Principles

·  PRESCRIPTJON — Co-heirs — Possession on behalf of another — Must be open and hostile denial of co-heir’s rights — .Prescripiion and Limitation Ordinance 1928, s. 4(3)

A half-brother cannot bring an action for prescriptive title against his half. brother and co-heir unless the denial by the claimant of his co-heir’s rights has been “so open and hostile as to amount to an ouster.” Prescription and Limitation Ordinance 1928, s. 4(3)

Judgment

Babiker Awadalla, J., December 8, 1963:— This application should, in my view, be dismissed, There is no doubt that the decision of the learned District Judge was correct.

Even though the wathiga relied upon by applicant was in fact execut ed by the father of the parties, there is no doubt that it is quite ineffective in support of applicant’s claim.

In the first place, the said document makes no mention of sagia 55 and before us applicant’s agent tried to explain the ambiguity in the said document by contending the reference by the father to “what he owned” was wide enough to include sagia 55. I do not agree with him. The document spoke only of sagia 31 and one would certainly have found some express reference to sagia 55 if in fact it were meant to be covered by the dis position now alleged.

Secondly, the extraction of the fetwa by applicant in 1932 and the division of sagia 31 by him in the names of all the heirs suggests one of two things, either that the document is a recent forgery or that applicant never meant to exercise rights under it and was only in possession of the land in his right as co-heir.

‘Court: M.A. Hassib, J. and B. Awadalla, J.

It remains to be considered whether applicant can prescribe against his brothers and co-heirs. I think the learned District Judge was quite right in saying that such a claim would be defeated by Prescription and Limitation Ordinance 1928, s. 4(3) which reads as follows:

Where from the relationship of the parties or from other special Cause it appears that the person in possession of land is or was in possession on behalf of another, his possession shall be deemed to be or to have been the possession of that other.”

The parties in this case are half-brothers and co-heirs, and this Court has on several occasions expressed its disapproval of such claims except in cases where the denial by claimant of the co-heirs’ rights was so open .ind hostile as to amount to an ouster. Otherwise the claimant would only be deemed to have been in possession by the leave and licence of his brother or coheir.

In El Amin Abdel Sadik v. Mohamed, Abdel Sadik, AC-APP-46-1928, where a brother was seeking to prescribe against a brother and co-heir, Owen, J. (then Acting C.J.) said:

‘lt is difficult enough for one hetr to prescribe against another where they are so closely related as these parties are.”

Lomax, J., in Sanoud, Omer Nimr v. Heirs of Ahmed Omer Nimr, AC made a similar pronouncement in even stronger words when he said: “The applicant set out to perform a well-nigh impossible task, namely to prove a claim by prescription against his own full brother.”

Again, in Heirs of Abdulla Mohamed Hamadnalla v Hamadnalla .Abdulla Mohamed Owen C.J., said: —

“In these circumstances the relationship of the parties becomes all-important when one of the family claims that he has prescribed against the rest. It is not enough, in my opinion, that he is the only one that has cultivated, It is not enough that his brothers and sisters have not demanded a share of the cultivation or its fruits. I do not think that acquiescence by the others of his family should enable him to say that from the moment he was in possession of the land time began to run against his co-owners. The presumption is that he is occupying and using the land with their consent and permission and he cannot rebut it by saying that they never tried to eject him.”

I would like to take leave to refer to a statement by another eminent Authority who presided over this Court. 1 mean Bennett, C.J., who, in El Tigani Mohamed Mustafa v. El Khidir Mohamed Hag, AC-APP-6-1944 had made a clear exposition of this aspect of the law in so far as co-owners generally were concerned. He said at page 4 of the judgment:

            In the case of one co-ower claiming to have acquired ownership by prescription from another co-owner, however, special considerations apply. Co-owners, when they have not parted with physical possession, possess in law, and may possess in fact, according to their interest as owners. If a servant holds the property on their be half, the defacto is exercised in the name and for the use of them all. If one of them alone holds or occupies, his physical posses. sion is that of an owner f-or his own interest and that of an agent as to the others. In every case there is not a plural possession, but a single possession exercised by or on behalf of several persons. There cannot be trespass between themselves unless the acts amount to ous ter; for each of them is alike entitled to use and enjoyment (subject,. it may be, to a subsequent duty of accounting for profits), and all acts of use and enjoyment in an ordinary course and according to the nature of the subject matter are presumed to be done in exercise of that lawful right.”

I hope I would be allowed the indulgence of citing just one more author. rity decided by this Court as late as 1950, deprecating claims of this sort not only in cases where a brother is suing another, but in all cases where there is a close relationship. That was the case of Heirs of Yassin Omer v. Heirs of 4mm Yassin, AC-APP-33-1950. The two final paragraphs of the judgment of the Court, written by Lomax, J., read as follows:

“And we do not see that the appellants can find any assistance in their claim through prescription. For even if they were to show conclusively that some or all of the heirs of Yassin Omer had cultivated or received crops or otherwise been in possession of the land in dispute, they could never show us that such possession was adverse to the title of Amin.

For in view of the close relationship of the parties in this dispute, and the fact that almost all the land at the northern end of the island very likely belonged originally to Yassin, no doubt Amin himself would permit his brothers and sisters and other close relatives to cultivate or enjoy a share of this gerb, but such enjoyment does not entitle them to prescribe against their own relatives, the regi stered owners, in the absence of any clear evidence, and there is none in this case, that their occupation has been ‘adverse’ and without the express or implied permission of the registered owners.”

For the above reasons, this application is dismissed with costs.

M. A Hassib, J., December 8, 1963:— I concur.