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Present: Akbar J.
VYRAMUTTU et al. v. PERIYATAMBY e( al.
327—C. R. Point Pedro, 23,270.
Thesauxtlamai—Right of pre-emption—Failure to claim right in partitionaction—Res judicata.
Where in a partition action a party fails to claim' a right ofpre-emption to which he is entitled with respect to a share of theland,—
Held, that the right of pre-emption was not barred by the decreein the partition action.
HE plaintiffs, who are co-owners of a land, brought thisaetion for pre-empting under the law of Thesawalamai the
undivided share which one Walliamma sold to the first defendant-respondent on a deed of 1924. Walliamma had sold the sameshare in 1918 to the plaintiff’s predecessor in title, namely,Sivasidamparam, her brother, by an unregistered deed. The firstdefendant respondent by registering his deed obtained priority overSivasidamparam’s deed. In D. C. Jaffna, 20,024, Sivasidamparamtogether with the other plaintiffs brought a partition action withrespect to the land, in which the first defendant claimed title tohis share for the first time. The plaintiffs unsuccessfully attackedthe deed on several grounds and interlocutory decree was enteredin the partition action allotting the share to the first defendant.The present action was then instituted by the plaintiffs, pendingthe partition action, claiming the right to pre-empt the share.The learned Commissioner of Requests dismissed the plaintiffs’action on the ground that they had notice of the sale.
Tisseverasinghe (with Marikar), for appellant.—The finding as tothe knowledge of the plaintiffs is not borne out by the evidence. Theright of pre-emption is not wiped out by the decreein the partitioncase. It is a right in rem and attaches to the land. In Marikar v.Marikar1 it was held that a trust, express or constructive, is notwiped out by a final decree in a partition case. A right of pre-emption should be placed on the same footing. It was not possiblefor the plaintiff to put forward the right of pre-emption in thepartition suit. Counsel cited Voet, XVIII, 3, 24.
Croos da Brera (with Rajakariar), for respondent.—The appellantis bound by the partition decree. His right to pre-emption shouldhav9 been put forward before that decree was entered: This rightaffects the land and differs from a trust. In the latter case it is-1 (1920) 22 N. L. R. 137.
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merely an equitable interest and the partition decree sets apart aspecific portion of the common land to which this interest applies.In the case of pre-emption it affects title, which must be taken tohave been wiped out by the decree (Silva v. Silva1, Qalgamuvm v.Weerasekera2). The question of pre-emption could have beensettled in the partition suit and an appropriate order made (Appu-hatny v. Marihamy3, Senathi Raja v. Brito*).
Tisseverasinghe, in reply.
May 21, 1929. Akbab J.—
This appeal raises an important question on the law of Thesa-walamai. The facts are as follows :—
The plaintiffs-appellants are co-owners of a land situated atAlavay and they bring this action for pre-empting under the law ofThesawalamai, by which the parties are governed, the undividedshare which one Walliamma sold to the first defendant-respondenton a deed dated 1924. It appears that this Walliamma had soldthe same share previously, in 1918, to the plaintiff’s predecessorin title, namely, a- man called Sivasidamparam, her brother; butthis deed was not registered and the first defendant-respondent byregistering his deed in 1924 obtained priority over Sivasidam-param’s deed. Sivasidamparam together with the other plaintiffsbrought a partition suit in respect of this same land in a D. C.Jaffna, case. 20,024. It is stated by the plaintiffs that thefirst defendant for the first time asserted title to his sharewhen the surveyor came to survey the land in May, 1925. In thispartition case the plaintiffs and Sivasidamparam attacked the deedof the first defendant-respondent on several grounds, namely,that it was a deed executed for no consideration, that it was collu-sively obtained, &c., but as the result of an appeal to this Court theplaintiffs and Sivasidamparam lost their case on this deed as againstthe first defendant-respondent. Interlocutory decree has beenentered in this partition case whereby the first defendant-respondent has been allotted 29/360ths shares of this land by virtueof Walliamma’s deed of 1924. Sivasidamparam died in the mean-timje, and he is represented in this action by the third, fourth, fifth,sixth, and seventh plaintiffs-appellants. The second, third, andfourth defendants-respondents are the heirs of Walliamma, whodied before the institution of the partition action. This action isnow brought pending the partition action by the plaintiffs claimingthe right to pre-empt this share of Walliamma which has beentransferred to the first defendant-respondent, who is neither a
1 (1910) 13 A L. R. 87.3 (1923) 85 N. L. R. 421.
