039-NLR-NLR-V-55-V.-RAMALINGAM-Appellant-and-MANGALESWARI-Respondent.pdf
Ramalingam, v. jSdangaleswari
133
Present: Gratiaen J. and Gunasekara J.V. RAMALINGAM, Appellant, and MAN GALES WARI,RespondentS. O. 21—D. C. Chavalcachcheri, 315
Thestwalamat—l^Te-em/ption—Sale of land—Omission to give notice to pre-emptor—
J unification.
Plaintiff Bought to enforce a right of pre-emption under the T'hesavalamai hyclaiming to have a sale of land set aside on the ground that the property hadbeen sold without previous notice to her.
Held, that as plaintiff had no sufficient means to purchase the propertyat the time it was sold the failure to give her notice of the sale was immaterial.
VehipiUai v. Ftdendra (1951) 53 N. L. R. 472, followed.
(1951) 2 K. B. 496 at, 502.
134GUNASEKARA J.—Ramalingam v. Alanga.lesi.vari
J^lPPEAL from a judgment of the District Court, Chavakachcheri.
H. W. Tambiah, with C. Manohara, for the 2nd defendant appellant.
N. E. Weerasooria, Q.C., with C. Renganathan and K. Palasunderam,for the plaintiff respondent.
Cur. adv. vult.
June 25, 1952. Gtjstasekaba J.—
The second defendant appeals against the judgment given for the plaintiffin this action to enforce a right of pre-emption un der the Tesavalamai. Theplaintiff and her father the first defendant were co-owners of a pieceof land which they had inherited in equal shares under her mother’s lastwill in 1935. The subject of the action is the share inherited by thefirst defendant. This he mortgaged in July 1936 as security for a debt ofRs. 1,000 and in September 1937 sold to the second defendant for Rs. 1,500.The mortgage bond, which was discharged on the occasion of the sale,describes the debt of Rs. 1,000 as being made up of a sum of Rs. 860 duefrom the first defendant and his wife {the plaintiff’s mother) on a pro-missory note of April 1933 and a further sum of Rs. 140 borrowed byhim later. A fraction of the share bought by the second defendant wassold in August 1947 to the fourth defendant, who is the wife of the third.The learned District Judge holds that the plaintiff was entitled to notice ofthe sale to the second defendant but had no notice of it, and he hasaccordingly made order setting aside the two deeds of sale and directingthat the half share in question should be conveyed to the plaintiff forRs. 1,500, which he holds was its market value. A condition of the order,that the plaintiff should deposit this sum in Court on or before the 18thDecember 1950, has been complied with. The learned Judge has alsoawarded to the second defendant a sum of Rs. 1,500 as compensationfor improvements made by him as a bona fide possessor, and this stuntoo has been deposited in Court by the plaintiff.
.The plaintiff, who was born in 1930 and was still a minor when thisaction was instituted in August 1950, was only seven years old at the timeof the sale to the second defendant. It is contended in support of theappeal that her natural guardian, who was the first defendant, was ne-cessarily aware of the sale to the second defendant and that in any eventshe had no sufficient means to pre-empt the share, and that therefore sheis not entitled to have the sale set aside on the ground of want of notice.
The second defendant averred in his answer that “ the plaintiff hadand has no means to buy the share sought to be pre-empted”, and one ofthe issues tried was as to whether the plaintiff was “ a bona fide pre-emptorhaving funds to pay for the purchase of this half share ’’. The learnedJudge answered this issue in the affirmative for the reason that she “ maystill be able to find the funds to pre-empt this share by mortgaging herown share ”, which he finds has appreciated in value. He holds that it“ may be that she has been put up by the first defendant to file this actionbecause the price of lands now is high ”. The event proved that she wasable to raise the necessary funds by the 18th December, 1950, butit seems
Adrian Dias v. Weerasingham
135
to be clear from the evidence that her estate was insufficient for the pur-pose at the time of the sale by the first defendant to the second in 1937.Her father, the first defendant, was a labourer employed at a mill, and it isunlikely that his seven year old daughter was possessed of any propertyother than the half share of this piece of land thatshe had inherited fromher mother. According to her own evidence, she had no other landedproperty but she had been told by Sinnammah, her next friend in thisaction, that her mother had entrusted to Sinnammah a sum of Rs. 1,000in cash to be held for her. Sinnammah herself did not give evidence, andthere is no evidence from any other source to prove the truth of theinformation that she is alleged to have given the plaintiff. The learnedJudge’s own view is that “ it is likely that the story that the Next Friendhas Rs. 1,000 entrusted to her by the plaintiff’s mother is an invention ”
As it appears that the plaintiff had no sufficient means to pre-empt theshare in 1937 it is immaterial whether she had notice of the first defendant’sintention to sell it. As was observed by my brother Gratiaen in the case ofVelupillai v. Pulendra et al.1 “ it is fundamental to-the cause of actionsuch as is alleged to have arisen in this case that the pre-emptor shouldestablish by positive proof that, had he in fact received the requisite notice,he would and dcould have purchased the property himself within areasonable time rather than permit it to be sold to a stranger. ”
I would allow the appeal and dismiss the plaintiff’s action with costs inthis Court and the Court below.
Gratiaen J.—I agree.
Appeal allowed.