Case No.:

AC.APP.26- 1956

Court:

Court of Appeal

Issue No.:

1961

 

Principles

·  Land Law—Tenant, in common—Accountability for rent

·  Land Law—Prescription—Tenants in common—No adversity

·  Limitation of Actions — Prescription and limitation Ordinance, limitations Schedule. Part 11, s. 13—” fiduciary capacity “ — Between co. owners

·  Limitation of Actions—Prescription and Limitation Ordinance, s. 14 (5)- Extension of time from disability to sue

·  Land Law—Tenants in common—Improvement by one tenant

·  Land Law—Tenants in common—Rent on “family house “ occupied by one tenant

Akasha KhaIil Khayal died leaving six parties interested in the four plots of land in question. This suit is brought by heirs of three of these parties against the heirs of a fourth, khaIil Akasha. After the death of Akasha KhaliI KhayaL his son, KhaIil Akasha, the predecessor-in-title of the defendants, applicant, continued to occupy a house on one of the plots in question and to collect rents from the other three plots. Plaintiffs-respondent here claim rents accruing from 1926 until 1955. the date of the death of KhaIil Akasha, or alternatively an account of rent received by defendants’ predecessor-in-title during that period.
Court: M. A. Abu Rannat C.J., M. I. El Nur J. and R. C. Soni J.
Held: (i) Whether or not Khalil Akasha was legally appointed plaintiffs’ agent for rent-collection is not relevant. since as tenants in common, plaintiffs are entitled to an account of the rent.

(2) Defendants’ predecessor-in-title. Khalil Akasha, acquired no prescriptive title since the relationship of the parties as co-owners precludes adversity.
(3) The defendants’ predecessor-in-title did not hold the properties in “a fiduciary capacity” within the meaning of the Limitations of Actions Schedule. Part II, ,. 13.  of the Prescription and Limitation Ordinance. Unlike the law of England, the law of the Sudan does not regard a co-owner appropriating rents and profits to himself as a fiduciary. In accordance with the Schedule there is a five year limit on the action; only rents for five years preceding this action may be collected.
(4) Although defendants’ predecessor-in-title was appointed guardian for the minor children of one of the six heirs of Akasha Khalil Khayal, at all times one of the brothers of the minor children, being a major, and having identical interests, could have sued on his and their behalf. The five-year limitation cannot be extended on these grounds on behalf of the minors. Prescription and Limitation Ordinance, s. 14 (5)
(5) Improvements on the house made by occupant, Akasha Khalil, with his own money be set off against the rents owed.
 (6) Since the house in question is a “family house” available to all co-owners. heirs of occupant. Akasha Khahil, need not account for Akasha Khalil’s reflt to the plaintiffs.
 

Judgment

(COURT OF APPEAL)

HEIRS OF KHALIL AKASHA v. AKASHA MOHAMED AKASHA

AND OTHERS

AC.APP.26- 1956

 

Advocate: H. Riad……. for the applicants

     M. A. Abu Rannat C.J. February 11, 1957 :—This is an appeal from preliminary and final decrees dated August 6, 1956, and August 23, 1956. respectively given by the Province Judge, Kordofan Province in a Civil Suit No. 206-1956, between Akasha Mohamed Akasha and others, as plaintiffs and respondents, and the heirs of Khalil Akasha as defendants and appellants.

Before embarking on the arguments put forward by the two parties, I find it necessary to set out the facts which are either supported in the court below by reliable evidence or admitted by the defendants.

Both parties to the action are heirs of Akasha Khalil Khayal, who died in Omdurman in 1916. He left two groups of heirs surviving him; we are only concerned with one group in this appeal.

In 1926 the immovable property of Akasha Khalil Khayal situate at El Obeid Town were partitioned and the following four plots of land were registered in the names of the group of heirs who are parties to this appeal:

(1) plot 1(1) ,Block C.2.N.,comprising 701 square meters hereinafter to as ‘ the Amara.”

(2) Plot 2, Block F.2.N., comprising 1416 square metres, hereinafter referred to as “the house.”

(3) Plot 19, Block E.i.N., comprising 37.5 square metres.

(i) Plot 27, Block E.i.N. comprising 37.5 square metres. These two plots are hereinafter referred to as “the shops.”

These four plots were in 1926 registered in the name of the following groups of heirs of Akasha Khalil Khayal:

 (1) Husna Hussein Bayoumi             - widow                                  ( deceased )

(2) Mohamed Akasha                          - son                                       ( deceased )

(3) Khalil Akasha                                 - son                                       ( deceased )

(4) Ahmed Akasha                               - son                                       ( deceased )

(5) Dam El Hana Akasha                     - daughter                              ( deceased )

(6) Zakiya Akasha                                - daughter                                      ( alive )                

The heirs of Nos. 2, 4.5  and Zakiya are the plaintiffs. The heirs of  No. 3 are the defendants. It is relevant to mentioned here that Mohamed Akasha died on February 11. 1943. Ahmed Akasha died on July 29, 1954, Khalil Akasha died on September 8,1955, and Dam El Hana died in I952.

