WIMALARATNE, J.— ManuvelpilUii v. Sivaeothilingam
1978Present: Wimalaratne, J., Sharvananda, J.
and Wanasundcra, J.
M. MANUVETPILLAI, Appellantand
S. SIVASOTHILINGAM, RespondentS. C. 253/74 (F)—D. C. Point-Pedro 11467
Thesawalamai—Action for pre-emption—Thesawalamai Pre-emptionOrdinance (Cap. 64), section S—Liability to pay compensationfor improvements.
The plaintiff, a co-owner of the land in question, instituted thisaction for pre-emption against the 3rd defendant who had purchaseda share of the land from the 2nd defendant, another co-owner.The 3rd defendant was neither a co-owner nor an heir of any ofthe co-owners, and was not a person who had the right to pre-emption. Further the 2nd defendant had not given notice of hisintention to sell to any person not entitled to pre-empt.
The 3rd defendant pleaded that after his purchase he had madeimprovements to the property and prayed that, in the event ofthe plaintiff being permitted to pre-empt, the plaintiff be orderedto pay compensation for such improvements.
Held : That although the Thesawalamai Ordinance and theThesawalamai Pre-emption Ordinance are silent as to .the liabilityof a purchaser to claim compensation for improvements, applyingthe principles of the Roman-Dutch Law applicable to the jusretractus lepcilis, which is similiar to the right of pre-emption, thepurchaser in these circumstances is vested with dominium oversuch share and a co-owner seeking to enforce his right of pre-emption is obliged to pay compensation for the improvementseffected by the purchaser.
Cases referred to :
ThillainaXhan vs. Ramasamy Chetty, 4 N.L.R. 328.
A PPEAL from a judgment of the District Court, Point-Pedro
A. Mahendrarajah, with S. Mahenthiran, for the 3rd defendant-appellant.
V. Arulampalam, for the plaintiff-respondent.
Cur. adv. vult.
May 11,1978. Wimalaratne, J.
This appeal raises the question as to whether a co-owner whoseeks to enforce his right of pre-emption under section 8 of theThesawalamai Pre-emption Ordinance (Cap. 64) is liable to paycompensation for improvements effected by a stranger who haspurchased a share of another co-owner.
WKIALARATNE, J.— Manuvetpillai v. Sivasothilingam
Admittedly the plaintiff was the owner of an undivided 1/8share of the land in question. His aunt the 2nd defendant wasthe owner of an undivided 1/4 share. She, along with her husbandthe 1st defendant, sold that 1/4 share to the 3rd defendant upondeed No. 17721 of 28.8.70 for a consideration of Rs. 2,000. The3rd defendant was neither a co-owner nor an heir of any ofthe co-owners, and was thus not a person who had the rightto pre-empt within the meaning of section 2 of the Ordinance.
It was also not in dispute that the 2nd defendant had not givennotice under section 5 of her intention to sell to any person notentitled to pre-empt. The plaintiff instituted this action on11.8.71 to enforce his right of pre-emption on payment of theconsideration of Rs. 2,000 which had passed on the executionof deed No. 17721.
The 3rd defendant pleaded that after his purchase he madeimprovements to the property at a cost of Rs. 2,000, and prayedthat in the event of the plaintiff being permitted to pre-empt,the plaintiff be ordered to pay compensation in that amount,and that the market price of that share be fixed at Rs. 4,000.
Among the issues the learned District Judge had to answerwere the following : —
what is the value of the improvements effected to theshare of the land purchased by the 3rd defendant ?
what is the present market value of the said share ?
on what price is the plaintiff entitled to pre-empt thesaid share from the 3rd defendant ?
(8) is the defendant in law entitled to claim anyimprovements effected by him ?
The answers to these issues were as follows : —
Does not arise.
Does not arise.3
Judgment has accordingly been entered for the plaintiff asprayed for with costs, and the plaintiff has appealed.
WrrAT,4TtArrsri.-| J.— JUanuuetpillai v. Sivasothilingam
The basis of the learned Judge’s finding that the 3rddefendant is not entitled to compensation for improvementsappears to be that the 3rd defendant was in the position o.f amala fide possessor, because he had effected the improvementsin spite of a warning given by the grama sevaka who hadreceived a complaint from the co-owner of another £ share thatthe 3rd defendant was a stranger and had no right to possess orimprove the land.
Learned counsel for the appellant has argued that the 3rddefendant after his purchase from the 2nd defendant becamethe owner of an undivided share of the land, and hence theprinciples governing compensation applicable to bona fide andmala fide possessors have no application.
