092-NLR-NLR-V-56-T.-SHIVAGURUNATHAN-et-al-Appellants-and-VISALADCHI-et-al-Respondent.pdf
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Shivagurunathan v. Visahtdehi
1954Present: Giatiaea J. and Fernando A.J.T. SHIVAGURUNATHAN el at., Appellants, and VISALADCHIet at., Respondents8. C. 482-483—D. C. Jaffna, 1,105 L
Thesavatamai—Pre-etnption—“ Partners ”—Requirement of plenum dominium—Cap. SI, Part 7, s. 1.
A person whose title to a share in a common, property is limited by rights ofoccupation enjoyed to his exclusion by someone else is not a " partner *'within the meaning of section 1 of Part 7 of the Thesavalamai (Cap. St) andis not entitled,, therefore, to claim rights of pre-emption. In this context theword “ partners ” is necessarily confined to co-owners who exercise (or are atleast entitled to exercise) plenum dominium over the common property.
GRATIAEK J.—Shwagurunathan v. Visaladchi377
j^iPPEALS from a judgment of the District Court; Jaffna.
//. V. Perera, Q.C., with G. Shanmuganayagam, for the 3rd to 6thdefendants, appellants in No. 482.
S. J. V. Chelvanayakam, Q.G., with C. Renganathan, for the 7th and 8thdefendants, appellants ip No. 483.
Thiagalingam, Q.G.,^yrith. H, W. Tambiah and S. Sharvananda, forthe plaintiffs respondents.
Cur. adv. vult.
Juno 21, 1954. Gratiash J.—
This was an action for preemption undor tlxo Thesawalamai. Theplaintiffs claimed to havo purchased an undivided 1/2 share of twoproperties by P 14 dated 17th August 1943 subject to a life-interest intheir predecessor-in-title Arunachalam. Throe months lator, Aruna-chalam conveyod his life-interest to them by P 15 dated 24th November1943.
The plaintiffs’ complaint was that tho 7th and 8th defendants hadpurchased the remaining half-share of tho properties either from the 4thand 6th defendants (by P 18 dated 21st November 1943) or from tho 1stand 2nd defendants (by P 8 dated 22nd November 1943). They werepresumably uncertain as to whether tho title to this share had in truthbelonged to tho purported yondors undor P 18 or to the purported vo uloraunder P 8, but thoy claimed that in either evont tho conveyance had boonoxocutod without notice to them in derogation of their rights as“ partners ” undor the Thesawalamai. They accordingly asked for adocree for pro-omption (binding on both groups of purported vendors)whoroby, on payment of such consideration as may be fixed by the Court,they should bo substituted as purchasers of this share in the place of the*th and 8th defendants who were admittedly “ strangers ”.
Tho learned District Judge entered a docroo (1) declaring the plaintiffsentitled to pre-empt the sharo conveyed to the 7th and 8th defendantsunder P 8 dated 22nd November 1943 (i.o. on tho basis that it was tho1st and 2nd defendants who previously had title to this share), (2) declar-ing that tho 4th and 6th defendants had no title which they could havoconvoyed undor P 18.
1 shall assume (without deciding) for the purposos of this api>cal thattho learned Judge’s .findings as to title wore correct. Wo are also boundby an earlier judgmont of this Court (reported in 51 N.L.R. 500) rejectingtho plea that this action was bad for misjoinder of parties and causes ofaction.
Mr. Chelvanayakam submitted for our consideration the argument(wliich was supported by Mr. Perora) that, even upon the basis of thelearned Judge’s findings, the plaintiffs did not possess at tho relevantdato (i.o. 22nd NovembOr 1943 when P 8 was oxocuted) tho requisitequalifications entitling them to exercise rights of pre-emption underPart 7 section J of the Tkesatvaiamai (Cap. 51). Admittedly they were
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ORATIAEN J.—Shivagurunathan v. Visalatlchi
not the “ heirs ” of oither group of vendors who had purported to sell ashare of the proporty to the 7th and 8th defendants ; nor were theyadjacent landowners with hypothecary rights over the common property.The only question, therefore, is whether on 22nd November 1943, byvirtue of the earlier conveyance P 14 dated 17th August 1943 in theirfavour, they wore “ partners ” who could impugn the sale of the shareto a “ stranger ” by the other “ partners I have already pointed outthat their title to that proporty was at that time subject to tho rights ofArunachalam who (according to the learned judge’s findings) in fact conti-nued to exercise them until he transferred his life-intorest to tho plaintiffsafter the date of the impugned sales.
