095-NLR-NLR-V-50-SABAPATHYPILLAI-Appellant-and-SINNATAMBY-Respondent.pdf
CANEK33RATNT3 J.—Sabapathypillai v. Sinnalamby
367
1948Present: Canekeratne J.S A B A PAT HYPILLAI, Appellant, and SENNATAMBY, Respondent18. G. 6S—C. R. Point Pedro, 382
Thesawalamai—Where silent—Recourse to Roman-Dutch law.
As regards pre-emption in Thesawalamai, where the Thesawalamai issilent the Roman-Dutch law is applicable.
Appeal from a judgment of the Commissioner of Requests, PointPedro.
N. Kurnarasingham, for the defendant appellant.
H. W. Thainbiah, for the plaintiff respondent.
Cur. adv. vult.
June 22, 1948. Cantskbratjte J.—
This is an appeal by the defendant from a judgment declaring theplaintiff entitled to pre-empt the shares of certain lands. By deed PI,dated January 8, 1944, one Alvatti transferred these shares to thedefendant. In his answer the defendant pleaded the purpose for whichthe transfer was made and excepted to the jurisdiction of the Court.
There were six issues framed at the trial, the first and second are the onlyissues material for the purposes of the appeal. The answer to issue 1,which relates to the value of the lands which are the subject-matterof the action, is thus stated :—Rs. 200 for the purpose of this case.Mr. Thamabih contends that the principles relating to pre-emptionof the Mahomadan law in India are applicable to this case. With alldue respect to the learned Judge who decided the case referred to inthe judgment, I venture to think that one should resort to the Roman-Dutch law wherever the Tesawalamai is silent, because (a) a customarylaw is a deviation from the general or common law and the commonlaw applies in all oases except where the customary law is in operation,
even if there was a rudimentary conception of pre-emption amongthe inhabitants of Jafihapatam before the advent of the Dutch,1 there«an be no doubt that the rules found in the compilation by the DutchDissawe had been influenced by the principles of the Roman-Dutchlaw and in the course of nearly half a century the forms and principlesof Dutch Jurisprudence became gradually introduced. Paviljoen,Co mm an deur of Jaffnapatam, in his Instructions in 1665 states “ Thenatives are governed according to the Customs of the country, if theseare clear and reasonable, otherwise according to our laws ”.2“ The
laws and customs of J affnapatam ” were composed by the DissaweClaas Isaaksz after an experience of thirty-five years in that province :
1 Of. the silence of De Queyroz—-the Conquest of Ceylon (Translation by Fr. Per era)y. 53 ; Balas ingharn, Raws of Ceylon, Vol. I.,'136.
1 Balasingham, op. cit. p. 157.
368CANEKERATNE J.—Sabapathypillai v. Sinnatamby
it was sent with a letter dated January 30, 1707, to the Governor.The Dutch version was in the same year translated into Tamil {theappendix to the translation of Van Leeuwon’a Roman-Dutch lawpublished in England, p. 741, pp. 773—777). Pre-emption, jvus retractus,was a recognised right in the Roman-Dutch law. It arose fromconvention (e.g., agreement of parties) or from a provision of the law(i.e., independently of contract). In the latter case the right aroseunder a variety of heads : it was available to co-owners (sociis), toadjoining proprietors, to mortgagees of immovable property, to cognates,thus it may be exercised by a son of the vendor, or the heir of a deceasedvendor, whether a son or a more remote cognate. Section VH of thisCollection (Cap. 51 of the Ceylon Legislative Enactments) containsthe provisions relating to pre-emption. It seems that in the Dutchand Tamil versions the right was available to four classes of persons :the heirs of a vendor, a vendor’s partners, neighbours whose groundsare adjacent to the vendor’s land, mortgagees of the land.1 This bearsa close resemblance to the four classes of persons who could exercisethe right under the Roman-Dutch law. The English translation, whichis the one in foree now, allows the right to the first and second classesabove mentioned and to “ neighbours whose grounds are adjacent. and who might have the same in pawn ”. The “ previousnotice ” that has to be given by a vendor is referred to in paragraph 1.The intention to sell was made known on three successive Sundays atthe Church : a similar practice seems to have been prevalent in someparts of Holland (Grotius, Introduction, 3-16-6). A sale passes thevendor’s title to the purchaser but as the sale was in derogation of theright of the retractor, he can take steps to avoid the sale and have theproperty transferred to him. The act of the vendor is voidable asagainst the retractor ; the previous sale is not, according to VanLeeuwen, obliterated as though it had never- taken place. (CensuraForensis 1-4—21—27 ; but cf. Voet 18—3—27).
A Surveyor who made a valuation of these shares on a commission fromCourt gave evidence at the trial : the shares were worth, according tohim, a sum of Rs. 731/45 at the time of the valuation, September, 1947 ;he asserted that in 1944 these shares were worth more than the presentvalue. He was not cross-examined by the plaintiff. In Swpynah v.TamJbiah 2 it was decided that the retractor must pay the market valueof the land. This is a decision of a Bench of two Judges and is bindingon me. Sometimes value is spoken of as the best price which can beobtained for the land.3 The tendency in Ceylon has been to take thevalue of the land, or the market value. This would be the price whichany one would give for the land at a public auction (not a compulsorysale), the price which an able and willing purchaser would give for theland. The cost of the same land to the purchaser is nothing more thana factor in determining the value of the land. The question often iswhat the person from whom the land is taken will lose by having ittaken from him.
1 Sdbapathy v. Sivaprakasam {1905) 8 N. L. B. 62 at p. 63.
» {1904) 7 N. L. R. 151.
* Seneviratne v. Sab apathy, 2 Times of Ceylon Reports, 139. Cf. Sittamparampillai v.Navaratnam (1944) 46 N. L. R. 212.
NA6ALINGAM J.—Jictuda u. jKarohamy
369 •
The evidence shows that the shares of these lands were worth much morethan Rs. 300 and the Court of Requests had no jurisdiction to decide thiscase. There remains the question whether the case can be transferred atthe present stage under section 10 of the Civil Procedure Code to a DistrictCourt. The position taken up at the hearing was that there was such apower, and Counsel for the respondent did not raise any objection to theexercise of the power. I am not sure that the power of transfer referredto in that seotion can be exercised incidentally in the course of thehearing of an appeal:but nothing that is stated in this judgment
should be taken to prejudice any right the respondent may have to make aproper application for a transfer, if he is so advised, to the Supreme Court.
The action cannot be maintained in the Court of Requests and thejudgment of the lower Court is set aside. The appellant is entitled tothe costs of appeal and to half the costs of the trial.
Appeal allowed-