WEERASOORirA J.—Kandasamy v. Kumart^SkSrdm
I960 Present :Weerasooriya, J., and H. N. G. Btemando, J.
KANDASAMY el al., Appellants, and KUMAR ASEKARAftE St id*
S. G. 598 (A—B)—D. C. Jaffna, 275jL
Civil Procedure Code—Section 16—Numerous defendants—-Permission of Courtto sue one or more of them as representing all—Procedure relating thereto.
Sale of immovable property—Unincorporated society or association—Capacity toacquire property—Thesawalamai Pre-emption Ordinance, No. 59 of 1947,s. 8 (1).
Permission given by Court under section 16 of the Civil Procedure Codeto sue one or more persons as representing Humorous defendants need notnecessarily be in express terms if the granting of such permission is otherwiseclear, considering the averments in the plaint, the application in the prayerand the order of the Court allowing the application.
Although the notice given by a plaintiff by public advertisement in termsof section 16 of the Civil Procedure Code should, on the face of it, indicatethat it is given by or on the order of the Court, failure to state therein thatit is given by or on the order of the Court is, at the most, an irregularitywhich does not warrant a dismissal of the action.
An unincorporated society, not being a juristic person, has no legalcapacity to acquire property. Accordingly, a sale of immovable property infavour of an unincorporated society or association (in the present case thetransferee was the “ Village Welfare Society, Veemankamam ”) cannot passtitle if it is not clear whether the transferor meant to benefit the presentmembers of the society as individuals or to benefit the society as a quasi-corporation. In such a case, as there is no " sale ”, a co-owner of the propertyis not entitled to institute an action to enforce a right of pre-emption undersection 8 (1) of the Thesawalamai Pre-emption Ordinance.
Appears from a judgment of the District Court, Jaffna.
B. Wikramanayake, Q.G., with S. Sharvananda, for 1st defendant-appellant in 598A and 1st defendant-respondent in 598B.
S. J. V. Chelvanayakam, Q.C., with V. Arulambalam, for 2nd-4thdefendants-appellants in 598B and 2nd-4th defendants-respondentsin 598A.
C. Thiagalingam, Q.C.,in both appeals.
with A. Nagendra, for plaintiff-respondent
Cur. adv. mill.
December 8, 1960. Weebasoobiya, J.—
The plaintiff-respondent filed this action to enforce his right ofpre-emption as a co-owner in respect of an undivided extent of onelachcham out of a land called Vevari which the 1st defendant (the
J. TT- mqflT 6—2.033 ao/611
WEERASOORIYA. J.—Kandasamy v. Kumarasekaram
appellant in appeal No. 598A) is alleged to have sold to the VillageWelfare Society, Veemankamam, on deed No. 1809 of the 27th October,1955, marked P 9. According to the caption in the amended plaint,the 2nd, 3rd and 4th defendants (who are the appellants in appealNo. 598B) are sued as the president, secretary and treasurer respectivelyof the Pallai Veemankamam Rural Development Society “ on theirown behalf and on behalf of the other members of the said SocietyIt would appear that the designations “ Village Welfare Society,Veemankamam ” and “ Pallai Veemankamam Rural DevelopmentSociety ” refer to one and the same Society.
Of the numerous issues on which the case proceeded to trial one waswhether the plaintiff is a co-owner of the land described in the plaint.Another issue raised the question whether P 9 is a conveyance of adivided or undivided extent of land. Both these issues were decided bythe learned District Judge in favour of the plaintiff. No attempt wasmade at the hearing of the appeal, either by Mr. Wikramanayake whoappeared for the 1st defendant, or by Mr. Chelvanayakam who appearedfor the 2nd, 3rd and 4th defendants, to canvass the correctness of thesefindings.
The exercise of the right of pre-emption under the Thesawalamaiis now regulated by the Thesawalamai Pre-emption Ordinance, No. 59of 1947. Section 8 (1) of that Ordinance provides, inter alia, that afterthe completion of any sale prior notice of which was not given undersection 5 “ the right of pre-emption shall not be enforced except byway of regular action, to which the purchaser shall also be made aparty ”. In regard to the requirement that the purchaser shall be madea party, certain submissions were addressed to us by Mr. Chelvanayakamthat the present action is not properly constituted and is, therefore,not maintainable. According to the averments in the plaint the virtualpurchaser is the Pallai Veemankamam Rural Development Society,acting through the 2nd, 3rd and 4th defendants. As the Society has notbeen incorporated all its members had to be joined as defendants unlessthe permission of the District Court was duly obtained under section 16of the Civil Procedure Code for the 2nd, 3rd and 4th defendants aloneto be sued on behalf of all the members.
