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TILL AIN AT HAN et al. v. KAMASAMY ClIETTY ct al.
D. C., Jaffna, 1,684:.
Tesavalamai of Jaffna—Riglilof pre-emption—Adjacent landowner—Mortgagee.
It is questionable whether under the Tesavalamai of Jaffna anadjacent landowner, who is not a mortgagee of the land in respect ofwhich the right of pre-emption is claimed, can claim that right.
Where a husband, who was not himself an adjacent owner, associatedhimself with his wife and mother-in-law, who were owners of adjacentlands, as plaintiffs in an action for pre-emotion, and sought to exercisethe right of purchase, though his wife had never claimed to exercise itherself,—
Held, that the action, though brought in the name of the husband,wife and mother-in-law, was in fact the husband’s action only, and thathe was not competent to maintain it.
HE first plaintiff in this case was the husband of the secondplaintiff and the son-in-law of the third plaintiff, and they
sued the two defendants as vendor and vendee of a propertysituated in Jaffna, which the plaintiffs alleged should have beensold to them by the defendant in preference to ' the seconddefendant.
The right of pre-emption thus claimed under the Tesavalamaiof Jaffna appeared to rest on the following allegations. The secondplaintiff and her mother, the plaintiffs, were owners of a propertywhich adjoined the first deienJant’s property at Vannarpannaiin Jaffna; that by reason of the second and third plaintiffs beingthe adjoining landowners of the first defendant’s said land, theyhad ana still have a right of pre-emption to purchase the saidland whenever the first defendant wished to sell it; that inviolation of the right of pre-emption the first defendant secretly,and without Any notice to the plaintiffs, transferred the land inquestion to the second defendant by deed dated I2th February,1899; that as soon as the plaintiffs became aware of the execu-tion of the said deed, they preferred through the first plaintiffthe claim of the second and third plaintiffs to pre-empt the land;that the defendants have refused to entertain their claim, andthat the plaintiffs have the right to avoid the sale to the seconddefendant and to have the land conveyed to the second and thethird plaintiffs, on their paying the sum for which it bad beensold to the second defendant.
The plaintiffs brought into Court the sum of Ks. 12,000, beingthe price which the second defendant had paid to the firstdefendant for the land.
The prayer of the plaintiffs was, (1) that second and thirdplaintiffs be declared entitled to the right of pre-emption in respect
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of the said land; (2) that the deed granted by the first defendantto second defendant be cancelled and set aside; and (3) that the■ first defendant be ordered to convey to the second and thirdplaintiffs the said land upon receiving payment of Rs. 12,000 forthe. benefit of the second defendant.
The first defendant did not appear. But the second defendantpleaded that there was no law or custom of pre-emption obliginghim to forego the benefit of the deed in his favour; that even ifthe custom of pre-emption once existed in Jaffna, it had becomeobsolete; that as adjoining proprietors the second and thirdplaintiffs were not entitled to any notice of the sale of the propertyin question; and that, in fact, the first and third plaintiffs hadknown that it was for sale, and that the second defendant hadinformed the first and third plaintiffs of his intention to buy theland.
On the trial day the issues settled were the following: —
Had plaintiffs the option of buying the land ?
If plaintiffs had no notice previous to the sale, are theyentitled to exercise the right of pre-emption ?
Is the law of pre-emption still in force in Jaffna r
After argument, plaintiff’s counsel called the plaintiff and onewitness and closed his case.
For the defence the first defendant and two other witnesseswere called.
The District Judge gave judgment for plaintiff.
The second defendant appealed.
Ramanathan, S.-G. (with him Van Langenberg, Tiru-Navuk-Arasu, H. J. C. Pereira, and Allan Drieberg), for appellant.—The plaintiffs rely upon the Tesavalamai of Jaffna, whichword literally means the country customs of Jaffna. Theyhave all been codified and are given at length at the end of thethird volume of the Revised Edition of the Ordinances publishedin 1895. The correspondence on the subject as given therewould appear to show that Governor Simons had instructed theDisave of Jaffna named Claas Isaaksz to inquire into the lawsand customs of the Tamils in Jaffna and to reduce them towTiting; that Disave Jsaaksz drew them up in Dutch, had theDutch copy translated into Tamil, and submitted the translationto a committee of twelve “ sensible Mudaliyars ” of the Provincefor their perusal and examination; that they certified that the“ composition perfectly agrees with the usual customs prevailing“ at this place,” and that they confirmed the translation.
