052-NLR-NLR-V-63-T.-KASINATHAN-Appellant-and-K.-THAMOTHARAM-PILLAY-and-another-Respondents.pdf
BASNAYAKE, C» J.—Kaainathan v. Thamotharam (Pitted
241
1961Present: Basnayake, C.J., and Sinnetamby, J.T.KASINATHAN, Appellant, and K. THAMOTHARAM PILLAI
and another, Respondents
S. C. 498—D. C. Jaffna, 623(L
Thesavalamai—Pre-emption—Notice of sale by intending vendor—Mode of publicationof it—-Importance of due publication by prescribed officer—Thesavalamai Pre-emption Ordinance, No. 59 of 1947, ss. 3, 5, 6, 8, 13.
When notice of rale of immovable property is given by an intending vendorin terms of section 5 of the Thesavalamai Pre-emption Ordinance No. 59 of 1947,it is his duty to see that the officer to whom the notice is sent has in fact publishedit. A notice under section 5 cannot be deemed to have been " given ” for thepurpose of section 8 if there is a failure on the part of the officer to whom thenotice is sent to publish it in the manner pi escribed in sub-section 4 of section 5.
jAlPPEAL from a judgment of the District Court, Jaffna.
H. V. Per era, Q.C., with G. Ranganathan and J. V. C. Nathaniel, forthe 2nd defendant-appellant.
C. Thiagalingam, Q.C., with M. D. Jeswratnam, for the plaintiff-respondent.
Cur. adv. vult.
July 10, 1961. Basnayake, C.J.—
I have had the advantage of reading the judgment prepared by mybrother Sinnetamby, and I agree that this appeal should be dismissedwith costs.
Section 3 of the Thesawalamai Pre-emption Ordinance No. 59 of 1947provides that the right of pre-emption shall not be exercised save inaccordance with the provisions of the Ordinance. Section 6 providesthat within three weeks of the date of publication of a notice undersection 5, any person to whom the right of pre-emption is reserved by theOrdinance, may either tender the amount stated in such notice and buythe property from the intending vendor, or enter into an agreement tobuy it. Where, as in this case, a land is sold to a purchaser who hasno right of pre-emption without the publication of the notice undersection 5, a person who has the right of pre-emption is denied the rightconferred on him by section 6 ; because the publication of the noticeis a sine qua non for the exercise of the right thereunder. He is thenleft with the remedy provided by section 8.
Lxm
2—J. N. B. 20259—2,038 (11/61)
242
SLNNETAMBY, J.—Kasinathan v. Thamotharam Pillai
In the instant case the plaintiff having been denied the opportunity ofexercising his right under section 6, as there has been no publication of thenotice under section 5, has taken the course of instituting a regular actionas provided in section 8. The ground on which he has done so is that thenotice required by section 5 was not given. It has been proved that anotice was signed by the intending vendor before a Notary Public andforwarded by registered post to the Chairman of the Village Committeeof Puttur. There is also evidence that the notice was neither registerednor published in the prescribed manner.
Where an enactment requires a person to give notice., the requirement is,in the absence of anything in the context to the contrary, ordinarilysatisfied when the notice is posted to or delivered at the address of theperson to whom notice has to be given. (See University of Ceylon v.Fernando1.) In the instant case the context is such that a noticeunder section 5 cannot be said to have been given till the noticeis published in the prescribed manner, for, it is upon its publicationthat the right to pre-emption given by section 6 of the Ordinance may beexercised. Unless a notice is regarded as given only upon its publicationa person who has the right of pre-emption would not only be denied theopportunity of exercising his right under section 6, ho would also beprevented from pursuing the remedy of a regular action provided insection 8, for, he cannot assert in regard to a statutory notice which he hasnot seen, in the only place in which the statute says he may find it, that—
(а)it was irregular or defective,
(б)that the price set out in it was fictitious or not fixed in good faith.
The Ordinance is not designed to defeat those who have a right of pre-emption but to aid them and a construction in keeping with the objectof the statute as appearing therefrom is to be preferred.
A notice under section 5 is in my opinion not given for the purpose ofsection 8 until it is published in the manner prescribed in sub-section (4)of the former section.
SlNNETAMBY, J.
