MANGALISWARI (a minor, appearing by her next friend Sinnamma) Appellant, and V.

014-NLR-NLR-V-63-MANGALISWARI-a-minor-appearing-by-her-next-friend-Sinnamma-Appellant-and-V.-.pdf


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Mangaleswari v. Selvadurai
[In the Privy Council]
1961 Present: Lord Morton of Henryton, Lord Radcliffe, Lord Denning,Lord Morris of Borth-y-Gest, Mr. L. M. D. de SilvaMANGALESWARI (a minor, appearing by her next friend Sinnamma),Appellant, and V. SELVADURAI and others, Respondents
Privy Council Appeal No. 10 of 1958
S. C. 21—D. C. Chavakachcheri, 315
Thesavalamai—Pre-emption— Land owned in common by father and daughter—Daughter a minor—Sale of hie share by father to a stranger without notice todaughter—Right of daughter to have the sale set aside—Point of time at whichcause of action arises—-No onus on pre-emptor to show that she had su ffictentmoney at time of sale—Natural guardian’s knowledge of sale—■Imputation ofit to minor—Applicability of Roman-Dutch Law and Muslim Law principlesof pre-emption.
Neither the Roman-Dutch Law nor the Muslim Law is part of the law ofThesavalaraai, but, in regard to a question relating to pre-emption, it ispermissible to derive assistance from the law obtaining in those systems whenit is not in conflict with the principles of ThesavalamaL
In an action to enforce a i ight of pre-emption under the law of Thesavalamaiin respect of an undivided half share of a certain land which had been sold,by the co-owner in September, 1937, without notice to the pre-emptor—
Held, (i) that it is not fundamental to the cause of action in such a case thatthe pre-emptor should establish by positive proof that, had he in fact receivedthe requisite notice, he had sufficient means to purchase the property at thetime it was sold.
Velupdlai v. Pulendra (1951) 53 N. L. R. 472, overruled.
that the point of time at which the cause of action arose was the timeat which the pre-emptor came to know of the sale. This could be a con-siderable time after the sale and still further from the time at which thepre-emptor should have received notice.
that where the pre-emptor is a minor and the vendor is his naturalguardian, the vendor’s knowledge of the sale should not be imputed to thepre-emptor.
A PPEAL from a judgment of the Supreme Court reported in(1952) 55 N. L. R. 133.
The plaintiff (bom in 1930) and her father the first defendant inheritedas co-owners in equal shares a certain land under the last will of hermother who died in 1935. In September, 1937, the first defendantsold bi« half share of it to the second defendant who in turn sold theproperty to the third and fourth defendants. -The plaintiff as a co-ownerfell into the category of persons entitled to pre-empt under the
MR. L. M. £>. DE SILVA—-Afangalesut&ri c. Selvadurai
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Thesavalamai. The second, third and fourth defendants did not fallinto this category. The plaintiff did not become aware of the saletill January, 1950.
The present action was instituted by the plaintiff (through her nextfriend) in August, 1950, to enforce her right of pre-emption in respectof the undivided half share that was sold by the first defendant in 1937.She prayed that the deed of conveyance executed by the first defendantin favour of the second defendant be set aside and that the first defendantbe ordered to execute a deed of transfer in her favour on payment ofdue consideration.
Stephen Chapman, Q-C., with John Stephenson, Q.C., for the plaintiff-appellant.
Gilbert Bold, with J. B. Baker, for the respondents.
Cur. adv. vult.
April 26, 1961.[Delivered by Mb. L. M. D. be Silva]—
The appellant, a minor at the time but now a major, instituted thisaction through her duly appointed next friend in the District Court ofChavakachcheri on the 30th August, 1950 to enforce a right of pre-emptionunder the law of Tesawalamai in respect of an undivided half share ofa. certain land. It is agreed that the law of Tesawalamai is applicableto the rights of parties in this case. She prayed that a deed of conveyanceexecuted by the first respondent in favour of the second respondentbe set aside and that the first respondent be ordered to execute a deedof transfer in her favour on her bringing into Court a sum of Rs. 1,500,which was the consideration paid by the second respondent to the firston the deed, or other sum as the Court might fix.
