086-NLR-NLR-V-06-SUPPAIYA-v.-TAMBAIYA.pdf
1903.May 7.
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SUPPAIYA v. TAMBAIYA.
D. C. Jaffna, 2,443.
Thesavalamai—Law of pre-emption in Jaffna—Ordinance No. 4 of 1895.
The effect of Ordinance Mo. 4 of 1895 is not to abolish the lav ofpre-emption in Jaffna under the Thesavalamai.
rjnHE issues agreed upon in this case were:—
Whether the law of pre-emption, according to the Thesa-valamai of Jaffna, is in force in Jaffna ?
Are the parties governed by the Thesavalamai in regard tothe transaction in dispute between the parties ?
(8) If the second plaintiff is entitled to pre-emption,. what priceought she to pay for the land ?
The second plaintiff claimed to be the owner of a share in eachof certain lands described in the plaint, and as such owner sheolaimed to have the right to pre-empt the second defendant’sshares of the said lands, though the first defendant had boughtthem from the second defendant by deed dated 27th March, 1901,which was nearly three months before the date of the action.
The defendants denied the second plaintiff’s right to .suchpre-emption.
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The District Judge, having heard evidence and the argumentsof counsel, gave judgment as follows:—
“ In ancient times previous notice of the intended sale of a landhad to be given by the seller to his .' heirs, partners, and neigh*hours ”: one month’s notice to those who resided in the village;three months to those out of the village, but in the same Province;six months to those in another Province; and a year’s notice tothose who resided abroad. If the period expired without the personinterested taking steps to pre*empt, the sale was considered valid.
“ This way of giving notice was superseded by the * goodorders ’ of the old Commandeur Blom (‘ of blessed memory ’),which was to the effect that instead of notice being given to theindividuals interested a general notice should be sufficient, andthat 'no land whatever should be sold until the proposed sale hadbeen published on three successive Sundays at the church towhich that seller belonged, during which period those persons whowished to exercise the right of pre-emption were to come forward.
“ This customofgiving notice wassupersededby whatis
known as the Udaiyar’s schedule system, which again was abolishedby the Ordinance No. 4 of 1895.
“ How then is the seller of the present time to give his heirs,partners, and neighbours notice of the intended sale ? Is he torevert to the system in vogue before the Commandeur Blompromulgated his ‘ good orders ? ’ That system was doubtlessabolished becauseitwas found to behighly inconvenient;it
would be found still more inconvenient at the present day, whenso many Tamils of Jaffna are to be found in different parts of theworld. An individual who wished to sell a piece of land mighthave a hundred heirs, partners, and neighbours, some of whommight be in England,others in Singaporeor Malacca.How ishe
to give notice toallof them, even if aware whereall of them
were living ? Is a sale of a land to be set aside, years after it wasconcluded, at the instance of an heir or partner who suddenlyappears on the scene after a lengthened sojourn in China or Peru ?The law then is silent as to how notice of the intended sale is tobe given, the attendant formalities having become obsolete. Ihold that the right of pre-emption has become obsolete also, and Itherefore dismiss the plaintiff’s action with costs.’’
The plaintiff appealed.
Domhorat, K.C. (with Wadsworth), for appellant.
The Ordinance No. 4 of 1895 does not repeal the right ofpre-emption, but only certain provisions for the publication . ofsales and other alienations of immovable property, situated in
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1903- those parts of the Northern Province to which the Thesavalamaiy> applies. In the case of Tillainathan v. Ramasamy Ghetiy decidedin October, 1900, Bonser, C.J., did not think that the right ofpre-emption was abolished by that Ordinance; and a contiguousowner was- allowed to claim pre-emption (4 N. L. R. 328).
