T. PONNUDURAI and 2 others, Appellants, and S. SITHAMPARAPILLAI and another, R

071-NLR-NLR-V-71-T.-PONNUDURAI-and-2-others-Appellants-and-S.-SITHAMPARAPILLAI-and-another-R.pdf


TAMB1AH, J.—Ponnudurai v. SithamparapiUai
315
Present: Tamblah J., and Manicavasagar, J.T. PONNUDURAI and 2 others, Appellants, andS. SITHAMPARAPILLAI and another, Respondents
3. C. 92/64—D. C. Point Pedro, 6030
Thssawatamai Pre-emption Ordinance (Cap. 64)—Sections 2 and 13—Meaning ofthe words “ persona who in the event of the intestacy of the intending vendor willbe his heirs ”—Jaffna Matrimonial Rights and Inheritance Ordinance—Inheritance thereunder—Misjoinder of parties and causes of action.
Where two co-owners who were subject to Thesavalamai brought an actionto pre-empt an undivided share of a land which had been sold by anotherco-owner to his sister while his children were still alive—
Held, that the sale to the sister was unassailable because a sister of aco-owner is an heir within the meaning of Section 2 of the -ThesawalamaiPre-emption Oidinance. According to that Section, co-owners and all personswho can potentially become heirs of the vendor at the moment of his deathintestate, and who are enumerated in sub-section 2, are entitled to the right ofpre-emption, and there is nothing in the words of Section 2 which point to anorder of precedence or preference amongst those who ore enumerated as personsentitlod to the right of pre-emption. This interpretation is strengthened bythe provisions of Section 13.
Markandu v. Rajadurai (58 N. L. R. 394) not followed.
Held further, that when two or more co-owners are co-plaintiffs in an'actionfor pre-emption, there is a misjoinder of parties and causes of action.
Thangammah v. Kanagasabai (51 N. L. R. 500) not followed.
Appeal from a judgment of the District Court, Point Pedro.
♦
G. Ranganathan, Q.C., with V. Arulambalam, for the DefendantsAppellants.
S. Sharvananda, for the 1st Plaintiff-Respondent.
Cur. adv. wit.
October 9, 1966. Tambiah, J.—
The plaintiffs brought this action to pre-empt a half share of the lauddescribed in the schedule to the plaint on the basisthat they were entitledto an undivided £th share of the land and that the 1st defendant bydeed No. 339 of 1/4/1957 marked PI, sold without notice to them anundivided half share to the 2nd and 3rd defendante-appellants. Theplaintiffs contended that they were only liable to pay Rs. 4,000 as
818.TAMBIAH, J.—Ponnudurai v. SithamparapiUai
consideration, being half of the consideration of Rs. 8,000 mentioned inthe deed, for the reason that the said deed which dealt with the entireland •(raid convey only a half share.
Several issues were framed and after trial the learned District Judgeentered judgment for the plaintiffs as prayed for with costs. Thedefendants have appealed from this order.
It is common ground that the third defendant is the sister of the firstdefendant. Mr. Ranganathan contended that in this case no action forpre-emption would lie since the transfer was to the sister of the vendorwho is an heir within the meaning of section 2 of the ThesawalamaiPre-emption Ordinance (Cap. 64). He also contended that since thefirst plaintiff and the second plaintiff were each entitled to £th share,each of them had a separate cause of action and there is a misjoinder ofparties and causes of action. On these two grounds he urged that theaction should be dismissed.
It is sufficient, to deal with the first point raised in appeal. Pre-emption is traceable to a state of society in which the family owned aproperty in common. In such a society co-sharers would have all beenmembers of the family and the purpose of pre-emption was to see thatland was not alienated to strangers and to stop the intrusion of outsiderswhich would naturally have been resented by the other members of thefamily. The law relating to pre-emption is found in ancient codes, suchas the Code of Hamurabi. The Jews also had this concept. It may bethat they borrowed the law of pre-emption from the Babylonians (etieverses 24-34 in the Chapter of Leviticus). Pre-emption is found inmany customary laws of India. Although the view has been expressedthat the law of pre-emption in the customary laws of India is the result ofthe impact of Muslim law, one finds traces of pre-emption in customarylaws which were unaffected by the Muslim law.
