107-NLR-NLR-V-53-VELUPILLAI-et-al.-Appellants-and-PULENDRA-et-al.-Respondents.pdf
472
VehtpiUai v. Pulendra
1951Present : Gratiaen J. and Gnnasekara J.VELUPILLAI et al., Appellants, and PULENDRA et al.. RespondentsS. C. 462—D: C. Vavuniya^ 831
Thes&valamai—-Pre-emption—Sale of land—Failure of notice to pre-emptor—Bightof pre-emptor to have the sale set aside.
In an action instituted by a Thesavalamai " heir ** to set aside a sale of landon the ground that the property had been sold without notice to him, in breachof his right of pre-emption—
Held, that it is fundamental to the cause of action in such a case that thepre-emptor should establish by positive proof that, had he in fact received therequisite notice, he would and could have purchased the property himself withina reasonable time rather than permit it to be sold to a stranger.
.^^.PPEAL from a judgment of the District Court, Vavuniya.
Suntheralingam, with C. Rengandthan and V. K. Palasuntheram, forthe 1st and 2nd defendants appellants.
E. B. Wikramanayake, K.C.. with V. Arulambalam, for the plaintiffrespondent.
Cur. adv. vult.
GRATLAEN J.—VelupiUai v. Pulendra
473
July 26, 1951. Gratia ex J.—
The plaintiff, who is a joung Jaffna Tamil, is the son of the 3rd andthe 4th defendants, and was sent by his parents to England in 1945 tostudy engineering. He was not possessed of independent means and hisfather has throughout maintained him and paid for his education.Before the plaintiff completed his studies in England, his parents arrangeda marriage for him with a young lady of their community in Jaffna.The date fixed for the marriage was 15th September, 1947, and his fatherremitted the necessary funds to enable him to sail for Ceylon by s.s.
Worcestershire ” on 29th July. He arrived in Ceylon about 20thAugust, and his marriage was solemnized on the appointed date. Shortlyafterwards he returned by air to England, unaccompanied by his bride,on 8th October, 1847. His wife joined him later, and when this actionwas filed on 17th Hay, 1948, he was still in England.
The bride’s parents gave their daughter a cash dowry of Rs. 50,000which they deposited in her name in a Ceylon Bank. The plaintiffcontinued at all material times to be supported by his father.
It is now necessary to examine the financial position during the relevantperiod of the 3rd defendant, Mr. T. M. Sabaratnam, who is a proctor ofthe Supreme Court. He needed funds to meet the expenses of his son’swedding. He was also actively engaged in standing as a candidate,for Parliament. The polling date was 9th September, 1947, shortlyafter the plaintiff had temporarily returned to the Island. He possessedsome immovable property in the district, and a series of documentsproduced at the trial made it clear that he was compelled from time totime to dispose of them in order to meet his urgent commitments. The;present action relates to one of these transactions.
On 12th July. 1947, he and his wife the 4th defendant sold the property*in dispute to the 1st defendant and the 2nd defendant for Rs. 3,500 interms of the deed of conveyance 1D1. Whether he required this moneyin connection with the expenses of the forthcoming wedding or of theimpending elections or for both purposes is not quite clear. It is signi-ficant, however, that a remittance of .£75 which he sent to the plaintiffin England about this time was acknowledged by the letter P4 shortlybefore sailing for Colombo.
The consideration of Rs. 3,500 does not seem to have proved sufficientto meet the 3rd defendant's immediate difficulties. On 29th September,.1947, he and his wife sold another land for Rs. 3,000 to a person outsidehis family. This transaction took place between the date of the weddingand the date of the plaintiff’s return by air to England at a cost of £120(vide P6 of 10th August, 1947). In 1948 two further lands were sold tostrangers for an aggregate cost of only Rs. 1,000.
