of son building with personal funds upon father's hosh with father's
permission.

Land law - Separation of legal 'ownership of buildings from land -
Whether possible in the Sudan.

Land laH usufruct - Building erected by son Hith personal f1.Ulds on father's
hosh .Iith father's permission - Son's usufruct during father's
lifetime.

awkil - Accounts - Burden of proof as io whether money used to
finance erection of building was from estate or personal funds.

Plaintiff erected several buildings upon his father's hosh
during the father's lifetime, and lived in certain rooms of them.
Plaintiff at the time held a general power of attorney and a ta'l'lkil
from his father, but mixed all monies of the e~t~te and of his own.
Plaintiff sued for a declaration "that We was the owner of the
buildings. Defendants co-heirs of the father admitted plaintiff
erected the buildings ''lith the father's permission; but denied
that the money used to finance their erection 'l-Ias from plaintiff's
personal funds.

* Court: Bennett, C.J., Lindsey, J. and l<lavrogordato, D.J.

 (i) Plaintiff as the accounting party and possessor of
information peculiarly within his knowledge had the burden of proof
that he had an interest in any particular building. In the absence
of facts other than mere erectibn by him of any particular building,
as a matter of lOciical inference there is no greater likelihood of
that building having been built with his own money than with the
monies of his father. The plaintiff must prove, first, that he
built with his father's permission, and, second, that he himself
paid for the building.

(ii) In seeking to prove that plaintiff himself paid for a
particular building, he must either prove facts from which there

is an inference that he built the particular building ,·lith his own
money (other than merely that he erected the building), or that
looking at the number of buildings "Ihich he erected as a whole and
comparing that ~Iith 'the total noni.es received from or on behalf of
his father and allowL~g for his expenses in managing the estate,
there is an inference that some proportion, large or small of those
buildings must have been erected by him with his own monies ••

(iii) The fact that plaintiff built certain rooms and lived

in them for twenty years ,~ithout pay ing rent to the father in itself
raises an inference that he built them with his own money. Conversely,
the fact that certain rooms were let to strangers is consisted l-lith
those rooms having been erected on behalf of the father.

(iv) Where a son erects certain buildings at his own expense
on his father's hash with the father's permission, the legal con-
sequenoes "Ihich follow, apart from any valid and certain custom
which mey be applicable, are as follows: (a) during the lifetime

of the father, the son receives a personal usufruct in the buildings;
(b) on the death of the father, the usufruct ceases, and the son
becomes entitled to receive compensation from his father's estate

for the value of the buildings at the date of distribution; (c)

the father's estate becomes entitled to discharge the obligation

to pay such compenaat i on by due allotment to the son of the :1tJ.ildings
in question, and of due soil upon ~Ihich they stand subjeot to pa;yment
by him of the value of any such land l-Ihich exceeds his share, and

(d) so far as the same can be achieved without substantial prejudioe
to the rights of the other heirs, the son becomes entitled to have

the buildings allotted to him in lieu of compensation, and the land
on which they stand allotted to him as his share of· the hosh. In
this case only the consequences of (b) above are in issue and the
declaration is therefore restricted to declaring plaintiff entitled
to compensation in respect of the buildings Nhich he erected at his
o~m expense to the extent of the value thereof at th~ date of the
distribution.

Civil Justice Ordinance 1929, order 11.

Appeal.

slf}m~Ilr.::.t1(4: lI:I4(5,~(H~1".·ei4:, tJJ~. a This was an application for the.
revision of a decree of the High Court, Wad Medani, dated October 11,

1944, dismissing a similar application for the revision of the decree

of the District Court, Wad r.iedani in a suit in which the respondent, .

the plaintiff claimed from his co-heirs of his father, the late l-lohamed
Ahmed Abu Shanab, the applicants and defendants in a declaration tha.t

he was the 'otmer of certain buildings erected on Plots I and I(I), Ek.

10 Medanien Quarter, Uad Medani, t'lhich plots were then registered in

their joint and undivided co-ownez-shap, The grounds of the plaintiff's
claim are that he erected the buildings in question during the lifetime

of his father, t-lith his father's permission and authority and at his

own expense. The defendants admitted that the plaintiff erected some

of the buildings with the authority' and permission of their father, but
s~.that he did so as his father's agent under a general power of attorney
or general verbal authority to administer the whole of his father's estate,
and that' he paid therefor ~lith money belonging to their f~ther.