The learned District Judge entered judgment in her favour on the28th November, 1950 giving her time till the 18th December, 1950 todeposit a sum of Rs. 1,500 in Court. She has deposited in Court thesaid sum of Rs. 1,500 and a further sum of Rs. 1,500 determined by theDistrict Judge to be payable as compensation for improvements.
The Supreme Court (Gunasekara, J. with whom Gratiaen J. agreed)set aside the said judgment and dismissed the action. The presentappeal is from that order.
The appellant (bom in 1930) and her father the first respondentinherited as co-owners in equal shares the property in question underthe last will of her mother who died in 1935. In September, 1937 thefirst respondent sold his half share of it to the second respondent whoin turn has sold the property to the third and fourth respondents. Theappellant as a co-owner falls into the category of persons entitled topre-empt under the Tesawalamai. The second and third and fourthrespondents do not fall into this category. It has been stated by theappellant in evidence, and found by the learned District Judge, that shedid not become aware of the sale till after the institution of a certain
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MR. L. M^D. DE SILVA—Mangaleawari v. Selvadurai
partition action (the details of which are not material to this case) onthe 10th January, 1950. This finding has not been- challenged on thisappeal or elsewhere.
The Tesawalamai is a body of customary law obtaining among theinhabitants of the Northern Province of Ceylon. Its origin has beenthe subject of some controversy. It was collected and put into writingat the instance of the Dutch Governor Simons in 1706 and, after theBritish occupation, given the force of law by Regulation 18 of 1806 whichas amended by Ordinance No. 5 of 1869 is now Chapter 51 of the Legis-lative Enactments of Ceylon (Vol. II, p. 49). Part VII relates to pre-emption. There have been subsequent amendments but these weresubsequent to the date of the sale mentioned above and have not beeninvoked by the parties in the Courts in Ceylon.
Under the Tesawalamai any of several persons (among them co-owners as stated above) falling into a defined category had on anyproposed sale of a land to a person outside the category the rightto demand that the property be sold to him on the same terms andconditions as on the proposed sale. Notice had to be given to all personsin the category or else the sale was liable to be defeated by any one ofthem. The position wets correctly stated in the judgment of the SupremeCourt in Kathiresu v. Kasinather1 thus :—“ The Tesawalamai itselfdeclared the form of notice to be given where a co-owner has the rightof pre-emption. But by Ordinance No. 4 of 1895, so much of theTesawalamai as requires publication and schedules (these were prescribedformalities) of intended sales of immovable property was repealed. Butthis Court held in Suppiah v, Thambiah2 that notwithstanding theabolition of publication and schedules of intended sales, the liabilityof a co-owner desiring to sell his share of a land to give reasonable noticeto his other co-owners of the intended sale still survived.”
It was further held in Kathiresu v. Kasinather and approved inMailvaganam v. Kandiahz “that a person who has knowledge of anintended sale by a co-owner of his share and does not offer to exercisehis right of pre-emption cannot thereafter bring an action for pre-emption. and that the burden of proof is on the defendant to prove that.he either gave formal notice or that the plaintiff had knowledge of theintended sale ”.
Their Lordships are of opinion consistently. with views expressed bythe Supreme Court of Ceylon in various decisions that where no noticehas been given before the sale a cause of action accrues to a pre-emptor onhis gaining knowledge of the sale to have it set aside and the propertytransferred to him on the same terms as those on which the sale hadtaken place. This principle while it stood created no doubt a seriousdifficulty in making sure that a proposed transfer of land would be- sound. Amending legislation has been passed in 1947 to meet this andother difficulties arising from the Tesawalamai in dealing with land. *
* {1923) 25 N. L. B. 331 atp. 332.• {1904) 7 N. L. R. 157.
• {1930) 32 N. L. R. 211 at p. 213.
MR- L. M. D. DE SILVA—Mangaleatoari v. Selvadurai
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The Supreme Court allowed the appeal of the respondents and dismissedthe action on the basis of the case of VelupiUai v. Pvlendra x.decidedtwo years earlier by the. same judges in which it was held ** it is. funda-mental to the cause of action such as is alleged to have arisen in thiscase that the pre-emptor should establish by positive proof that, hadhe in fact received the requisite notice, he would and could have purchasedthe property himself within a reasonable time rather than permit itto be sold to a stranger On an examination of the evidence in thepresent case they came to the conclusion that the appellants' estate wasinsufficient for the pimpose (of a purchase) at the time of the sale bythe first respondent to the second in 1937. For these reasons theydismissed the action.
