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Present: De Sampayo J.
PONNIAH v. KANDIAH et al.
248—C. B. Point Pedro, 18,562.
Tteawalamai—Pre-emption—Claim by co-owner, who is also an heir—
SectionVII., sob-aection1, oftheTisawalamaienumerates
three classes of persons who are entitled to pre-emption, namely,(1) heirs,(2) partners orco-owners,and(8) adjacentlandowners
who have a right of mortgage. There is no preference amongthese desses, but they are all equally entitled, nor is there anythingin the Tisawalamai to support the notion that a person comingunder any two of the dasses has a right of pre-emption preferentialto a person who comes under one dass only.
The term “ heirs " explained.
’■pHE facts are set out in the judgment.
Balasingham, for the third and fourth defendants, appellants.—Thu plaintiff is not an heir of the second defendant, nor even ofsecond defendant’s wife. A brother is not an heir in the sense inwhich children are heirs. The term “ heir ” is not to be applied tomean any relation who, in the absence of immediate heirs at thedeath of a person, will become his heir. Plaintiff is a grandson ofone Walliammai, and the second defendant is a son of Walliainmai’sbrother. Such a remote relation cannot be said to be an heir of thesecond defendant.
There is nothing in the Tesawalamai to show that a relation whois a co-owner has a better right to ask for pre-emption than one whois only a co-owner.
Arulanandan, for the plaintiff, respondent.—It has been held thata co-owner who is a relation has a better right than a person whois only a co-owner. Otherwise there will not be any method ofchoosing between the three classes of persons who are entitled topre-emption. Counsel cited Muttukisna, pages 524, 533, and 534.
Balasihgham, in reply.
Cur. adv. ovlt.
January 15, 1920. Db Sampayo J.—
This is an action for the exercise of the right of pre-emptionunder section VIE., sub-section 1, of the Tisawalamai. The seconddefendant was by right of. purchase under deed dated September 25,21/26
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1913, entitled to on undivided 3/16 share of the land in questionand by deed dated January 4, 1919, he sold it to the first defendant.The plaintiff alleging that he was by virtue of deed dated June 21,1893, entitled to 3/8 of 1/8 share of the land, and also that he washeir-at-law of the second defendant’s wife Walliaminai, who is theplaintiff’s sister, brought this action to have it declared that he hadthe right of pre-emption in respect of the 3/16 share sold by the -second defendant to the first defendant, and to *have a conveyancemade in his own favour on his paying the sum of Bs. 40, which,according to him, was the market value of the share. He made theappellants,. who are the third and fourth defendants, parties to theaction on the ground that they also chimed a right of pre-emption,and had brought the action No. l'8,576 against the first and seconddefendants to compel a conveyance of the land to them. The' firstand second defendants did not contest the case, but there appearstq be no dispute that the second defendant sold his share to thefirst defendant without any notice to the plaintiff or to the thirdand fourth defendants. The third and fourth defendants filedanswer denying that the plaintiff was entitled to any share in theland, and alleging that they were entitled to an undivided share.It was admitted at the trial that the third and fourth defendants-appellants were entitled to a share. There was no admission of theplaintiff’s right to any share, nor was any evidence called by himto establish any such right, but the case has been decided on theassumption that he had a right to a share. As regards the plaintiff’sclaim on the ground of heirship to the second defendant’s wifeWaljiammai, it appears that the share in question was purchased bythe second defendant during' the subsistence of his marriage withWalliammai, who is still alive, and that as acquired property itfell into the marriage community, and that, therefore, WaUiammaibecame entitled to a half of that share. It appears, further, thatthe second defendant and his wife Walliammai have at present nochildren, and that the plaintiff would, if Walliammai died intestate,get their half by inheritance. I think the appellants are right incontending that, so far as the right of pre-emption as heir isconcerned, the plaintiff is not entitled to pre-empt the whole share.The objection of the appellants, however, is wider. They , contendthat Walliammai being still alive it is impossible to say that theplaintiff is her heir. But I think the word “ heirs ” are used insection VII., sub-section 1, of the Tesawalamai in a special sense.If it meant persons who have become heirs by the death of theowner, it would be absurd to speak of them as being entitled to pre-emption in respect of property alienated by the owner during his orher lifetime. The word I think refers to persons who would be heirsif the owner should now die, just as in England the eldest son of aperson still living is commonly spoken of as his “ heir ” or “ heir-at-law, ” and the right of pre-emption is given to heirs in that sense to
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be enforced presently against the owner. In my opinion theplaintiff comes within the description of heirs, and, so far as that isconcerned, is a person who would, oceteris paribus, be entitled to theright of pre-emption. But, assuming the plaintiff to be heir of thesecond defendant's wife and to be part owner with the seconddefendant, has Idle plaintiff a right of pre-emption preferential to thatof the appellants, who are only part owners with the seconddefendant ? The Commissioner has given effect to the plaintiff’sclaim on that footing. I do not think that this is sound. SectionVli., sub-section 1, of the Tesawalamai enumerates three classesof persons who are entitled to pre-emption, namely, (1) heirs, (2)partners or co-owners, and (8) adjacent landowners who have aright of mortgage. There is no preference among these classes; theyare all equally entitled. Nor is there anything in the TSsawalamaito support the notion that a person coming under any two of theclasses has a right of pre-emption preferential to a person who comesunder one class only. The Commissioner, however, says that theauthorities cited make it clear that the plaintiff as heir and co-owner has a preferential right. The cases cited from pages 524, 583,and 534 of Muttuhisna, if they have any relevancy, are not of anyvalue, being the judgments of the lower Court, and not of theAppellate Court. In the first case the plaintiff was proprietor ofhalf the land, and idle second defendant, to whom the first defendantsold his interest, was the husband of the first defendant’s niece,and the Judge held that by reason of the connection between thedefendants the plaintiff could not olaim pre-emption. I do notthink that this judgment, which goes far beyond anything contendedfor in the present case, can be considered right. In the next casethe defendant was a co-owner, and happened also to be a relation ofhis vendor, and he being one of the class of persons, mentioned in theTSsawalamai, the judgment was justified without any emphasisbeing laid on the relationship. In the last case, where the purchaserappears not to have belonged to any of the olasses, the judgmentwhich decreed pre-emption in favour of the plaintiff, who was anadjoining landowner, does not help the argument on behalf of theplaintiff in this case. In my opinion the plaintiff, if he be a co-owner—a fact which is still to be proved—has no preferential rightas against the third and fourth defendants, and his action, so far asthese defendants are concerned, must fail.
The appeal is allowed, with costs in both Courts.
PONNIAH v. KANDIAH et al