 The defendants admit that they and the plaintiffs were and still are co-owners in undivided shares of the above-mentioned four plots of land (page 10, record). The defendants also admit that their predecessor-in-title was alone receiving rent of the Amara and the two shops, and that h was also occupying the house without paying rent to the plaintiffs.

By their statement of claim, the plaintiffs claimed £E.6,o6o.756m/rns being their share in the rent accruing from 1926 until the date of the death of defendants’ predecessor-in-title in September or alternative1 an account of rent received by defendants’ predecessor-in-title during the above period.

The defendants deny the claim and allege that there. was an agreement in 19I5 between plaintiffs’ and defendants’ predecessors-in-title whereby defendants’ predecessor-in-title should look after and maintain members o the family in consideration for leaving ownership of these plots of land  to him. The defendants also claim that they acquired a prescriptive title to these lands and alternatively they contend that even if such a clam is not established, the plaintiffs’ claim for rent is barred by lapse of time

Issues were framed and I propose to deal with them in chronologic order.

The first issue is whether there was an agreement in• 1915 between Khalil Akasha and his brothers and sisters to the effect that Khalil should look after members of the family in consideration of his acquiring owners ship of the four plots.

It is clear from the evidence produced in court that there was n such an agreement. The land in question devolved on Khalil and M brothers and sisters on the death of their father in 1916. The alleged date of the agreement must be wrong. Furthermore, in 1926 there w a partition and distribution of the immovable property of Akasha KhalIl Khayal. If such an agreement existed, that was the time for Khalil to produce it and cause the land register to be rectified.

The second and third issues are “if not, was the late Khalil Akasha receiving the rents of the property in question as agent of the plaintiffs?” or alternatively “was he holding the property as a trustee under a discretionary trust ” ?

These parties are co-owners in undivided shares of the above land. Their position is similar to that of tenants in common since all the present registered co-owners succeeded to their shares by inheritance. Each of the plaintiffs is entitled to possession of a portion of the land which is equivalent to his share. The plaintiffs are therefore entitled to an account of the rent whether they made the defendants’ predecessor-in-title their agent or not.

The evidence shows that Khalil Akasha was appointed a general agent by some of the plaintiffs and it is clear from the whole evidence that they were looking to him as a manager of their immovable property. He was not specifically appointed for the collection of rents. I stated above that he was liable to account for rent not because he was an agent, but because he was a co-owner in possession of the property.

The contention of the defendants that they must have acquired a prescriptive title does not hold water. The relationship of the parties makes his possession as possession by the other co-owners. In, other words the evidence does not support the contention that he was in adverse possession or that he was in possession of other heirs’ shares as of right.

Now I come to the point where the plaintiffs contend that Khalil Akasha was a trustee for the other heirs and that he is liable to account for rent for the period 1926—1955.

In support of this contention, the advocate for the plaintiffs quoted the following passages from Cheshire, modern Real Property 338 (7th ed.,1954):

“a legal estate is not capable of subsisting or of being created in an undivided share in land. It should be observed that the expression ‘undivided shares’ is consistently employed in the statutes to denote tenancies in common, and what this particular enactment means is that there can never again be a legal tenancy in common, ie, a tenancy in common of a legal estate.”

“Provision is then made that in every case where a tenancy in common of a legal estate would formerly have arisen, the legal estate is to be vested in certain persons as joint tenants who are to hold it upon what are called the statutory trusts .”

The above statement of law which is submitted by counsel for the plain- tiffs is not law in the Sudan. The English statute (The Law of Property Act, 1925) abolished tenancies in common of the legal estate, and one of the consequences of such abolition is that the subject-matter of the tenancy

in common is Converted from land to money. In the Sudan, a co-owner can still apply for partition of his share if it does not offend against the rule of minimum shares, and he can sell it or dispose of it in any other manner unless there is a claim for pre-emption. In my view Khalil Akasha was not a trustee.

As to the fourth and fifth issues, the learned Province judge found that Khalil built the Amara out of his own funds, and that he built additional rooms in the house. In my view there is sufficient evidence to support this finding of fact.

Khalil built the Amara in 1936 and there was no evidence to show that he used the rents collected from the other two shops for the construction of this building. It was contended that Mohamed Akasha supervised the building. This in itself does not prove that Mohamed Akasha contributed in financing the building. The amount of rent from the two shops prior to 1936 was so small that it was not conceivable that such a huge building as the Amara could have been built out of it.