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[Browne, A.P.J.—-As to the English translation, Chief JusticeSir Alexander Johnston seems to have made it from the Dutch.]Yes. The Regulation 18 of 1806 provides that the Tcsavalamai,as collected by order of Governor Simons in 1706, shall be con-sidered to be in full force. Sir Alexander Johnston’s Englishtranslation is the one our Courts are used to, and a copy of it isincluded in Mutukistna’s work on Tcsavalamai. The Englishtranslation differs from the Tamil translation in regard to thepoint which arises for decision in this case, viz., who are entitledto pre-emption, and in what circumstances such title arises. Thefirst paragraph of section 1 of chapter 7 of Sir Alexander John-ston's English translation runs as follows:—“ Formerly when any“ person had sold a piece of land, garden, or slave to a stranger“ without having given previous notice thereof to his heirs‘‘ or partners and to such of his neighbours when grounds are“ adjacent to his land, and who might have the same in mortgage" should they have been mortgaged, such heirs, partners, and“ neighbours were at liberty to claim or demand a preference of
becoming the proprietors of such lands.”
Preference is here given first to heirs, second to partners, andthird to adjacent neighbours who are mortgagees.
The Tamil translation, however, gives the right of pre-emptionto'four classes of persons, viz., heirs, partners, adjacent neigh-bours, and mortgagees. In the present case the claim of theplaintiffs is as adjacent neighbours only. The Tesavalamai inDutch is not available to the profession, and Chief JusticeJohnston’s English translation must be preferred to the Tamiltranslation rendered by some unknown person and submitted tothe twelve Tamil chiefs for consideration. If Chief JusticeJohnston’s English translation is to guide us, plaintiffs’ claimwould fail, because they have not shown themselves to be bothadjacent owners and mortgagees. [Bonser, C.J.—Is this rightof pre-emption foreign to the Roman-Dutch Law?] No. FromVan Leeuwen (Kotze’s translation), p. 151, sections 4 and 5, Vander-kcesel (Lorenz’s translation), p. 215, section 659, and Grotius’sOpinions (Bruyn’s translation), p. 575, pre-emption would seemto have existed in Holland as local custom. And it is remarkedby those writers that the right of naasting or jus retractus, as itwas called, conflicts with free commerce and is contrary to theCommon Law. Any one who claims this right must, according tothem, prove the custom and swear that he exercises it on his ownright, and in some places it is necessary also to prove that themoney wherewith he exercises the right is his ovvn (Vandcr-keesel, section 659). Plaintiff has failed to prove that he is a
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mortgagee next neighbour, or that the second and the third plain-tiffs claim a jus retractus with their own money; or, indeed, whatthe custom in Ceylon is at the present date.
Governor Simon’s Collection of Customs in Jaffna, section 7,paragraph 1, makes the right of pre-emption exercisable only ifpreyious notice of the sale had not been given to the partiesconcerned. The previous notice, it says, was given to those whoresided in the same village one month before the sale; to thosewho resided in the same Province but out of the village, threemonths' to those who lived in another Province, six months;and to those who resided abroad, one year. It goes on to say thatthe custom as to previous notice underwent a change during thetime of Commandeur Bloom, when it was considered sufficientnotice if the intentions of the seller were made known on threesuccessive Sundays at the church to which the sellers belonged.This form of notice was also abandoned in favour of publication-by beat of tom-tom in the village, and certificate of such publica-tion under the hand of the Udaiyar of the village. This certificate,commonly called the Udaiyar’s schedule, had to be presented tothe notary before the conveyance could be made. The OrdinanceNo. 1 of 1842 refers to this publication and schedule, but OrdinanceNo. 4 of 1895 abolished publication of intended sales byt beat oftom-tom and the schedule of the Udaiyar. Consequently if issubmitted that, as part of the custom relating to pre-emption hasbeen abolished, the remaining part has also been abolished.
