010-NLR-NLR-V-08-SABAPATHI-v.-SIVAPRAKASAM.pdf
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SABAPATHI v. SIVAPBAKASAM.
January 16.
C. R., Jaffna, 2,795.
Tesavalamai—flight of pre-emption—Qualificationsnecessary to entitle a
neighbour to such right—Dutch original, and English and Tamil trans-lations, of the Tesavalamai.
The English text of the Tesavalamai published in vol. I. of ;theRevised Ordinances must be taken as the sole recognized official reposi-tory and declaration of the laws and customs of the Tamils ofJafiha.
It is not within the discretion of the court to alter the translation evenafter having recourse to the Dutch original and the opinion of experts.
According to section VII., part I., of that text, in order to entitle anadjacent landowner to the right of pre-emption, it is necessary that heshould also be a mortgagee of the landi in respect of which the right isclaimed.
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HE first defendant had sold to the second defendant a plotof land which lay adjacent to another plot of land belonging
to a Hindu temple whereof the plaintiffs were managers. Th©plaintiffs prayed for a declaration that they were entitled to- theright of pre-emption, a cancellation of the sale by the firstdefendant to the second ■ defendant, and an order on the firstdefendant that he should execute a conveyance in their favour.
The District Judge having given judgment in favour of theplaintiffs, the defendants appealed.'
The case came on for argument before two judges and was ordered!to be listed before a Pull Bench. It was argued before Moncreiff,J., Middleton, J., and Grenier, A.J., on December 12, 1904.
Van Langenberg, for defendants, appellants.—The right ofpre-emption is claimed by the plaintiffs under section VII., part.J.., of the Tesavalamai. In Tillainathan v. Ramasamy Chetty(4 N. L. R. 328) Bonser, C.J., questioned the right of an adjacentlandowner to claim pre-emption unless he was also a mortgageeof the land in respect Of which pre-emption was sought. So farback as 1834 the Supreme Court thought (Marshall's Judgments,p. 377) that the fight of pre-emption only existed where theparty claiming it held a mortgage or some other claim upon theland.
clWalter Pereira, K.C. (with him Wadsworth), for plaintiffs,respondents.—The question involved has not yet been finallydecided, the authorities cited by the other side being no morethan mere expressions of opinion. The English translation ofthe Tesavalamai speaks of “ neighbours whose grounds areadjacent to the lands (meaning the lands, in respect of- which the
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right of pre-emption is claimed), and who might have the same in 1908.mortgage, should they have been mortgaged." There is no reason January 16.to suppose that the words " should they have been mortgaged "are redundant. They are susceptible of a meaning. Evensupposing' the law required the double qualification in aneighbour as contended for by the other side, to entitle him to theright of pre-emption, the qualification of being a mortgagee isnecessary only when there is at all a mortgage in existence. Inthe present case there was admittedly no mortgage in existence infavour of anybody. It may, in reply to this contention, be saidthat a dishonest landowner might by executing a bogus mortgagedeprive a neighbour of his right of pre-emption; but it issubmitted that it is for the Court to inquire into the matter anddecide the question whether the mortgage is bond fide, or merelyintended to defeat a neighbour’s rights.
Then, the paragraph of the translation of the Teeavdlamairelied upon is unhappily worded. What was intended was togive the right of pre-emption to neighbours whose lands wereadjacent, and to those who had a mortgage of the land in question.
The original of the Tesavalamai—that is to say the Tesavalamaidrawn up by Claas Isaaksz on the order of Governor Van Simons—was in Dutch. He (counsel) had information that it was to befoimd among the archives in the custody of the GovernmentArchivist, and that it bore out his (counsel’s) contention. TheTamil translation was altogether in his favour. The Englishtranslation being obscure and somewhat' ambiguous, it wascompetent to their lordships to refer to the Dutch original.
Cur. adv. vult.
16th January, 1905. Moncheiff, J.—
This suit is in respect of a piece of land named Natharputhu-kadu, of one lacham in extent. The land is bounded on the northand south by roads, on the west by land belonging to a temple ofwhich the plaintiffs say they are the founders and managers. On theeast is a plot of ground which, according to the plaintiffs, belongsto their temple, but the second defendant says jt belongs to him.