The caption of the plaint as originally filed showed that the 2nd,3rd and 4th defendants were sued “ personally and as President,Secretary and Treasurer respectively of the Pallai Veemankamam RuralDevelopment Society ”, but by a subsequent amendment, which wasallowed by the District Judge, the words “ personally and ” weredeleted and the caption altered so as to read that the 2nd, 3rd and 4thdefendants were sued “ as President, Secretary and Treasurer respectivelyof the Pallai Veemankamam Rural Development Society on their ownbehalf and on behalf of the other members of the. Society ”. Further,there was an averment in the plaint that it was necessary to obtain abinding decree against the Society, which consisted of numerous membersand _the office bearers of which were the 2nd> 3rd and 4th defendants,^nd the prayer in the plaint included an application that notice of the
WEERASOORIYA, J.—Kandasamy v. Kumara&ekaram.
institution of the action in terms of section 16 of the Civil ProcedureCode be published in an issue of the “ Eelakesari ” and by beat of tom-tom in Pallai, Teliipailai. The notice that was published is signed bythe proctor for the plaintiff, and does not purport to be a notice givenby order of the Court. P 20 is a copy of the notice. Mr. Chelvanayakamsubmitted that the steps taken by the plaintiff did not constitutecompliance with section 16 of the Civil Procedure Code in that nopermission of Court was obtained for the 2nd, 3rd and 4th defendantsto be sued on behalf of all members of the Society. He also submittedthat the notice that was published in terms of P 20 was not a noticeas contemplated in the section, which requires the notice to be givenby the Court.
While the procedure followed does not appear to be in strict conformitywith section 16, I am not prepared to hold that no permission was givenby the Court in this case for the plaintiff to sue the 2nd, 3rd and 4thdefendants on behalf of the members of the Society. The permissionneed not be in express terms. Considering the averments in the plaintand the application in the prayer to which I have referred, it seems tome that the order of the District Judge allowing the application cannotreasonably be construed otherwise than as amounting to the grantingof such permission to the plaintiff. This is confirmed by the fact thatthe District Judge subsequently allowed the amendment of the captionof the plaint. As regards the notice P 20,1 agree with Mr. Chelvanayakamthat a notice under section 16 should, on the face of it, indicate thatit is given by or on the order of the Court. But, in my opinion, failureto give a notice in such terms is, at the most, an irregularity which doesnot warrant a dismissal of the action. The question whether anydirection should now be given in appeal to rectify the irregularity doesnot arise in view of the conclusions reached by me in regard to the otherpoints in dispute.