For the purposes of this application, it will be conventent to
classify the buildings in question as follows: c'l aeo J".consisting of
rooms 2, 6, 8, 13, 14, 15, 16, 17, 18.and 19, class 2, consisting of
rooms 5,7,9, 11, 12, 20, 21, 22, 23, 25, 26, 21,28 and 29, and class
3, consisting of rooms 3 and 4.

At the hearing before the learned District Judge on February 13,
1944, he very properly suggested that the parties should make a last
effort to settle this family dispute before certain notables, who had
been invited to attend for that purpose by the learned District Judge.
The parties agreed to this suggestion. A general disoussion then too

plaoe before the learned District Judge and the notables. As a result
of that disoussion, the defendants admitted that the olass 2 rooms had
been ereoted by the plaintiff and that he had been living in them for

the last 20 years. In oonsequenoe of that admission, those rooms "Iere
not inoluded in t~ further negotiations for a settl~ment. In the
further negotiations that followed, the parties agreed upon what was
then reoorded as to the ownership of the buildings inoluded in olass I,
and this agreement was reduoed to writing and signed by the parties,
and thus oonstituted a partial settlement of the differenoe bet\'Jeen

. them. As they w.ere unable to agree the faots relating to the rooms
inoluded in olass 3, the learned judge, after an abortive attempt at
arbitration thereon had taken plaoe, heard evidenoe thereon, and, on
his oonCluding that the plaintiff had himself erected or caused to be
erected these two rooms, deoided that the burden of proof thereupon
shifted to the defendants to prove that the plaintiff had done so with

their father's' money and, on their failing to discharge this burden, he
deoided in the plaintiff's favour, and decl.ared that these two rooms
belonged to him. In regard to the rooms inolude~ in olass 2, the

learned District Judge treated the above mentioned admission by the
de:endants as being equLvalent to an admission that the rooms in question
were the property of the plaintiff, and he made a declaration accordingly.
In his decree, the learned District Judge, therefore, embodied the terms

of the sulh as to the class 1 rooms, and declared that the class 2 and
class 3 rooms "lere the property of the plaint iff.

The defendants applied for revision of this decree to the High Court.

In their application they alleged that the learned District Judge had
misdirected himself as to the onus of proof in regard to the rooms

included in class 2 and in olass 3. The learned High Court Judge dismissed
the application on the ground that it disclosed. no sufficient ground upon
which to interfere l'lith the decree of the learned Distriot Judge. While
the learned High Court Judge \-Ias olearly within his rights in doing so,

I think ll\Yself that, where the lack of due form in an application for
revision l!la\Y' possibly be due to ignoranoe rather than to a lack of merits,
the better oourse is to return the application t? the applioants in order
that it l!la\Y' be amended within a time to be fixed by the oourt to whom

the applioation lies. This latter course is expressly provided for in
order 11, rule 4 of the Schedule to the Civil Justice Ordinance 1929 in
relation to an inadequate memorandum of appeal and, in my opinion, is at
least equally open in relation to an applioation for revision. I think,

.moreove~, that the application for revision to the learned High Court
Judge did raise in substance the objection to the decree of the learned
District Judge upon which the defendant shave rel ied in this court.

The defendants made a half-hearted endeavour before this court to
upset the partial settlement arrived at in regard to the buildings
included in class 1, but they failed to substantiate any ground why.
that settlement should be'set aside.

Before dealing ;'lith the grounds of the learned District Judge's
decision in regard to class 2 and 3, it is desirable to state the general
background of the case, in the 1 ight of Hhich, as. it seems tome, the
rights of the parties must be determined. Mohamed Ahmed Abu Shanab fell
ill, and became partially blind and confined to his house acme time

about 1915. He was thereafter unable to administer his affairs. At his
request, therefore, and as is customary, his eldest son, the plaintiff,
took over the direction and management of his affairs. His authority

so to do was , at first, verbal, but in 1923, when the necessity of a
ta\'lkil in due form to enable him to collect the rents of lands in the
Gezira scheme arose, he received a powervof' attorney in the \-lidest terms,
enabling him to act generally 1llld for all purposes on behalf of his
father. I-Iohamed Ahmed Abu Shanab died in 1942, and throughout the tHenty-
seven years of his management of his father's estate the plaintiff never
stated or settled any account s with his father. It is perfectly clear
that he mixed the morii.es he received in' connection Hith his father's estate
and on his father's behalf Hi th his own morri.es , and those raorri.ea were,

and remain, inextricably mixed. He r.e ce i.ved until 1933 a yearly payment

of over/LE.7 in respect of land owned by his father, and in 1933 he sold

these lands on his father's .behalf, and received about LE.43 therefor.

