SaravancumiUtu v. Vallipuram.
1948Present : Soertsz S.P.J. and Canekeratne J.SARAVANAMTJTTU et al., Appellants, and V AXLIPT J RAM et ah,Respondents.S.C. 178—D. C. Jaffna, 1,570.
’1 hesavalamai—Transfer ?y co-owneiOption to re-purchase—Action for
pre-emption of another share by transferee—Is he a co-owner ?
A parson -who takes a transfer of a share from a co-owner, subject to thecondition tha^ he should re-transfer it on payment of a certain sumwithin a certain time, is a co-owner and entitled to the right of pre-emption under the Thesavalamai.
1 (1885) 29 Chancery Division 331.
SOERTSZ S.P.J.—Saravanamuttu v. ValHpuram.
PPF.AT, from a judgment of the District Judge, Jaffna.
AT. E. Weerasooria, K.G., with H. W. Tambiah, for the plaintiffs,-appellants.
F. A. Hayley, K.G., with G. Renganathan, for the first and seconddefendants, respondents.
<S. J. V. Ghelvanayagam, K.C., with V. Kandasamy, for the third•defendant, respondent.
Cur. adv. vult.
February 19, 1948. Sokrtsz S.P.J.-—
This was an action instituted by the appellants seeking to pre-empt a•certain share of a land which the 1st and 2nd respondents had soldto the 3rd respondent by deed P3 dated May 29, 1944. All the partiesconcerned in this action are agreed that the 2nd appellant, who is the wifeof the 1st appellant, and the 1st and 2nd respondents are co-owners ofthe land in question, and that, as a co-owner, the 2nd appellant wouldhave the right to pre-empt any share sold by the other co-ownersto a stranger without notice to her.
The questions that arise for consideration on the appeal are : (a) Wasthe 2nd appellant given or had she notice that the 1st and 2nd respondentswere going to sell their share of the land ? (6) Was the 3rd defendanta stranger ? Although the first question is one of pure fact, I feel con-strained to differ from the finding of the trial Judge on that question.He appears to have misdirected himself by overlooking or, at least,by not appreciating sufficiently certain dates relevant to the consideration■of that question. TTis view was that1 ‘ although she (i.e., the 2nd appellant)may not have had specific notice of the actual sale on P3 did have noticethat the half share of this land which belonged to the 2nd defendantwas to be sold …. The reason why the 2nd plaintiff did not wantto buy the share of the land in question at the time it was for sale wasbecause she did not have enough money. The 2nd plaintiff and herhusband had mortgaged almost all the lands they had to raise a loan ofRs. 2,000 in order to buy another bit of land ”. Now, the date of the mort-gage referred to by the trial Judge in the passage I have quoted from hisjudgment is 14th August, 1943, and the purchase of the land, to buywhich the appellants raised money on that mortgage, was the 19th ofAugust, 1943, whereas, according to the witness Nallatamby, whoseevidence the Judge preferred to that of the 2nd appellant, he informedthe 2nd appellant’s father, in the presence of the 2nd appellant herself,of the proposed sale first in December, 1942, and for the second timein July, 1943, both dates being earlier than the mortgage and the sale.1 have already referred to.
It seems clear that Nallatamby was guilty of prevarication when hestated that when he saw'the 2nd appellant in July, 1943, she told himthat they had purchased lands to the value of Rs. 4,000 or Rs. 5,000.The learned Judge has found that “ the half share of the land in questionwould have been valuable to the plaintiffs ”. I agree and, in my opinion,it is most improbable that they would not have preferred to buy it
SOERTSZ S.P.J.—Saravanam/uttu v. Vallipuram.
rather than the other land. This land was their residing land. I haveno hesitation in rejecting Nallatamby’s evidence. I hold that the 2ndappellant had no notice whatever.
