Estoppel-Admissiolls-PrrSO/lS bound=Right /0 impeach for [raud or iIIegali/y
Evidence-A dmission=-Persons bound-Impeachment

Evidellce-lmpeacIllIlellt-Admissioll made by II CO-OW/ler of properry=-Estoppcl
-Who estopped=-Righr 01 another co-owner to summon the person making
the admission-Fraud or illegality

A document was produced in Sharia proceedings signed by three of the
heirs of Taha Musallam, signing for themselves and for applicant, an in-
fant, in which they admitted that respondent was entitled to a part of the
land of Tuha Musallarn. Respondent produced the document in evidence
in a civil suit brought against him by the applicant in which the respective
rights of respondent and applicant in the same land were in issue. The
Province Court refused an application by applicant to summon the signa-
tories of the document to explain how it came to be made, on the ground
that they were estopped from denying the truth of their own admission.

Held: 0) No estoppel arose against applicant from the document to
which he was not a party. The signatories had no power to sign on his
behalf.

(ii) The applicant was entitled to call the signatories as witnesses in
an effort to impeach the document for fraud or illegality.

Revision

December 3, 1938. Creed C.J.: Hussein Taha Musallarn. an
infant, (applicant) claimed through his guardian the sum of ££.9.703
m/ms from his uncle, Mohammed Saeed Musallam, which sum he
alleged was received by Mohammed Saeed as his agent in respect of
18.28 square metres in plot 5, block f 8, Port Sudan West, during
the period January 1, 1935 to October 31, 1937. The defendant
admitted that he had not paid this sum, but counterclaimed for
rectification of the register in his favour in respect of these 18.28
square metres, alleging ownership. The learned judge dismissed the
claim and gave judgement in favour of the defendant on the counter-
claim.

Plot 5 was originally registered in the name of three brothers,
Taha, Hassan and Mohammed Saeed (respondent), in three equal
shares. By deed registered on April 16. 1912. Taha became the
registered owner of the share of Hassan, thereby becoming registered

"Court: Creed C.J .. Evans and Flaxman J1.

as proprietor of two-thirds of the whole plot. Taha died on August 3,
1934, and his estate was administered by the Sharia Court of Port
Sudan.

During the administration of the estate, Mohammed Saeed
claimed that he was entitled to a half share of the whole plot instead
of the third share which was registered in his name. A document
(Exhibit A) was presented to the Sharia Court, signed by three of
the heirs of Taha, namely, Mustafa, Ali and Osman, admitting the
claim of the respondent. Osman signed not only as agent for certain
adult heirs, but also purported to sign on behalf of the infant Hussein.
This admission was accepted by the Sharia Court against the adult
heirs who signed personally or by agent, but was rejected against the
infant Hussein. The share of Hussein was calculated on the basis
that Taha was entitled to two-thirds of the plot, and Mohammed
Saeed was very properly advised by the Shari a Court that if he
wished to press his claim against the infant's share, he should raise
a case in the civil court.

Mohammed Saeed, in support of his counterclaim, stated on oath
at the trial of this action before the Province Court that he was in
fact a joint purchaser with his brother Taha of the share of Hassan.
although this was not stated in the deed of April 14, 1912, that Taha
had admitted this during his lifetime, and that Taha had promised to
arrange for the alteration of the register. He was allowed by the
learned judge to put forward in support of his counterclaim the deed
of admission referred to above (Exhibit A). This court is surprised
that Mohammed Saeed was not examined as to the actual occupation
of the property or the division of the rents and profits after April 14,
19 I 2. The point is obviously of the greatest importance .

Application was made to the Province Court on behalf of the
infant Hussein that, as the learned judge had admitted the document
Exhibit A as evidence, the signatories should be .summoned to explain
the circumstances under which the document was signed. It has been
suggested in this court, and was apparently suggested in the court
below, that the document is tainted by fraud. The learned judge
recorded that he had "no hesitation in holding that the signatories
of Exhibit A are now estopped from denying the truth of their own
admission" and rejected the application that they should be summoned
as witnesses in the present case. This ruling is manifestly wrong.
No estoppel of any kind whatsoever arises against the infant from
this deed. First. Osman who purported to sign the document on