The plaintiff and the 1st defendant are co-owners of the land describedin the schedule to the plaint, and in this action the plaintiff seeks topre-empt the 1st defendant’s co-owned share which he sold to the 2nddefendant on Deed No. 2945 of 1st October, 1957. The plaintiff complainsthat the notice required by section 5 of Ordinance No. 59 of 1947 hasnot been given bj^ the 1st defendant. All parties are governed by thelaw of Thesawalainai and both defendants were made parties to theaction. Plaintiff also alleged that the consideration of Rs. 3,000mentioned in the deed of transfer in favour of the 2nd defendant wasfictitious, and that the reasonable value of the share owned is Rs. 1,750.The defendant traversed these averments in his answer and pleaded
' (1957) 59 N. L. R. 8,
SINNETAMBY, J.—Kasinaihan v. Thamotharam JPiOai243
that he had given due notice as required by section 6. The learned Judgeheld with, the plaintiff both on the question of notice and on the questionof the price holding that the reasonable value of the share in question isRs. 1,750. He accordingly entered judgment for the plaintiff declaringhim entitled to pre-empt the 1st defendant’s share of the said land, on hisdepositing the sum of Rs. 1,750 less Rs. 346, which had been broughtinto court, and declaring Reed No. 2945 in favour of the 2nd defendantvoid: he further directed that if the money was not deposited on orbefore 31st October, 1956, the action was to stand dismissed with costs.Against this finding, the 2nd defendant has appealed.
The main question that was argued before us related to the issue ofwhether due notice of the intended sale had been given in terms of section 5of Ordinance No. 59 of 1947. This Ordinance was enacted mainly toformulate a mode of giving notice to other co-owners of the intentionof any particular co-owner to sell his undivided share of the co-ownedproperty to an outsider, in order that if so inclined any one of the co-owners may pre-empt and purchase either at the price offered by theprospective purchaser, or, if that price is fictitious, at the reasonablemarket price. Prior to the enactment of Ordinance No. 59 of 1947,the law required that notice of an intended sale should be given by theintending vendor to his co-owners. What was insisted upon was actualnotice, duly communicated. Although at one time there was a question ofwhether the right to pre-emption under the Thesawalamai existed, thedecision of our courts clearly established the existence of such a right;but difficulties arose in regard to the manner of giving notice of intendedsales to co-owners. In the Thesawalamai regulations Chapter 51 part 7section 1, the form of notice which was recognised in the early daysrequired publication on three successive Sundays at the Church “ duringwhich period such persons as mean to have the preference to the landfor sale according to the ancient customs of the country are to comeforward ”. This form of publication has become obsolete and is no longerconsidered necessary. The difficulty was to formulate and adopt a modeof service, which, until the passing of Ordinance No. 59 of 1947, compliedwith the essential requirements of the law of Thesawalamai. The courtsaccordingly were prepared to accept any form of notice, containing thenecessary particulars, which was duly communicated by the vendor to theco-owners. The essential requirement was communication to the co-owner. Even in cases where no notice was given, if a co-owner wasshown to have been aware of the intended sale, he was not permitted,after the sale, to exercise his right of pre-emption. The Courts took theview that a sale to an outsider would not be set aside if the other co-owners were aware of it, even though the intending vendor did notexpressly give them notice. It is to be noted in this connection thatthough the mode of service contemplated by the old Thesawalamai wasexpressly declared to be obsolete, what is interesting is the fact thataccording to it, publication to the world was considered to be the meansof giving notice. Subsequent decisions required actual notice of anintended sale to be given to the other co-owners, but the difficulty of
244
SlNNETAMBY, J.—Kasinathan v. Thamotharam PtUai
giving that notice increased with the passage of time. This was appre-ciated by the courts which, from time to time, expressed the need of thelegislature stepping in and prescribing a form of notice. I would referin this connection to the case of Suppiah v. Thambiah1 where thematter is discussed.