Rdmanithan, S.-G.—The case cited is of no value here, becausethe question whether the right of pre-emption was abolished ornot was hot decided, but only that there was no proof that thesecond and third plaintiffs who were the adjacent owners wantedthe land for themselves. The opinion of Bonser, G.J., as regardsthe effect of Ordinance No. 4 of 1895 is only an obiter dictum. InHolland pre-emption was claimed as local custom, but the CommonLaw was against it as contrary to free commerce. In GovernorSimons’ time the right of pe-emption was exercisable only in caseprevious notice of the sale had not been given to the parties con-cerned. The forms of notice then observed were abandonedduring the time of Commandeur Blom, and in place of them it wasconsidered sufficient if notice on the part of the seller was givenat the parish church to which he belonged .on three successiveSundays. In later days this form of notice was also abandoned,and publication by beat of tom-tom in the village and certificateof such publication under the hand of the XJdaiyar of the village asenjoined. This certificate, named the “ Udaiyar’s schedule,” wasnecessary to be produced before the notary to enable him toprepare the deed of conveyance. The Ordinance No. 1 of 1842refers to this publication and schedule, but the Ordinance No. 4 of18115 abolished them. Therefore the duty of giving notice by theseller is now no longer a matter of law or custom. As the rightof pre-emption, according to Thesavalamai, is exercisable only incase the customary notice of the sale had not been given by theseller, and as neither custom nor statutory law requires the sellerto give any notice, the right of pre-emption has been renderedobsolete since 1895.
. Assuming the right of pre-emption to exist, there ought to havebeen issues raised as to how and by whom the duty of giving noticewas to be fulfilled. It is important to know whether the owner,the second defendant, is now bound to notify to the person whoclaims the right of pre-emption, viz., the second plaintiff; orwhether, in view of notices of sale having become obsolete or beenrepealed by the Legislature, it was not the duty of the secondplaintiff, when she became part owner of the property, to haveintimated to the second defendant her willingness to buy his sharein the event of his selling it; and whether, in the absence of suchnotice on her part, her action can be maintained, now that the
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first defendant has bought it. The defendant should have anopportunity of raising these issues and having a decision thereon.
Domhorat heard in reply.
7th May, 1908. La*ard, C.J.—
The only question that can be decided at present is, as towhether the Judge is right in holding that the right of pre-emptiondoes not now exist under the Theaavalamai. The Judge appearsto have thought that the Ordinance No. 4 of 1895, which repealedOrdinance No. 1 of 1842 and thereby did away with the publicationof sales and other alienations of immovable property situated inthose parts of the Northern Province to which, the Theaavalamaiapplied, also repealed all the rights of pre-emption which hadexisted up to the date of the coming into operation of OrdinanceNo. 4 of 1895. I do not think that the Ordinance was intended bythe Legislature to have any such effect, and .1 entirely concur withthe remarks of Chief Justice Bonser to be found in the case ofTiUainathan v. Ramasamy Chetty, reported in 4 N. L. R. 328. Itseems incredible that the Ordinance No. 4 of 1895 was to have theeffect of abolishing all rights of pre-emption in existence at thetime of the passing of it, “ for in such case one would expect theLegislature to have stated its intention in plain terms. It wouldhave enacted that “ from and after the passing of that Ordinanceno right of pre-emption would be recognized by law ” in those partsof the Northern Province to which the Theaavalamai applied.
The Solicitor-General has strenuously contended that, thoughthe right of pre-emption may still exist, no duty remains to thevendor to give notice before he- transfers the land. I understandthat he desires to be at liberty to raise that issue in the Courtbelow, provided we do not feel in a position to decide it here. Asat present advised, I am not prepared to give any decision on thatpoint, though I am inclined to think that, as the right of pre-emption still exists, the duty is cast on the vendor before partingwith the property to give notice to the person who has the rightof pre-emption.
However, I will not decide this point at present, but I will remitthe case to the District Court for further hearing, with liberty tothe defendants to raise the question suggested by the Solicitor-General, if they should be advised, and any other issues which itmay appear to them desirable to raise in their defence.
The judgment of the District Judge is set aside and the case. remitted to the District Court for trial.
Wkndt, J.—I am of the same opinion and for the same reasons.
IMS.May 1.