036-NLR-NLR-V-07-SUPPIAH-v.-THAMBIAH.pdf
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SUPPIAH w. THAMBIAH.D. C., Jaffna, 2,443.
1004.
March 39.
Tegavalamai—Right of pre-emption—Notice of intended sale to those hatingthe right to pre-empt—Ordinance No. 1 of 1842—.Ordinance No. 4 of
1895.
The right of – pre-emptionaccordingto theTesavalamai ofJaffna
still exists, and, though the Ordinance No. 4 of 1895 abolishes publica-tion and Udaiyar's schedule of intended sales, yet a co-owner desiringto sell his share of the landis boundto givereasonable noticeto his
other co-owners of the intended sale.
Where no notice was given to a co-owner, and he raised an action tohave the sale of his co-owner’s share to a third party declared void, andbe himself entitled to pre-empt it,—
Held, that he had a right to such a decree, upon payment into Court ofthe market value of the share sold.
The sale price is not necessarily the market value.
Wkndt, J.—It is desirablethat inorder toprevent disputeas to
the form of notice and consequent litigation, some definite formalityshould be prescribed by the Legislature.
Middleton, J.—As the Tesavalamai imposes a restriction on thesale of land in Jaffna, it affects the rights of any person who assumedto buy it, be he English, Moor or Tamil, resident or not resident inJaffna.
T
HE second plaintiff, as the owner of a share of a land situatein Jaffna, claimed in this section the right- to have the second
defendant’s share of the same land sold to her (the secondplaintiff) in preference to the first defendant, to whom the seconddefendant had sold it by a deed executed in Jaffna.
She claimed this right. by virtue of .the Tesavalamai of Jaffna.She alleged and proved that she was, at the date of the sale to thefirst defendant, living at Colombo, and'that the second defendantgave no notice to her of the intended sale-.
The defendants denied the second plaintiff’s- right to pre-empt.It was contended inter alia that as the first defendant, thepurchaser, was not a Tamil b(An or resident in Jaffna, he was notbound by the Tesavalamai.
The issue adjudicated upon at the trial was whether the law ofpre-emption was now in force in Jaffna. The Court below >y itSjudgment of the 24th day of January, 1902, answered the questionin the negative and dismissed the plaintiff’§ action.
The plaintiffs appealed therefrom to the Supreme Court, which’by its judgment dated the *7th May^ 1903, set aside the judgmentof the Court below, holding that, the right of pre-emption stillexists, and remitted the case for further hearing;, with liberty to–
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the defendants to raise any other issues which may appear to themMareh 30. desirable. Their Lordships’ judgments will be found reportedin 6 N. L. B. 359.
After the second trial, the District Judge (Mr. W. R. B. Sanders)delivered judgment as follows on 3rd November, 1902: —
“ This case was sent back by the Supreme Court for further trialand with liberty to the defendants to raise such further issues asmight appear to them desirable. At the second trial it was agreedthat the second issue originally framed should stand, namely, Arethe parties governed by .the Tesavalamai as far as this trans-action is concerned? And one additional issue was framed:Was
the second defendant, the vendor, bound to notify to the secondplaintiff his intention to sell the land in question? Are theparties governed by the Tesavalamai%By regulation 18 of
1886 it was enacted that ‘ all questions between Malabar inhabit-ants of the Province of Jaffna or wherein a Malabar inhabitant isdefendant shall be decided according to the Tesavalamai.
