074-NLR-NLR-V-46-SITTAMPARAMPILLAI-Appellant-and-NAVARATNAM-et-al.-Respondent.pdf
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DE KRET8ER J.—Sittamparampillai and Navaratnam.
1049Present: De Kretser and Jayetileke JJ.
SITTAMPARAMPILLAI, Appellant, and NAVARATNAMet al., Respondents.
92—D. G. Jaffna, 323.
Thesawalomai — Bight of pre-emption — Price to be paid — Sum actuallypaid by purchaser — No right to offer the market value.
Under the Thesewelemai a person having the right of pre-emption ofa land is entitled to exercise the right by offering to buy the land at the priceactually paid for it by a purchaser.
In such a case he is not entitled to assert the right by offering to buy theland at the market value.
^^PPEAL from a judgment of. the District Judge of Jaffna.
N. Nadarajah, K.C. (with him T. Param80ty for second defendant,appellant.
A. Rajapakse, K.C. (with him H. W. Thambiah), for plaintiffs,respondents.
December 15, 1944. De Kretser J.—
The plaintiff brought this action claiming pre-emption in a land ofwhich she owned a half-share. The first defendant had sold his half-share to the second defendant for Bs. 750 and the trial judge sees noreason to believe that thiB sum was not actually paid. The plaintiff,however, estimated that the half-share should be worth Rs, 400, allegedthat that was the sum really paid by the second defendant to the firetdefendant and brought that sum into court as being the fair marketvalue and asked that the deed in favour of the second defendant be setaside and she be allowed to buy the land. The plaintiff also professed tobe willing to pay any further sum which the court ordered her to pay,but it is clear that this further sum was to be on the value which thecourt decided was the market value. At no stage did she profess to bewilling to pay the sum of Bs. 750, if in fact that had been paid for theland.
The right of pre-emption given by the- Thesawalamai is given inChapter 61, Part 7, Section I of the Legislative Enactments. There is nomention there of any such thing as a market value. As its very termimplies, when a co-owner wishes to sell, the other co-owner is at libertyto claim or demand the preference of being the proprietor. That mustmean that the person owning' a right is not deprived of his natural rightto procure the best possible price for his share but that he cannot sellit to an outsider if a co-owner is willing to buy it. at that price. Thatis the only preference given to a co-owner. A case in Morgan’s Digest atpage 27 was interpreted by Ennis J. in Seneviratne v. Sabapathy *, to saythat a neighbour who wishes to purchase must pay the best price whichcan be obtained for the land. In the course of that case Ennis J. uses theexpression " reasonable price ” but does not state where he gets it from
1 2 Timas of Ceylon L. R. 139.
Labrooy (8. I. Police) and Amereeekera.
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and his only comment on the report in Morgan's Digest is that the casedoes not assist the court to 6ay what is a reasonable price m the eyes ofrelations. Had the Thesawalamai referred to a reasonable price in thecase of relatives then, of course, that would have to be ascertained.But, with all due respect, I fail to see that any such restriction is placedon the already heavy restriction placed on a co-owner. Even theexpression “ market price ” is open to misconstruction. As was pointed „out by Dalton J. in the case of Mylvaganam v. Kandiah 1 a genuine saletaking place at B6. 3,500 the District Judge was not entitled to hold thatthe land was only worth Rs. 2,700. One can understand if the marketprice is the price which the land would fetch at a public auction. In thatcase the second defendant would have to pay Rs. -750 and the plaintiffwould have the right of pre-emption at that price; just as a co-owner has aright of pre-emption when a land is sold by the Fiscal in execution of awrit. But to ascertain the market price by taking the average price oflands in the neighbourhood seems to me to place an undue burden on thecourt in ascertaining what should be the proper price to be paid and todeprive a co-owner of a price which he might legitimately obtain.
In this case the plaintiff is willing to pay Rs. 750. Our order will bethat the money necessary to bring the purchase price to Rs. 750 shouldbe deposited within a fortnight of the record reaching the DistrictCourt of Jaffna, and the order being communicated to the proctors inthe case.
We think the order as to costs in the lower court was not correct.The second defendant failed on the question of notice but succeededsubstantially on the question of the price. We think that the costs in thelower court should be borne by the respective parties. As regards thecosts of appeal, we think that the appellant has substantially succeededand is entitled to half the costs of appeal.
Jayetilexe J.—I agree.
Appeal allowed.