The second plaintiff sold the land to the first defendant on the30th November, 1896. He sold it for Bs. 50 as land in his posses-sion purchased by him on the 17th November, 1896. The easternboundary is given as land left for charity in the name pf Siva.I find nothing the translation of the deed to show that the landwas sold, as stated by the Commisioner, for charity purposes only.On the contrary, the deed provides that the purchaser (the firstdefendant) “ may possess it from this day as his own purchasedproperty.”
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1905, The plaintiffs say that the first defendant, having thus become' January u. possessed of, the land, “ got up ” a transfer deed in favour of theMoncrSeiff second defendant. The defendants say that the first defendantJ. ’ sold it on the 18th January, 1902, to the second defendant 'zorBs. 250, on the express condition that the vendee should devote theland to charitable purposes, and that he should resell it to thevendor for Bs. 250 if at any time he should wish to dispose of it.It is stated in the deed that the eastern boundary of the land ischarity land called Sivadharmanilam under the management ofthe second defendant.
The plaintiffs ask (1) for a declaration that they are entitled tothe right of pre-emption of the land on behalf of their temple; . (2)for the cancellation of the sale of the 18th January, 1902, by thefirst to the second defendant; (3) that the first defendant be. orderedto execute a conveyance of the land to the temple of the plaintiffsfor the Bs. 250 deposited in Court by the plaintiffs.
The defendants say that the plaintiffs have no right of pre-emption according to the terms of the authorized English trans-lation of the Tesavalamai, section VII., paragraph 1 of whichruns thus:—“ Formerly, when any person had sold a piece of land,garden, or slave, &c., to a stranger without having given previousnotice thereof to his heirs or partners, and to such of his neighbourswhose grounds are adjacent to his land, -and who might have thesame in mortgage, should they have been mortgaged, such heirs,partners, and neighbours, were at liberty to claim-or demand , thepreference of becoming the proprietors oft such lands.”
Mr. Pereira contends that the class of persons “ who might havethe same in mortgage ” is distinct from the class of “ neighbourswhose grounds are adjacent to his land,” and says that he is pre-pared to prove that he is right by reference to the original versionof the Tesavalamai promulgated by the Dutch Government in 1707,which is now among the archives.
In order to extract the meaning required by Mr. Pereira fromthe English translation I think it would be necessary to insert theword “ those ” in it before the phrase “ who might have the same
mortgage.”
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After the Tesavalamai was printed in Dutch and promulgatedin 1707 it was translated into Tamil by Jan Pirus in pursuance ofdirections given by the Dissava Class Isaaksz, and referred to twelvesensible Mudaliyars, who ‘‘confirmed ” the translation.
Regulation No. 18 of 1806, made some years after the capitula-tion, provided that The Thesavalamai, or customs of the lyialabarinhabitants of the Province of Jaffna, as collected by GovernorSimons in 1706, shall be considered to be in full force.”
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Sir Alexander Johnston had the Tesavalamai translated from 1M6.Dutch into English and printed in 1806. Later, possibly in 1814, JarwarylS.he had copies printed in English and Tamil and sent to the Courts■
and Magistrates. A copy of the English translation is published J.with an English translation of Van Leeuwen’s Commentaries,printed by A. Strahan, Law Printer to His Majesty, Printers’ street,
London. The volume is in the Law Library, but does not oontainthe date of publication. It was of course published before thereign of Her late Majesty Queen Victoria, and is, I presume, thetranslation published in 1820. When published, the “ rudk Englishof the Ceylonese (Dutch) translator ” was corrected, but even thenthe text was not that which we now have. For the word “ mort-gage ” we find “ pawn ”. The phrase runs, “ Neighbours whosegrounds are adjacent to his land, and who might have the same inpawn.”
The Ceylon Courts have naturally used the English translationfor nearly a century, although the original text is in Dutch. Thatwhich we now use is printed in a volume issued “ by authority ”by the Government Printer, and I imagine we are to take it to bea correct translation until those who authorized it think fit to alterit. I do not think it was left ‘to our discretion to alter the trans-lation even after having recourse to the Dutch original and theopinion of experts.
The right of pre-emption then belongs to “ neighbours whosegrounds are adjacent to his (the vendor’s) land, and whomight have the same in mortgage.” The plaintiffs have nomortgage of the land, and I think their action should bedismissed with costs. If I am right, it is not necessary todeal with the other questions raised in the case.