The present action was filed on the basis that notice under section 5of the Thesawalamai Pre-emption Ordinance, No. 59 of 1947, of anintended sale was not given prior to the execution of P 9. That no suchnotice was given is not disputed. It is clear that under section 8 (1) ofthe Ordinance an action will not he unless there has been a priorcompleted “ sale ” of the undivided share or interest in land in respectof which the right of pre-emption is sought to be enforced. Theexpression " sale ” is not defined either in the Ordinance or in theThesawalamai Regulation (Cap. 51), and its meaning has, thereforeto be determined on a consideration of the general law applicable.Under the general law every valid deed of sale requires, inter alia, agrantor and a grantee. On deed P 9 the 1st defendant purported to“ sell, transfer, make over and convey ” to the Village Welfare Society,Veemankamam, for the sum of Rs. 1,250 paid by the Society an extentof one lachcham of the land Vevari. P 9 on the face of it would appearto have been intended as an outright sale in favour of the Society.But it is 'contended on behalf of all the defendants-appellants that as
YEERASOORIYA, J.—Kandaeamy v. Kumarasekaram
the Society is not a juristic person, there is, in the eye of the law, nograntee in P 9 and it did not, therefore, operate as a sale. The issuesrelevant to this contention are numbered 11 and 12 and are as follows :
“11. Is the said Society an incorporated body ? ”
“ 12. If not, can the said deed No. 1809 divest 1st defendant ofhis title to the said 1 lachcham %
As for issue No. 11, none of the parties seems to have taken up theposition at the trial that the Society is an incorporated body, and itis not clear why the matter was raised as an issue at all. That issuewas answered in the negative by the District Judge, as it had to be.But although the Society is not an incorporated body the District Judgeheld on issue No. 12 that deed P 9 passed title in favour of theSociety to the property conveyed.This finding was based on the
following dictum in the judgment of Basnayake, J. (as he then was)in Anthony Gaspar v. The Bishop of Jaffna 1: “ A community of personscan hold property or acquire rights in property. In the same way acommunity of persons can be beneficiaries under a trust deed But,if I may say so with respect, I do not think that the dictum amountsto more than that the individual members comprising a community(and not the community as a distinct entity) can hold or acquire rightsin property, and that they can also be the beneficiaries under a trust.In my opinion the learned District Judge was mistaken in his findingthat title to the property in question passed on P 9 to the Society, orthat the dictum on which he relied gave support to such a finding.
That the Society, not being a juristic person, has no legal capacityto acquire property under P 9 is, I think, not open to argument. Nordid I understand Mr. Thiagalingam, who appeared for the plaintiff-respondent, to contend otherwise. But, in his submission, the designationof the Village Welfare Society, Veemankamam, as the grantee in P 9should, as a matter of construction of the deed, be taken to comprehendand refer to all the persons who, at the time, were members of theSociety and that, therefore, the title to the property conveyed shouldbe held to have passed to all such persons jointly. For this submissionhe relied on certain English decisions. One of them is Bourne v. Keane 2where among the matters discussed in the House of Lords was whethera bequest in the following terms : “ To the Jesuit Fathers, Farm Street,£200 for Masses ” was void on the ground that it was given to a monasticbody. There was evidence that a community of some thirty membersof the Jesuit Order lived at Farm Street. In holding that the gift wasnot-void Lord Buckmaster stressed the fact that the gift was, in terms,to a group of persons, members of a particular community, residentat a named place, and he accordingly construed it as a gift to themindividually. This decision is, therefore, not of much assistance in theconstruction of deed P 9, where the conveyance is expressly in favourof the Village Welfare Society, Veemankamam, and not the membersthereof. *
1 (1949) 52 N. L. R. 230, at 233.
* (1919) A. O. 815.
WEERASOORIYA, J.—Kandasamy v. KumaraseJearam
Two cases which appear to be more in point are Maughan v. Sharpe 1and Wray v. Wray 2. In the former case, a deed assigning by way ofmortgage certain chattels to the “ City Investment and AdvanceCompany ” was held to be a conveyance in favour of the two personswho carried on business under that name. In the other case a conveyanceof immovable property to “ William Wray ”, being the name underwhich four persons earned on business, was held to pass title in theproperty to the four partners jointly. The principle of law which thesetwo cases illustrate is, as stated by Lord Halsbury in Simmons v.Woodward,3, that “ where you are dealing with, a grantee, you maydescribe that grantee in any way which is capable of ascertainmentafterwards ; you are not bound to give him a particular name ; youare not bound to give his Christian name or surname ; you may describehim by any description by which the parties to the instrument thinkit right to describe him ”. See, also, Re Erasmus ; Johnson v. Bright-Smith 4, where it was held that a legacy to an unincorporated societyor association is good because it is treated as being a gift to the severalmembers of such society or association, who can spend the money asthey please subject, however, to any understanding or contract betweenthem as to how the monies so derived are to be expended.
But in regard to devises to voluntary associations Jarman on Wills 5points out that the difficulty in such cases is to decide whether thetestator means to benefit the present members of the society asindividuals or to benefit the society as a quasi-corporation. Accordingto Theobald on Wills 6 (the subject is dealt by him as well as by Jarmanwith reference to testamentary dispositions, but the same reasoningwould appear to apply to dispositions inter vivos) a bequest to avoluntary association can be construed as in favour of the individualmembers composing the association only where it is expressed to befor the benefit of the members or where the association is so describedas to indicate the members who compose it. He also states that sucha devise cannot be made to an uncertain body of persons, and he refersto Hogan v. Byrne 7 (an Irish case the report of which is not availableto me) where a devise of land to certain monks described as ChristianBrothers, who were a numerous body, was held void on the groundthat the intention was to vest the land in them as a body corporate,which they were not.