“ In this case the plaintiffs and the second defendant are ‘ Malabarinhabitants of the Province of Jaffna ’—in other words, JaffnaTamils domiciled in the Northern Province or Province of Jaffna;but the first defendant, though a Jaffna Tamil by descent, is notan inhabitant of the Province of Jaffna. He was born inColombo, and has always lived there. He has never even visitedJaffna. He has no property' in the Northern Province, except thelands with which the present action is concerned, as he is not a‘Malabar inhabitant of the Province of Jaffna. ’ The action asagainst him fails entirely from the very nature of the case. Theaction is one for the cancellation of a deed; it must necessarilyfail as against the second defendant also. The defendants muststand or fall together. It was contended for the plaintiffs thatin this case the lex loci rei sites applies; that contention, however,I cannot for a moment unhold. The lex loci as regards pre-emption is very strictly local, and applicable only to a certainsection of the community, namely, Jaffna Tamils domiciled inthe Province of Jaffna. The first defendant, as I have already‘pointed out, is not a Jaffna Tamil domiciled in the Province of.Jaffna. The last issue is« whether the second defendant (theVendor to the 'first defendant) was bound to notify to the secondplaintiff his intention to sell the land in question. I am of opinionthat he was notj the .Legislature does not declare how noticeof an intended sale is to be given. In the absence of any specialenactment on the subject, it is clearly" conceivable that no modeof giving notice adopted by $he vendor would satisfy all thepersons claiming the right of pre-emption. One would take
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exception to notice being given by beat of tom-tom, another toits being given by advertisement in a newspaper, and bo on.Again, what period must elapse between the giving of notice andthe sale ? As .the law does not prescribe how notice is to begiven, I hold that the right of pre-emption, though existing,cannot be enforced. On this ground then, and also on the groundthat plaintiffs have no cause of action against the first defendant,as he is not a ' Malabar inhabitant of the Province of Jaffna, ’ 1.dismiss the action with costs
The plaintiff appealed.
The case was argued in appeal on 18th March, 1904, beforeLayard, C.J., and Wendt, J., and re-argued on 22nd March, 1904,before Wendt, J., and Middleton, J.
Domhorst, K.G., and Wadsworth, for appellant, cited OrdinanceNo. 4 of 1895 and Ordinance No. 1 of 1842; and 4 N. L. R. 328;5 N. L. R. 356; 1 8. 0. R. 98, 102; D. C., Jaffna, 1,593,. Mutu-kisna’s Tesavalatnai, p. 402; and Van Leeuwen, p. 324.
Ramanatkan, K.C., for respondent, cited Ordinances No. 18 of1806 and No. 4 of 1895; and Kotze’s Van Leeuwen, p. 151;Lorenz’s Vander Keessel, section 645; and Bruvn’s OrotiusrOpinions, p. 575.
Cur. adv. vult.
30th March, 1004. Wexdt, J.—
Under the customary law prevailing in Jaffna there were two
separate and distinct conditions precedent to alienations of land
viz., “ publication ” and “ schedule ”. The Tesavalatnai, section
7, describes the mode of publication “ formerly ” prevailing and
the change made by Commandeur Blom. Possibly the Com-
mandeur’s “ good orders ” are those contained in Order No. 27 of
the so-called “ Seventy-two Orders ” promulgated by the Dutch.
Order 27 (Mutukisna, p. 692) enjoins all those who wish to sell or
ot-ty any lands, houses, slaves, gardens, or any other important
effects “ to procure publication thereof for three Weeks in the*
church nearest such lands, &c., previous to the(act, that those who
think they have an undoubted claim may he dulyj informed of the
matter and institute proceedings accordingly. Without such
publication they shall neither sell nor otty. Moreover the
Chattambus and their Avuthandjs, without such publication
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carefully made for three weeks, shall not execute deeds of sale.
1904.March 30.
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1904. otty, or other bonds ” under pain of forfeiture of office and fine.-March 30. [n 2829 (Mutukisna, p. 395) the District Court of Jaffna set aside aWendt, J. deed because "the forms laid down in the Tesavalamai, section7, clause 1, viz., that .the intended sale of lands should be publiclyannounced for three successive Sundays in the parish to which theybelong ”, had not been observed. In 1840 (p. 415) the same Courtheld that publication within the parish where the land wassituated was all that was necessary, and that “ it has never beenthe practice to publish the sale of lands out of the parish inwhich they are situated, and could not in fact be done withoutgreat inconvenience ”. That was a claim for pre-emption by aperson living in another district. These cases seem to show thatthe pronoun ” they ” in the phrase (parish) church to which■they belong " was understood as applying to the lands and notthe parties. The pages of Mutukisna are full of cases decidingthat publication and schedule are essential for sales, donations,and otties (mortgages) of land, but I find very little stated as tothe mode of publication. (Mutukisna’s book was published in1862). In 1855 (p. 266) three weeks’ publication, apparently bythe Udaiyar, was still held necessary.