It is necessary now to examine whether the view expressed in Velupillaiv. Pvlendra is sound. It has been urged by counsel for the appellantand not challenged by counsel for the respondent that there is nothingin the statutory provisions of the Tesawalamai or in previous decisionsof the Supreme Court which supports the view mentioned. In suchcircumstances the Courts in Ceylon have derived assistance sometimesfrom the Roman Dutch Law and sometimes from the Muslim Lawrelating to pre-emption. There has been a difference of opinion as towhich system should be resorted to. It was held by the Supreme Courtin the case of Karthigesu v. Parupathy 2 : “ Pre-emption as it prevailsin British India owes its. origin entirely to Mahomedan Law and theprovisions in the Tesawalamai (Legislative Enactments, Volume 2,Chapter 51, Part 7) may be due to the early occupation of North Ceylonfor a time by Mahomedans or the later occupation by the Malabarswho had themselves come under Mahomedan influence in India. Thedecisions of the Indian Courts on questions of pre-emption may, there-fore, be taken as guides so far as such decisions are not affected byStatutes or the personal law governing persons of Islamic faith.”
But it was held in SabapathypiUai v. Sinnatamby 3 that “ where theTesawalamai is silent the Roman Dutch Law is applicable ”. This viewhas also been expressed in other cases.
Counsel for the appellant argues, correctly in their Lordships’ opinion,that there is nothing in either system which supports the view expressedin Velupillai v. Pvlendra and that on the contrary there is a certainamount which appears to be inconsistent with it.
It appears to their Lordships that neither the Roman Dutch Lawnor the Muslim can be regarded as part of the law of Tesawalamai butthat it is permissible to look at the law obtaining in those systems, toascertain the reasoning which underlies the principle of pre-emptionas it is to be found in them in dealing with various problems ; and,when not in conflict with the principles of Tesawalamai as establishedin Ceylon and otherwise appropriate, to borrow such rules and conceptsas seem best suited to the situation in Ceylon. 1
1 {1951) 53 N. L. R. 472 at p. 474.* (1945) 46 N. L. R. 162 at p. 163.
* (1948) 50 N. L. R. 367.
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MR. L. M. D. DE SIL.VA—Mangaleawari v. Selvadurai
Grotius Book III Chapter XVI section 10 (Lee’s Translation of theJurisprudence of Holland by Hugo Grotius p. 379) says :
“ 10. The right of recall must be instituted within a year of thesale or, at all events, within a year of its coming to the knowledge ofthe person asserting the right, as to which he may be put to hisoath.”
He does not say that the pre-emptor must show he was able to producethe money necessary for pre-emption at the time of the sale, or at thetime it comes to his knowledge.
Voet in his commentary on the Pandects (Berwick’s Translation p. 61)founding himself upon Tiraquellus says :
“ A renunciation of the right of retractus is indeed not to be inferredmerely from one having refused to purchase the thing when offeredto him by a cognate ; for many circumstances might dissuade himfrom an immediate purchase, for example, less astuteness on thepart of the cognate (vendor) than on that of the extraneous purchaser,which might make it more to the advantage of the latter to availhimself of the right of retractus after it has been already purchasedthan to be himself the first purchaser ; want of ready money whichhowever he might be able to procure within the year allowed for theexercise of the right; and many others. Tiraquellus De retractugentilit. §1. gloss. 9 n. 145. Nor is renunciation to be inferred fromthe circumstance of his having been present at the sale and remainingsilent; for such silence is rather to be attributed to his knowledge thathis right would last for the term of a whole year or other perioddefined by statute.”
Retraction (or naesting) was the name given in Roman Hutch Lawto pre-emption.
It will be seen that under the Roman Dutch Law a pre-emptor wasin a position much more privileged than under the law of Ceylon. Thereis nothing in the Roman Hutch Law which directly or indirectly supportsthe view on which the judgment of the Supreme Court rests.