As to the house, it is admitted that Khalil was occupying it and that he made certain improvements in the building. I shall deal with the points raised in respect of this house later, when the question of payment of rent is considered.

In my view, the two shops were not built by Khalil Akasha, but the Amara was built from his own funds.

The sixth point at issue is whether the plaintiffs are entitled to rents collected during the period I926—I955. I have not any doubt in my mind that, the plaintiffs are only entitled to an account in respect of rent due from the two shops and Amara for five years before the action was brought.

In England if a co-owner in undivided shares appropriates the whole of the rents and profits to himself for many years, he must account for them, since the land is in his possession as a trustee, and time does not run in his favour. This is not law in the Sudan as I have stated before.

It is contended by counsel for the plaintiffs - that Khalil was holding the rents in a fiduciary capacity. There is no evidence in support of this contention. Khalil was in 1943 appointed guardian for the minor heirs of his brother Mohamed. Even if it is conceded that the appointment was not terminated, and this point was never raised by the plaintiffs, I think that under the proviso to Prescription and Limitation Ordinance, s. 14 (5), the minors cannot succeed. This proviso runs as follows:

“Provided always that in the case of land held in undivided shares by persons some or all of whom are under disability, time shall begin to run from the date at which in the opinion of the court one of such persons could have sued on behalf of the rest, either in his

own right or as the legally appointed guardian for those under such disability.”

Akasha Mohamed Akasha and other heirs of Mohamed Akasha could have sued on behalf of the other heirs, including their minor brothers and sisters.

This disposes of the period during which an account for rent in respect of the two shops and Amara is due.

The last point is whether Khalil was liable to pay rent for the house.

The facts show that Khalil was occupying this house all the time and that he made certain improvements in the building. It is also a fact that Akasha Mohamed Akasha lived in the same house from 1934 to 1947 without paying rent. It is also known that Mohamed Akasha stayed in the same house for three years.

The important point here is that Khalil did not let the house nor did he derive any profits from it. It was a family house which was available to all co-owners to live in, if they liked. I do not think that the defendants are liable to pay rent to the plaintiffs in respect of this house for the past period. They can now let it or sell their shares in it.

To sum up, the plaintiffs are entitled to rent for the last five years before this action was brought in respect of the Amara and the two shops only.

The defendants are entitled to set off £E.635.5518m/ms, being the cost of building the Amara by Khalil Akasha in 1936. It is argued by counsel for defendants that the heirs of Khalil should at least be entitled to the present value of the buildings. This argument is not sound since Khalil built the Amara as a co-owner and that he benefited by rents without accounting for them from 1936 until 19so.

The amount of rent to which the plaintiffs will be entitled as is shown in the attached schedule is £E.27.480m/ms and costs which are taxed at £E.27.84om/ms.

 

SCHEDULE

Rents from I951 to 1955:

Plot 1 (1), Block C.2.N.:

Amara ...               ...             . .                                                          £E3562.500m/ms

LESS  £E522.45om/ms    Local rates

          £E.635.518m/ms   Buildings

 

 

 

 

 

 

           £E.1157.968m/ms                                                                       £E.1157.968m/ms

£E.24o4.532m/ms

Rentt from 1951 to 1955:

Plot 19 Block E.1.N.:

Rent        …            …            …            …            …            …                                            £E.278.000m/ms

LESS Rates            …            …            …            …            …                                            £E.46.620m/ms

                                                                                                                                                 £E.231.380m/ms

Plot 27, Block E.1.N.:

Rent        …            …            …            …            …            …                                            £E.294.000m/ms

LESS Rates            …            …            …            …            …                                            £E.65.880m/ms

£E.228.I2om/ms

Net rents due for all heirs, including heirs of Khalil:

Amara    …            …            …            …            …            …                                            £E.2404.532m/ms

Plot 19  …              …            …            …            …            …                                            £E.231.380m/ms

Plot 27    …            …            …            …            …            …                                            £E.228.12om/ms

£E.2864.o32m/ms

Heirs of Khalil are entitled to one fourth of above sum:

i.e., £E.2864.o32 ÷ 4              =                                                                              £E.716.008m/ms

Amount payable to other co-owners                                                                                                £E.2148.024m/ms

 

COSTS                   £E.6o.84om/ms                     Court fees for trial court.

£E.15.000m/ms                      Advocate costs in trial court.

£E.75.84om/ms

£E.48.ooom/ms                    Less court fees in Court of Appeal on

£E.2148.o24m/ms.

£E.27.84om/ms

No advocate fees in the Court of Appeal as both parties only partly succeeded in their claims.

M. I. EI Nur J. February 11, 1957:-1 concur.

R.C. Soni J. February 11, 1957:-1 concur.