He also received about,LE.30 -in respect of compensation for the exprop-
;d~11on of other lands belonging to his father. All these monies were
mixed ,·lith his own, and applied indiscriminately for his own use , and
for the purposes of the administration of his father's estate. Buildings
Nos. 20 to 23 and 27 to 29 Here let by ~im t<> str1lllgers, and the rents
received therefor vlere also applied for his own and tl;l.e estate purposes.

The defendants alleged that, when their father fell ill, he handed over

to the plaintiff all his assets, including'a quantity of gold, of silver,
of cash and of grain. They vlere unabl.e to prove the details of any such
assets so handed over to the plaintiff, and it was on this inabi11ty that
the lee~ed District Judge based his decision against them in regard to
the rooms ,included in class 3.

TO llzy' mind, it is not in the least surprising that the defendants
should have failed to discharge this burden of proof after a lapse of

. twenty-seven years, but their failure so to do does not in the least,
in llzy' opinion, affect the great inherent probability that. \-lhen, at his
father's reqUest, the plaintiff took over the direction and management
of his father's estate, he also took over such assets as vlere then in
his father's possession. He could not be expected to run the estate
without ~~ working capital. It also seems to me highly improbable
that, when he vias taken ill, the late Mohamed Ahmed Abu Shanab, uho had
previously been working as a merchant and farmer, and who at that date

was, "Ie know, the o_wner of these two plots of land :L>l the f.1edanien Quarter,
a.p.d of considerable land in the Gezira scheme, should have been possessed
of no other assets· wnat ever-,

The general 'background is, therefore, that, over a period of t"lenty-
seven years, the plaintiff has nanaged his father's estate, has rec~ived
for that purpose f'r-ora or' on behal.f of his father an indeteri7linate sum of
money, which he has mixed . inextricably vlith his ovm , and that 'l-lith those
nonies so mixed he has kept the exist:L>lg buildings on the hID plots in

the Medanien Quarter in repair, has built a large number- of new buildings,
and has maintained his fat:ler, and probably his mother, and possibly other

members of his father's f~~ily. The ordinarJ renedy for su~~ a state of

affairs •. Iould be to order the plaintiff to render an account, but it is
quite obvious that he is in no position to furnish accounts, and that any
accounts he did furnish uoul.d be no more than the informat ion that the
court already has before it. We must, therefore, decide the rights of

the parties in relation to these buildings, as best \'Ie may on the information
we have, and bear-Ing the general position as above outlined carefully in
mind.

When, in ordinary cdz-cums+ances , a son, \'lith the permission of his
father erects, or causes to be erected, a house in his father's ~,
there is, I agree, an inference that he buil t ,~i th his own monies, and

I think that, in any subsequent dispute·"lith his father's remaining heirs,
that inference 'l-Iould be sufficiently strong to shift the burden of proof
to the other heirs, to shou that he did not use his own money. But that
ordinary and simple situation is far from being the case here, vlhere the
plaintiff has built houses out of a mixed f~~d, consisting of his own and
his father's money, \'lhile acting as [-.is father's general attorney. In
such circumstances, not only is he an accounting party, bound to show

what monies of his father he reoeived, and what he did with it, facts
which are peauliarly and, indeed, almost solely within his own knowled~,
but, as a matter of logical inferenoe, there is, in the absenoe of facts
other than the mere erection by him of any particular building, no
~eater likelihood of that building having been built with his own 'money
than with the monies of his ~ather. To establish an interest in any
partiaular building built by a son in his father's hosh , the son must
prove, first, that he built with his father's permission, an~ second,

that he himself paid for the building. In the oircumstances of this case,
the plaintiff cannot discharge that burden of proof in relation to any
particular building merely by showing that he erected the building. He
must either prove other facts from which there is an inference that he
built the particular building with his o~m money, or must seek to show
that, looking at the number of buildings whioh he erected as a whole,

and comparing that with the total monies received from or on behalf of
his father, and allowing for the expenses which he must,have incurred in
and about the management of his father's estate, there is an inference
that some proportion, large or small, of those buildings must have been
erected by him l-1ith his oun raon i.ee ,