In the present case there is no evidence regarding the compositionof the Village Welfare Society, Veemankamam, or the rules governingthe admission of members and whether they are even capable ofacquiring proprietary rights at all. In the absence of any extrinsicevidence, one is restricted to the terms of P 9 alone, in consideringwhether there is ground for holding, as Mr. Thiagalingam invited usto do, that, although the grant is expressed to be infavour of the Society,
(1864) 34 L. J. O. P. 19.*(1914) 110 L.T.S9S.
(1905) 2 Ch. 349.58th e(*. 285.
(1892) A. C. 100, at 105.811th ed. 115.
7 (1862) 13 Ir. C. L. 166.
2*J. X. R 19916 aO/61)
WEERASOORIYA, J.—Kandaaatny v. Kumaraaskaram
the intended grantees were the individual members of the Society, andthat the deed should be so construed. On the available material I amunable to give P 9 such a construction. It seems to me that the onlyreasonably clear intention in P 9 as regards the passing of title is thatit should vest in the Society, on the analogy of a grant to an incorporat-ed body which, however, the Society is not. P 9 cannot, therefore, beheld to operate as a sale.
In the event of his main submission, that P 9 should be construedas conveying title to the individual members of the Society, failing,Mr. Thiagalingam suggested for our consideration two alternativeconstructions. One is that the 2nd, 3rd and 4th defendants (who arereferred to by name in P 9 as the president, secretary and treasurerrespective^ of the Society and as the persons who paid the purchaseprice of Rs. 1,250 stating that it was the money of the Society) shouldbe regarded as the legal owners of the property, holding it for the benefitof the Society. P 9 contains the following habendum clause :“ Therefore, I do hereby declare that the Office bearers of the aforesaidVillage Welfare Society (Sangam) may possess and enjoy all herebyconveyed from this date for ever as owned by the aforesaid Society. ” Mr. Thiagalingam relied particularly on the words “ maypossess and enjoy all hereby conveyed ” as vesting the legal title inthe office bearers. Such a construction is however, clearly opposed tothe express grant in the preceding part of P 9 in favour of the Society,which is also referred to in the habendum clause as owning the property.
The other alternative construction suggested by Mr. Thiagalingamis that if P 9 did not effectively pass title from the 1st defendant (thevendor) there was, nevertheless, a constructive trust under which thelegal ownership in the property remained with the 1st defendant whilethe beneficial interest therein passed to the individual members of theSociety. But such a “ trust” does not appear to fall within any of thecategories of constructive trusts dealt with in Chapter IX of the TrustsOrdinance (Cap. 72). Moreover, I have already stated why I am unableto gather from the terms of P 9 an intention on the part of the vendorto benefit the individual members of the Society. I do not see howT, inview of that finding, it is possible to hold in favour of a trust underwhich the same persons are the beneficiaries. In the circumstances,and as no argument was addressed to us on the point, it is not necessaryto decide the further question whether a passing of the beneficialinterest alone amounts to a “ sale ” within the meaning of section 8 (1)of the Thesawalamai Pre-emption Ordinance, No. 59 of 1947, or theThesawalamai Regulation.
I would, therefore, set aside the judgment and decree appealed fromand dismiss the plaintiff’s action. As regards costs, Mr. Thiagalingamurged that even though the action is dismissed the plaintiff should notbe condemned to pay the costs of trial of the defendants seeing thathe succeeded in establishing his co-ownership of the land dealt within P 9 and also that P 9 is a conveyance of an undivided extent of that
T. S. FERNANDO, J.—Kaliappa PiUai v. Oasaim
land, both of which matters were strenuously disputed by the defendantsat the trial. 1 think that in the circumstances there should be no orderas to costs of trial. The plaintiff will, however, pay to the defendantstheir costs of this appeal.
H. N. G. Febnando, J.—I agree.