Before the Thesawalamai Pre-emption Ordinance was enacted, theLaw of pre-emption was found in the Thesawalamai Code which enactedthat “ when any person has sold a piece of land, garden, etc., to a strangerwithout having given any previous notice thereof, to his heirs or partnersand to such of his neighbours, whose grounds are adjacent to his landmid who might have the same In mortgage, should they have beenmortgaged, such heirs, partners and neighbours are at liberty to claimor demand the preference of such land ” (vide Thesawalamai Code VII, 1).
The word '* heirs ” in this context must necessarily mean persons whowould become intestate heirs on the death of the intestate vendor. Inview of the uncertainty of life, it is not possible to determine who are one’sheirs excepting at the moment of one’s death. However, in Ponniah o.Kandiah1 de Sampayo J. took the view that the word " heirs ” in the
»(1920) 21N. L. E. &7.
TAMBIAH, J.—Ponnuduraiv.su/unnparapiUai. 317
^
Thesawalamai Code really meant persons who would be the intestateheirs if the transferor died at the moment of transfer. In the course ofhis judgment he said (vide supra at 328):
" The word I think refers to persons who would be heirs if theowner should now die, just as in England the eldest son of a personstill living is commonly spoken of as his " heir ” or “ heir-at-law ”and the right of pre-emption ia given to heirs in that sense to be enforcedpresently against the owner.”
With due respect, I wish to state that I do not agree with this view.The word " heirs ” in section VI. 1 of the Thesawalamai Code .connotesa group of persons, who would be potential heirs of the vendor at thetime of his death. Be that as it may, the question for decision is whetherthe third defendant is an heir within the meaning of section 2-of theThesawalamai Pre-emption Ordinance (Cap. 64).
The Thesawalamai Pre-emption Ordinance was enacted to give effectto the recommendations of the Thesawalamai Commission. In the courseof their report the Commissioners said : (vide Supplementary Report ofthe Thesawalamai Commission, Sessional Paper I, page 6):
i.
" In the Thesawalamai common law, the vendors, co-ownera, heirsand owners of adjacent land are entitled to a right of pre-emption inrespect of the land that he proposes to sell and in Tegard to which theystand in one of these relationships.”
“ We are of opinion that the right should not be allowed to owners ofadjacent lands but that it should be restricted to co-Qwners ahd tothose who would he heirs of the vendor up to the third degree in 'the ease
of intestacy”
Thus, it is clear that the Commissioners in their report envisaged that allpersons who could potentially become heirs at the moment of the deathof toe vendor were entitled to the right of pre-emption.
The report of the Commissioners has been implemented in unambiguouslanguage..' Section 2 of the Thesawalamai Pre-emption Ordinanceenacts—
"(1) When any immovable property subject, to the Thesawalamaiis to be sold, the right of pre-emption over such property, that is tosay, toe right in preference to all other persons whomsoever to buy theproperty for the price proposed or at toe market value, shall be' restricted to the following persons or classes of persons:
(а)toe persons Who are co-owners with toe intending vendor of the
property which is to be sold, and
(б)toe persons who in the event of toe intestacy of the intending
vendor will be his heirs.
!•*—J 1837 — (2/89)
318
TAMBIAH, J.—Ponnudurai v. Sithamparapillai
(2) For the purposes of this Ordinance, the term ** heirs ” meansall descendants, ascendants and collaterals upto the third degree ofsuccession, and includes—
(а)children, grandchildren and great-grandchildren ;
(б)parents, grandparents on both the paternal and the maternal
sides and great-grandparents on all sides;
brothers and sisters whether of the full or of the half blood ;
uncles and aunts, and nephews and nieces, both on the paternal
and the maternal sides, and whether of the full or of thehalf-blood.
