(Court OF APPEAL)*

HEIRS OF MOHAMED IBRAHIM v. MUSTAFA EL RAYAH AND OTHERS

AC-REV-464-1964

 Principles

·  Prescription –possession in fiduciary capacity-prescription and limitation Ordinance 1928, s. 4 (8) –guardian to prescribe after ward becomes of age-Something must be  done to chare the character of his possession as guardian

·  Prescription-continuous possession-Brothers or first cousins-Mere acquiescence for length of time is insufficient to establish acquisitive right.

(i)      Guardian entering into possession in his fiduciary capacity under  prescription and limitation Ordinance, s 4(8) , on behalf of his word and continues in such possession after ward becomes of age; he is presumed to retain such possession as guardian until something shall be done to alter the character of such possession, then the guardian can claim a title to the land by right of prescription.

(ii) Continuation of possession for length of time , fifty years, by brother in the land registered in their sister’s name , or between first cousins, by means of acquiescence, is not enough to establish acquisitive right to title.
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Judgment

 Advocate: sir El Khatim Ali Omer………………….for  applicant

Osman El Tayeb J. February 22.1965:-Ibrannim Mohamed Salih, the predecessor of the parties, was the registered owner of 72 Sahms in Sagia No.1 El Sagai in 1912 an Illam, was issued by Kadi Meroe declaring his death on 1329 H (about 1911) and his heirs as Mohamed Um El Hassan and Amna. The said plot of land was divided amongst Hassan had by way of takharuj left her share to her brother Mohamed For money consideration received  by her , and the share of Amna, the mother of defendants, which was 18 shams as declared by the Illam was registered in her name. Amna was at that time a minor of 14 years and so her brother  Mohamed was appointed to be her guardian and charged with the administration of  her property.

Mohamed  had possession of the said share of Amna. She died in 1948. in 1954 Hassan Mohamed Ibrahim, one of the plaintiffs, and Mustafa El Rayah, on of the defendants, made a written agreement of tanazul whereby Hassan endowed o Mustafa the right to the date trees registered in the name of Hassan’s father and Mustafa endowed on Mohamed six shams registered in the  name of Mustafa’s mother, his heirs and successors in title, by their petition dated October 15, 1963, claimed  by prescription the 18 shams against the registered proprietors thereof who are the two defendant, the other heirs of Amna excluded by way of agreement of tanazul.

It is not disputed that Mohamed Ibrahim, the predecessor in title of plaintiffs, had bee I continuous possession of that share of the family inn Sagia No. 1 Elsagai until his death in 1962, plaintiffs in order to succeed must prove that that possession was adverse and as of right they attempted to prove that by:

(a)    That Amna in the Sharia Court in 1911 started that she agreed to make a tanazul to her brother Mohamed of her share, and that as she was then under age the Kadi rejected her tanazul and declared her share in her name in the Illam.

(b)   That at that time she was 14 years of age, and so she  became of age shortly after that, say after four years, when the guardianship  was deemed to have  come  to  an end in spit of that she had not interrupted the possession of Mohamed.

(c)    That  in 1954 one of the defendants made a written agreement with one of the plaintiffs, purporting thereby that the first to surrender to the second six shams of the same land, in consideration of the second surrendering to the first date tees in the same land.

The argument for defendants can be summarized as follows:

(a)    that the alleged ground by way of tanazul before the Sharia Court was not proved , and if proved it has no effect.

(b)    That predecessor of plaintiffs entered into possession of the whole of the plot as a family property including the share of their predecessor, as to which he was, by the express provisions of the Illam, a guardian, person in fiduciary relationship.

(c)    That pot is held as undivided their predecessor owned and possessed date trees in that same plot.

The agreement of 1954 has no legal effect.
 

(d)    The relationship of the parties prevents the possession being adverse and as of right.

It must be decided first that the agreement of 1954 does not help either of the parties. It shows nothing more than that plaintiffs were possessing the land and defendants were I possession of the date trees in the land .

On the other submissions, it can be said that the decision of the case rests on two points, the first point is that the plaintiff’s predecessor in title had first entered into possession in a fiduciary capacity, being appointed a guardian by the Sharia Court. The argument against that is that the fiduciary capacity had ended automatically  by the coming of age of the owner , and that the subsequent possession was not possession for and on behalf of that owner advocate for plaintiffs relied on prescription and limitation ordinance, s. 4(4) . it speaks of possession subject to conditions, and that after the expiry of the them during which the conditions subsist, the subsequent possession may be adverse possession.

I do not thin that this subsection is applicable in this case, it seems to be applicable in  a case where there was a contract by virtue of which possession was obtained , and that the possessor had bound himself with fulfilled or complied with. However , the relevant part  of the law to this case is prescription and limitation Ordinance , s, 4(8) which is clear in that person who is in fiduciary relationship with another  cannot acquire title of lad by long possession against that other. But this rule has to be qualified by the continuity of that relationship.

