Prescription-s-Minor-s-When prescriptive claim begins to run-s-Land owned ill
undivided shares

Prescription-s-Undivided shares-Right to acquire by prescription

* Court: H. A.. Evans R.G.L., T. F. Sandcs and A.B. Harrison 1.1.

1. A prescriptive title may be acquired to an undivided share in land.
2. Where land is held in undivided shares by persons, some of whom
   are minors. a prescriptive claim begins to run from the date when one of
   such persons could have sued on behalf of the rest.

Prescription and Limitation Ordinance 1928, Part I and Part II, s. 14 (5).

Appeal

The facts, as they appear from this judgement of Province Judge
Flaxman, are as follows: Two sisters, respondents, were heirs to
land in the Gezira as were the appellants. From 1906 to 1927
respondents received ~ of the rents and profits on the land. The
amount was a fixed and known proportion and was received without
fiduciary obligation to the other heirs.

June 10, 1935. H. A. Evans, RG.L. This is an appeal by the
defendants, the heirs of Mohammed Ali Freiguoun from the judgement
of the learned judge of the Blue Nile Province Civil Court whereby
he found, (the case having been referred back by the Court of Appeal
for retrial), that the plaintiffs, Fatma Bint Abdulla Mohammed and
Amna Bint Abdulla Mohammed were entitled to be registered as
owners of an undivided two thirds share in certain plots of land in
EI Ghorashi registration section of the Blue Nile Province, the learned
judge being satisfied on the evidence that the plaintiffs for a period
of more than ten years had retained and were continuously, publicly
and peaceably in receipt of two thirds of the rents and profits of the
said land within the meaning of the Prescription and Limitation
Ordinance, 1928.

It is unnecessary for the purpose of this appeal to set out the
facts in detail here-they sufficiently appear in the judgement of the
learned judge in the court below.

Counsel for the appellant has raised two points of law: first,
that a prescriptive title cannot be obtained in respect of land held
in undivided shares, and secondly, that one of the defendants, Fatma
Bint Ahmed Abdel Malik, being at all material times a minor, no
prescriptive title could be acquired against her during her disability.

As to the first, this was specifically decided by the Court of
Appeal in this particular case. In fact it was mainly on account of
the view taken by the Court of Appeal on this point that the case
was referred back to the Province Court for retrial:

"Receipt of the rents and profits of land may amount to
the possession of it, and if such possession is peaceable, public
and uninterrupted for a period of' ten years the possessor may
acquire its ownership. The word land in the Prescription and
Limitation Ordinance 1928 includes any interest in land, and it
follows therefore that the ownership of an undivided share in
it can be acquired by the peaceable, public and uninterrupted
receipt of a like share in its rents and profits for the same period
of ten years."

That disposes of the first point. The second has not been raised
previously in this lengthy litigation. But in any event, it is, in my
view, not well founded. Counsel relied on the proviso to section 9
of the Ordinance which reads as follows:

"And provided further that time shall not run against any
person under legal disability during the period of such disability,
save as hereinafter appears."

But this has reference, as has the whole of Part II of the
Ordinance, only to limitation of actions, and has no direct bearing
on the question of the acquisition of title to, or rights over, land.
As regards the latter we must go back to Part I of the Ordinance,
from which it is clear that legal disability, certainly minority, is not
a bar to the acquisition of a prescriptive title to land.

In any case if it were not so (1 have no doubt in the matter
myself) the position otherwise, from a practical point of view, would
be impossible. I would be prepared if necessary to hold that the
disability is no bar in the circumstances of this case, on the analogy
of the proviso to section 14 (5) of the Ordinance:

"Provided always that in the case of land held in undivided
shares by persons some or all of whom are under disability, time
shall begin to run from the date at which in the opinion of the
court one of _ such persons could have sued on behalf. of the
rest, either in his own right or as the legally appointed guardian
for those under such disability."

The second point raised is therefore disposed of.

Finally, Counsel argued that the finding of the learned judge in
the court below was against the weight of evidence. I do not agree.
In my view there was ample evidence before the learned judge