055-NLR-NLR-V-64-JEGANATHAN-Appellant-and-RAMANATHAN-and-another-Respondents.pdf
BASNAYAKE, C.J.—Jeganathan v. Ramanaihan
289
1962Present: Basnayake, C.J., Sansoni, J., Herat, J.,
Abeyesundere, J., and Silva, J.
JEGANATHAN, Appellant, and BAMANATHAN and another,
Bespondents
S. C. 68/57—D. G. Jaffna, 307jL
Thesavalamai—Action for pre-emption—Plaintiff's financial ability to buy—Proofnot necessary—Maintainability of action by way of regular procedure—“ Cause of action ”—Thesavalamai Pre-emption Ordinance, as. 3, 5, 0, S—Civil Procedure Code, s. 8.
In an action for pre-emption under the Thesavalamai Pre-emptionOrdinance the plaintiff need not establish that, if the prescribed notice hadbeen given, he had sufficient means, at the material time, to buy the sharewhich he was entitled to pre-empt.
The cause of action in an action for pre-emption is tho failure or omissionof the vendor to give tho notice required by law.
.A.PPEAL from a judgment of the District Court, Jaffna.
Rangmiathan, for Plaintiff-Appellant.
If. V. Perera, Q.C., with S. Sharvananda, for 4th and 5th Defendants-Respondents.
Cur. adv. milt.
October 25, 1962. Basnayake, C.J.—
The question for decision in this appeal is whether in an action forpre-emption the plaintiff must prove that at the material time he hadthe means to buy the share which he was entitled to pre-empt.
Shortly the faots are as follows : The parties to this action are JaffnaTamils to whom the Thesawalamai and the Thesawalamai Pre-emptionOrdinance apply. The plaintiff and three others, Sivaneswarv, Banga-nathan and Parameswary, were the children of Vannithamby Aiyathuraiand Vethanayagam. Of these Sivaneswary was given in marriagewith a dowry. Upon the death of Vethanayagam, the plaintiff, Ranga-nathan the 1st defendant, and Parameswary the 3rd defendant, inheritedthe land called Aaladyvayal in extent 25 laachchams V.C. The 1stdefendant, the 3rd defendant, and her husband, the 2nd defendantSenathirajah, on 2nd October 1955, without giving the plaintiff, whoAvas then a minor the age fifteen years, notice of their intention orproposal to sell, sold for a sum of Bs. 4,800 their undivided 2/3rd shareto Kanapathy Bamanathan the 4th defendant and KanapathySinnathamby the 5th defendant, persons not entitled to the right ofpre-emption.
LX1V
2E 6147—1 ,S8S (11/62)
290
BASNAYAKE, C.J.—Jcganathan v. JRamanathan
The 1st, 2nd and 3rd defendants did not contest the action. Thedefence of the 4th and 5th defendants was that the plaintiff who was aminor at the material date was aware of the execution of the deed ofsale in favour of the 4th and 5th defendants and that he was not willingto buy, nor was he in a position to do so. The case was fought on thefooting that it is a good defence to an action to enforce the right ofpre-emption on the ground that notice of sale was not given to provethat the plaintiff had not the means at the relevant time to purchaseeven if notice had been given.•
At the trial the following issues were suggested by counsel and adoptedby the trial Judge. The 1st issue was suggested by the plaintiff’scounsel, and the 2nd, 3rd and 4th issues by the contesting defendants’counsel:—
• | .
“1. Had the plff the financial ability or means to purchase anundivided share of the land referred to in the plaint at the time ofthe transfer to the 4th and 5th defts %
Was the plff ready and willing’to buy the 2/3rd share at thetime of the sale to the 4th and 5th defts ?
Have the 4th and 5th defts effected improvements to the saidland after their purchase ?
If so, what amount has (sic) the 4th and 5th defts spent onsuch improvements ? ”
The learned District Judge dismissed the plaintiff’s action on the groundthat he neither had the means to buy the shares of the other co-ownersnor was ready and willing to do so. He states in the course of hisjudgment—
“ The surveyor’s evidence and the evidence of the 4th deft wouldshow that prior to the purchase, i.e., on 1.10 55 this land was surveyedand the plff assisted in the survey. That means the plff hadkn6wledge of this sale in favour of the 4th and 5th defts. He doesnot, however, appear to have taken any step to get this share trans-ferred in his name. I do not think, therefore, that the plff was readyand willing to purchase this share at that time.”
The decision of the learned District Judge appears to have been basedon the decision of this Court in the case of Velupillai v. Pulendra1 whereinGratiaen J. stated :
“it is fundamental to the cause of action such as is alleged to
have arisen in this case that the pre-emptor should establish by positiveproof that, had he in fact received the requisite notice, he would andcould Tiave purchased the property himself within a reasonable tipaefather than permit it to be sold to a stranger.”
* (1951) 53 N. L. R. 472,
BASNAYAKE, C.J.—Jeganathan v. Ramanathan
291
This view was followed in the later case of Ramalingam v. Mangaleswari1wherein Gunasekara, J. stated :
“ As it appears that the plaintiff had no sufficient means to pre-empt the share in 1937 it is immaterial whether she had notice of thefirst defendant’s intention to sell it.”