Middleton, J.—
Thin was an action by the plaintiffs as founders and managersof. a “ Hindu temple ” claiming the right of pre-emption over landadjacent to land, on which the temple stands, as against, thedefendants, the second defendant being the purchaser of the landin question from the first defendant, who originally purchased itfrom the second plaintiff.^
The land in question was marked B on the plan D 1 put inevidence. It was admitted that the plaintiffs were managers ’ofthe temple, and, as managers, were entitled to the possession ofthe land on the west .of.- the land described in the third paragraphof the plaint, which was'-the land in dispute.
3J. N. B 8920 (4/51)
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The main question between the parties was whether the plaintiffsJanuary IS. had a right., of pre-emption imder section V.U., paragraph 1, ofMromaro*, the Tesavalamai, on the ground .that they were adjacent ownersJ-’ not being mortgagees of the land.
The Commissioner of Bequests upheld the plaintiff’s right ofpre-emption, but it is not very clear from his judgment that it wason his construction of the Tesavalamai that he did so.
The Tesavalamai reads as follows in the official copy bound withthe Revised Ordinance, in vol. I., p. 31: “Formerly, when anypereon had sold a piece of land, garden, or slave, &c., to a strangerwithout having given previous notice thereof to his heirs,.. orpartners, and to such of his neighbours whose grounds are adjacentto his land, and who might have the . same in mortgage, shouldthey have been mortgaged, such heirs,' partners, and neighbourswere at liberty to claim or demand the preference of becoming theproprietors of such lands ”
I see no reason to alter the opinion I expressed in the casereported in 7 N. L. B. 151 as regards the effect of Ordinance No. 4of 1895. We were invited by Mr. Pereira to read the Englishofficial version of the Tesavalamai by the light of the Tamiltranslation, and. to say that the wording implied the existenceof two kinds of neighbours: (1) adjacent; (2) those havingmortgages.
1 confess that 1 am unable to put this meaning into the plainwording of the English text, which I must consider also to be .thesole recognized official repository and declaration of the laws andcustoms of the Malabars of Jaffna governing this case. It wasapparently issued in English by authority somewhere about theyear 1814 owing to the action of Sir Alexander Johnston, the ChiefJustice, and has since been authoritatively published with theOrdinances of the Island in this language, and has been lookedupon and treated as the prototype of this customary law.
Adjacent neighbours with ■ a mortgage on the land have also areal interest in it proximately similar to that enjoyed by heirs orpartners who are the other members of the class enjoying the rightof pre-emption. There seems to be no reason why the non–adjacent neighbours with a mortgage should have any such right,any more than a mortgagee residing in another Province.
in amy opinion, therefore, the right of pre-emption only lies inthe adjacent owner who happens to be a mortgagee. of the land,and I therefore think that the plaintiffs are not entitled to theright they claim imder the Tesavalamai, and that on this ground,which I believe to be the only one raised before the Full Court, theappeal must succeed.
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Gbenxeb, A,J.—1906.
I have had the advantage of" reading the judgment of my January it.brother Monoreiff, and I entirely agree with him in the.reasons, hehas given in support of it. The passage from the Tesavalamaiwhich was the subject of much discussion before us is very simplyworded, and there can be no doubt therefore as to its meaning.
We cannot import into it any words, such as those suggested byMr. Pereira, in order to give the passage the meaning sought to.begiven to it by him. I regard the words “ should they have beenmortgaged ” as only redundant. It seems to me that according tothe' passage in question the right of pre-emption .was confined tothree classes of persons, namely: (1) heirs, (2) partners, and (3)such neighbours as owned lands adjacent to the land which wasintended to be sold, and who might have th& same in mortgage.
Notice of the sale was to be given only to such persons. Thereis no provision for any other class of persons if we are to give thewords their plain grammatical meaning.
The authorized translation of -the Tesavalamai, which has heenin use in the Northern Province, has had the sanction of nearly acentury; and, as my brother MoncreifE has rightly said, we musttake it to be a correct translation until it is altered by law.
The judgment of the Court below must be set aside and theplaintiffs’ action dismissed with costs.
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