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Coll 17/8(1) 'Shaikh of Koweit: Date Gardens of the Sheikh in Iraq' [472v] (949/1452)
The record is made up of 1 volume (721 folios). It was created in 17 Aug 1932-31 Jan 1934. It was written in English and Turkish. The original is part of the British Library: India Office The department of the British Government to which the Government of India reported between 1858 and 1947. The successor to the Court of Directors. Records and Private Papers Documents collected in a private capacity. .
Transcription
This transcription is created automatically. It may contain errors.
28
20. The judgment of the Court of Cassation sets out the
grounds of appeal fully. They are as follows
(a) Limitation in this case should be in accordance with
para. 144 Schedule 1 of Indian Limitation Act, that the
period under this is 12 years, and that 12 years of actual
possession had passed before Basrah Law Repeal Act of
1920 took effect and appellant claims to prove this by proving
possession before the sale deed was made.
{b) If Limitation under the Indian Limitation Act is
not good then the Appellant has been in possession for the
necessary period under the Law of the country and section 20
of the Land Code applies which gives prescription of 10
years.
(c) Appellant has enjoyed this possession by virtue of a
legal sale not in opposition to the wishes of the seller.
Although the sale by the one “ Wasi ” yet it was with per
mission of the Qadhi and if the court cancels sale I ask for
the recovery of the price.
The plaintiff respondent took the points already discussed in
the Law Court and in particular laid emphasis on section 1674
of the Majelle claiming that once an admission of the right of
plaintiff's ancestor had been made a defence of limitation cannot
succeed and he also relied on section 1 of the Transfer of Immovable
Property Law.
As to Limitation under the Indian Limitation Act the period
runs from date of Sanad 13-2-1909 to 30th Sept. 1920 i.e. eleven
years seven months and a half.
The defendant appellant submitted a further statement of
grounds of appeal of which the important points are :—
(a) The possession exceeded 12 years under the Indian
Limitation Act.
{b) That the Qadhi had given valid permission.
(c) That no permission of Mamur Tapu was required.
The judgment of the Court of Cassation holds that:—
{a) In as much as the Sanad of sale stated that
possession of the seller continued up to the date of sale,
the possession of the buyer for the purpose of Limitation
runs from the date of the Sanad i.e. 21st Muharram 1327
and that 12 years has not expired under the Indian Limita
tion Act before the Basrah Law Repeal Act.
(b) Under the Law of the country the admission of a
right to titled entirely prevents a subsequent setting up of
Limitation under section 1674 of the Majelle.
(c) The sale deed is null and void.
I have examined the points of limitation under the Majelle
i.e. Law of the country, and there is ample authority from the
remarks of Ali Haidar the Jurist that if a defendant admits that
the origin of his possession has derived from the plaintiff or his
ancestor the defendant cannot plead prescription but must prove
some other means of acquisition e.g. sale. In this case he tried
to prove such sale but as the sale was unregistered he cannot rely
on this as a transfer of property; as long ago as 1318 all such
transactions outside Tapu were forbidden regarding Mulk and
Miri land by Iradah Saniyah.
21. I come now to answer your specific questions:—
(a) As to limitation: I have set out the view taken by
the Court of Cassation and I see no reason to suppose it is
wrong except that the view that possession under the Indian
Limitation Act only runs from the date of the Sanad is a
point on which I am a little doubtful; There is, however,
About this item
- Content
The volume consists of extensive correspondence, memoranda and reports regarding the Faddaghiyeh Estates of the Shaikh of Kuwait, changes made to their tax-exempt status, and lawsuits regarding their ownership.
The records provide details of the lawsuits brought against the Shaikh of Kuwait in the Iraqi courts by the heirs of the previous owners of the Bashiyeh and Faddaghiyeh properties. These rested on claims that the original sales were not correctly registered with the Tapu Department under the old Ottoman Law, as the Shaikh had refused to take out Turkish nationality papers. The file also concerns changes to the tax-exempt status of the date gardens, following the instigation of the Istihlak tax by the Government of Iraq. Questions arose as to whether the Government of Iraq was obligated to guarantee the tax-exempt status originally granted by HM Government ( HMG Her or His Majesty’s Government in London. ), and whether HMG Her or His Majesty’s Government in London. was obligated to compensate the Shaikh for loss of revenue. The correspondence on file primarily concerns attempts by British Officials to defend the Shaikh's status as owner of the date gardens, and discussions about possible compensation.