Section 2 (2) defines the.term "heirs”. It states that the term“ heirs ” means all descendants, ascendants and collaterals up to thethird degree of succession and includes the persons set out in paragraphs2 (a) to (d).
When a statute says that a word or phrase shall “ mean ” and not merelythat it shall “ include ” certain things or acts, “ the definition is a hardand fast definition, and no other meaning can be assigned to the expressionthan is put down in the definition ” (vide per Esher M.R. in Oough v.Oough 1; vide also Bristol Tram Co. v. Bristol *; Stroud’s JudicialDictionary, Vol. HI, 3rd Edition, p. 1765).
Mr. Sharvananda contended that the phrase “ in the event of intestacyof the intending vendor ” clearly shows that the heirs referred to insection 2 are the persons who would be intestate heirs at the time thetransfer took place. He therefore urged that one has to look into thelaw governing intestate succession applicable to those who are governedby Thesawalamai and determine who will be the heirs if the vendor haddied at the moment of transfer. He argued that, otherwise, the wordsintestate heirs would be meaningless. For this proposition he relied onthe ruling in the case of Markandu v. Rajadurai 3. In the course of his
judgment in that case, Sansoni, J. (as he was then), said (at 395):
• •
" Now if one were to substitute for the word “ heirs ” in section2 (1) (b) the definition appearing in section 2 (2), the result would beunintelligible. Again, section 2 (1) (b) does not read “ the persons whoare the heirs of the intending vendor ” : if "It did, the substitution ofthe persona mentioned in the clause defining “ heirs ” would providethe result for which Mr. Ranganathan contends. Obviously, theheirs contemplated in section 2 (1) (6) are those persons whom deSampayo, J., referred to as " persons who would be heirs if the ownershould now die ”. It is for that reason, I think, that the word “ heirs ”in section 2 (1) (b) is qualified by the phrase “ in the event of theintestacy of the intending vendor ”: and it is for that reason that
* 59 L. J. Q. B. 449.
1 (1891) 2 Q. B. 665.
* (1957) 58 N. L. R. 394.
319
TAMBIAH, J.—Ponnudurai v. SithamparapiDai
one cannot include all those persons {Sailing within the clause definingthe term “ heirs ” simpliciter as persons who have the right ofpre-emption.”
With due respect, I am unable to agree with the views expressed in thisdictum. The use of the phrase “ in the event of the intestacy of theintending vendor ” in section 2 (1) (6) was intended to shut out testateheirs. If a person left his property by will to a person, then the deviseebecomes the testate heir. The customary laws of the Tamils did notrecognise testate succession. Therefore when the Dutch codified theThesawalamai, testate heirs had no place and were not entitled to pre-empt.As stated earlier the historical reason for the preservation of the law ofpre-emption in the Thesawalamai was to see that property did notpass to strangers but was kept within the family. The phrase personswho in. the event of intestacy of the intending vendor will be his heirs ”in section 2 (1) (6) of the Thesawalamai Pre-emption Ordinance, refersto a group including all persons who could be potential heirs under thelaw of intestate succession at the time of the death of the vendor.
In the present case, there is evidenoe that the vendor has two childrenbut there is no certainly that at the time of death of the vendor theycould be alive. If they are not alive at the time of death of the vendorand if the third defendant survives him, she would then becomehis heir.