The Tesavalamai says nothing as to schedule ”. A “ schedule ”was an extract from the Tombu register, showing in whosename the land which it was desired to deal with was registered.(Statement by Supreme Court. Mutukisna, p. 430, letter ofMr. P. A. Dyke, dated November 22, 1851, ibid. 440). TheUdaiyar as Tombu-holder ” granted the “schedule”, and whenit became tbe practice for him to make the necessary publicationit may also have become usual for him to state the fact ofpublication in his “ schedule”. Sir Anthony Oliphant, C.J., in a«ase decided in 1852 and reported in Mutukisna, p. 451, wasinclined to think that “ the practice of granting schedules com-menced at the time that stamps for deeds were first introduced in1806 ”, but Mutukisna states in a note (p. 451): “ This is an error;the custom of granting the schedule can be proved to have existedfrom an earlier period.
a
In 1842 the Ordinance No. 1 of that year made regulations as tothe fees chargeable for schedules, thus recognizing the custom.In 1852 the Supreme Court by a majority held that scheduleswere necessary for Fiscal’s sales as well (Mutukisna, p. 441).
Tbe Ordinance No. 4 of 1895 repeals “ so much of the Tesa-valamai as requires publication and schedule of intended salesor other alienations of immpvable pf-opertv.” Now. as alreadystated, the written Code whicfy usually goes by the name of theTesavalamai contains no provision relating to schedules, but
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perhaps the Ordinanoe uses the term to denote the "whole body of•• oustomary law, ” which I believe is what the word Teaavalamaimeans.
Now the customary law, as will have been seen, does not makepublication (much lesB sohedule) a mere aooessory to the right ofpre-emption. They were formalities required for all dispositionsof land, and if it was intended by the Ordinanoe to do away withthe right of pre-emption itself, I should have expeoted theLegislature to have said so in unmistakeable terms. The rightmay conceivably exist without an;’ prescribed form of notioe tobar it: the person entitled to the right may in any oase assert it ifhe hears of an intended sale before it is carried out. Publicationto the world is in this oase only a means of giving notioe to the/particular individuals having the right of pre-emption. TheLegislature, having abolished that speoial mode of giving notice,has not thereby impliedly done away with the necessity for givingnotioe at all. I think we must hold that reasonable notioe muBt begiven. It oertainly is desirable that, in order to prevent disputeas to notioe and consequent litigation, some definite formalityshould be prescribed by the Legislature if the right of pre-emptionitself is not taken away.
I agree to the order proposed by my brother Middleton.
Middlkton, J.—
This was an action brought by the first plaintiff in oonjunotionwith his wife the seoond plaintiff, who is oo-owner of oertain landssituate in Jaffna with the seoond defendant against the seoond de-fendant as oo-owner and the first defendant as purchaser of theseoond defendant’s share in the said lands, olaiming that the seoondplaintiff be declared entitled to a right of pre-emption on the saidlands, and that the transfer by the seoond defendant to the firstdefendant, dated the 27th March, 1901, be set aside.
The District Judge on the first hearing held that the right ofpre-emption under the Teaavalamai had become obsolete anddismissed the plaintiff’s notion.
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Upon appeal this Court was inclined to think that the'right., ofpre-emption still existed, but sent the oase baok'to the DistriotJudge at the suggestion of the Solioitor-Gsfneral, who representedthe defendants, in order that a question al to administrationmight be dealt with and‘issues might be raised and deoided as tohow and to whom the duty of giving notioe under the Tesaoa-lamai, seotion 7. paragraph 1, was to be performed.
1904,Marth 80,
Wsnot, Jr
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1904. The case went back to the District Judge, when it appeared thatMarch 30, t^e question of administration had already been dealt with. AnMiddleton, additional issue of law in the following terms was then settled andagreed to: “Was the second defendant bound to notify to thesecond plaintiff his intention to sell the land in question?
After argument, no further evidence as to question of noticebeing tendered, the District Judge again gave judgment holdingthat, as the law does not describe how notice is to be given, theright of pre-emption, though existing, cannot be enforced, andfurther that, as the first defendant was not a Malabar inhabitantof the Province of Jaffna, plaintiffs could have no cause of actionagainst him.