Rustom j limitation (6th ed, 1958) p. 897, puts the rule as follows:

“when a guardian (whether de jure or de facto0 takes possession of property owned or party owned by his ward, a very strong presumption arises that irrefutable possession is taken on behalf of the ward , but the presumption is not, of course  as the possession of guardian is the possession of his ward, if the guardian retains possession after the ward has come of age he is presumed to retain it as guardian until something has been done to after the character of his possession.

What change has happened  in the character of the possession of Mohamed Ibrahim after his sister Amna came of age? Nothing was suggested. It might have bee considered as a change if they went to the Sharia Court, and Amna proved her attaining the majority age, and that an Illam of majority was issued. This would have severed the relationship of guardian and ward, and would have urged Amna to claim the possession of her  plot. But this has not happened. In the absence of proof of any Act that would have changed the character of the
 

Possession, it must be held that it has continued a possession on behalf of the registered owners.

The second point in he submissions  is that of the long continuous possession per se in the presence of Amna and her children who. Though being able, have not claimed  possession, which must be considered as adverse possession and as of right. We were referred to the case of heirs of  Hassan Mohamed Ahmed Fadlalla v. Heirs of Ahmed Fadlalla , AC-REV-4-1956, (1963) SL.J.R. 142,in which the relationship of the parties as co-heirs succeeding to the property of common ancestor is the same as it is in the present case. It was held that possessions for 47 years has to be presumed to have originated on a lost ground, and should be considered as adverse possession and as of right, and not on behalf of the other co-owners, when it was sought  to apply prescription and limitation Ordinance,s,4(3).

It is true that the possession of Mohamed Ibrahim in the present case was for about 50 years. But the case of Heirs of Fadlalla can be distinguished from the present one on two grounds:

(a)    There the possession was not continued by one possessor as in the present case . the original possessor possessed from 1906 until his death in 1932 and then his sons succeeded him, while the members of the opposing party were present and saw the change without being moved.

(b)   That in that case it was alleged that the possession was first started on an agreement of sale, though not proved , it could easily induce the Court to infer the presumption of a lost ground. In the present case, it was alleged that there was a tanazul from Amna to her brother that was not approved by the Kadi, as she was a minor. This was not mentioned in the Illam which was for all purposes the stat of possession.

A similar case is Heirs of Ali Mohamed Ali v. Heirs of Musa Mohamoud, AC-REV-77-1960, (1960) SL.J.R. 258. Ali and Musa were brothers and Musa entered into possession of parcel of the land of Ali since 1912 and remained as such for about 20 years until his death, whereupon he was succeeded by his heirs until the institution of the case in about 1958. the Court ruled that prescription and limitation Ordinance ,s, 4 (3), was applicable notwithstanding the allegation that the possession was originated by a sale that was not proved. The Court distinguished Fadlalla’s case, and said “In our view that case was never intended to repeal s, 4 (3) which were no doubt enacted primarily to protect derivative possession and prevent abuse of confidence.

A second similar case is : Mohamed Mohamed Bek v. Heirs of Mohamed Bek El Bashir, AC-REV-233-1956, (1963) S.L.J.R. 198 –199, a case of prescription between brothers in which this Court held that prescription and limitation Ordinance, S 4 (3) Applies. The Court Said “ The Parties In This Case Are Half-Brothers An Co-heirs, And This Court Has On Several Occasions Expressed Its Disapproval Of Such Claims, Except In Cases Here The denial by claimant of the co-heirs , and this Court has on several occasions expressed its disapproval of such claims, except in cases where the denial by claimant of the co-heirs, rights was so open and hostile  as to amount to an ouster. Otherwise the claimant would only be deemed to have been in possession by the leave and licence of his brother or co-heirs “ The quotations made by the Court in the last mentioned case from the other cases, viz, El Min Abdel Sadig v. Mohamed Abdel Sadig, AC-APP-46-1928,Sanousi Omer Nimr v. Heirs of Ahmed Omer Nimr C-REV-59-1952, El Tigani Mohamed Mustafa v. EL Khider Mohamed HAG, ACAPP-6-1944, and Heirs of Yassin Omer v. Heirs of Amin Yassin AC-APP-33-1950have bee observed and approved.

the family  relationship between the parties raises the presumption that the one is possessing for and on behalf of the others, that means that the one is enjoying the peaceable and continuous possession by leave and permission of the other proprietors. The said presumption becomes stronger and heavier to rebut, as the degree of relationship becomes closer. It seems that in cases of brothers and sisters and first closer. It seems that in cases of brothers and sisters and first cousins, the presumption cannot be rebutted except on proof that entry on the land was of right ,e.g. sale or other disposition that transfers title, or on proof of such acts other that ordinary use as can only be under stood to mean an original and continuing right inuring against and adverse to the right of the proprietor. In my opinion mere acquiescence I possession for any length of time is not by itself sufficient to establish an acquisitive right to title between proprietors who are brothers or first cousins, and from which alone no presumption of a lost grant should arise for these reasons this revision is dismissed with costs.

Babiker Awadalla  .J. February 22.1965:-I concur.

* Court : Babiker Awadalla J and Osman El Tayeb J.