WUEYEWABDENE J,—Karthigetu and Parupathy.
1948Present: Wijeyewardene J.
KARTHIGESU, et al., Appellant, and PARUPATHY, et al.,Respondents.
265—C. R. Point Pedro, L. 123.
Thesawalamai—Action for pre-emption—How subject matter of action should bevalued—J urisdiction.
An action for pre-emption, being merely an action to assert the rightto be substituted in the place of the vendee, should be valued on thebasis of the sum of money the plaintiff should offer for that substitution.
The sum which the pre-emptor should offer to pay the vendee is the.price stated in the deed of transfer except where the court has reasonto believe that the price so given is fictitious in which case the pre-emptorwill have to pay the market value which will be invariably the sum that theCourt determines to have been actually paid by the vendee.
PPEAL from a judgment of the Commissioner of Requests, PointPedro.
H. W. Thambiah (with him J. N. David and K. A. Sivasubramaniam}for the plaintiffs, appellants.
No appearance for the 1st and 2nd defendants, respondents.
S. Ponnambalam for the 3rd defendant, respondent.
Cur. adv. vult.
March 13, 1945. Wijeyewardene J.—
The second plaintiff, wife of the first plaintiff, is entitled to anundivided one-sixth share of a land called Sempadu. The first andsecond defendants who were entitled to an undivided one-fourth share ofthe same land sold their share to the third defendant by P2 of June 24,1940, for Rs. 300. The plaintiffs filed this action on June 10, 1943, tohave it declared that the second plaintiff was entitled to pre-empt theshare conveyed to the third defendant.
The claim of the second plaintiff was contested on two grounds,viz: —
that the second plaintiff had been given notice of the sale and wasotherwise aware of it;
(5) that the Court of Requests had no jurisdiction to entertain theaction as the value of the one-fourth share in June, 1943, wasover Rs. 300.
WUEYEWARDENE J.—Karthigem and Parupalhy.
The Commissioner of Bequests held on the first ground in favour of theplaintiffs but dismissed the action, as he assessed the value of the one-fourth share at the time of the institution of the action at Bs. 380 andheld that the Court of Bequests had no jurisdiction.
There does not appear to have been any earlier case in which thecourts have been asked to consider how the subject matter of an actionfor pre-emption should be valued.
The question that has often been discussed in pre-emption cases bothhere and in India is whether the sum which 'the pre-emptor should offerto pay the original vendee is the price mentioned in the deed of transferor the market value of the share of the land in question. It may be takenas settled by those decisions that the pre-emptor should pay the pricestated in the deed except where the court has reason to believe that theprice so given is fictitious in which case the pre-emptor will have to paythe market value which will be invariably the sum that the court deter-mines to have been actually paid by the original vendee (vide Mailvaganamv. Kandiah 1 and Jagat Singh v. Baldeo Prasad) The principleunderlying these decisions appears to me to be found in the followingpassage in the judgment of Mahmood J. in Gobind Dayal v. Inayatullah a: —“ The right of pre-emption is not a right of re-purchase either fromthe vendor or from the vendee, involving any new contract of sale;but it is simply a right of substitution, entitling the pre-emptor, byreason of a legal incident to which the sale itself was- subject, to standin the shoes of the vendee in respect of all – the rights and obligationsarising from the sale under which he has derived his title. It is, ineffect, as if in a sale-deed the vendee’s name were rubbed, out and thepre-emptor’s name inserted in its placeThat principle was adopted in Tejpal v. Girdhari Lai VIt may be observed at this stage that pre-emption as it prevails inBritish India owes its origin entirely to Mahomedan Law and the provi-sion in the Thesawalamai (Legislative Enactments, Volume 2, Chapter 51,Part 7) may be due to the early occupation of North Ceylon for a time byMahomedans or the later occupation by the Malabars who had themselvescome under Mahomedan influence in India. The -decisions of the IndianCourts on questions of pre-emption may, therefore, be taken as guidesso far as such decisions are not affected by Statutes or the personal lawgoverning persons of Islamic faith.
I would base my decision in this case on the principle mentioned above.An action for pre-emption being merely an action to assert the right to besubstituted in the place of the vendee, should be valued on the basisof the sum of money the plaintiff should offer for that substitution. Thatamount in this case would be Ks. 300. The Court of Bequests wouldhave jurisdiction therefore, even though the share would be worth morethan 300 at the time of the institution of the action.
The plaintiffs failed to frame a clear issue in the lower Court withregard to the question now decided by me, and I would take that intoconsideration in the order I propose to make as to costs.
1 (1930) 32 N. L. R. 211.
‘ A. I. R. (1921) AO. 290.
(1885) 7 Allahabad 775 at p. 809.(1908) I. L. R. 30 AV.. 130.
164 WUBTBWABDESNE 3.—Thompson and Inspecloi of Police (C./.O.)
For the reasons given by me I set aside the judgment of the Com-missioner and direct that in the event of the plaintiffs depositing in courta sum of Rs. 800 before April 11, 1945, a decree be entered—
declaring the second plaintiff entitled to pre-empt the share
referred to in deed P2;
setting aside and cancelling P2 and declaring it null and void;
ordering the first and second defendants to execute a conveyance in
favour of the plaintiffs;
granting the plaintiff costs of the appeal.
If the sum of Rs. 300 is not deposited as aforesaid I direct decree to beentered dismissing the < plaintiffs' action with costs of appeal and in theCourt of Requests.
KARTHIGESU, et al., Appellant, and PARUPATHY, et al., Respondents