(PROVINCE COURT)

HEIRS OF SIT AISHA MOHAMED MASAAD v. HEIRS OF ‘EL HASSAN MOHAMED MASAAD

PC-REV-54-1958 Ed Darner

 Principles

·  Land Law—Sub-minimum shares compensation in lieu of land should only be awarded where new division resulting in sub-minimum  shares necessary, not where sub-minimum shares already registered

Where a successful plaintiff has been held entitled to certain sub-minimum  shares in land by prescription, the court may award him the actual shares. rather than compensation in lieu, where the shares are already registered. and no new division of them is necessary. The provision for awarding compensation in lieu only applies where. if compensation were not awarded, the court would have to order a new division .resulting in sub.minimum shares.

Judgment

Osman El Tayeb P.J. October 1, 1958:—This is an application for revision by plaintiffs as to part of the decree passed in this case. The decree declared prescriptive title in favour of plaintiffs in respect of some shares in many saglas. That part of the decree from which plaintiffs are applying is the order numbered four, in which it was ordered that the shares therein stated should be valued and the value be paid to plaintiffs by defendants. The reason is that those shares are below the registrable mnima.

This order, I think, is not correct and not fair to plaintiffs. The court may pass such an order of payment of compensation when it finds that by the transfer of the newly-acquired share, it would be creating a new sub-minimum share in the register. That is when asub-minimum share has to be taken, out of another share. This is not the case here, because the shares in question, though they are below the registrable minima were already in the register as such. Land Settlement and Registration Ordinance 1925, s. 32 (2), prohibits the division of shares in a way as to make any share less than the minimum prescribed. The section allows the compensation for a minimum share added to the share of another co-owner.

The section does not apply to this case, as on the one hand here is no division of shares and on the second hand defendants have no other shares in order to be co-owners in the same sagias.

For these reasons order No.4. . is set aside and the plots therein stated to be added to the schedule.