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Present: Ennis J.
KATIRASAPILIiAI v. KANAGASABAI et ah138—G. E. Kayts, 3,372.
Tesawalamai—Pre-emption—Share of well and right to lead water.
The defendant sold his land and '* the share of well lying in theeastern boundary landandthe right ofwater-course forleading
water ” without givingtheplaintiff (theowner of theeastern
boundary land) noticeofsuch intended. sale. Plaintiffbrought
this action for pre-emption of the landsold, togetherwith the share
of well, &c.
Held, that under the Tesawalamaianaction forpre-emptiondid
not lie under the circumstances.
TJLAINTIFF was the owner of an extent of 7£ lachams on theeastern side of – a land called Chekkathikaladu in extent 16flachams, excluding a share of the wellonthis portion and alsothe
right of water-course from the well totheremainingportion ofthe
land. The second defendant, who was the owner of the remainingportion of the land, with the share of the well on the plaintiff's landand the right of water-course -therefrom, sold her land, &c., to thethird defendant without giving notice of the intended sale to theplaintiff. The plaintiff deposited in Court the suin of Rs. 70, forwhich the second defendant sold her interests, and brought thisaction for pre-emption.
The Commissioner of Requests (A. E. Christofielsz, Esq.) dis-missed the action. The plaintiff appealed.
Balasingham, for the appellant—Under section 7 of the Tesa-walamai the plaintiff, who is entitled to a share of the well, is entitledto a right' to pre-empt the share of the well. [Ennis J;—The wordsin section. *7 are “ heirs, partners, and owners of land who holdmortgages over adjoining lands/* But' die plaintiff is not a partner.]The term “ partner ” has been always understood to meanco-owners, and not partners in the striet sense of the term.
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It may be that as to the adjoining land (apart from the well) theplaintiff has no right to ask for pre-emption. But the plaintiff hasa right to ask for pre-emption of the share of the well. The plaintiffand the second defendant are clearly co-owners in respect of the well.It may be hard on the defendant if the plaintiff insists on his rightto pre-empt the share of the well alone. He therefore offers tobuy the land also. The deed of sale to third defendant conveys” whole of this land, share of well lying in the eastern boundaryland, and the right of water-course.1 ’ This clearly shows thatas regards the well the parties are co-owners. ,But even if thedefendant has only a servitude over the plaintiff’s land, even thenthe parties are in the nature of co-owners. The defendant has oneof the elements which go to make up the full right of ownership(dominium). He is therefore in strict law a co-owner-
The right claimed is not an unreasonable one. The defendantsuffers no loss by sale to the plaintiff, but, on the other hand, theplaintiff will be seriously inconvenienced if a neighbour has thisright over his land. If a low-caste man becomes owner of a shareof the well, the plaintiff will not be able, under existing socialconditions-(which we cannot ignore), to use the well.
Counsel cited 4 N. L. R. 328; 6 N. L. R. 356; 7W. L. R. 161;8 N. L. R. 62; 3 Tam. 52; Muttukishna 529; 536r 560, 558.
Arulanandan (with him Joseph), for respondent, not called upon.
Cur. adv. vulU
July 18, 1918. Ennis J.—
This was a claim for pre-emption of certain land in Jaffna. Thelearned Commissioner of Bequests dismissed the action, and theplaintiff appeals.
The plaintiff is the owner of land upon which there is a well. Ashare in the well, and a right to lead water from it for the purposesof irrigation, belongs to the defendant, ah adjoining owner. .
By section 7 of the Tesawalamai (English translation) heirs,partners, and owners of land who hold mortgages over adjoininglands have the right of pre-emption. Mr. Balasingham urged thatthe' English translation of the Tesawalamai is incorrect, and thatit originally stood 44 heirs, partners, adjoining owners, and mortga-gees,” but he concedes that the English translation is now acceptedas the law, as decided in the case of Sabapathy v. Sivaprakasam-1His contention now is that the plaintiff is in the position of a
partner,” although even here he contends that the translationshould t?e “ co-owner.” The argument is that ownership consistsof a group of rights, and that if any one of these rights is held byanother, there is a case of co-ownership. Mr. Balasingham contendsthat the Tesawalamai extends to all such. According to this
1 (1905) 8 Ni L. R. 62.
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argument a lessee would fall under the definition, and would notbe able to assign Until he had given notice of his intention to thelessor, who would have the right of pre-emption. Both the counselin this case agree that there is no such custom in Jaffna.
Mr. Balasingham was not able to cite any authority in supportof his proposition, or to point to anything in the Tesawalamai,except the word *' partner ” in section 7. I am unable to hold thatthe term is sufficiently explicit to extend the right of pre-emptionto the extent to which the proposition would lead, The plaintiffclaims the right of pre-emption, because the adjoining owner hadthe right to draw water (or lead water) from a well on the plaintiff’sland. It is conceded that the right would not extend to the pur-chase of the adjoining land, but it is contended that the right ofpre-emption extends to the purchase (and extinction) of the waterright, and, as it would be inequitable to extinguish the water rightwithout offering to buy the adjoining land, an offer to do this- ismade. I cannot hold, in the absence of proof, that the right ofpre-emption extends further than convenience allows, and theextinction of a water right might be highly inconvenient. In myopinion the customs collected under the Tesawalamai must all beread in the light of convenience rather than by any theory ofpositive law- The Tesawalamai refers merely to the necessity ofa notice to allow of the right of pre-emption being exercised. Itdoes not deal specifically with the custom of pre-emption itself, andhence one cannot expect to find mention of exceptions which wouldcause inconvenience.
I dismiss the appeal, with costs.
KATIRASAPILLAI v. KANAGASABAI et al