The definition found in section 2 (2) of the term “ heir ”, which meansall descendants, ascendants mid collaterals of the third degree ofsuccession, leaves no alternative for any other construction to be placed onthe word “ heirs ”. The legislature intended to give the right of pre-emptionto all categories of persons who could potentially be regarded as heirsat the time of the death of the vendor and who are enumerated insection 2 (a) to (d). This canon of construction is strengthened by thewording in section 13 of the Thesawalamai Pre-emption Ordinance whichenacts:
“ All co-owners and heirs within the meaning of section 3 shall bedeemed to have an equal right to pre-empt any share or interest inproperty sold without due publication of the notice required by section .5, and there shall be no preference or precedence among them:
Provided, however, that in the event of any competition amongsuch co-owners and heirs, the court may accept the highest offer madeby any of them, if such offer is also larger than the actual price paidor the market value, whichever of these is the larger.”
In view of the fact that all heirs within the meaning of section 3 aredeemed to have “ equal right to pre-empt ” any share or interest inproperty, the Legislature clearly contemplated a group of persons whocould become potential heirs at the time of the death of the vendor and
320
TAMBIAH, J.—Ponnudurai v. SUhamparapillai
not the particular heir or heirs, who would succeed had the vendor-died at the time of the transfer. The proviso further states that in theevent of any competition among the heirs, the court may accept thehighest offer made by any of them and there shall be no preference, orprecedence among them. This again shows that the Legislature wasreferring to a competition among various grades of heirs set out in’ section2 (2) of the Pre-einption Ordinance. In the event of competition it isenacted that there shall be no preference or precedence among them. Theuse of the words “ preference or precedence ” show that persons whoare further removed from the vendor in the family tree were equallyentitled to the right of pre-emption as those who are more closely relatedto him.
It is a well known rule of interpretation that where the words of anenactment are clear a court should give effect to them and should notlegislate by introducing words which are not found in the statute (videCraies on Statute Law, 5th Ed. p. 103). In the course of his judgmentin the case of Markandu v. Rajadurai1 Sansoni, J., (as he was then)was put to the necessity of introducing words into the ThesawalamaiPre-emption Ordinance in order to give a construction to section 2 ofthat Ordinance. In the course of his judgment he said (vide at page 395):
“ My view, then, is that persons who claim to come within section2 (1) (6) must first satisfy the condition that they would be heirs of theintending vendor if he should then die intestate: that condition havingbeen satisfied, they must also satisfy the condition that they aredescendants, ascendants or collaterals within the third degree ofsuccession. Only in this way can full effect be given to all the wordsof section 2(1) (b) and section 2 (2).”
With due respect, I am unable to agree that condition No. I shouldbe satisfied before a person could ask for pre-emption. Condition No. 1is not found in the Thesawalamai Pre-emption Ordinance and to read itas if it is part of the statute would be to give an unduly restrictiveinterpretation.
The interpretation placed in the case of Markandu v. Rajadurai (supra)is an undue restriction on the rights of persons who are clearly entitledto pre-empt under the Thesawalamai Pre-emption Ordinance. Whenthe Thesawalamai Pre-emption Ordinance speaks of persons who “inthe event of intestacy of the intending vendor will be his heirs ”, it isnot permissible to construe the word “ heirs ” in this . context“ as heirs at the time the transfer took place If it is appreciated thatpersons who are entitled to pre-empt belong to a group of persons whocould potentially be heirs at the time of the death of the vendor, section 2of the Pre-emption Ordinance becomes intelligible. Therefore I hold thatthe first defendant has transferred to his sister, the third defendant,.
1 (1957) 58 N. L. X. 894.
TAMBIAH, J.—Ponnudurai v. Sithamparapiilai
321
who herself is entitled to pre-empt under section 2 (1) of the ThesawalamaiPre-emption Ordinance. Therefore this action does not lie and shouldbe dismissed.
In view of this finding it is not necessary to decide the question as towhether there is a misjoinder of .parties and-causes of action. But inview of its importance it is necessary to refer to this point y^hich wasraised in appeal.
The right of pre-emption is based on a cause of action. In order toappreciate the precise cause of action, it is necessary to distinguish betweena primary right and a remedial right. In dealing with the law ofpre-emption that the primary right vested in a person who is entitled topre-emption has been stressed in a number of judgments of the IndianOourts. In SanweU Das v. GhU Parshad1 Justice Chatterji said:.
