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subdivision of the property amongst the numerous heirs of Jabir bin Abdullah
and the difficulty experienced by the Ruler in obtaining a power of attorney to
act for all of them. In a document obtained from the Kuwait Shara’ Court the
number of the shares involved runs into astronomical figures. In 1949 the appellate
Court upheld the decision that one plot belonged to the Subah family as mulk but
found that in the other six plots a little more than half the land belonged to the
tenants on the ground that they had planted it (paragraph 137 above) and that in
the remainder the Ruler, Shaikh Ahmad, was entitled only to his personal share
amounting to about one-twenty-sixth. It held that under the exchange of letters
in 1936 and 1938 it was only the Ruler personally to whom the nationality
requirement introduced by the 1941 amendment of the law (paragraph 137 above)
did not apply.
139. In the correspondence with the Iraqi Government in 1936 and 1938 and
also in 1941 reference had in fact only been made to the “Shaikh of Kuwait’s
property/’ the phrase having been used somewhat carelessly. Accordingly in
November 1949 His Majesty’s Ambassador at Bagdad wrote to the Iraqi
Government pointing out that it was clear from various statements in the
correspondence that it concerned all the properties covered by the guarantees
given by His Majesty’s Government in 1914 and asking them to make it clear to
the Court of Cassation, before which the Ruler had lodged an appeal against the
July decision, that this was the correct interpretation of the correspondence.
Should the decision of July 1949 to confine the Iraqi guarantee of 1938 to Ahmad
be upheld, His Majesty’s Government would insist that the same interpretation
applied to an undertaking given in the note of 1936 (paragraph 135 above) not to
make any claim against the Iraqi Government in respect of any change in the
boundaries of the Ruler’s land resulting from the land settlement procedure, and
that they would accordingly regard their obligations under the guarantee of 1914
to other lineal descendants of Mubarah as having devolved upon the Iraqi
Government under Article 8 of the 1930 Treaty (paragraph 132 above). The Iraqi
Government sent no written reply to this note but informed His Majesty’s Embassy
orally in June 1950 that their Legal Committee had decided that it was for the
Court of Cassation to interpret the correspondence to which reference had been
made. The Court of Cassation gave its judgment in December J950.(3'8) By a
majority finding, the British presiding Judge dissenting, it rejected the Court of
Appeal’s decision that one plot was “ mulk ’’ of the Subah family and referred the
matter back for further consideration, it confirmed the tenants in the possession
of about one-sixth of the remaining property, and ordered that further evidence
should be taken regarding the remaining area in order to determine the extent to
which the tenants had acquired usufructuary rights. His Majesty’s Embassy wrote
to the Iraqi Government to the effect that the judgment was based on an
interpretation of the correspondence in 1936 and 1938 to which they could not
agree, and that His Majesty’s Government considered therefore that their
obligations had devolved upon the Iraqi Government. The latter were accordingly
invited to agree to discussions in order to assess the compensation due to
Mubarak’s descendants.(3I9) The Iraqi Government replied in July 1951 that
nothing could be done until the matters which the Court of Cassation had referred
back for further consideration had been finally decided.(32°) The Court of Appeal
for Land Settlement at Basra had reached no decision on these matters by the end
of 1953. Hearings had been fixed from time to time but had been postponed,
usually owing to the death of some of the numerous tenants concerned in the case.
140. In 1947 the Political Resident proposed that His Majesty’s Government
should endeavour to compound with the Ruler for their release from the guarantee
of 1914 by paying him about half the value of the gardens. 'The minimum sum
which could be offered him was in 1949 estimated to be about £400,000.(321) The
proposal remained under consideration for some years and in 1950 when the Ruler
was in much greater danger of losing the bulk of all of the property the Political
Resident agreed that it should be dropped. In 1953 after the Ruler raised the
question of his date gardens in Iraq during his visit to London for Her Majesty’s
Coronation Her Majesty’s Government gave further consideration to this
proposal but decided that it would be difficult to justify expenditure, which might
/am Bacdad to F.O. Despatch No. 52 of April 2. 1951 (EA 1085/4 of 1951).
f3,,( Bagdad to F.O. No. 1646/11/51 of May 4. 1951.
( Bacdad to F.O. No. 1646/2/52 of February 15. 1952 (EA 1086/6).
(”#) P R toF O. 60/10/50 of June 3. 1950 (EA 1085/4 of 1950).
(”’)