Both the Thesawalamai Ordinance (Cap. 63) and theThesawalamai Pre-emption Ordinance are silent on this ques-tion of compensation that a purchaser is entitled to claim. Theaccepted practice in this country has been to have recourse tothe Roman Dutch Law when the Thesawalamai is silent. Aright similar to the right of pre-emption was known to theRoman Dutch Law as the jus retractus legalis, whereby aperson who enjoyed this right was allowed to supersede an-other purchaser on offering the same price, and thus could havethe purchased thing to himself—Voet 18.3.9 (Berwicks transla-tion, page 51). In the case of Thillainathan v. RamasamyChetty, 4 N.L.R. p. 323, Bonser C. J. in interpreting the law ofpre-emption known to the Thesawalamai followed the rulesunder the Roman Dutch Law of the jus retractus legalis.
Dealing with the categories of persons to whom this righthad been given Voet says that in Rhineland and Delftland ithad been given to co-owners (sociis) in respect to the portionsold by one of them. (Berwick p. 54). As regards improvementsVoet says “ The effect of retraction, considered generally, isthat the retractor enters as completely into the place of thepurchaser as if, not the latter, but he himself had from the
first been the purchaser of the thing retracted” 18.3.27
(Benoick p. 72).
“ As respect what the retractor has to render, he must restoreto the purchaser who has to suffer the retractus the whole price,if this has already been paid, with any earnest money paid byhim, and the laudemia and taxes expended by him, and theimprovements made in the interval, so that thus the latter maybe free from loss ; ” Voet 18.3.26 (Berwick pp. 71, 72).
\' LM A LA K AT NK, J.— Manucctjnllai r. Siiaeothilintjum
This principle of extending the dominium to a stranger whohas purchased without notice from a co-owner appears to havebeen followed in the Thesawalamai Pre-emption Ordinance,which was enacted in 1947. A conveyance by a vendor who hasnot given notice of his intention to sell is not declared by theOrdinance to be null and void. In contrast, two types ofconveyances executed by a vendor are declared by the Ordi-nance to be “ null and void and of no effect whatsoever inlaw ”, They both relate to conveyances effected after theintending vendor has giyen notice under section 5 of his inten-tion to sell to a stranger, that is a person who is not entitledto the light of pre-emption. They are dealt with in section 6
and section 7 (6), and in both instances the pre-emptor ispermitted to enforce his right by way of petition ; and thecourt is required to dispose of such petition by way of sum-mary procedure. But where a stranger has purchased from aco-owner who has not given the necessary notice under section5, other co-owners can exercise their right of pre-emption onlyby way of regular action under section 8, and to which actionthe purchaser is a necessary party.
It seems to me, therefore that when a person who has noright to pre-empt purchases a share from a co-owner who sellswithout giving the requisite notice of his intention to sell underthe Thesawalamai Pre-emption Ordinance, such purchaser isnevertheless vested with dominium over that share ; and whenanother co-owner seeks to enforce his right of pre-emption byway of regular action he is obliged to pay compensation to thepurchaser who has improved the land. The principles relatingto improvements effcted by bona fide and male fide possessorshave no application to improvements effected by such pur-chasers. The 3rd defendant is therefore a person who is en-titled to compensation for improvements made by him from thedate of his purchase.
We have no benefit of a finding by the learned Judge on thequestion as to whether the 3rd defendant had in fact madeimprovements, and if so, the value of such improvements. Butthe evidence reveals that he had improved the larid by erectinga barbed wire fence on three sides of this land, and by filling theland with earth. Although the 3rd defendant said that he spentRs. 700 in erecting the fence, the evidence of the gramasevaka,an independent witness, was that Es. 300 to Rs. 400 mayhave been spent on its erection. The 3rd defendant said alsothat he filled up the land with 35 tractors of earth. On thispoint his evidence was supported by witness Kandiah. Thereseems to be no reason to doubt the 3rd defendant’s evidencethat he spent Rs. 665 on that item. The other improvements
WIMALARATNK, .T.— M'nuivctpitlcii c. Sivnsolhilingnm
were the construction of a hut and the planting of catch crops.The evidence of the grarna sevaka was that the hut was reallyon the 3rd defendant’s own. land which is to the west of theland in dispute. I would, therefore, value the improvementseffected by the 3rd defendant at Es. 1,000 and substitute thefollowing answers to the relevant issues : —
would, accordingly, modify the judgment and decreeappealed from and enter judgment declaring the plaintiffentitled to pre-empt the J share sold on Deed-No. 17721, on thepayment of Rs. 3,000 to the 3rd defendant, and ordering the3rd defendant to execute a conveyance of the said 1- share tothe plaintiff on payment of Rs. 3,000 and on failure to executethe conveyance, ordering the Registrar of the District Court toexecute the same.
The plaintiff-respondent will be entitled to only half thecosts of action from the 3rd defendant-appellant. The appellantwill be entitled to half the costs of this appeal.
The question as to whether the plaintiff is entitled tocontribution from the other co-owners for the value of theimprovements he has been called upon to pay has not beenraised in this action, and need therefore not be considered.
Sharvaxanda, J.—I agree.
Wanasundera, J.—I agree.
M. MANUVETPILLAI, Appellant and S. SIVASOTHILINGAM, Respondent