“ I consider the right of pre-emption as a substantive and primaryright which is possessed by, or interest in the pre-emptor, and imposesa corresponding obligation on the vendor of the property which isthe subject of pre-emption.*’
When this primary right is infringed by the vendor who sells to astranger without conforming to the law of pre-emption, a remedial rightarises to the person who is entitled to the right of pre-emption, tocome to a court of law and ash for this right. But to claim a remedialright a plaintiff should have a status of a person competent to claim. pre-emption.
In this case the right of each of the plaintiffs to claim pre-emption isa separate right. But there was an infringement of these rights andeach had a separate cause of action. Therefore when the plaint wasfiled there has been a misjoinder of parties and causes of action.
Mr. Sharvananda relied on the ruling in Thangammah v. Kanagasabai *for the proposition that in the case of pre-emption there is a joint cause ofaction. In dealing with this point in that oase, Nagalingam J. said(vide supra at p. 504):
.• I*’*
“ The next point for consideration is whether the action is bad byreason of the joinder of the two plaintiffs. It is said that as each ofthe plaintiffs is entitled to a l/4th share, each has a separate cause ofaction. Section 11 of the Civil Procedure Code expressly permits allpersons to be joined as plaintiffs in whom the right to any relief isalleged to exist, whether jointly, severally or in the alternative inrespect of the same cause of action. Several plaintiffs, therefore, inwhom the right to relief exists jointly or severally can unite in the same■ action, so that it is immaterial to consider whether the plaintiffs areentitled to the relief they seek jointly or severally, for in either case-n joinder is permissible. The point to be ascertained, however, is
1 {1909) 4 Indian Casta 17J.» {1949) 51 N. L. B. 600./
27-PP 006137 (98/08)
322
MANICAVASAGAR, J.—Ponnudurai v. SithamparapiUai
whether the relief claimed by the several plaintiffs is in respect of thesame cause of action. This leads one to a consideration of thenature of the rights of the co-owners inter se in regard to the rightof pre-emption.
The right of pre-emption is one that is conferred by law uponco-owners and must be deemed to be based upon an implied contractwhereby the co-owners are jointly bound to one another, and theco-owners in this view of the matter become joint contractors in regardto the enforcement of this obligation. If the contract is joint, thenthere can be no objection to several joint contractors instituting asingle action to enforce their rights.”
With due respect, I am unable to agree with the last paragraph ofthis dictum. The law of pre-emption is not based on any contract impliedDr expressed. It is now found as a statutory provision. As stated earlier,it was intended to preserve the property among the members of the family.Therefore it would not be justifiable to find an implied contract amongco-owners or heirs who are entitled to pre-empt. It may well be that oneof the persons who are entitled to pre-empt may not care to buy theproperty. Each person who is entitled to pre-empt therefore has adistinct causo of action. Therefore when the plaint was filed there wasa clear misjoinder of parties and causes of action.
Mr. Sharvananda contended that this objection fails as it has notbeen raised before the hearing. He also contended that during the courseof the action the second plaintiff has transferred his interest in the landto a third person. As the second plaintiff has ceased to be a co-ownerhe has lost his status to maintain this action for pre-emption and hiscause of action had ceased to exist. Further, even when there is amisjoinder of parties and causes of action a court is given the discretionto give an opportunity to the plaintiffs to strike out the name of aplaintiff and regularise the action, (vide dictum of de Sampayo, A.C.J. inKanagasabapathy v. Kanagasabai1). In view of the fact that the secondplaintiff’s cause of action has ceased to exist there is no misjoinder ofparties and causes of action. Therefore the second point raised in appealby Mr. Ranganathan fails.
However, in view of my finding on the first point raised in appeal,I set aside the order of the learned District Judge and dismiss the plaintiff’saction with costs in both courts.
