H. N. G. FERNANDO, S.P.J.—Nagaratnam v. Shanmugam
1965 Present: H. N. G. Fernando, S.P.J., and Sirimane, 3.
T.S. NAGARATNAM and Wife, Appellants, and V. N.SHANMUGAM and 3 others, Respondents
S. C. 1811962—D. C. Point Pedro, 6425/L
Thesavalamai—Amicable partition 0} land without a deed—Pre-emption cannot thenbe claimed on basis of co-ownership.
An action for pre-emption on the basis of co-ownership is not maintainable inrespect of a share of a land which has been possessed and dealt with in dividedlots by amicable partition among the shareholders, with each other’s knowledgeand consent. In such a case, the absence of a deed or plan of partition is not
A.PPEAL from a judgment of the District Court, Point Pedro.
C. Thiagalingam, Q.C., with S. Sharvananda and K. Palakitnar, for the3rd and 4th Defendants-Appellants.
C. Eanganathan, Q.C., with K. Thevarajah, for the Plaintiffa-Respondents.
E. R. S. R. Coomarasioamy, with S. Sittampalam, for the 1st and 2ndDefendants-Respondents.i
Cur. adv. milt.
December 21,1965. H. N. G. Fernando, S.P.J.—
The question which arose in this action for pre-emption is whether the3rd and 4th defendants became entitled under their deed No. 2164 of 25thSeptember 1958 to a divided portion of land, or else only to an undividedinterest in a larger land. The learned District Judge had preferred thelatter alternative, and on that basis declared the plaintiffs entitled to theright of pre-emption of the interest conveyed by the deed.
H. N. O. FERNANDO, S.P.J.—Nagaratnam v. Shanmugam
The larger land, as now depicted in the Plan X filed and on record was•originally owned by one Vairathai. By PI of 1920, Vairathai donated toher grand-daughter Perianayagam, the 2nd Plaintiff, an undivided one-third share of the larger land. Thereafter by P2 of 10th September1929, Vairathai donated to her niece Kaveriammah another undividedone-third share of the larger land described as being of an extent of twoand a quarter 1ms. Finally, by deed No. 10175 of 21st October 1929(3D5), Vairathai donated to her son Vairamuttu, of the larger land, a“ one-third share on the East in extent according to possession three-quarter lm., bounded on the East by the property of Perianayagam, onthe West by the property of Perianaj-agam and on the South by Lane ”.
It is indisputable that 3D5 conveyed the outstanding interest whichremained to Vairathai, and which prior to the conveyance consisted of anundivided one-third share. But the description of what was conveyedpurports to refer to the Eastern defined portion equal to approximatelyone-third of the entire extent of the larger land, the portion beingbounded on the West by land of Perianayagam.
The next relevant deed is 3D1, also dated 21st October 1929. Thiswas a mortgage by Kaveriammah (the donee on P2) of the interestconveyed to her a few weeks earlier. But the description of that interestwas significantly different from that adopted in P2. The property wasat this stage described thus : “ on the Western side the one-third share inextent three-quarter 1ms. bounded on the East by the property ofPerianayagam. ’'
It will thus be seen that in the two deeds of 21st October 1929 :
Vairathai’s outstanding one-third share was described as a dividedportion on the East, and Kaveriammah’s one-third share was describedas a divided portion on the West, and
the one-third share conveyed in 1920 (by PI) to the second plaintiffwas now referred to as being the land on the West of the Eastern portionand on the East of the Western portion, or in other words as the land lyingbetween the Eastern portion and the Western portion. The claim of thedefendants is that the larger land became at this stage divided into threeseparate lots.
It suffices for present purposes to refer to two other deeds. Themortgage bond 3D1 was put in suit, and Kaveriammah’s interest wassold in execution.
The Fiscal’s conveyance 3D12 of 1932 was in favour of Sivakama-sunderam, wife of S. Nagamuttu, and the description of the propertyoonveyed was “ an extent of three-quarter lm. being the Western one-third share ” of the larger land. By P3 of 1936 the second plaintiffexecuted a conditional transfer of the interests conveyed to her on PI.The description of that interest in P3, differing completely from that inPI, was “ according to possession a one-third share by amicable partition
H. N. G. FERNANDO, S.P.J.—Nagaralnam v. Shanmugam
joining with the shareholders in extent 13^ Kulies bounded on the Westby the property of SivakamipiUai wife of Nagamuttu This referenceto property on the West is clearly a reference to the interest of Kaveri-ammah which had in 1932 passed by 3D12 to “ Sivakamasunderam, wifeof Nagamuttu ”.
The learned District Judge has held that the larger land is still held inundivided interests. But in so doing he failed to take account of severalindications that there had been in fact an amicable division into threeseparate Lots. Thus : —
(а)All the deeds, save 3D12, were attested by the same Notary. In
1920 (PI) and on 10th September 1929 (P2), the Notary haddescribed undivided interests. But on 21st October 1929, iA3D5 and 3D1 respectively, he described Vairathai’s outstandingone-third interest and Kaveriammah’s one-third interest asdivided Lots separated by the property of the second plaintiff.
(б)When 3D5 purported to convey the Eastern divided Lot to
Vairamuttu, Kaveriammah’s husband was an attesting witnessto the deed.
When Kaveriammah mortgaged her interest by 3D1 that interestwas described as a divided three-fourth 1ms. on the West, beingbounded on the East by the second plaintiff’s land. The secondplaintiff was herself a party to the mortgage, as surety, andVairamuttu, who had acquired his interest by 3D5 on the sameday, was an attesting witness. What was conveyed to astranger after the sale in execution of the mortgage decree by3D12 was a divided Lot.
(cf) The second plaintiff now claims that the land was never divided,but this claim is negatived by her participation in the mortgage3D1 of the divided Lot and especially by her conveyance P3 of1936 of her own interest, the description of which expresslymentions her possession of a specified portion by amicablepartition among the shareholders. I need add only that thesecond plaintiff participated in several subsequent transactionswhich purported to recognise a division of the larger land intothree separate Lots.
The learned District Judge thought that the absence of a deed or planof partition was decisive. But in this case, each of the three persons,who might otherwise have been regarded as owners of undividedinterests, purported to deal with divided- Lots, and did so with eachother’s knowledge and consent.
The deeds to which I have referred in one or more of which the threeoriginal shareholders (second plaintiS, Kaveriammah and Vairamuttu)joined as parties or witnesses, clearly establish an agreement on or before21st October 1929 for a division into three separate Lots and a sub-sequent recognition of the fact and mode of division. The statements in
31 – Volume LXIX
VelupUlai v. Thuraiappnh
the many deeds to which the second plaintiff was a party are bindingadmissions of that division. She cannot now claim pre-emption on thebasis of co-ownership.
For these reasons, I would allow this appeal and dismiss the plaintiffs’action with costs in both Courts.
Siiumane, J.—I agree.
T. S. NAGARATNAM and Wife, Appellants, and V.N. SHANMUGAM and 3 others, Respon