkama, another ilam of heirship
of the late Idris Bey. This declared, it is admitted, (though no copy of
it has been produced) that the surviving heirs of ldris Bey were ac-
tually five male children (including Omar) , one female child and his
widow EI Burra Bint Abdel Hafiz. Armed with this decree, Bannaga
Abdel Hafiz, the deceased's brother in law, went to Egypt on behalf of
the persons declare.' therein to be the Heirs, and in 1901 began a suit
in the Native Tril mal of first instance at Cairo claiming from El
Sayed El Hussein and the Ministry of Finance the sum of money
which he said had been fraudulently obtained by the one, or impro-
perly paid out by the other. The Tribunal, after hearing the evidence
and perusing the' documents, made an interim order in the following
terms:

"And whereas the heirship, under the circumstances, is in
dispute between the two parties and it is impossible for the Native
Court to reconcile the two IIams nor can the court give preference
to one of the two IIams as this lies within the jurisdiction of the
Sharia Courts-and whereas it is necessary to stay proceedings
until the result is obtained from the Sharia Court concerned as to
the correctness of either of the two IIams;

For the above reasons, the court has ordered the stay of the

proceedings of this case until the result is arrived a·
concerned as to the admission of the heirs."

This order, the only one possible in the circumstances, was issued

on October 21, 1902. The action has never been pursued, and the is-
sue as to which of the two IIams was the correct one has never been
determined. But in 1909 another Ilam of heirship of the late Idris
Bey was promulgated, this time by the Omdurman Sharia Court . ..__,
This Dam not only declared (as the Khartoum one did) that Idris left
seven heirs surviving him, but that Omar had died in 1314 (1896, not
1914 as assumed by the High Court), leaving a widow, Zeinab Bint

Al Nikheila. The Ilam went on to indicate the shares to which the
then remaining heirs were severally entitled in the estate, which, for
some reason that is not clear, was said to amount to £E.5.633 m/
ms, attached in the Land Registry at Khartoum. Meanwhile, Hussein
had returned to his native province of Dongola. He lived there until
his death in 1931, and when his estate came to be administered the
same year, the present appellants, the surviving heirs of Idris as set out

in the Omdurman Ilam of 1909; put in a claim against the ~~tate for
payment to them of the sum of money which Hussein had received
from the Ministry of Finance in 1889, alleging that it was theirs, and
that Hussein had always held it in trust for them. The claim was re-
sisted by the heirs of Hussein, and the matter was referred to the High
Court at Khartoum for determination of the issues involved.

By their statement of claim the present appellants a~red that EI
Sayed EI Hussein had obtained the Giza Ham declaring Omar to be
the sole heir by false representations. Omar was not the sole heir, and
consequently the money paid over to Hussein by the Egyptian Ministry
of Finance was not held by him in trust for Omar alone, but for all the
true heirs of Idris Bey as declared by the Omdurman 11 am upon which
they relied. They further pleaded that no part of the sum claimed
had been paid over to them, and that they were entitled to recover it
with interest as money held by EI Sayed EI Hussein in a fiduciary
capacity. The respondents resisted the claim by traversing the allega-
tions of fact, denying the trust and pleading alternatively that the
claim was stale and barred by the Prescription and Limitation
Ordinance.

The facts were not really in issue. The action was fought on the
issues of presumption of payment and limitation by lapse of time, and,
on what he called the main issue, the learned judge asked himself
this question: "Is there a bar in this country by lapse of time to a

claim for money, held in a fiduciary capacity, by it's rightful owner?"
He answered it by saying, in effect, that the circumstances of the case
demanded the application of the equitable doctrines of laches and
acquiescence, and that the appellants right of action, "if any", was
"barred by the death of Sayed El Hussein." From this decision the ap-
pellants have appealed on the ground that it is wrong in law, and that
there is no evidence upon which it can be found that their claim to
money held in a fiduciary capacity was barred by lapse of time or at
all.

But before we come to a consideration of the law as to money
held in a fiduciary capacity, it is necessary to discuss an aspect of the
appellants claim which does not seem to have been fully considered in
the court below. It seems to have been assumed that a fiduciary re-
lationship existed between the appellants and El Sayed EI Hussein. I
do not understand why it was assumed, for it seems to me that the first
question for determination is whether or not such relationship was
proved or existed. If no trust existed, lapse of time is a complete
answer to their claim. Where was the trust then, and when did it
arise?