Whether abolished or not, there is no proof that second andthird plaintiffs want the l-and for themselves, and they have notgone into the box to swear to the fact that they desire to exercisethe right of pre-emption, or that the money needed for suchexercise comes out of their own pocket. The first plaintiff,however, has deposed as follows:—“I claim a right of pre-
“ emptionfirst defendant never told me of the sale. I asked
“ him to transfer the land to me. The Bs. 12,000 deposited in“ Court is money I borrowed for the purpose. It is my money.“ I want- to buy this land for myself.” It is quite certainthat the first plaintiff is taking advantage of his positionas husband of the second plaintiff and son-in-law of the thirdto acquire a right to which he is not entitled, for under theTesavalamai there is no community of property between husbandand wife. Each has a separate estate, and the first plaintiff shouldnot be allowed to mrfke a cat’s-paw of the second and thirdplaintiffs. Even if' he had a right to pre-empt, it is proved thathe had notice of the intended sale and had no money at the timeto buy the property.
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Wendt (with him Sampuyo), for respondent.—The customcannot be said to be obsolete because it has been reduced towriting. In terms of the custom the first defendant should havegiven one month’s notice, which he did not. It is true thatthe Ordinance No. 4 of 1895 abolishes publication by beat of tom-tom and the Udaiyar’s schedule, but necessity for notice of somesort in cases of pre-emption has not been expressly taken away,and therefore it was the duty of the first defendant, as adjacentproprietor, to give notice to his next neighbour, who are the secondand third plaintiffs. (Bonser, C.J.—Is there any case decidedby this Court where pre-emption has been conceded to a nearadjacent owner? Bbowne, A.J.—Yes. Vallinachen v. AmenaiMuttu (Mutukistna, 402).]
That was decided in 1835, but in page 459 we have a case decidedin 1853 by the District Judge of Jaffna, who doubted whether anadjacent owner who had not got a mortgage on the land had aright to claim pre-emption. [Bonser, C.J.—I see at p. 377 ofMarshall the Supreme Court also said that “ it would seem that“ the right only existed where the party claiming it held a“ mortgage or some other claim upon the land.”] The Tamiltranslation makes no room for doubt on this point, and it has thesanction of the Tamil chief who were requested to revise it.Second and third plaintiffs being Tamil ladies could not well gointo a witness box to swear to facts which they had deputed to oheirrelative to swear to. Any doubt that may be created by theparticular words which the first plaintiff uttered in the witnessbox is removed by the prayer in the plaint, which asks for aconveyance in the name of the second and third plaintiffs.
Bdmanathan, S.-G., in reply.
This is an action by a husband and wife, the wife’s motherjoining as plaintiff, against two persons as defendants, to assertthe right known as the right of pre-emption to a certain landsituate in Jaffna. The first defendant was the owner of this landand on the 12th February, 1899, he conveyed it to the seconddefendant in consideration of a sum of Rs. 12,000. The second andthird plaintiffs, that is, the wife of the first plaintiff and her mother,are the owners of land adjacent and contiguous to the land sold,which is the subject of this action. Within a month of the salethis action was commenced, claiming on behalf of the second andthird plaintiffs the right of pre-emption, and asking to have theconveyance that had been executed by the first defendant in
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favour of the second defendant cancelled, and the first defendantordered to convey the land to the second and third plaintiffs. Thefirst plaintiff brought the Es. 12,000 into Court to show his bondfide3. The District Judge made a decree ordering the convey-ance to he cancelled, and directing the first defendant to conveythe land to the first and second plaintiffs, the husband and wife,the third plaintiff not having appeared at the trial or taken anysteps to prosecute the action.
The defendants have appealed on three grounds:' first, that theright of pre-emption recognized by the Tesavalamai has beenrepealed by Ordinance; secondly, that if the right of pre-emptionmentioned in the Tesavalamai still exists, the plaintiffs, who aremerely adjacent landowners, are not entitled to it; thirdly, thateven if they are entitled as adjacent landowners, the action is nota bond fide one by adjacent landowners, but merely an action bythe first plaintiff, the husband, who is not himself an adjacentlandowner.
To deal with the first point, as) to the general right of pre-emption. That depends upon section 7 of what is known as theTesavalamai, which is a collection of the ancient customs of theTamil inhabitants of the Province of Jaffna. Early in the lastcentury, a Dutch Governor of Ceylon, Mr. Simons, thought itdesirable that these customs should be collected and put int® anauthoritative shape, and he, accordingly, employed a gentlemancalled Isaaksz to undertake that task.