The question is whether a person whoso title to a share in a commonproperty is limited by rights of occupation enjoyed to his exclusion bysomeone else is a “ partner” within the meaning of Part 7Section 1 of theThesawalamai. The view which I have formod is that in this contextthe word “ partners ” is necessarily confined to co-owners who exercise(or are at loast entitled to exercise) plenum dominium over the commonproperty. Voet has explained why the Roman Dutch law has rejoctedthe jus relractus legalis (based on custom)—because ‘‘it is a deviationfrom the common law and also to freedom of commerce ” (18.3.9) ; inanother passage, he describes it as “a thing odious or at least not to beaided by favourable interpretation ”. In Ceylon, as I observed in Siva-piragasam v. Vellaiyan 1, there is no justification for extending theprinciple of a customary law (under the Thesawalamai) beyond the purposeswhich it is intended to serve.
The rights of pro-emption recognised by the Thesawalamai trace theirorigin to the methods of cultivation originally adopted by tho personswhom it governed. If an ownor desired to sell his property, his “ heirs ”had a prior claim to purchase it so that it might continue to be enjoyedand cultivated for the benefit of the family as a unit. Similarly, co-owners could, by exorcising their right of pre-emption, exclude“ strangers ” from the intimate relationship of tho co-parcenary group.Again, the only form of mortgage known to the Thesawalamai was atransaction whereby the creditor possessed and enjoyed his debtor’sland (or share) until the loan was repaid ; for that reason, the mortgageeneighbour was entitled to pre-empt the land rather than permit it to goto a stranger. In each instance, therefore, the underlying principle isperfectly clear. Iam therefore satisfied that a person who himself has nopresent right to claim admission within the “community” lacks theessential qualification for demanding the exclusion of some other“ stranger ” from the enjoyment (by purchase) of co-proprietary rights.
From a practical point of view, a member of a co-parcenary unit ofcultivators would always know who precisely were the “ partners ” inthe enterprise whereby they collectively enjoyed the profits of thocommon proporty by their joint exertions. But, particularly in formertimes when no modern system of registration’of titles was in force, personssubject to the Thesawalamai would have found it virtually impossible totrace the identity of strangers claiming interests in tho common proporty(short of full co-proprietorship) who had not previously been admitted1 (1954) 55 N. L. R. 300.
FERNANDO AJ.— ShivagurunaOtan v. Vitaladehi
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into the group of co-sharers, J ndeed, I doubt if transactions wherebya man who purchased a share in land subject to a life-interest in favourof someone else were ever^contemplated at a time when these customarylaws were first introduced into the province of Jaffna. I conceive there-fore tliat the rights of pre-emption preserved by the The&awalamaishould not be extended so far as to moot situations wliich were entirelyforeign to that system of law.
Nagalingam J. has pointed out in the earlier appeal in this case (SI
N.L.R. 500) tliat a co-owner’s right of pre-emption under the Thesaivalamai" must be deemed to be baaed upon an implied contract whoreby the co-owners are jointly bound fxa one another, and the co-owners in this viewof the matter become joint contractors in regard to the enforcement ofthis obligation This analysis admirably suits a system of cultiva-tion whereby persons work together on the common land and share theprofits accruing from thorp joint exertions, each of them recognising thedesirability of ensuring tfeat, if possible, the “partnership” based onmutual confidence shoulcj^b® preserved as an entity even if one of itsmembers desires to break away. But the theory of an implied contraotwould be reduced to an absurdity if we were to assume that it equallyapplies to persons like the plaintiffs who wore in fact complete strangersto tho actual “ partnership I fail to see how a true “partner ” canreasonably be required by custom to give notice of his intentions to animplied quasi-” partner’* of whose rights he was totally unaware.
In my opinion, the faots wliioh the plaintiffs claim to have establishedat the trial themselves destfoy fixe foundation of their cause of action, andfor this reason I would alltfw both appeals and dismiss the plaintiffs’ actionwith costs in both courts, The plaintiffs did not possess the requisitequalifications for pre-empitin;; the 7th and 8th defendants’ share on 21stor 22nd November, 1043, and it is therefore unnecessary to adjudicateupon the other disputes as to title which arose at the trial.
Fernando A.J.—
I agroe. I would like add that Selvaratnam v. Sabapathy *, wliichwas cited for the respondents^ does not deal with the question nowunder consideration. That was; a case where the claim of theplaintiffs to be co-shaKfc^6 was disputed on the ground that, thoirmother being yet alive.tfiey were not entitlod to the share claimed bythorn and therefore not1 ci&titlodt' to a right of pre-emption. Referencewas made to section 9 of Part f of tho Thesaivalamai and to tho customthat tho sons divido the acquir d property of tho parents when tho latterl>oeome incapable by ago of administering it. It was held that in accor-dance with this custom theiplaiotaffs had become entitled to tlieir mother’sshare in the property, and their duty to maintain her did not disentitlet hoiji to tho right of pre-empt ion.r In that case, unlike in tho presont one,the plaintiffs had title and possession unqualified hy tho reservation infavour of someone else o£fa lil'o-interest in the property. They woro defacto ‘ partners ” of the other co-ownors in a very complete sense.
Appeals allowed.
1 (l!)>4) 2 Tones l.i9.