In Ordinance No. 59 of 1947, a mode of notice is prescribed whichfollows the principle embodied in the old Thesawalamai to which I havereferred. Publication to the world is prescribed and deemed to be noticeto all persons enjoying the rights of pre-emption. It is no longer necessaryto give actual notice to each co-owner. It will thus be seen that theessential part of the notice is the publication of it in the manner prescribed.Section 5 lays down the steps that have to be taken to establish that duenotice has been given. Sub-section 1 enacts that the notice of an intentionto sell to an outsider shall be signed by the intending vendor before aNotary Public and that this notice shall be attested in triplicate :presumably, the requirement that the notice shall be attested in triplicatewas intended to enable the Notary to comply with the provisions of theNotary’s Ordinance, whereby, he is required to send the duplicate to theRegistrar-General, to keep a copy for his protocol, and give the originalto the person giving the notice ; but it should be noted that registration ofsuch a notice is not obligatory. Sub-section 2 provides that the noticeshall set out the actual price offered and that it is not necessary to disclosethe prospective purchaser. Sub-section 3 provides that a certified copyof the notice shall be forwarded by the intending vendor to one of thepersons specified in the schedule to the Ordinance, which in this casehappens to be the Chairman of the Village Committee of Puttur. Theprovision that a certified copy should be sent is obviously intended toenable a Notary Public to comply with the provisions of the Notary’sOrdinance in regard to the originals. In the present case, however, theNotary is stated to have sent one of the copies which he attested intriplicate, and not a certified copy thereof, to the Chairman of the VillageCommittee : Counsel for the respondent rightly contended that the originalof the notice should have been given to the intending vendor so that itmay be annexed to the deed of sale which he executes. Sub-section 4then provides for the manner of publication. The officer who receives thecertified copy is required to record the particulars in a register kept forthat purpose and to cause the certified copy to be posted immediatelyon the notice board of his court or office as the case may be. Prom thisprovision it is obvious that the manner of giving notice to the otherco-owners is by publication to the world. Although a co-owner intendingto sell his share does not give actual notice to his other co-owners, he is,nevertheless, in the eyes of the law, deemed to have given such noticeif the provisions of section 5 have been complied with : and, it seemsto me, that the most important requirement of the section is the publi-cation on the notice board. Sub-section 5 provides that a certificate
1 (1904) 7 N. L. B. 151.
8UJNETAMBY, J.-—Kaainathan tr. Thamatharam Pillai
. 24 5
issued by the officer receiving the notice that it had been duly posted on hisnotice board is conclusive evidence of the publication of the notice for thepurpose of the Ordinance. This sub-section emphasizes the need to postthe notice on the notice board and precludes any objection being taken tothe validity of the notice if a certificate under this sub-section is producedin a court of law.
In the present case, the evidence of the appellant’s proctor Mr. Ambala-vanar is that the notarially executed notice, 2D2, of 9th August, 1959,was sent by him to the Chairman of the Village Committee after it hadbeen duly executed in terms of section 5. The notice was sent byregistered post according to the proctor, and the evidence of the sub-postmaster, Ramanathapillai, coupled with the documents 2D9 and 2D10,established the fact that Mr. Ambalavanar did send a registered letter .to the Chairman of the Village Committee, Puttur, and that it was takencharge of by the Village Committee peon Kanagasabai. These documents,however, do not establish what the contents of that registered letterwere. The Chairman of the Village Committee states that he did notsee any such notice nor was any such notice posted on the notice boardof the Village Committee. The learned trial Judge has accepted hisevidence. I see no reason to interfere with that finding. The learnedJudge has considered the evidence carefully and I do not propose todisturb it in spite of the fact that there is some evidence of witnesseswho are alleged to have seen the notice exhibited on the notice boardof the Village Committee. The learned Counsel for the appellant,however, contended that, so far as the intending vendor was concerned,he should not be penalised for the default of persons over whom he has nocontrol : but, what the section requires is something more than merely theperformance of that part of its provision which relates to an intendingvendor. It is no doubt true that the intending vendor has no controlover the parties whose duty it is to make publication in the mannerprovided ; but, it seems to me, that, if he wishes to avail himself of theprovisions of section 5, it is his duty to see that the officer to whom thenotice is sent has in fact published the notice. The object of section 5,being to give notice to co-owners, how can it be said that they must bedeemed to have received notice without the publication contemplatedby sub-section 4 ? It may be that the intending vendor cannot control theaction of others, but that is his misfortune and not the fault of his co-owners. Curiously, in this case although the Chairman of the VillageCommittee was summoned to produce the inward register of lettersreceived, he was not summoned to produce the “ register of pre-emptionnotices ” kept under sub-section 4 nor was a request made to him toissue a certificate under sub-section 5. Surely a proctor in the positionof Mr. Ambalavanar should know that he ought to obtain a certificateunder section 5 to prevent the possibility of another co-owner disputingthe validity of the intended sale. If in fact the notice was published, whywas it that the certificate under sub-section 5 was not applied for, andwhy was it that the Chairman was not summoned to produce the registerkept under sub-section 4 ?
