(Court OF APPEAL)*

MOHAMED MOHAMED OSMAN v. FATMA EL HUSEIN

AC-REV-36-1964

Principles

· Prescription -co-heirs- possession on behalf of another-prescriptio and limitation Ordinace s, 4 (3) –An overt act must be proved besids possession land law-co-heirs-possession on behalf of anther-prescription and limitation Ordinace s, 4(3)- an overt act must be proved besides possession

Co-heir cannot bring an action for prescriptive title against his co-heir under prseciptionn and limitation Ordinace. S. 4(3) unless the denial by climant of his co-heir’s right has been so open as to amount to an overt act which shows that the claimant is asserting a title different from that he holds in common with his other co-heirs.

Judgment

Babiker Awadalla J. Agust 9.1964 : - at this is an application against the decision of His Honour the Province Judge Ed Damer dismissing summarily an application to him against the judgment and decree of the learne District Judge Merawe in CS-6.

The facts of the case are very simple. Respondent Fatma El Hussein (plaintiff in the suit) is the daughter of Halima Babiker who dies in 1927.

Leaving as her heirs (besides Fatima) her husband Mohamed Osman Ahmed the son of disposing of her share by way of gift to Mohamed Ahmed the son Um EL Kheir. Um EL Kheir also deied and was inherited by her Mohamed Ahmed who –in turn died without issue, leaving as his heirs his cousins, the present owners of share 2-6 in sagia 63 Nuri.

Respondent –Fatma—instituted the present suit claiming rectfication of the register in her favour to the extent of all the lands previousl owned by her mother, on the ground that she was in exclusive possession of those lands for the prescriptive period. The claim was contested only by her step-brother Mohamed Mohamed Osman who denied the claim. Contending that he himself was in possession of those lands partly in his capacity as owner and party in his quality of agent of respndent untill 1957 . her futher contents that in that year respondent revoked the agency and asked for delivery of the whole lands to her which he did out of sheer symapthy. The learned District Judge have judgment in favour of respondent on the ground that there is no relationship between Ordinance 1928 s 4 (3). Application to His Honour the Province Judge was summarily dismissed. Hence the present application.

As I see it , this application should be allowed. This is the very common case of prescription between co-heirs on which this Court had made a series of pronouncements, all going to point out that it is not enough for one co-heir to have been possession for the prescriptive period. He must go further and prove that his possession was openly in defiance of his co-heirs and that is what is often referred to by the word “ ouster” in previous judgments of this Court. In other words, between co-heirs something more overt that mere possession must be proved in order to show that claimant was asserting a title different from that he held in common with his other co-heirs. And this is common sense, for a co-heir is entitled to possession of whole land and the mere fact the he is allowed by his co-herirs to exercise that right can in no wayoperate to divest those co-heirs of their respective titles. There is always a presumption in such cases that the possessor is ocupying the land and using it with consent of his co-heirs is not enough. What is requited in such cases is proof of an overt act on the part of the possessor bringing it home to his co-heirs that their tittles are in jeopardy. It is only from the date of such overt act and never before that the cause of action in such cases accrues.

In the present case, no evidence of such overt act is available. This application is therefore allowed and the decision of the learned Distric Judge is herby set aside.

No. order as to costs.

M. A. Abu Rannat C.J. Agust 9. 1964:- I concur.

* Court : M. A. Abu Rannat C.J. and Babiker Awadalla J.