Their Lordships have been referred to various passages in the worksof Mulla, Wilson and Tyabji which satisfy them of the negative pro-position that there is nothing in the Muslim Law which supports directlyor indirectly the view of the Supreme Court. They will make reference .to a passage which appears in Wilson’s Anglo Muhammadan Law (sixthEdition p. 415 Article 387):
“ It is not necessary according to Muhammadan Law but it is some– times required by the local wajib-ul-arz [local record of rights p. 66ib] that the owner of property should give notice to the personshaving the right of pre-emption before selling it to a stranger. Underthe Muhammadan Law the .right cannot be lost by delay in makingthe demand until the existence of- a binding contract has actually
MR. L. M. D. DE SILVA—Mangaleswari v. Selvadurax
93
come to the knowledge of the pre-emptor ; where notice is requiredby the wajib-ul-arz the right is lost unless the pre-emptor replies tothe notice within a reasonable time after receiving it, offering topurchase at the price asked, or at a price to be settled in accordancewith the provisions of the wajib-ul-arz.’*
There is no indication in this passage or elsewhere that if the propertyis sold wi.uout notice the pre-emptor asserting his right to pre-emptionin an action must “ establish by positive proof that had he in fact receivedthe requisite notice, he could and would have purchased the propertyhimself rather than permit it to be sold to a stranger ” and no indicationof anything which resembles what has just been said in any way.
It appears from what has been said that there is nothing in the RomanDutch Daw or the Muslim Law which can be said to support the principleupon which the judgment of the Supreme Court rests. The passagesquoted tend on the whole to be opposed to such a principle. As alreadystated there is nothing in the statute law or in the decisions of theCeylon Courts which has a bearing on it. Their Lordships are of opinionthat it must be held that the principle does not form part of the lawin Ceylon. The Supreme Court in laying down the principle observed :
** A would be pre-emptor cannot claim to be in a better position bynot receiving notice of the intended sale than he would have been ifhe had received such notice. ” On the other hand it has to be notedthat the point of time at which the cause of action arises in the case ofa sale without notice is, as already stated, the time at which the persondeprived of his rights as a pre-emptor comes to know of the sale. Thismay be a considerable time after the sale and still further from thetime at which he should have received notice. Had he received noticeand did not possess the necessary money at the time he might haveraised it. It would not be just to insist that he should establish factswhich might well have existed some considerable time before the actionbut of which it might at the time of action be difficult to obtain evidencein a convincing form ; for instance a person who might at the relevanttime have assisted the pre-emptor with money might be dead or, if alive,his evidence could be criticised on the ground that he is saying he wouldhave done something which he was never called upon to do in the pastand would not be called upon to do in the future.
It was argued that the vendor being the father of the minor was hernatural guardian and that his knowledge of the sale should be imputedto her. The Supreme Court did not decide this question as the viewdiscussed above taken by it was sufficient to dispose of the case. TheirLordships do not find it necessary to consider the general question asto the oircumstances if any under which notice to a natural guardiancan under the law of Ceylon be said to be notice to a minor sufficient tobind him (or her). They are of opinion that notice to, or the knowledgeof, a natural guardian as interested as the first respondent could not beimputed to the appellant.
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Silva v. Abeystindera
The Muslim Law while recognising the doctrine of pre-emption doesnot look upon it with favour. Thus Tyabji says at p. 724 ** Pre-emptionis not favoured by the law ” and further “ The right of shaffa (pre-emption) is but a feeble right as it is a disseising another of his propertymerely in order to prevent apprehended inconveniences ”. In Ceylonit was said rightly by the Supreme Court in 1923 in the case of Kathiresuv. Kasinaiher (above) “ The right of pre-emption imposes a seriousfetter on an owner’s right of free disposition of property, and the factshave to be carefully scrutinized before a co-owner is allowed to set asidea sale on such a ground.” In the case of VelupiUai v. Pvlendra (above)the Supreme Court was no doubt quite rightly scrutinizing the circum-stances closely, but with all respect their Lordships cannot find sufficientmaterial upon which the view expressed by it can be sustained.
For the reasons which they have given their Lordships will humblyadvise Her Majesty that the appeal should be allowed, the decree ofthe Supreme Court set aside and the decree of the District Court restored.The costs in the Supreme Court and on this appeal must be paid by the2nd to 11th respondents. The 1st respondent filed no answer andraised no opposition at any stage of the case.
Appeal allowed.