The plaintiffs again appealed to this Court.
The first question to. be considered is whether the right of preeruption as appearing in the Tesavalamai is still in existence, i:seems to have been recognized that it existed in 1854 by a judg-ment of this Court in a case reported in Muttukisna, p. 563.Again it was recognized as existing by Chief Justice Bonser inthe case reported in 4 N. L. B. 328, and practically again by ChiefJustice Layard and my Brother Wendt in this case as reported in6 N. L. B. 356. I think therefore we are bound to hold thatthis right still exists in the Province of Jaffna.
The Solicitor-General maintained, however, that Chief JusticeBonser was in error, in his judgment reported in 4 N. L. B. 334,in holding (against the Solicitor-General’s contention that Ordi-nance No. 4 of 1895 had the effect of abolishing all rights of pre-emption) that the Tesavalamai contains nothing as to publicationand schedule.
It would seem that a custom of the Udaiyar giving a scheduleupon the sale of lands in the Jaffna Province was recognized byOrdinance No. 1 of 1842, which gave authority to these officials tocharge fees, and made them liable for negligence and misconduct.
This Ordinance was repealed by No. 4 of 1895, which at the same
time repealed so much of the Tesavalamai as requires
publication and schedule of intended .sales or other alienations ofimmovable property.
Now, it is true there is npthing about schedules in the Tesa-vafamai? but paragraph 3 of section 7 certainly contemplatedthe publication 4>f notice of intended sales in the parish churches.The schedule was a custom of the country not prescribed by orknown to the compilers o? the Tesavalamai. although subsequentlyrecognized by Ordinance No. 1 of 1842. I ‘think it is clear then thatsection 1 of Ordinance No. 4 of' 1895 repealed so much of the secondpart of the first paragraph of section 7 rtf the Tesavalamai as
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requires publication of the intention to sell lands in the parishchurch, and which was initiated during the time of “ old Com- March 30.man'der Blom of blessed memory ”, and this is the point contended Midduetox,for by Counsel for the appellants. The Solicitor-General’s argu- ^ment, based on section 8 of Ordinance No. 1 of 1852, which, I think,was used under a misapprehension that Ordinance No. 1 of 1842repealed a portion of the Tesavalamai, therefore, falls to the.ground.
My own view then is practically that expressed by Chief JusticeBonser in 4 N. L. R. 335, i.e., that Ordinance No. 4 of 1895 had notthe effect of abolishing all rights of pre-emption in the Provinceof Jaffna, and if it had been intended to have that effect I wouldhave expected the Legislature to say so in plain terms. In myopinion then the right of pre-emption still exists subject to theterms of notice set out in the first paragraph of section 7 of theTesavalamai, and it is necessary, therefore, for a co-ownerdesiring to sell his share of the land to give a reasonable noticeto . his other co-owners according to the times specified in that firstparagraph. In this case, there is no pretence that any such noticehas been given, and the plaintiff, therefore, in respect of secondplaintiff’s interest as co-owner, would be entitled to an orderdeclaring the sale of the second defendant to the first defendantvoid upon tender and payment into Court of the market value of theproperty sold. The market value here is doubtful; it is said notto be the sale price, which in most cases would be the marketvalue. The judgment of the District Judge must therefore be setaside and the case must go back to the District Court for theascertainment of the market value, and upon payment of thatsum into Court the plaintiffs will be entitled to a decree asprayed for.
I think it1 would not be advisable to tack on to the Tesava-lamai any of the forms or procedure derived from the Roman-Dutch Law in Van Leeuioen. 2 Kotze’s Translation, 151, assuggested by the Solicitor-General.
As regards the District Judge's point that the first defendant,though a Tamil, is not an inhabitant- of the Province of Jaffna, andtherefore not subject to the Tesavglamai, I would say that theTesavalamai imposes a restriction on the sale., of land in „theProvince of Jaffna which would affect the rights o? any person whoassumed to buy it, and therefore those' 'of the first defendant,whether he be-English, Moor, or -Jaffna Tamil? not resident in thatProvince.
As regards costs, tlje plaintiffs are, I think, entitled to get theirc68ts of the whole proceedings.