If Hussein had obtained this money on the strength of the repre-
sentation that he was guardian for the heirs generally, I have no
doubt he would have created himself trustee for the appellants. But
he did not do so. He applied to a court whose competence to do what
it did has, so far as I know, never been questioned, and obtained from
that court a decree of heirship declaring Omar only to be the heir; and
he obtained the money on the strength of his appointment as guardian
of that heir. This llam of the Giza Court was promulgated in 1886,
and has never been reversed, altered or varied on appeal. The fact
that in 1900, fourteen years later, an Ham was promulgated in Khar-
toum, purporting to show that Idris Bey left other heirs besides Omar,
does not prove that the Giza IIam was wrong. The Native Court at
Cairo in 1902 set out the real issue plainly. Which of these two Hams
was right? The question has never been answered. If it had, one of
those two Ilams would have been quashed. Whilst therefore the
Giza l1am remains unreversed, the trust created by it's instrumental-
ity, must, unless it has been discharged, be still in existence, and I am
unable to follow the argument that because other courts promulgate
IIams differing from the Giza one, fresh trusts are created in favour of
the other heirs subsequently discovered. This money was obtained
and a trust constituted under the decree of a competent court; that

decree still holds good and the trust created under it is undisturbed.
In my opinion the only trust that has been proved is a trust in favour
of Omar, and the claim of the heirs of Idris as such and based upon a
later llam promulgated by another court must necessarily fail.

But with regard to Omar's heirs the position is different. In re-
spect of Omar, Hussein, by his action in obtaining the money on the
strength of his appointment as guardian, assumed to act in a fiduciary
relationship towards it, and the courts in such circumstances will im-
pose upon him all the liabilities of an express trustee-they will class
him with and call him an express trustee of an express trust. His
principal liability is that he must discharge himself by accounting to
his cestui que trust for all trust money or property, without regard to
lapse of time. If payment cannot be proved, the courts of Equity (as
this is) will only give relief if the trustee can show that the cestui que
trust has acquiesced in the actions in respect of which complaint is
made, in other words, has estopped himself from denying that he con-
curred in or approved the breach of trust complained of. It is "ac-
quiescence under such circumstances that assent may reasonably by
inferred from it." This is the only answer that a trustee can show, if
-he is unable to prove that he has discharged his trust by payment, and
neither in this country not by English law can mere lapse of time,
however long, be pleaded in answer to a claim under an express trust
such as the one created by Hussein in favour of Oroar. And the right
to claim descends to the cestui que trust's heirs, and, by them, to a
claim against the estate of the trustee.

If the claim, therefore, had been by the heirs of Omar, there
would have been two issues, and two issues only for determination on
the undisputed facts of this case. They are, firstly whether or not the
money had been paid, and secondly whether or not the plaintiffs ac-
quiesced in the breach. They are both questions of fact.

But the appellants were not the heirs of Omar, and, for the rea-
sons I have given, r think their appeal must be dismissed. But it will
be dismissed with the direction that the case be referred back to the
High Court to consider whether, in the circumstances, the heirs of
Omar, on obtaining a proper lIam of heirship, instead of instituting a
fresh action against the estate shall be allowed to be substituted for
the heirs of Idris as appellants and their claim considered and deter-
mined on the two issues set out above, which, in my opinion, arc the
only issues which arise on the admitted facts of the case. The result

of this appeal will be communicated to the Kadi, Dongola, by whom
the matter was referred to the High Court.

Gorman J.: I concur.

1934. Evans R.G.L.: The facts are not really in dispute and
are set out shortly in the learned Chief Justice's judgement.

In my view, when the Egyptian Ministry of Finance paid over
the money, which had previously been deposited for safe custody in
the Government Treasury by the late Idris Bey El Nur El Khabir, to
El Sayed El Hussein, he became an express trustee in relation to it
for the person or persons legally entitled thereto, namely the heirs of
Idris Bey. No doubt the money was paid over by the Ministry to Hus-
sein on the strength of the I1am which he had obtained from the Giza
Mahkama Sharia, whereby he was appointed to guardian of Omar,
the minor son of ldris Bey, who was therein stated to be the latter's
only surviving heir. But if in fact there were other heirs entitled to
share in the estate of Idris Bey, I do not think their rights are n.eces-
sarily defeated by the Ilam, although, by reason of such Ilarn it may
well be that if Hussein has properly discharged his trust towards Omar,
he may be able to successfully plead this as a full discharge of his lia-
bilities as an express trustee in relation to the money in question, in the
event of any claim being preferred against him later by other heirs of
Idris Bey-if in fact other heirs there be-and so as regards the heirs
of Hussein. But this question does not fall to be decided here, and
therefore I prefer to express no opinion on it.

But it is necessary to decide who were the heirs of Idris Bey. In
effect this was the issue set out by the Native Court at Cairo in 1902
when they postulated the question: which of two IIams was the cor-
rect one, that issued in 1886 by the Giza Court or the later Ilam pro-
mulgated in Khartoum in 1900. As the learned Chief Justice points
out in his judgement, this question has never been answered, and in my
view it should be answered now. It may be that the matter is of aca-
demic interest only, for example, it may be that the only surviving
heirs of Idris Bey are the present heirs of Omar. I do not know. But,
as I have already said, in my view the trust created in relation to this
money was in favour of the heris of Idris Bey, and accordingly they
are entitled, subject to proof of heirship, to sustain an action for an
alleged breach of such trust, and I should alJow such action.

The learned Chief Justice and the other learned judge, however,
are of a different opinion, and in dismissing the appeal have directed