The principal correspondents and authors are: the High Commissioner for Iraq (Francis Henry Humphrys), the Colonial Office, the Foreign Office, the Political Agent A mid-ranking political representative (equivalent to a Consul) from the diplomatic corps of the Government of India or one of its subordinate provincial governments, in charge of a Political Agency. , Kuwait (Harold Richard Patrick Dickson), the Political Resident A senior ranking political representative (equivalent to a Consul General) from the diplomatic corps of the Government of India or one of its subordinate provincial governments, in charge of a Political Residency. in the Persian Gulf The historical term used to describe the body of water between the Arabian Peninsula and Iran. (Hugh Vincent Biscoe), HM Ambassador to Iraq, HM Counsellor to HM Embassy, Iraq (Sir George Arthur Ogilvie-Forbes), and the Legal Secretary to the High Commissioner for Iraq (John Harry Barclay Nihill). The volume also contains translations of letters received from the Shaikh of Kuwait (Aḥmad al-Jābir Āl Ṣabāḥ), his Basra Agent (Abdul Aziz as Salim al-Badr), his lawyer (Jacob Gabriel), and the Government of Iraq.
The following reports and legal documents appear within the volume:
- Memorandum prepared by the Judicial Advisor to the High Commissioner for Iraq (G Alexander), regarding attempts made to deprive the Shaikh of Kuwait of certain of his date gardens, ff 658-679.
- Translation of judgement No. 77/930, issued on 30th December 1931 by the Court of First Instance, Basrah; and translation of decree No. 66/932 dated 9 May 1932, issued by the Court of Appeal, Baghdad, for service on the Shaikh of Kuwait, ff 634-644.
- Short histories of the Shaikh of Kuwait's Bashiyeh and Faddighiyeh gardens on the Shatt al Arab from the time of their purchase to date, written by the Political Agent A mid-ranking political representative (equivalent to a Consul) from the diplomatic corps of the Government of India or one of its subordinate provincial governments, in charge of a Political Agency. , Kuwait, ff 621-629.
- List of persons to be served with legal documents from the Court of First Instance, Basrah, f 533.
- 'The Date Gardens in Iraq of the Sheikhs of Koweit and Mohammerah. Scope of Undertakings given by HM Government in 1914. Case for the Opinion of the Law Officers of the Crown, and Opinion Thereof', ff 458-476.
- Explanatory notes with accompanying sketch map of the Faddaghiyeh Estate, ff 205-209.
- English translations of the four Tapu deeds connected with the Faddaghiyeh Estate dispute (deeds originally dated August 1915), ff 90-99.
- Copy power of attorney document, written in Turkish, issued by the TC Asliye Mahkemesi Altinci Hukuk Dairesi 6 [Turkish Republic Civil Court of First Instance, 6th Law Department] on the 15 Ramandan 1326 [1908] in favour of Ahmet Pasha An Ottoman title used after the names of certain provincial governors, high-ranking officials and military commanders. Kazim Azzubair, ff 78-80.
The file continues with Collection 17/8 part 2, reference IOR/L/PS/12/2854.
The volume includes dividers which give lists of correspondence references found within the volume by year. These are placed at the end of the correspondence (folios 4-5).
- Extent and format
- 1 volume (721 folios)
- Arrangement
The papers are arranged in rough chronological order from the rear to the front of the volume.
- Physical characteristics
Foliation: the main foliation sequence (used for referencing) commences at the inside front cover with 1, and terminates at the inside back cover with 723; these numbers are written in pencil, are circled, and are located in the top right corner of the recto The front of a sheet of paper or leaf, often abbreviated to 'r'. side of each folio. Two additional foliation sequences are also present in parallel between ff 4-721, and ff 695-721; these numbers are also written in pencil, but are not circled.
- Written in
- English and Turkish in Latin script View the complete information for this record
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Coll 17/8(1) 'Shaikh of Koweit: Date Gardens of the Sheikh in Iraq' [472v] (949/1452), British Library: India Office Records and Private Papers, IOR/L/PS/12/2853, in Qatar Digital Library <https://www.qdl.qa/archive/81055/vdc_100047240764.0x000096> [accessed 24 April 2024]
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Copyright: How to use this content
- Reference
- IOR/L/PS/12/2853
- Title
- Coll 17/8(1) 'Shaikh of Koweit: Date Gardens of the Sheikh in Iraq'
- Pages
- front, back, spine, edge, head, tail, front-i, 2r:22v, 24r:41v, 43r:72v, 74r:78v, 81r:88v, 90r:100v, 104r:112v, 114r:155v, 157r:159v, 163r:168v, 170r:198v, 200r:289v, 293r:310v, 312r:462v, 467r:467v, 469v:531v, 534r:596v, 598r:613v, 615r:618v, 620r:633v, 645r:678v, 680r:705v, 717r:718v, 722r:723v, back-i
- Author
- East India Company, the Board of Control, the India Office, or other British Government Department
- Usage terms
- Open Government Licence