3 (1919) 21 N. L. R. 108.* (1922) 4 C. L. R. 149.
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oo-owner nor the owner of the adjacent land with a mortgage overit. At the trial the following issues were framed :—
Was the plaintiff aware of the sale at the time deed No. 6,680
was executed or was he noticed of the sale ?
Can the plaintiff seek to pre-empt the share in view of the
fact that he denied the right of Walliamma to any share inthe land in D. C. Jaffna, case 20,204 1
Can the plaintiff maintain this action in view of the inter-
locutory decree ordering partition and allotting VelautherPeriathamby the first defendant an undivided share 1
Market value of first defendant’s share now in dispute ?
Were the plaintiffs ready and willing to buy ?
But the learned Judge rejected issues numbers (2) and (3). Hehas held against the appellants on the first issue and dismissed theplaintiffs’ action with costs.
I have read through the evidence and have come to the con-clusion that the learned Commissioner’s judgment on the firstissue is wrong. He has not decided the case on the evidence but onthe probabilities of the case. He says in his judgment as follows:—“ It is clearly impossible to arrive at a conclusion from the testimonyof the witnesses. There are no documents of any kind which arehelpful in regard to this issue. ^- One has to rely on the probabi-lities of this case.” If the case is to be decided on the probabilities,it seems to me improbable that Walliamma who was an old womanof 80 years, would have given notice of the sale to the plaintiffs ortheir predecessors in title when she had already parted with hershare in 1918 to her brother Sivasidamparam. The first defendantwas an absolute stranger and was in this Island on a holiday fromthe Federated Malay States. Walliamma’s son, Chelliahpillai, wasaway in India at the time of the transfer to the first defendant-respondent and did not know of the transfer till after his returnfrom India. It is in evidence that Walliamma’s deed to theplaintiffs’ predecessor in title was not registered, and the firstdefendant when he bought Walliamma’s share which had alreadybeen transferred to her brother must have known that this deedwas not registered. First defendant’s deed must have therefore,been a secret transfer and he was hoping to get title by priorityof registration. The probability therefore is that no notice wasgiven of the intention of Walliamma to transfer her share to thefirst defendant. There is definite evidence in this record that nosuch notice was given. The burden of proof was on the firstdefendant-respondent and the only evidence he has given is thatWalliamma, who is now dead, told him that she told the PoliceVidane of Alavay, who is a party to this case, that she wanted to sellher share to the first defendant. This is not notice to the first orsecond plaintiffs ; on the other hand, there is the definite evidence
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of the first plaintiff that he got no notice of the same and thathe came to know of the first defendant’s claim in May, 1925.This evidence is corroborated by the admission of the first defendantthat he claimed his share on his deed before the surveyor. Wehave further the evidence of Chelliahpillai, who states that hehimself was ignorant of this transfer till his return from India.
The learned Judge attaches a great deal of importance to the factthat the first defendant would gain more satisfaction by flourishingthe deed after it was registered before the eyes of the plaintiffthan by keeping the purchase secret. I cannot understand hisreasoning. I must therefore hold that the plaintiff was not awareof the sale to the first defendant-respondent and that he had nonotice of the same; I further hold that he only got notice of the deedof 1924 in May, 1925. As this action was filed in February, 1928,the action is not prescribed. The respondents’ Counsel has pressedbefore me the second and the third issues which were rejected bythe learned Commissioner. These issues were raised at the instanceof the respondents, and as the Judge notes that plaintiffs admittedthe facts alleged in these issues I think I ought to give mydecision on them too. The respondents’ Counsel has urged on thesetwo issues that the interlocutory decree in the partition case(D. C. 20,024) itf binding on the plaintiffs and that whatever rightof pre-emption the plaintiffs may have had ought to have beenasserted in the partition case. For a correct-decision of this pointit is necessary that I should give my views on what the exactrights of pre-emption are. That there is this right has been heldin a series of cases in this Court. I refer to the following cases:Tittainathan v. Ramasamy Chetty1, Suppiah v. Thanibaiah2,Katheresu v. Kasinather3.
As Bonser C.J. held in the first case, in the interpretation of thelaw of Thesawalamai it is quite competent to the Court to followthe rules under the Roman-Dutch law in regard to- a similar rightand which was known as the jus retractus legalis. It will be seenfrom that case that he consulted Mr. Berwick’s translation of Voet.