On the above basis, the plaint iff "loule' seek to shou that the
defendants admission that not only did he build ull the rooms in class

2 himself, but that he had lived in them for the last twenty years, in.
itself raised an inference that he built with his own money. If that
admission could stand in its entirety, I think that this argument might
prevail. Where a son erects buildings in his father's ~osh, and inhabits
them for a large number of years ~Iithout paying rent to his father, there
is'certaihlyan inferenoe that he paid for them himself and, in those

~ ciroumstanoes, I doubt if that inference would be displaced by the facts
above reoited, that those buildings, among others, were ,built .out of a
mixed fund of·his father's monies, used by him for his purposes and for
the general purposes of his.father's estate, while he was acting as his
father's attorney. The fact that he himself lived in the particular
rooms seems to me, in the absenoe of any fraudulent intent, a strong

indication that he paid for those particular buildings \~ith his own money.

::But it \~as admitted by the plaintiff in this court that ,the only rooms
actually lived, in were 5 to 12 inclusive, and that rooms 20 to 23 and 27
to 29 were let by him to strangers, and the rent therefor used as a part
of the said mixed fund. So far as it goes, the letting 'of these rpoms

to strangers, seems to me, if anything, more consistent with his having

erected them on behalf of his father. That being so, the only rooms as
to t-thioh he raioas ;;my inference that he paid for them hinself are the
rooms he actually lived in, namely, rooma 5 t,o 12, ino1upive, of lIhich,
rooms 6 and 8 vlere acknowl.edged in the sulh to ,be 'his property.

Second, the plaintiff l-/ould seek to show the monies he received

from or on behalf of his father could not possibly have sufficed to pey
the capital expenditure necessary for the erection of all these buildings,
and to defravr the costs of madrrt enance of existing buildines end "alls,
and the costs of naintninin::; hi" ~'>:~;lOr durinG' the tllcntY-GCVCl1 years

that he acted :;,13 hb CC:¹,Oly,l 'i;'~cl'ac~·. ' .•. ::'v;re is no certainty in this
argument, because there :::.re no exact figures either of his receipts or

of his outgoings, c~d, in these circumstances, any doubt must be resolved
against him. Judging as best I may, I have come to the conclusion that

it must be allowed that he did pavr'for some of the buildings himself.

It is at least significant that, under the partial settlement covering

the rooms included in class 1, a substantial proportion of those rooms

were agreed to be his property. Nevertheless, I find it impossible not

to allow to the defendants that sone of the rooms in classes 2 and 3

'l"lere erected i'lith monies received by the plaintiff from or on behalf of
his,father. Where are we to draH the line'? Bearing in mind that any

doubt must be resolved against the plaintiff, both, because the initial
burden of proof is upon him, and because he is an accounting party, with

a peculiar and almost sole knowledge of the actual facts, I think that

the proper course is to combine the two legs of the plaint iff's argument,
and to allow, on the first leg, that there is an inference that he built
rooms 5 to 12 inclusive "lith his own money, and to allow, on the seoond
leg, that those rooms represent the minimum which, in all the circumstances,
it is reasonable to grant were erected at his own expense. So far as the
remaining rooms are ooncerned, on the first leg of his argument, the
plaintiff fails to discharge the burden of proof, and; on the second leg,
there remains in my mind a doubt, which, for the reasons above stated,

must be resolved against him. It is important to make it quite clear

that, in reaching this conclusion, I have taken into acoount the sums of,
approximately LE.73.000m/ms which the plaintiff received from the sale

and expropriation of his father's land in the Gezira scheme, and 1:hat the
effect of this judgment will, therefore, be to relieve him entirely of

, any obligation to his father's estate, or to the other heirs in respect
of ,that sum.

