حدائق التمر المملوكة لشيوخ الكويت والمحمرة في العراق. نطاق الالتزامات الممنوحة من حكومة بريطانيا في ١٩١٤. قضية مقدّمة لمعرفة رأي المسؤولين القانونيين الملكيين ورأي ت. و. هـ. إنسكيب و ب. ب. ميريمان، إدارة المسؤولين القانونيين، ٢٩ مارس ١٩٣٣ وتشمل حدائق التمر المملوكة لشيوخ الكويت والمحمرة في العراق. ملخص تاريخي [غير مؤرّخ] [و‎‎١‎٦] (٧٠/٣١)

much to be said for the view followed by the Court of Cassa
tion that the written admission in the Sanad of sale as to
possession commencing with the date of the Sanad is con
clusive against the purchaser even though the Sanad itself
as a disposition of property is null and void.
A reference to the Sanad shews that it contains ad
mission that the land is under the possession of seller up
to the date of the Sanad and will be possessed by the Sheikh
of Kuwait.
(b) As to copy of 'plaint and defence: I have already
stated that in the re-hearing at Basra separate written plead
ings were not filed but that the " dhabt " a court record shews
clearlv that the point of limitation was argued. I have
supplied copies of all the pleadings.
(c) I have explained how I did not come to sit in this
case.
{d) See next paragraph.
22. Your question {d) presumably refers to the two gardens
Bashiya and Fadaghiyah. I do not see what the Sheikh can do
to contest the decision already given as regards the claims of Rafia
to l/10th of the Bashiya garden, but if he wishes to apply for a
review the grounds are well known vide section 27 of the Amended
Civil Procedure Regulations. Clearly I cannot possibly advise to-
his chance of success.
As regards the Fadaglhiyah garden I remind you of the distinc
tion between this garden and the Bashiya garden; namely, that it
appears from the letter of Sir Henry Dobbs dated 14th of June 1915
that a Sanad Khakani has been issued to the Sheikh of Kuwait. If
an action is filed as regards the Fadaghiyah garden the following
points will certainly arise ;—
{a) Is the Sanad Khakani a valid disposition in Tapu ?
(6) If Valid so far as the Government is concerned was
it made with the consent of the seller or her heirs ?
{c) If there were minors with interests in the garden
when does the period of prescription cease. I will here
observe that Sir Henry Dobbs' letter shews that the entry
in the register was made without the consent of the heirs
of the sellers.
Under Turkish Law it is possible to file suit to declare void a
transaction in Tapu and the point will be taken that it is essential
that in such transactions the seller or his agent must be present
and admit the sale. As regards prescription for such suit I am
unable to say how far prescription may run as the claimant appears
to have been a minor at the time of the sale. If a minor the period
of minority must be added to the period of prescription which I am
informed is 15 years. In answer to your question I can therefore
say that it is doubtful whether the Sheikh can successfully contest
the claim, assuming the period of prescription is not completed.
23. As regards legislation, this depends on the general condi
tions surrounding this case. In this matter the Iraq Government
stands in the shoes of the Turkish Government. The same objection
to foreigners holding Miri land prevails. The Turkish view con
firmed by the courts was that this transaction is null and void but
the Mamur of Tapu would, on behalf of the Government, allow
registration, as the sellers agreed, on condition that the purchaser
declare himself to be a Turkish subject. I do not see that any
political consideration can possibly destroy the legal results of such
failure to register.
The Law as to limitation laid down under section 1674 of the
Majelle is peculiar to English ideas but to me it seems logical.