In 1707 Isaaksz submitted a Code to the Governor, who causedit to be translated into Tamil from the original Dutch. Thetranslation was revised by a number of Tamil headmen. After theCode had been revised the Governor made an order giving it theforce of law, and directed authenticated copies to be sent to thevarious Courts of Justice for their guidance. In 1806, after thecession of the Dutch settlements in this Island to the BritishCrown, a regulation was issued by the local Government declaringthat this Code of Customs, commonly known as the Tesavalamai;should be considered to be in full force, and that “ all questionsbetween the Malabar* inhabitants of the Province of Jaffna, or inwhich a Malabar inhabitant was a dependent,” should be decided
* “ Malabar ” is a corruption of “ Malai-varam ” (mountain-side), the countryalong the Western Ghauts of India. When the Dutch, who had visited WesternIndia, arrived in Ceylon and found the Tamils here to be somewhat identicalin religion with the Hindus of the Malabar Coast of India, they called themMalabar inhabitants, meaning settlers from the Malabar Coast. But the Tamilsin Ceylon came from the eastern coast (called by the Dutch the CoromandelCoast), and are different from the people of Mal&ivaram or Malaiyalam in pointof language and social institutions. Hence, it is an error to, speak of the Tamilsas Malabars.—Ed.
October 30.Bonsbg, C.J.
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1900. according to that Code. We have not a copy of the originalOctober 30.Dutch document, but in 1814, the then Chief Justice, Sir Alexander
BonsebT C.J. Johnston, caused the Code to be translated into English, inasmuchas the Dutch language was dying out in this Island; and this transla-tion, which is published by Government in our collection of Ordi-nances, has always been regarded by our Courts as authoritative.
Section 7 of that translation states that “ formerly when“ any person had sold a piece of land, garden, or slave, &c., to a“ stranger without having given previous notice thereof to his“ heirs or partners, and to such of his neighbours whose grounds“ are adjacent to his land, and who might have the same in“ mortgage should they have been mortgaged, such heirs, part-“ ners, and neighbours were at liberty to claim or demand the“ preference of becoming the proprietors of such lands,” andprevious notice of such intended sale- was to be given to personsof the above description,—to such as resided at the village, onemonth; to such as resided in the same Province, but ou,t of thevillage, three months; and so on. The Code goes on to say thatthe old custom was, that if the period expired without the personinterested taking any steps the sale was considered valid. Thenit states that the way of giving notice had undergone an alterationin the time of a previous Dutch Governor, who had given ordersthat, instead of notice being given to the individual interested, ageneral notice should be sufficient, and that no land whatevershould be sold until the proposed sale had been published onthree successive Sundays in the church of the parish, duringwhich period those persons who wished to exercise their prefer-ence or right of pre-emption were to come forward. This practiceof giving notice on three successive Sundays before the salewould seem to have fallen into desuetude, for a custom grew7 upof what was called publication and schedule. The headmen ofthe district in which the land to be sold was situate notified theproposed sale by beat of tom-tom, and afterwards gave to theparties ■what was called a schedule, which was a certificate thatnotice of sale had been duly given.
This practice had no statutory authority, but in 1842 it wasrecognized by statute, and the fees to be charged by the headmenwere regulated and fixed. Subsequently the question was raisedwhether a sale without this previous publication and certificatewas valid, and there are conflicting decisions of this Court onthe point. Accordingly, in 1895 the Legislature proceeded torepeal the Ordinance of 1842, and to repeal “ so much of the“ Tesavalamai as requires publication and schedule of intended“ sales or other alienations of immovable property.” It is rather
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difficult to understand what the Legislature meant by this,because the Code contains nothing relating to publication andschedule. The Legislature seems to have thought that this custom,which had grown up subsequently to the compiling of the Code,was contained in the Code. It was contended by the Solicitor-General that this Ordinance No. 4 of 1895, to which I have justreferred, had the effect of abolishing all rights of pre-emptionwhich had up to that time existed in the Province of Jaffna. Itis not necessary, in the circumstances of this case, to decide thisquestion, but I must say that I consider that it is anything butclear that the Ordinance was intended to have any such effect.That it was intended to have any such effect seems incredible, forin such case one would expect the Legislature to have stated theintention in plain terms. It would have enacted that, from andafter the passing of that Ordinance, no right of pre-emptionwould be recognized by law in the Province of Jaffna.
