Case No.:

AC-REV-114-1961

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Prescription—Possession—Prescription and Limitation Ordinance. s. 4 (3)—Brother may adversely possess his share of land of common ancestor registered by custom in older brother’s name

When land of a common ancestor is registered according to custom in the name of the eider brother, a younger brother entering on and possessing part of the ‘and may claim his share by prescription against his registered brother in spite of Prescription and Limitation Ordinance 1928. s. 4 (3). Heirs of Hassan Fadl El Mula v. Heirs of Zeinab Fadl El Mula (1956) S.L.J.R. 90.

Judgment

(COURT OF APPEAL)

HEIRS OF SIDDIG AF KAMBAL v. SAID AHMED KAMBAL

AC-REV-114-1961

Osman El Tayeb P.J. March 16, 1959, PC-REV-13-1959 (El Darner): — This is an application for revision from decree of District Judge, Merowe, dated October 8. 1958. granting plaintiff-respondent declaration of prescriptive title in respect of 3 kirat in sagia No. 32, Umbakul Village.

Defendants are applying for revision. The only point submitted 041 behalf of the application that can be discussed is that relating to the relationship of the parties, and whether that relationship would make the possession of plaintiff permissible possession and on behalf of the defendants, within the meaning of Prescription and Limitation Ordinance, 5.4(3).

This is usually applicable in cases where one is found in possession of lands in which he has an inheritable interest, and that interest not being ascertained, he takes more than his share. As to the latter share for such possession without more, he would be deemed to be in possession on behalf of the other co-heirs. Again a brother or such relative may be j possession of the land on that other’s behalf, and may not be able to prove adverse possession.

On the other hand, when the plaintiff, being a close relative, enters into possession in accordance with a right subsisting to him in that land, he can easily prove adverse possession. This applies in the common class of case, as in the present, when the land of the common ancestor appears in the register in the name of the elder brother. When another brother enters on the assumption that the land was originally the property of the common ancestor, he is deemed to have been in adverse possession. See, on this point, Heirs of Hassan Fadl El Mula v. Heirs of Zeinab Fad! El Mula (1956) S.L.J 90.

In the present case, it is proved that the plot in dispute was the property of the common ancestor and that it was registered in the first settlement and in the resettlement in the name of the elder son, the predecessor in title of defendants. Plaintiff being the only second son of that common ancestor, entered in possession of half the plot in sagia No. 32. He entered as being entitled to it as of right in accordance with the right of inheritance.

I conclude that the decision of the learned District Judge is correct.

Application for revision is summarily dismissed.

M. A. Hassib 1. June 22, 1962: —The application is hopeless. This is a case supported by long exclusive possession, which is originally based on a title by heirship. The point, which was raised and tackled by the decision of the Province Judge, is whether plaintiff (as a brother and co-owner) can prescribe against applicants; the Province Judge decided in favour of respondent, the decision of the court below is correct. Co-owners can prescribe against each other.

Application is therefore summarily dismissed under Civil Justice Ordinance, s. 176.

Editors’ Note’. —In the Province Court opinion, PC-REV- (Ed Darner), reversed by Heirs of Hassan Fadl El Mula v. Heirs of Zeinab Fad! El Mula (1956) S.L.J.R. o, Osman El Tayeb P.J., stated in relevant part:

In the second place, the relation of the predecessors of both parties being brother and sister and the relation of the parties themselves being cousins, make the possession of the one possession on behalf of the other. There is nothing more here: each party was in possession of an Undivided share all believing that they were co-heirs each deriving there from an interest In a part of that land. Such possession is not adverse possession to the right of the other. I came to the conclusion that were the application based on prescription alone it must fail. . I will comment briefly on what the learned District Judge called native custom prevailing in the locality at the time of the settlement; that the lands were usually registered in the name of the elder brother, excluding young men or minors and women. I believe that this practice was adopted. According to social traditions of the people, especially at that time, in 1906, women were not to appear in public, and were considered to have no (legal) personalities independent from brothers and male relatives. So their rights in lands were held by their brothers, etc., in a way which might have constituted an actual or constructive trust, depending on whether the woman concerned gave or did not give her consent to the holding of her property by one of the relatives. This practice would have led at the time of the settlement to the registration of the family lands in the name of the elder brother When it is established that the land was originally the property of a common ancestor and that it was registered in the name of the elder

brother, any one who proves himself to be an heir can rely on this practice to assert his rights. Advocate Boutros referred to the requirements of English law to be fulfilled for the recognition of a local custom, and submitted that they were not found here. Custom in English law when

proved with its requirement of immemoriality, etc., is considered as a source of law or establishing a rule of law creating rights and obligations, This is different from what we find in this case. .1 am avoiding calling it

a ‘custom’ and prefer to call it an ‘adopted practice.’ In the first place it is not adopted universally that in every case the lands of the common ancestor were registered in the name of the elder brother, but only done in some cases. In the second place before and after the registration the rights of the excluded heirs were not denied; it was never contemplated that the elder son would be the sole owner. So this practice cannot be considered as a source of law creating rights and obligations. In my opinion it was a wrong practice adopted by the settlement of that time. Now we can consider it as registration obtained by mistake or by fraud (and inquire) as to whether the registration was made with or without knowledge or consent of the excluded parties. The decree of the Distinct Judge Merowe dated May 2 1956 is hereby set aside It IS ordered that the plots in dispute be registered in the name of decease! FadI El Mula Ahmed, and that each party shall apply to the Sharia Kadi to prove himself an heir and to what share See also El Haram Ali Hamad Gamri v. El Hag Ali Hamad Gamri, PC-REV-55- (Ed Darner) (Osman El Tayeb PJ.): “The established rule of law in cases where the lands of the common father were registered in the name of one or more of the co-heirs to the exclusion of the others, the registration can only be defeated by proof of prescriptive title, that the excluded co-heirs have been in possession or in receipt of rents or profits, based on the admitted inheritable right. Heirs of Hassan Fadl El Mula v. Heirs of Zeinab Fadl El Mula (1956) S.L.J.R. 90.” In Heirs of Ahmed Mansour v. Heirs of Sittana Mansour, PC-REV-I78-1959 (El Darner) (Osman El Tayeb P.J.) the court stated: “AS the learned District Judge remarked this is a straight forward case of prescription. The land in question, 10 kirats in sagia No. 16, Koya, was the property of a common legator. According to custom it was registered in the first settlement in the name of the male member of the family; he was the predecessor of defendants. But the females, sisters, continued to exercise and enjoy possession of their shares without interruption and they have been succeeded by their children, plaintiffs. Their possession was adverse possession based on the right of inheritance. This has been proved.” See also Heirs of Ahmed Khidir Nugud v. Heirs of Neima Khidir, AC-REV-x 17-t959. (i9 S.L.J.R. (Abdel Mageed Imam J.).