In regard to the second question, the 2nd appellant, in order to succeed,must show that the 3rd respondent is a stranger. Who, then, is a strangerfor the purpose of the matter in hand ? Part VII. (I.) of the Thesawalamaianswers that question by clear implication and shows that a strangeris a person other than an heir, a partner, or “ neighbour whose groundsare adjacent to his (i.e., the seller’s) land and who might have the same inmortgage should they have been mortgaged ”. Quite clearly, the 3rdrespondent is not within either category 1 or category 3. Is he a partnerunder category 2 ? Numerous decisions of our Courts have interpretedthe word “ partner ” in this context as synonymous with the wordco-owner, e.g., the case of Ponniah v. Kandiah, 21 N. L. R. 327, at page329, and that interpretation is inveterate and must now be taken assettled. Even so, the appellants contend that the 3rd respondent was nota co-owncr inasmuch as she obtained on the transfer deed 3D1 “ only aqualified interest ” in a one-eighth share of this land because the vendorshad stipulated for a re-conveyance to some of them of the interest conveyedwithin a period of five years, and only a part of that period had elapsedat the time the 1st and 2nd respondents conveyed the share, now inquestion, to her. The learned trial Judge upheld this contention. Formy part, I have given this question very careful consideration and Ihave reached a conclusion different from that of the trial Judge. Nodoubt, as he observes, “ if the 3rd defendant be regarded as a co-ownerwho has the right to pre-empt before the period during which the vendorson 3D1 are entitled to claim re-conveyance has elapsed, what wouldbe her position if the vendors on 3D1 claim a re-conveyance and the3rd defendant grants it ? There would be, then, the anomalous positionof a person who was having a defeasible title to a share of a land, havingbeen allowed to pre-empt another share and gaining an advantage overthe actual co-owners, and later such person divesting himself of theearlier share of the land which conferred on him the right to pre-emptBut it is not an infrequent experience of courts of law that anomalousresults flow from strict operations of the law. To adduce one appositeinstance, there is the cas6 of Pcmniah v. Kandiah to which I have alreadyreferred. The plaintiff in that case claimed pre-emption on the groundthat he was an heir of the 2nd defendant’s wife who acquired by wayof “ thediethetam ” a half share of an interest in the land in questionin that case which her husband bought during the subsistence of themarriage. The plaintiff’s claim to heirship was questioned by thedefendant inasmuch as his wife was still alive and, although she had nochildren at the time, might well have children and might even disposeof her share by will, and the plaintiff’s claim to heirship was contingentupon the defendant’s wife dying childless and intestate. Never-theless, de Sampayo J. held that the word “ heirs ” in part VII, 1 ofthe Thesawalamai, was used “ in a special sense ”, that is to say to mean“ persons who would be heirs if the owners should now die for if it meantpersons who have become heirs by the death of the owner, it would beabsurd to speak of them as being entitled to pre-emption in respect of
Jamila Umma v. Mohamod.
property alienated by the owner “ during his or her life-time In theresult, then, in that ease, the position was no less anomalous in that aperson with only a “ spes successionis ” wae held entitled to pre-empt.Situations like these which are apt to disturb one’s sense of logical con-sistency are bound to arise when different systems of law have to beworked together. The 3rd respondent’s position—co-owner or stranger—-must, I think, be determined with reference to the titles as they existat the time that question arises. At that time, in this ease, the 3rdrespondent was, by virtue of 3D1, entitled to and possessed of an un-divided one-eighth share of this land, that is, in other words, she was aco-owner. Her predecessors’ title to that one-eighth had beenextinguished ; all that was left to them being such a potential interestas the contract for re-conveyance gave them. That being so, the salenow impeached was not a sale to a stranger, and there being no preferencein favour of any of the claims of persons entitled to pre-empt, as washeld in Ponniah v. Kandiah, the plaintiff’s ease fails.
We were referred to certain passages in Agarawala’s The Law ofPre-emption, particularly, to paragraph 29 of page 64 (6th edition).But what is stated there depends for its validity on the view taken bythe Mohamedan Law in regard to the legal content of a sale subject to whatis called an “ option I am unable to see what jurisdiction there can be,when we are examining a case under the law of pre-emption as conceivedby the Thesawalamai, to sequiparate a sale with an option under theMohamedan Law to a sale with a stipulation for a re-conveyance withina certain period under the Roman-Dutch Law. Our Common Law isthe Roman-Dutch Law and the legal implications of 3D1 must beascertained with reference to that Law.
I would, therefore, dismiss the appeal. In regard to costs, the question,that almost exclusively occupied the time and attention of the trialCourt was the question of notice. On this question, the appellant hassucceeded and, therefore, I am of the opinion that the respondents shouldnot have the costs of the trial. I would allow them half the costs ofappeal.
GanekeSatne J.—I agree.
SARAVANAMUTTU et al., Appellants, and VALLIPURAM et al Respondents