2*J. N. B. 20259 (11/01)
246SINNETAMBY, J.-—KaaincUhan v. Thamotharam PiUai
The present action was obviously brought under the provisions ofsection 8, for the sale, of which the plaintiff says no “ notice has beengiven under section 5 ”, had been completed. Such a right of actionin these circumstances is given in sub-section 2 of section 8 on the groundthat the notice required by section 5 had not been given. Mr. H. V.Perera, Q.C., for the appellant contended that the expression “ noticehas been given ” means, so far as the vendor is concerned, compliancewith the provisions of sub-sections 1, 2 and 3 of section 5 and that failureon the part of the officer to whom the notice is sent to publish it does notamount to failure to give notice. He also contended that whereverpublication was considered to be a necessary part of the provisions of theOrdinance it expressly said so, as for instance in section 6 (1) and insection 8 (2) (iii). He, therefore, contended that, in as much as the earlierpart of section 8 only speaks of notice being either given or not given,it does not include publication. It is to be noted, however, that section6 (1) and section 8 (2) (iii) deal with computation of time ; and, in com-puting time, the date from which the computation is to be made isreferred to as the day of publication. That is the last act which isrequired to be done by section 5 for the giving of notice. The framersof the Ordinance no doubt could have used the expression “ notice hasbeen given ” in place of “ publication of the notice ” but the expression“ publication of the notice ” was perhaps used only to pin point the datefrom which the time has to be computed. Mr. Perera also referred tosection 6 (2) in which the expression used is “ a sale of which he has givennotice under section 5 ” and contended that the use of the pronoun “he ”suggests that the giving of notice was complied with when the intendingvendor performs that part of the provisions of section 5 which imposeson him certain duties ; he submitted also that the other provisions of thesection do not impose on the intending vendor any obligation and thathe should not, therefore, be penalised for the default of others. I cannot,however, agree with this interpretation. After all, the object of thisOrdinance was mainly to formulate a manner in which notice had to begiven to those entitled to pre-empt. Under the old law this was done bypublication in Church. After its repeal, the decisions of the Courtsrequired actual notice to be given. It is inconceivable that the legis-lature in enacting Ordinance No. 59 of 1947 contemplated anythingless than the manner of giving notice which was originally in existence andwhich subsequently involved actual communication to the co-owners.I think publication is a most necessary step. I am fortified in this viewby the words used in sub-section 5 which provides for “ the certificate ….that the notice has been duly posted on the notice board shall be con-clusive evidence of the publication of the notice for the purpose of thisOrdinance ”. Further support for this view is to be found in section 13of the Ordinance which provides for equality of rights of all personsentitled to pre-empt “ any share or interest in the property sold withoutdue publication of the notice required by section 5”. That section, while
SIKNETAilBY, J.—Kaeinaihan v. Thamotharam PiUai
241
it do doubt deals with equality of rights as between co-owners, makesit clear that it is the absence of due publication which, gives such personsa right to pre-empt.
In my view, the expression f< notice has been given ” in section 8 meansnotice as contemplated by section 5 involving not merely the sending ofa certified copy to the proper authorities, but also due publication thereof.Till there has been due publication there has been no giving of notice :there has been only some steps taken in giving the notice. I wouldaccordingly hold that, having regard to the findings of fact by the learnedDistrict Judge, there has been no notice given in terms of the Ordinance.For that reason alone the plaintiff is entitled to enforce the right of pre-emption.
In this case, it is significant that, although the witnesses called by theplaintiff alleged that they saw the notice on the notice board, the 2nddefendant himself while giving evidence expressly stated that it wasafter he saw the notice of sale of this share on the notice board of theVillage Committee that he wanted to buy it from Thamotherampillai.Although this item of evidence was overlooked by the learned DistrictJudge and has not been referred to in his judgment, it expressly showsthat the notice of sale could not have been given for the alleged prospectivepurchaser came into existence only after the notice is alleged to have beenposted up on the notice board. It supports the finding of the learnedDistrict Judge. It is also curious that Kasinathan, the 2nd defendant,called as his witness one Eliathamby, who is alleged to have arranged thesale of the share in dispute to the 2nd defendant and who testified to thefact that he had seen the notice on the notice board of the VillageCommittee, when recalled, stated in cross examination that it was onlyone month before the execution of Deed 2D3 of 1st October, 1957, thatThamotherampillai the 1st defendant told him that no one was preparedto buy his share and asked him to persuade the 2nd defendant to buy,and he accordingly arranged the sale and fixed the price about one weeklater. The document 2D2 is, however, dated 9th August, 1957, which isabout two months earlier. Clearly then, if the evidence of this witnessis to be believed, the notice is a fictitious one as the 2nd defendant was notin existence as a prospective purchaser at the time of the alleged notice.This fact, though not expressly referred to by the learned Judge, affordsvery convincing evidence in support of his finding that the notice wasnot duly published in the manner required by section 5.
In regard to price, I see no reason to interfere with the findings of thelearned District Judge. The 2nd defendant, on the evidence led in thecase, not having come into existence on the date of the alleged sale,the evidence that he (Thamotherampillai) agreed to buy for Rs. 3,000must be totally discounted. I would accordingly affirm the findings of thelearned District Judge and dismiss the appeal with costs.
Appeal dismissed.