H. G. FERNANDO, J.—Joseph v. Joseph
1960 Present: H. N. G. Fernando, J., and T. S. Fernando, J.M. T. JOSEPH, Appellant, and A. G. R. JOSEPH, Respondent£. G. 49711958—D. C. Jaffna, 563jL
Thesavalamai—Pre-emption—Notice of intention to sell—Fictitious price sU/tedtherein—Obligation of pre-emptor to tender that price—Thesavalamai Pre-emption Ordinance, No. 59 of 1947, ss. 5, G, 7, S.
Where the price stated in a notice published by an intending vendor inpurported compliance with the terms of section 5 of the Thesavalamai Pre-emption Ordinance, No. 59 of 1947, is fictitious and does not represent the truemarket value of the land, section 6 contemplates as a valid tender, for thepurposes of the Ordinance, only a tender for the stated price, despite thefact that such stated price is fictitious.
Observations on the unworkability, in the present case, ot the machineryprovided by the Ordinance.
Appeal from an order of the District Court, Jaffna.
S. Sharvananda, with K. Palakidnar, for respondent-appellant.
G. Panganathan, with S. Sivarasa, for petitioner-respondent.
Cur. adv. vidt.
November 14, 1960. H. N. G. Fernando, J.—
The appellant in this case is the owner of a one-twentieth share of aland of 10 lachams. On or about 18th October 1957, he published aNotice, purporting to be in terms of Section 5 of the Tesawalamai Pre-emption Ordinance No. 59 of 1947 of a proposal to sell his share forRs. 950. The respondent, a co-owner of the same land, bjT hisAttorney in Ceylon, sent telegraphic money orders for Rs. 950 to theappellant, but followed with a telegram in these terms :—
“ Rs. 950 is tendered Telegraphic Money Orders by Rasanayagam(the respondent) co-owner of land. Amount stated fictitious. Marketvalue Rs. 450. Execute transfer immediately. Refund balance.Reply.”
– As was only to be expected in the circumstances, his Money Orderswere returned to the respondent’s Attorney, the reason given beingthat the telegram only constituted an offer to buy the share at Rs. 450and not at the price of Rs. 950 stated in the Notice.
H. N. G-. FERNANDO, J.—Joseph v. Joseph
The respondent thereupon came into Court with a petition statingthat:—
(а)the amount of Rs. 950 stated in the Notice was fictitious,
(б)the market value of the land was Rs. 460,
(c) he had tendered to the appellant the amount stated in the Notice,but the appellant had failed to execute a conveyance in hisfavour,
and praying in terms of Section 7 of the Ordinance that the appellant beordered to execute a conveyance in his favour at a price to be fixed bythe Court. The learned District Judge, finding that the price of Rs. 950was fictitious and that the true market value of the share is Rs. 450,made order accordingly. The appeal is against that order.
Section 6 (1) of the Ordinance provides that the Notice must set out theactual price offered, and in view of the Judge’s finding, it has to beassumed that the price quoted in the Notice was fictitious. But thequestion is whether the respondent’s tender was in conformity withSection 6, under which a person entitled to the right of pre-emption may“ tender the amount stated in such Notice ”. In my opinion, Section 6contemplates as a valid tender for the purposes of the Ordinance onlya tender for the stated price, despite the fact that such stated price maybe fictitious.
The respondent’s tender was clearly for an amount less than thestated price, "for the telegram precluded the appellant from appropriat-ing the whole sum of Rs. 950 despatched by Money Order: it wastherefore not in conformity with Section 6.
Section 7 provides a remedy only to a person who has made a tenderunder Section 6. That remedy was not available to the respondent whohad not made such a tender as Section 6 contemplates. I would thereforehold that his application under Section 7 should have been dismissed.
It might be useful for this Court to state that the machinery providedby the Ordinance has been shown in this instance to be unworkable.When Section 7 permits a person to seek pre-emption at a price to befixed by the Court on the ground that the price stated in the Noticeunder Section 5 is fictitious, -what is contemplated is that the Court hasthe power to enable a pre-emptor to obtain a conveyance at a properprice and not at a fictitious price stated by a prospective vendor. Butunfortunately, a condition precedent to the exercise of this power is thatthe pre-emptor should have made a tender under Section 6, which means(as I hold) a tender of the stated price, even though that price may befictitious. Since the stated price has to be tendered, the relief intendedto be provided by Section 7 would in most cases be superfluous ; such atender would ordinarily be accepted and not refused, and the tendererwould then have to buy at the fictitious price.
214Kannusamy v. Minister of Defence and External Affairs
Counsel for the respondent has argued that the Notice under Section5 was no Notice at all, because it did not, as required by the Section,specify the actual price offered. I agree with this argument, but itdoes not assist the respondent in this case. If, after a fictitious priceis stated in a Notice under Section 5, a land is sold to a third party, aperson having the right of pre-emption may be able to enforce his rightunder Section 8 on the ground that the Notice was invalid. But so longas the property remains in the ownership of the prospective vendor, noremedy is available except on the basis that a tender duly made underSection 6 had been rejected. I
I would set aside the order appealed from. The respondent must paythe costs of this appeal and the costs of his application to the DistrictCourt.
T. S. Fernando, J.—I agree.
Order set aside.
M. T. JOSEPH, Appellant, and A. G. R. JOSEPH, Respondent