073-NLR-NLR-V-25-KATHIRESU-et-al-v.-KASINATHER-et-al.pdf
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Present: Jaycwardenc A.J.
KATHIRESU el ah v. KASINATHER et ah
178—C. R. MaUagam, 3,023.
Tesawalamai—Pre-emption — Knowledge of intended sale—Formalnotice.
A person who has knowledge of an intended sale by a co-ownerof his share, and does not offer to exercise his right of pre-emptionunder the Tesawalamai, cannot thereafter bring an action forpre-emption.
The burden of proof is on the defendant to prove that he eithergave formal notice or that the plaintiff had knowledge of theintended sale.
T
HE second plaintiff-appellant was the owner of an undividedhalf share of a piece of land. The first defendant-respondent
was the owner of the other undivided half share. The first defend-ant sold his share in the land referred to with six other lands tothe second defendant.
The second plaintiff sued both defendants, claiming to exerciseher right of pre-emption on the ground that the sale to the seconddefendant-respondent was without any notice to her,. that theplaintiffs-appellants were ready and willing to deposit in Court themarket value of the said share which they assessed at Rs. 125 orany other sum which the Court may order and that the sale wasin collusion between both the defendants-respondents.
The second defendant-respondent filed answer alleging that noticeof sale was given to the plaintiffs-appellants by both the defendants-respondents, that the plaintiffs-appellants declined to buy it, andthat the market value of the said half share was Rs. 2501The case was heard on the following issues :—
Was notice of sale by the first defendant of the land inquestion given to the second plaintiff ?
What is the market value of the land ?
(3) Were plaintiffs aware of the sale ?
The learned Commissioner (R. H. Bassett, Esq.) dismissed theplaintiffs-appellants’ case, with costs.
Arulanandam, for the plaintiffs, appellants.—Several lands weresold for Rs. 1,000. No particular price was fixed for the land.It is not, therefore, likely that the vendor gave any notice to theplaintiff of the intended sale.
25/26
1923.
1923.
Kathiresu v.Kasinathcr
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[ Jay e ward bn e A.J.—Are you entitled to pre-empt when severallands are sold for a consideration like this ?]
The market value has to be ascertained. The plaintiffs did notreceive any notice from the vendor. It is for the vendor to provethat he did give notice. Counsel referred to Suppiah v. Thambiah,1Kanekamuttu v. Thamar}
James Joseph, for defendant, respondent, argued on thefacts.
September 19, 1923. Jayewardene A.J.—
This is an action for pre-emption. The plaintiffs and the firstdefendant were co-owners in half shares of a land called Naran-kuthevanseema. The first defendant sold his half share, alongwith six other lands, to the second defendant by deed No. 879 ofDecember 1,1922. The plaintiffs complain that the first defendant,without giving them an opportunity of exercising the right of pre-emption, which they are entitled to under the TesawcUamai, sold theland to the second defendant. They tender a sum of Its. 125, whichthey say is the value of the half share, and asks that the first defend-ant be ordered to execute a transfer in their favour. The seconddefendant filed answer, alleging that the plaintiffs were aware of thesale, and received due notice of it before the land was sold to him.The main issues tried were, whether notice of sale was given to theplaintiffs, and whether plaintiffs had knowledge of the sale aliunde.The Tesauxdamaixtseli declared the form of notice to be given wherea co-owner has the right of pre-emption. But by Ordinance No. 4of 1895, so much of the Tesawalamai as requires publication andschedules of intended sales of immovable property was repealed. Butthis Court held in Suppiah v. Thambiah (supra), that notwithstandingthe abolition of publication and ischedules of intended'sales, theliability of a co-owner desiring to sell his share of a land to givereasonable notice to bis other co-owners of the intended sale stillsurvived. What would be a reasonable notice was not defined, andWendt J. suggested that to prevent disputes as to form of notice andconsequent litigation, the Legislature should prescribe some definiteformality. This has not been done, and in KanekamvMu v. Thamar(supra) Ennis J. held that no formal notice was required, but where aco-owner had knowledge of the intended sale, he cannot complain ofany want of reasonable publication of the intention to sell. The plain-tiffs have, therefore, to prove that they received no formal notice andhad no knowledge of the sale, or I should say that the burden Was onthe defendants to prove that they either gave the plaintiffs formalnotice or that the plaintiffs had knowledge of the intended sale anddidnot offer to exercise their right of pre-emption. In this case the plain-tiffs undertook the burden.. The right of pre-emption imposes a1 (1904) 7 N. L. /?. 157.a (1918) 21 N. L. i?. 213.
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serious fetter on an owner’s right of free disposition of property, andthe facts have to be carefully scrutinized before a co-owner is allowedto set aside a sale on such a ground. In Ws case the evidenceis very conflicting, but the learned Commissioner has come to theconclusion that the plaintiffs did receive notice. He also points outthat the action is not bona fide, but is made at the instigationof one Swaminath&n. In the circumstances, I see no reason tointerfere with his finding, and I dismiss the appeal, with costs.
1923.
JavkwabDENE A.tT.
Katkire&u v.Kosinather
Appeal dismissed.