023-NLR-NLR-V-70-AGATHESU-and-another-Appellants-and-ULUKESU-and-4-others-Respondents.pdf
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Agathesu v. Ulukesu
Present :Sansoni, C.J., and Abeyesundere, J.AGATHESU and another, Appellants, and ULUKESU and 4 others,
Respondents
S. C. 577/63—D. C. Jaffna, 1506/L
The.ftavalamai—Sale by co-owner—Notice to the other co-owners—Can it be waived ?—Release of right to pre-empt—Requirement of notarial execution—ThcsawalamaiPre-emption Ordinance {Cap. 64), ss. 2 (1), 5, 8, 10.
In an action to sot aside a deed of transfer on the ground that the noticeprescribed by section 5 of the Thesawalamai Pre-emption Ordinance was notgiven, defences of estoppel, waiver and acquiescence, assuming that they areapplicable, must bo proved by clear and unequivocal ovidenee. Such defences,however, are inapplicable, in view of the proscribed formalities which haveto be followed prior to a sale by a co-owner.
Furthermore, a right of pre-emption being right in land, a roloase of aright to pre-empt must be notarially executed to be of any force or avail inlaw.
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SANSONI, C.J.—Agalhesu v Ulukesu
• ' *
-A.PPEAL from a judgment of the District Court. Jaffna.
C. Ranganathan.Q.Cwith K. Sivananthan. for the Plaintiffs-AppeUants.
Aseenvatham, for the Defendants-Respondents.
Cur. adv. vult.
August 2, 1960. Sansoxj. C.J.—
The plaintiffs, who are co-owners of the land described in the plaint,sued to have the deed of transfer No. 2963 of 14th June 1961 executedby the 1st defendant (another co-owner) in favour of the 2nd and 3rddefendants set aside on the ground that the notice prescribed by section 5of the Thesawalamai Pre-emption Ordinance, Chap. 64, had not beengiven. Admittedly, such notice was not given. The 2nd and 3rddefendants in their answer pleaded that the deed in question was executedat the instance of the plaintiffs, and the plaintiffs were therefore estoppedfrom claiming the right to pre-empt the 1/4 share transferred by thatdeed. Pleas of waiver and acquiescence were also raised on the sameground.
The learned District Judge held that the impugned deed was executedwith the knowledge and approval of the plaintiffs. He further heldthat the plaintiffs had by their conduct released the 1st defendant fromhis obligation to offer the shares sold to the plaintiffs in the firstinstance.
On the facts I am unable to accept the findings of the learned Judgewhich are not supported by the evidence. Although the 2nd defendantin his evidence said that the plaintiffs agreed to the 1st defendant trans-ferring his 1/4 share to the 2nd and 3rd defendants because the 2nd and3rd defendants had transferred certain shares of another land to theplaintiffs on deed No. 10393 of 11th March 1957 (D2), this evidence wascontradicted by the 1st defendant whom the 2nd and 3rd defendantsalso called as their witness. The witness was specifically questionedby the Judge on the crucial question whether the plaintiffs were awarethat he had agreed to transfer the land to the 2nd and 3rd defendants,and the following questions and answers show that the plaintiffs werenot aware of the intended execution of the impugned deed :—
“ Q. Can you say whether the plaintiffs were aware that in lieu ofthe 2nd and 3rd defendants transferring a share of the land on D2,you had agreed to give your share in the land dealt with on PI, to the2nd and 3rd defendants ?
A. No.
Q.Why did the 2nd and 3rd defendants re-sell the land to plaintiffs,the land which they had bought two months earlier ?
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SANSON I, C.J.—Agathcsn v. Ulukcsu
A. The plaintiff told the 2nd and 3rd defendants that plaintiff’saged parents who were living in the Wanni wished to spend theirlast days on this land.
Q.Were you present when the conversation between the plaintiffsand the 2nd and 3rd defendants took place ?
A. No, I was not present at this conversation. Later I was presentwhen the 2nd and 3rd defendants re-sold the share they bought on D1from plaintiffs. I only spoke to the 2nd and 3rd defendants. I didnot speak to the plaintiffs. Plaintiffs met me the day before deed D2was executed. Plaintiffs were not present when I told the 2nd and 3rddefendants that I would transfer to them a share of the land indispute.
Q. Were the plaintiffs aware of it later ?
A. No.
Q. You did not know what arrangements there were between theplaintiffs and the 2nd and 3rd defendants ?
A. No.”
Assuming that defences of estoppel, waiver and acquiescence can arisein a case such as this, those defences must be proved by clear andunequivocal evidence, and that is lacking in this case.
But I would put the case on a higher gound and hold that section 8 ofthe Thesawalamai Pre-emption Ordinance gives the plaintiffs a right tobring this action even if they were aware of the intended transfer by the 1stdefendant to the 2nd and 3rd defendants. A right of action is expresslyconferred on a co-owner by section 8 in a case where the provisions of thisOrdinance have not been obeyed. Whatever the earlier law may havebeen with regard to the position of a co-owner who was aware of anintended sale, the Ordinance in words which arc absolute and explicitenables a co-owner to enforce the right of pre-emption where the noticerequired by section 5 was not given. Defences of estoppel, waiver oracquiescence are inapplicable where one finds in an Ordinance such asthis prescribed formalities which have to be followed prior to a sale by aco-owner. I do not doubt that the whole object of the Ordinance was toprovide a procedure by which a purchaser from a co-owner could ensurethat he would get a sound title. Non-compliance with its provisionsmeans that his title is defective and open to attack by anotherco-owner.
One of the issues raised at the trial Avas whether the plaintiffs hadreleased the 1st defendant from his obligation to offer his share of theland to them. On the evidence of the 1st defendant which has beenquoted above this issue must be answered in the plaintiff’s favour. Ialso take the vievr that a release of a right to pre-empt must be notariallyexecuted to be of any force or avail in lafr. A right of pre-emptionis a right in land. It is, though conferred by law, as much a right over
WeerOrttinghe v. KarunarcUne
87
land as a right conferred by an agreement inter partes to sell land. Section2 (1) of the Ordinance speaks of it as “ the right of pre-emption oversuch property, that is to say, the right in preference to all others
whomsoever to buy the property”. Section 10 requires an action
under Section 8 to be registered as a lis pendens in accordance with theprovisions of the Registration of Documents Ordinance. Therefore evenif on the facts the plaintiffs had purported to release their right topre-empt, such release would have been void in law as it was not embodiedin a notarial document.
I would set aside the decree appealed from and declare that the plain-tiffs are entitled to pre-empt the 1/4 share of the land described in theplaint, order that the plaintiffs should deposit a sum of Rs. 3,000/- inCourt within 30 days of this judgment being communicated by theDistrict Judge to the parties in open Court, declare deed No. 2963 of14th June, 1961, null and void, and direct the Secretary of the DistrictCourt to issue a Conveyance to the plaintiffs for the 1/4 share on the sumof Rs. 3,000/- being deposited in Court. The plaintiffs-appellanteare entitled to their costs in both Courts.
Abeyesuedere, J.—I agree.
Appeal allowed.