The plaintiff instituted this action on 17th May, 1948, (i.e. over 10months after the transaction took place) to exercise his right of pre-emption under the Thesawalamai in respect of the land conveyed to the1st and 2nd defendants by his parents on 12th July, '1947. He complainsthat his parents, in derogation of his rights as an “ heir ”, had sold theproperty to “ strangers ” without notice to him, and that he only becameaware of the transaction “ about two months after the execution of the
474
GRATIABN J.-—VelvpiUai e. Palendra
deed ”—i.e., about the date of his wedding. He pleads that he “ hadalways been ready and willing to buy the said land at its market valuein the event of the 3rd and 4th defendants wishing to sell it Heaccordingly deposited in Court Bs. 3,500, being the agreed market valueof the property, and asked for a decree that the property should) beconveyed to him.
After trial the learned District -Judge entered a decree in favour of theplaintiff.
I shall assume for the purposes of this appeal that, although the plaintiffhas not given evidence on his own behalf, the learned Judge was rightin holding that he had no notice and was not otherwise aware of theexecution of 1D1 at the time when it took place. In the result, therehas been at least a technical violation of his right of pre-emption underthe Thesawalamai. But that does not conclude the matter. He wasin law entitled to reasonable notice of his parents’ purpose to sell theproperty, Suppiah v. Thambiah *, and it cannot be suggested that,having failed to receive such notice, he could at any time thereafter exercisethe right of pre-emption. On the contrary, it is fundamental to the causeof action such as is alleged to have arisen in this case that the pre-emptor should establish by positive proof that, had he in fact receivedthe requisite notice, he would and could have purchased the propertyhimself within a reasonable time rather than permit it to be sold to astranger. Indeed, the burden of proving this fact was rightly undertakenby the plaintiff when his counsel agreed to the following issue being framedat the trial: —
“ (2) Even if issue (1) is answered in the negative, was the plaintiff
ready and willing to purchase the said land ? ”
A would-be pre-emptor cannot claim to be in a better position by not-receiving notice of the intended sale than he would have been if he hadreceived such notice.
i have considered the evidence on this issue with care, and I amsatisfied that the plaintiff has not discharged the burden which he under-took. As I have already pointed out, the plaintiff himself gave noevidence on his own behalf. The 3rd defendant supported the case of hisson. He admitted however that on 10th July, 1947, the plaintiff had noindependent means, and that he “ did not entertain the idea that his sonwould pre-empt any of the lands which he had sold ”. When he wasasked to explain how, in these circumstances, a formal notice of theintended sale could have achieved any practical results, he merelyexpressed the opinion that " his aunt or his grandmother would haveadvanced moneys to him if he asked for it If this was true, it wouldhave been a simple matter for the plaintiff to have called one of theseladies to prove that this opinion was justified. And even then thereis no proof that it would have occurred to the plaintiff to apply to eitherof them for the necessary funds to enable him to purchase this property.
The 3rd defendant’s suggestion, if tested, does not seem to me to bearexamination. The plaintiff, according to his pleadings, had notice ofthe impugned sale about 10th September, 1947. He was in Ceylon at the
» (JS04) 7 N. L. S. Ml.
■Ifrs. Noot Mohideen v. Hadood Sadoon
475
time, and he had access to his aunt and to -his grandmother. Can it bedoubted that, if he genuinely desired to pre-empt at that time, he wouldhave protested against the transaction and tendered the money providedby his accommodating relations so as to secure the property himself? Onthe contrary, he seems to have been well content to permit hisimpecunious father to dispose of yet another ancestral property on27th September, 1947, when a sum of £120 was needed to send him backto England to continue his studies there. It was only several monthslater that the sum of Bs. 3,500 became available to qualify him for the roleof an injured heir who desired to pre-empt a portion of the family estate.It must be remembered in this connection that the reasonableness of thenotice to which he was entitled must be measured by the urgency of hisfather’s need for funds at the relevant time. Placed as Mr. Sabaratnam•,ns in July, 1947, with the combined demands which the forthcomingmarriage and the political campaign were making upon his very slenderresources, time was surely of the essence of the pre-emptor’s claim tosupersede a stranger.
In my opinion issue 2 should have been answered in the negative,and I would set aside the judgment appealed from. The plaintiff'saction must be dismissed with costs, payable jointly and severally by theplaintiff and by the 3rd and 4th defendants to the 1st and 2nd defendants.
Ounasekara J.—I agree.
Appeal allowed.