Then we come to the second question, which is whether aperson can claim under the Tesavalamai the right of pre-emptionsimply as being a contiguous landowner. In considering thisquestion, it seems to me that we ought to bear in mind what issaid by Voet in regard to a similar right which existed under theEoman-Dutch Law, and which was known as the jus retractus.He says, “We should observe, however, that no one can arrogateto himself the jus retractus legalis,” that is to say, the right ofpre-emption arising by law as distinguished from that created bycontract, “ unless he can show that the right of retraction on the“ same ground as that on which he desires to exercise it, or one“ plainly similar to it, is firmly established by the law or custom“ of the place in which the immovable property is situated, for“ undoubtedly the right of superseding one who has obtained the“ ownership (dominium) in a legitimate mode, being a deviation“ from the Common Law and contrary to the rescript of the“ Emperors and also to freedom of commerce, and being a“ departure from the general precepts or commutative justice,“ must receive a strict interpretation ” (Mr. Berwick’s transla-tion of Voct, XVIII. 3. 9). Is it then firmly establishedthat this right of pre-emption was exercisable by contiguouslandowners? The Tesavalamai says in the English versionthat it is exercisable by “ such of his neighbours whose grounds“ are adjacent to his land and who might have the same in“ mortgage.’’ If that is a correct representation of the Code, itwould seem that the mere ownership of adjacent lands did notinvest their owner with this right of pre-emption. He musthave something more: he must have a further interest in the
October 30.Bonbeb, C.J.
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1900. land itself, that of a mortgage. But it is suggested that thisOctober SO.English version does not represent accurately the Dutch original,
Bonseb, C.J. f°r the Tamil version which was produced to us is in quitedifferent terms. There appears to be no doubt that the Tamilversion gives uhe right to neighbouring landowners and usu-fructuary mortgagees. But I do not think that we should bejustified in coming to the conclusion that this English version,which was issued in 1814 under the authority of this Court, waserroneous, merely because the Tamil version differs from it.
What has been the practice of the Courts in respect to thisquestion? No case seems to have come before this Court excepton one occasion, and that was so far back as 1834. There is anote of this case in Chief Justice Marshall's Judgments, p. 377,and it seems to have been a case of a claim by a plaintiff topre-emption merely on the ground of his being the owner ofadjacent land, and the District Judge gave judgment for theplaintiff, but in appeal the Supreme Court sent the case back tohave further inquiries made on certain points indicated in itsjudgment. In the course of its judgment the Supreme Courtobserved, that “ from the Tesavalamai as appended to Van“ Leeuwen’s Commentaries, p. 763, it would seem that the right'■ only existed where a party claiming it held a mortgage or some“ other claim upon the land.” So that, as far back as 1834, thisCourt doubted whether a claim merely on the ground of contiguitycould be maintained. There are several judgments of the DistrictCourt of the Province of Jaffna reported in Mutukistna’s book,in which this question has been dealt with. In 1833 and 1835Mr. Price, Judge of the District Court of Jaffna, held that anadjacent landowner had the right of pre-emption, and he againdecided in the same way in 1842. But in 1853, in a case beforeMr. Birch, in the Court of Requests of Mallagam, that Commis-sioner recorded his doubts whether an adjacent landowner who isnot a mortgagee of the land had the right of pre-emption. So thatit would seem that this question is not one that is free from doubt.It seems to me that it is impossible to hold that the right is onethat can be described as firmly established.
But assuming for a moment that an adjacent landowner hassuch a right, yet, in the present case, I am not satisfied that thefirst and second plaintiffs are entitled to retain their decree.It seems to me that the action was not an action by an adjacentlandowner, but was really the action of the first plaintiff and thefirst plaintiff alone, who had no connection with the adjacentland except through his wife. He was not an adjacent land-owner himself. The wife, who was an adjacent landowner, never
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made any claim except in the shape of the plaint in this action:she had never claimed to exercise the right of purchase, norhad anybody claimed it on her behalf. The claim was made bythe first plaintiff in his own right. The first plaintiff, when hewent into the witness box at the 'trial, said, “ I claim the right of“ pre-emption over this land. I have deposited Its. 12,000, and I“ wish to buy the land.” Later on he says, “ I want to buy this“ land for myself;” and the witnesses for the defence, who arenot contradicted on this point, speak of a conversation with thefirst plaintiff, in which he asser.ted his right and stated that hewished to buy this land.
That being so, I think that this action is the husband’s action,and that he was not competent to maintain this action. All thathe was entitled to do was to assist his wife in bringing thisaction, if she bond fide wished to assert her right to pre-emption.I do not think that she wished to exercise this right of pre-emption on her own account.
The appeal should be allowed.
Browne, A.J., agreed.
TILL AIN AT HAN et al. v. BAMASAMY CHETTY et al