The Privy Council in appeal in Mangaleswari v. Selvadurai 2 reversedthe decision in Ramalingam v. Mangaleswari {supra) and dissented fromthe view taken in Velupillai v. Pulendra (supra). After citing a passagefrom Wilson’s Anglo Muhammadan Law the judgment of the Boardproceeds (P. 93) :
" There is no indication in this passage or elsewhere that if theproperty is sold without notice the pre-emptor asserting his right topre-emption in an action must * establish by positive proof that hadhe in fact received the requisite notice, hu, could and would havepurchased the property himself rathei than permit it to be sold to astranger ’ and no indication of anything which resembles what hasjust been said in any way.”
The cases above referred to are all cases which occurred before 1stJuly 1948, the date on which the Thesawalamai Pre-emption Ordinancecame into operation. The rights decided in those cases fell to bedetermhn.d by the law as it existed before that date. Section 3 of theThesawalamai Pre-emption Ordinance provides that the right of pre-emption shall not be exercised save in accordance with the provisionsof that Ordinance. A notice as prescribed by the Ordinance is apre-requisite to the exercise of the right of pre-emption, for, section 6provides—
“ within three weeks of the date of publication of a notice
under section 5, any person to whom the right of pre-emption isreserved by this Ordinance, may either tender the amount stated insuch notice and buy the property from the intending vendor, orenter into an agreement to buy it.”
Till the publication of a notice under section 5 those who are under theOrdinance entitled to pre-empt are not entitled to take the prescribedsteps in the exercise of their right because of the provision in section 3that the right of pre-emption shall not be exercised save in accordancewith the provisions of the Ordinance. A person who sells without givingthe prescribed notice not having set in motion the machinery providedby the Ordinance for the exercise of the right of pre-emption cannotget over the statutory consequences of his failure except in accordancewith the statute. It does not enable him to plead as a defence to anaction to pre-empt that even if he had given the notice the plaintiffwould not have purchased as he had not the means to do so. TheOrdinance has not altered the obligation of a vendor to give notice butit has prescribed a new mode of giving notice of intention or proposal
to sell.
1 (1962) 55 N. L. R. 133.
»(1961) 63 N. L. R. 88.
202
BASNAYAK.E, C.J.—Jeganathan v. Itamanathan
Learned counsel for the respondents submitted that the plaintiff wasnot entitled to maintain the present action as he had no cause ofaction. He further submitted that section 8 of the Ordinance providesthat the right of pre-emption shall not be enforced except by way ofregular action, and that no regular action can be instituted under ourCivil Procedure Code unless there was a cause of action, and that in a casewhere the plaintiff is unable to prove that he had the means to purchasethe share or interest in question if notice had been given he would haveno cause of action. The grounds, on which under section 8 (2) an action
may be instituted, he submitted, were not the cause of-action.
* » •
We find ourselves unable to uphold the submission of learned counsel.
The ambit of the expression “ cause of action ” as defined in the: Code .is wide enough to include the failure or omission of the vendor to givethe notice required by law. The obligation to give to those entitled topre-empt the opportunity of doing so is implicit in the law and the failureto give them that opportunity by giving the prescribed notice can rightlybe regarded as a refusal to fulfil that obligation. A person entitled topre-empt has the right in preference to those who are not entitled todo so to buy the property for the price proposed or at the market value.The sale to a person not entitled to pre-empt without giving to'thoseentitled to do so the opportunity of deciding whether they will exercisetheir right to purchase or not is a denial of their right of pre-emption.It is not for the vendor to decide whether those entitled to pre-emptwill exercise their right or not. It is for them to decide whether theywill do so when the opportunity prescribed by law is given to them. Allactions to enforce the right of pre-emption before 1st July 194.8 was byway of regular procedure ; for the reason that section 8 of the CivilProcedure Code provides that, except actions in which it is speciallyprovided therein that proceedings may be taken by way of summaryprocedure, every action shall commence and proceed by a course of regularprocedure as prescribed in that code. If under the law as it existed beforeJuly 1948 an action by way of regular procedure to enforce the right ofpre-emption was maintainable in a case in which, without giving noticeto those entitled to pre-empt, a co-owner sold his share or interest to aperson not entitled to pre-empt and no proof that the plaintiff would andcould have purchased, if notice was given, was necessary the fact thatsection 8 expressly declares that the right of pre-emption shall not beenforced except by way of regular action cannot make any difference.
i- j
The learned District Judge was wrong in holding that the plaintiffin an action under the Ordinance must establish that if the prescribednotice had been given he would and could have purchased the land.We therefore—
(a) set aside his judgment and declare the plaintiff entitled to pre-empt the 2/3rd share of the land described in the plaint and orderthat he should deposit in Court the sum of Rs. 4,800 within thirtydays of this judgment being communicated by the District Judge tothe parties in open Court,
Mukthar v. Ismail *
293
(6) declare null deed No. 3660 of 2nd October 1955 attested by
T.Gunaratnam, Notary Public, and
(c) direct the Secretary of the District Court to execute a conveyanceof the 2/3rd share in favour of the plaintiff upon the sum of Us. 4,800being deposited in Court.
The plaintiff is entitled to the costs both here and below.
Sansoni, J.—I agree.
Herat, J.—I agree.
Abeyesundere, J.—I agree.
G. P. A. Silva, J.—I agree.
Appeal allowed.