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Present: Ennis J.
KANEKAMUTTU v. THAMAB et al.
214—C. R.'Point Pedro, 17,781
Pre-emption—Tasawalamai—No formal notice—Knowledge.
Where there was no formal notice of an intended sale to a perso*.who was entitled under the Tesawolamai' to' pre-empt a land, butwhere such person had 'Knowledge of the intended sale, it <vas heldthat he , cannot complain of any want of reasonable publication of‘ the intention to sell.
^ HE facts appear from the judgment-
Arulanandan, for appellant.—-No formal notice of the intendedsale is necessary. All that should be proved is that the plaintiff-respondent was aware of the intended sale. The provisions of theTesawalamai with regard to notice are obsolete and have no presentapplication; for instance, the publication of the notice at thechurch for three successive Sundays. Ordinance No. 4 of 1895abolishes publication of intended sales (Suppiah v. Tambiah4).The plaintiff’s evidence shows that he did not offer any price to thevendors. He should have offered the market price.
1 Heydon's Case, 3 Coke's Report 76.2 (1904) 7 If. L. R. 151.
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J. Joseph and Balasingham, for the respondent.—No reasonablenotice has been given. Although the formalities for a notice asprescribed by article 1 of section 7 of the Tesawalamai are obsolete,yet it is incumbent on the intending vendor to give notice. Thereis evidence that the plaintiff offered a sum of money to the vendors’proctors. The sum offered need not be the market price. (Suppiahv. Tambiah (ubi supra).
Our. adv. vult.
November 26, 1918. Ennis J.—
In this case the appeal is. from a judgment of the Court of Bequestsof Point Pedro, declaring the plaintiff entitled to a right to pre-emptcertain land which has been sold by the first, second, and thirddefendants to the fourth and fifth defendants. Two issues onlywere framed in the case, whether the first, second, and third defend-ants sold the share in question to the fifth defendant after due noticeto the plaintiff; and secondly, what is the market value. Theplaintiff admitted that he was well aware of the sale contemplatedby the first, second, and third defendants, and that he even wentto the proctors conducting the sale. The learned Commissioner,however, has held that he had received no notice as contemplatedby the law of Tesawalamai. This question of notice of the Tesa-walamai came up in the case of Suppiah v. Tambiah,1 and it wasthere held that reasonable notice should be given. It is questionednow as to what is reasonable notice. Under the Tesawalamai,when a person desires to sell land with regard to which somebodyelse had a right of pre-emption, he had to publish a notice of hisintention at the church for three successive Sundays. Now, sucha publication is merely a means by which the intention to sell isbrought to the notice of the person who has the right of pre-emption.It is not the doctrine of notice as generally understood. Oncethe plaintiff admitted that the matter had been published by thedefendant, and that it had come to his notice, he cannot complainof any want of reasonable publication of the intention to sell. Itthen becomes a question as to whether the plaintiff was entitled tothis action to insist on his right of pre-emption. It appears thathe brought into Court a sum of Bs. 25 as the market value of theshare sold. The learned Commissioner has found that that was notthe market value, and that the land was worth Bs. 50. It appearsthat the fourth and fifth defendants actually paid Bs. 100, but thereis some reason to suppose that this payment was the result ofcombination against the plaintiff. The Maniagar valued the shareat Be. 83, and said that the highest amount one could offer for theshare was Bs. 50. The plaintiff in giving evidence 6aid: “ I didnot offer any price to the,vendors.” It is suggested that one couldgo behind the plaintiff’s evidence in this respect, because there is
1 (1904) 7 N. L. B. 161.
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evidence that the plaintiff had offered sums to the vendors’ proctors.I do not, however, feel justified in disregarding the plaintiff's swomtestimony. If it be untrue, he must stand by it. The matterhaving come to his notice, if he wished to exercise the right of pre-emption, he should have offered the market price of the land. Afailure to do this would entitle the defendants to conclude their salewith third parties. It would seem that the plaintiff Was anxious toacquire the rights of the first, second, and third defendants at toosmall a price, and hence has lost his rights. Had it not been for hisswom statement that he offered no price, I should have acceptedthe evidence that he had offered to buy at Bs. 60, and have allowedthe judgment to stand on that basis, but I find a difficulty in assistingthe plaintiff on appeal when his evidence is based on what he deemedto be his interest rather than the truth of the facts.
I allow the appeal, with costs.
KANEKAMUTTU v. THAMAR et al