That is by no means an end of the matter. We have now to consider
what. are the legal consequences which flow from the findings of facts,
that the plaintiff erected some of the rooms in question in his father's
hosh, with the latter~s permission but at his own expense. In the partial
settlement in regard to the rooms included in olass 1, and throughout the
judgment and decree of the learned District Judge, those legal consequences

are expressed to result in giving the plaintiff the ownership of the buildings

in question. I cannot help feeling that that was merely loose phraseology,
and Was not intended either to confer all the incidents of ownership, or

to recognise that, as a result of such an arrangemen.t , .the ownership of

the soil on the one hand, and the ownership of the buildings on the other,
became vested in different persons. I do .not say that such a result is

a legal impossibility, but I do say that it is not to be inferred from

the mere granting by a father of a son's request that he be allowed to

erect a house for himself at his own expense in his father's hosh. When

such a request is made and granted, both father and son must be deemed

to. have in mind the position that uill arise on the decease of the father,
namely, the ultimate partition of the hosh between his heirs. If the father
desires to secure to the son the permanent possession of the part of the
hosh in question, it is open to him to make a gift to the son of the land'
in question. If he does not do so, the inference is that he do~s-not-Wish
to prejudice the division of the hosh in the ordinary way upon his death.

On the other hand, it is to be inferred that the father wishes to confer
some rights on the son in regard to the buildings; he will not expect

the son to expend money in erecting ·the building, if the father is to be

in a positlon to turn him out the next day; nor will the father or the

son contemplate that, if the father dies immediately after the completion

of _ the bU,ildings, the son's expenditure should be thrown away, and insure
solely to the benefit of the estate; nor, as it seems to me, will either
party contemplate that the son should be in a position to dispose of the

. buildings so as to introduce a stranger into the hosh , I think also both

parties will contemplate that, so far as the same can be achieved without
prejudice to the other heirs, on the death of the father, the son will
have an opportunity of receiving the land on which the buildings stand

as his share of his father's hosh.

Bearing in mind these factors, Which, I think, must necessarily be
contemplated by both parties to such an arrangement, the legal oonsequences
which fOllow, apart from any valid and certain custom which may be applicable~
appear to me as follows: -(a) during the lifetime of the f~ther, the son

receives a personal usufruct in the buildings so erected; (b) on the
death of the father, the usufruct ceases, and the son becomes entitled
to receive compensation from his father's estate for the value of the
buildings at the date of distribution; (c) the father's estate becomes
entitled to discharge the obligation to pay such compensation by the
allotment to the son of the buildings in question, and of the soil upon
which they stand, subject, of cot~se, to the p~ment by him of the value
of any such land \'lhich exceeds his legal share j and (d) so far as the
same can be achieved l'rithout subat errt La'l prejudice to the. rights of the

other heirs, the son becomes ent i tled to have the buildings allotted to
him in lieu of compensation, and the land on \-1hich they st and allotted
to him as his she~e of the hosh.

The personal usufruct ceaseD on the father's death. The consequences
mentioned in (c) and (d) above are the matters to be taken into consideration,
and so far as practicable enforced, in the course of the administration and
partition of the hosh by agreement by the sharia or other court havinc
jurisdiction iri the admiljistr<'..tion of the estate, or, failing agreement,

by the civil 'court in the partition ouit uh i ch must ultimately follo'l'l.
consequences mentioned in (b) above, and the proper declaration, therefore,

, should be restricted to declaring that the plaintiff is entitled to com-
pensation in respect of the buildings \1hich he erected at his own expense,
to the extent of the value thereof at the date of the distribution, and

I think that the decree of the learned Dist~t Judge should be varied
accordingly. On this latter point, t:1ere is no distinction betvleen tlie
position of the plaintiff and the other heirs to whom the sul.h and the
decree of the learned District Judge appear to allot certain buildings in
full o'l'mership. I do not think that that was the intention, nor do I

think that it \1aS intended to bind the hands of the sharia. court in endeavour in,
to effect an amicable partition of the hosh or, failing agreement, of the

oivi1 court in effecting an enforced division thereof. In the decree of

this court, therefore, I think tha.t the rights of any part icu1ar heir in

regard to any of the buildings should be expressed as a right of oompensation
only, and that the field should be left entirely olear for the sharia or,
failine agreement, the civil court to effect the partition whioh seems most
eCIui tn-b1e to all the heiro •

. 1 thinl~ 't~l~t the 01'(101' ~'d to corrbc in the Diotrict Court choul.d be
rescinded <'nd that thore G~\Ol.'.J,c', 1_;e 110 order co to coots in the District
Court, in the HiCh Cour'~ 61', ill t ho Court of Appec.l.

Lindsny, J.: I concur.

t,j", Vl'O{;or(',Q:~ 0, D .J..:.: I ooncur ,

Dcor-oo t,coOl