Book XVIII, title 3, section 24, of Mr. Berwick’s translation ofVoet is as follows:—“ For this right arising from law or usageaffects the things themselves, as one involving a prohibition againstalienation to the prejudice of the cognates of the last possessor;and such prohibitions imposed by the laws follow the property,itself; so that both an action in rem and an action in personam, axeavailable in respect of the jus retractus, or according to some apersonal action but framed in rem. And, moreover, when the rightof retraction has once been acquired by a cognate in respect of thefirst sale, he cannot be deprived of it by the act of a third party,suchas by a new contract between the first purchaser and as tranger.”'
1 4 N. L. R. 328.* 7 N. L. R. 1S1.* 25 N. L. R. 331.
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1989. It will be seen from this passage that Voet looks upon this rightaJm.T 8,0 8im^ar to a fidei eommieeum containing a prohibition against
’ alienation. In section 27 he states that “ the effect of retraction
Vyromuttu, jg that the retractor enters as completely into the place of thePeriyatamby purchaser as if, not the latter, hut he himself had from the firstbeen the purchaser of the thing retracted, excepting in this respect,that the purchaser is not liable to restore to the retractor thefruits taken in the interval between the purchase and the demandfor retraction and consignation of the price, even though he has notyet consumed them; hut has only to restore those which were
growing at the latter date, ; as also those which—not
having been yet separated from the soil at the time of deliverymade in pursuance of the purchase—were transferred to the pur-chaser along with the land and in respect of which the price whichhas now to be refunded to the purchaser by the retractor had doubt-less been increased. For as regards the other fruits gathered inthe intervening time by the purchaser and still extant, as thepurchaser did not gather these from the land by right of ‘ possession ’in either good or bad faith, but made them his own by rightof the ‘ ownership ’ which he had in the land by title of purchase. we cannot rightly extend to this case the rule as torestoring to a ‘ vindicator ’ fruits gathered by a bona fide possessor.”These passages are of importance, as under the Roman Dutch lawthe sale to the first purchaser is valid until it is retracted, which isin conformity with the judgment of the Supreme Court in Katheresuv. Kasinather (supra), in which Mr. Justice Jayew&rdene approvedof the prayer of the plaintiff asking that the purchaser-defendant beordered to execute a transfer in favour of the plaintiff. The SupremeCourt in a series of decisions has held that a land burdened with afidei commissum can be partitioned and that the fidei commissumwill continue to be attached to the shares allotted by the partition.
In the Full Bench case (Marikar v. Marikar1) it was held that a.trust, express or constructive, was not extinguished by a decree forpartition, and would attach to the divided portion which on thepartition was assigned to the trustee. If we regard the right of pre-emption as Voet,says it should be, it would be as a right whichattached to the land and which passed along with the land. Itcannot be extinguished by the partition decree. In my opinion itshould be so held. Mr. Croos da Brera on behalf of the respond-ents urged that this point should have been taken in the partitionproceedings and that therefore the plaintiffs were estopped by theinterlocutory partition decree. Respondents’ Counsel has citedthe case of Galgamuwa v. Weerasekera2 as an authority in his favourthat this right of pre-emption can very well have been asserted bythe plaintiffs in the partition case. In the case cited above the
1 22 N. L. R. 137.
» 21 N. L. B. 108.
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respondents were allowed to intervene to prove that the plaintiff 1029.in the partition action held certain shares in trust for them. That akbab J.
was a case of trust, but even so it did not hold that the respondents
could not have brought a separate action to assert the trust in vVra™‘uttufavour of them after final decree in the partition case. This is Periyatambya case of pre-emption, and the passages I have quoted from Voetshow that the sale to the purchaser is valid until it is retraoted.
Even after final decree in the partition case the plaintiffs, it seems tome, are entitled to bring this action. In an action for pre-emptionthe claim is for a transfer from the purchaser to the retractor,and if the title is confirmed by the partition decree, it is only aconfirmation of the title of the purchaser from the original owner.
It seems to me that on the ground of convenience it will be inappro-priate to raise the issues arising on an action for pre-emption underthe Thesawalamai in a partition case. It will be very inconvenientto raise issues on the question of notice and market value of theshare in dispute in a partition case. I do not see how an order thatthe purchaser should execute a transfer in favour of the retractor onpayment of the market value can be made in a partition case andthe whole case hung up on this side issue before the interlocutorydecree is made.
The judgment of the Commissioner is set aside with costs, andI remit the case for the decision of the Court on issue (4), that is, onthe market value of first defendants’ share now in dispute.
VYRAMUTTU et al. v. PERIYATAMBY et al