Manicavasaoab, J.—
I have re ad the opinion of my brother, Tambiah, on the two questionsargued at the hearing, and I agree for the reasons stated in his judgmentthat this appeal should be allowed, and the plaintiff’s action dismissedwith costs here and in the original court.
1 (1923) 25 N. L. R. 173 id 175.
MANICAVASAGAR, J.—Ponnudurai v. Siihainparapillai
323
Nevertheless, I wish to state my views on the submission ofMr. Sharvananda, that the words, “persons who in the event of theintestacy of the intending vendor will be his heirs ”, in Section 2 (16)of the Thesawalamai Pre-emption Ordinance (Cap. 64, Revised Edition,1956), is referable only to those persons who at the time of sale will bethe vendor’s intestate heirs, according to the law of inheritance.
Before I consider this submission, it is necessary to note certain relevantfacts. The 1st defendant by deed PI sold to the 3rd defendant and herhusband, the 2nd defendant, the land which is the subject of the action,and in which he had undivided interests : neither of the vendees wereco-owners, but the 3rd defendant is the sister of the vendor. The vendorhas two children, both bom before the sale. The plaintiffs were co-owners of the land when the action was instituted, but the 2nd plaintiffhas since parted with his interests.
In the event of the vendor dying intestate, his children will be amongsthis first heirs, under the Jaffna Matrimonial Rights and InheritanceOrdinance (Cap. 58), whatever be the nature of the inheritance, andare preferred to his sister, the 3rd defendant, who will succeed only ifthe children, and their descendants, and the parents of the vendor fail.Mr. Shai-vananda’s argument is that at the time of the sale, the childrenbeing alive, the 3rd defendant could not have succeeded to the vendor’sinheritance, if he died intestate, and therefore the 3rd defendant hadno right of pre-emption: he submitted that the plaintiffs as co-ownershad this right, and therefore the judgment of the original court shouldbe sustained.
A consideration of Section 2 (la and 16) does not justify the limitationplaced on the word “ heirs ” by counsel. The right of pre-emption isgiven to two classes of persons, viz., co-owners with the intending vendor,and those who will be the heirs of the vendor in the event of his dyingintestate, and Section 2 defines, and enumerates those who would fallinto the category of heirs.
By this special definition, the heirs who are entitled to pre-emptare only the persons mentioned in the section, and they are not exhaustiveof the persons who would be entitled to succeed to the inheritance on anintestacy; to cite one instance, the deceased’s spouse who is an heirab intestato is not included in the class of persons designated as heirs inthe Pre-emption Ordinance: nor is the order of succession in the eventof an intestacy prescribed in the Jaffna Matrimonial Rights and Inherit-ance Ordinance followed in the Pre-emption Ordinance. It is significantthat Section 2 (2) refrains from stating that the right to pre-empt shouldbe exercised in accordance with the order of succession regulated by thelaw pertaining to intestacy. The distinction I have, pointed out isrelevant, for the right to pre-empt is not given to all heirs a6 intestate,in order of succession, at the time of the sale, but only to those who I maydescribe as all the “ potential heirs ” enumerated in Section 2 (2).. There
324 ‘ Kalutara Co-operative Distilleries Society Ltd. v. Arsakularatne
is nothing in the words of this section which point to an order ofprecedence or preference amongst those who are enumerated in the sectionas persons entitled to the right of pre-emption. Indeed Section 13puts co-owners, and all heirs within the meaning of Section 2 (2) on afooting of equality, encourages competition amongst them, and providesthat the court should accept the highest offer, even though it be morethan the market value of the land, or the actual price paid by thevendor.
I am of the opinion that the word “ heirs ” in Section 2 (16) should begiven a much wider meaning, so as to include all those persons specifiedin Section 2 (2), and not limited only to the heir who will succeed onan intestacy.
In this view of the matter, the 3rd defendant is an heir, entitled tothe right of pre-emption.
Appeal allowed.