094-NLR-NLR-V-58-MARKANDU-Appellant-and-RAJADURAI-Respondent.pdf
1957Present ; Sanson!, J.MARKASDU, Appellant, and RAJADURAT, RespondentS. C. 316$h€. Ji. Jajfna, 2,9S0
Thesatralamai Pre-emption Ordinance No. 59 of 1947-—Section 2—“ Heirs
Persons-who claim to come within section 2 (1) (b) of Lho Thesawalamai Pre-emption Ordinance, No. 59 of 1947, must first satisfy the condition that they wouldbo heirs of the intending vendor if he should then die intestate : that conditionhaving been satisfied, they must also satisfy the condition that they ore des-cendants, ascendants or collaterals within the third degree of succession.
PPEAL from a judgment of the Court of Requests, Jaffna.
G. R&jujanathan, with A. G. Krishnarajah, for the 2nd defendant-appellant.
A. Ncigendra, for the plaintiff respondent.
Cur. adv. vult.
March 7, 1957. Saxsoat, J.—
This is an action for pre-emption which involves the interpretation ofsection 2 of the Thesawalamai Pre-emption Ordinance Iso. 59 of 194=7.The 1st defendant-appellant sold a 1/Gtli share of the land in questionto the 2nd defendant, his maternal uncle. But the 1st defendant haschildren, and the plaintiff claimed that he as a co-owner was entitled topre-empt that l/6th share. The 2nd defendant claims that he as thematernal uncle was an heir who also had the right of pre-emption andhe relies on section 2 of the Ordinance which reads :•—-
“ When any immovable property subject to the Thesawalamaiis to be sold, t-h'e right of pre-emption over such property, that is to say,the right in preference to all other persons whomsoever to buy the propertyfor the price proposed or at the market value, shall be restricted to thefollowing persons or classes of persons :—
(а)the persons who are co-owners with the intending vendor of the
property which is to be sold, and
(б)the persons who in the event of the intestacy of the intending
vendor will be his heirs.
For the purpose of this Ordinance, the term “ heirs ” means alldescendants, ascendants and collaterals up to the third degree offsuccession, and includes—.
(а)children, grandchildren and great-grandchildren ;
(б)parents, grandparents on both the paternal and maternal sideA
and great-grandparents on all sides ;
(c) brothel's and sisters whether full or of the half blood ;
{(1) uncles and aunts, and nephews and nieces, both on the paternaland maternal sides, and whether of the full or of the halfblood '
It will be noticed that the light is restricted to co-owners and personswho in the event of the intestacy of the intending vendor will be his heirs.
Mi-. Renganathan for the 2nd defendant-appellant submitted thatas the term “ heirs ” has been defined in the. section no other meaningcan be given to it, and certainly not the meaning which do Sampayo, J.,gave it in Ponniah v. Kandiah1. The learned Judge there said :—•
“ The word I think refers to persons who would be heirs if the ownershould now die ”.'
Mr. Renganathan would give the word a much wider meaning and includeall those persons who arc mentioned in section 2 (2) of the Ordinance.He relied on the definition of the words “ means ” and “ means and in-cludes ” in Stroud’s Judicial Dictionary and submitted that the definitionof the word “ heirs ” was exhaustive.
Now if one were to substitute for the word “ heirs ” in section 2 (1) (b)the definition appearing in section 2 (2), the result would be unintelligible.Again, section 2 (1) (b) does not read “ the persons who are the hen s ofthe intending vendor ” : if it did, the substitution of the personsmentioned in the clause defining “ heirs ” would provide the result forwhich Mr. Renganathan contends. Obviously the heirs contemplatedin section 2 (1) (b) are those persons whom de Sampayo, J., referred to as** persons who would be heirs if the owner should now die ”. It is forthat reason, I think, that the word “ heirs " in section 2 (1) (b) is qualifiedby the phrase “ in the event of the intestacy of the intending vendor ” :and it is for that reason that one cannot include all those persons fallingwithin the clause defining the term “ heirs ” simpliciter as persons whohave the right of pre-emption.
Under the law as it stood before the Ordinance was passed there was nolimitation as to the degree of succession within which heirs who claimedthe right of pre-emption should fall. The Ordinance, however, restrictedthe right to those who were within the third degree of succession. Thereason, I think, is because the report of the Thesawalamai Commission,dated 12th December, 1929 (Sessional Paper III of 1930J contained a re-commendation that the right should be restricted “ to those who wouldbe heirs of the vendor up to the third degree in the case of intestacy ”.
My view, then, is that persons who claim to come within section 2(1) (b)must first satisfy the condition that they would be heirs of the intendingvendor if he should then die intestate : that condition having beensatisfied, they must also satisfy the condition that they are descendants,ascendants or collaterals within the third degree of succession. Only inthis way can full effect be given to all the words of section 2 (1) (b)and section 2 (2).'
As the 2nd defendant-appellant is not an heir of the 1st defendantaccording to this interpretation of section 2, I agree with the learnedDistrict Judge that he had no right of pre-emption.
The appeal is dismissed with costs.
Appeal dismissed.
1 (1920) 21 X. L. It. 327.