HEIRS OF SULEIMAN HAGGAZ, Appellants-Plaintiffs v. MUDA THIR SULEIMAN HAGyAZ AND OTHERS, Respondents-Defendants
Land Law-Partition-Recovery from co-owners for improvements made be-
fore partition-Court will not partition land for the parties
The appellants and respondents were co-owners of a certain hosh. Be-
fore partition took place the appellants erected certain buildings on the
land. Appellants claimed reimbursement of the money they expended or,
alternatively, that if the hosh were partitioned, they should be compensated
by a larger share in the land than they were entitled to under Mohamedan
Law.
Held: (i) Partition should be performed by co-owners themselves.
The court will only interfere to enforce their agreement or, if no agree-
ment was made, to order the land to be sold by public auction and the
proceeds of sale divided among heirs according to Sharia rules.
(ii) The respondents would be bound to compensate appellants for the
improvements made if there was an express or implied agreement.
Appeal
1934. Owen C.J.: This case has been approached from the
wrong angle. The plaintiffs' claim was against their co-heirs for re-
* Court: Owen C.J.
payment of the money they had expended on increasing the value of
the common inheritance by erecting buildings upon it. Alternatively,
they claimed that if the hosh were partitioned they should be compen-
sated, at the expense of their co-owners, by being given a larger share
in the land than they were entitled to under the rules of succession
according to Mohamedan law. For some reason which is not quite
clear to me the High Court decided to proceed under the alternative
claim, with the result that endless trouble has been caused to everyone
who has had anything to do with it. It is a sound principle that our ~
courts will not undertake to do work for co-owners which they should
do for themselves; they will not extricate people from difficulties of
their own making. If co-owners of a hosh in Omdurman (or an urban
hosh anywhere else) want to partition it, they must do it themselves.
The court will help them only to the extent of enforcing any agreement
they might come to. If they are unable to come to agreement, the
only course open to the court is to order that the hosh be put up for
sale by public auction and make a further order that the proceeds of
the sale be distributed amongst the co-heirs according to their proper
Sharia shares, leaving any co-owner who has claims against individual
heirs for money spent by him on their behalf to recover by action in
the ordinary way.
The plaintiffs' original claim was put forward on this latter basis.
They urged that before partition they should be paid what they were
owed. Two issues the' efore should have been framed by the court, the
first and important one being that which was directed to finding out
whether or not there was any obligation or agreement, express or im-
plied, whereby the r' maining co-heirs become liable or undertook to in-
demnify the heirs ii, possession for their share of improvements in the
inheritance effected by that heir. The second issue was, if there were
such agreement, vhat was the individual liability of each of the co-
heirs expressed in terms of money. If no obligation or express or im-
plied agreement .ould be proved, the second issue did not arise and
the plaintiffs' cl. im failed.
The preliminary decree must therefore be set aside and the case
referred back for trial on the lines I have indicated. If the parties
require partition I will make an order for the sale of this hosh by pub-
lic auction, and divide the proceeds according to Sharia rules leaving
the plaintiffs to pursue their remedy by action against the heirs for re-
imbursement as I have said.
Appeal allowed