TILLAINATHAN et al. v. RAMASAMY CHETTY et al.

TILLAINATHAN et al. v. RAMASAMY CHETTY et al.

D. C., Jaffna, 1,684.

Tesavalamai of Jaffna-Right of pre-emption-Adjacent landowner-Mortgagee.

It is questionable whether under the Tesavalamai of Jaffna an adjacent landowner, who is not a mortgagee of the land in respect of which the right of pre-emption is dunned, can claim that right.

Where a husband, who was not himself an adjacent owner, associated himself with his wife and mother-in-law, who were owners of adjacent lands, as plaintiffs in an action for pre-emption, and sought to exercise the right of purchase, though his wife had never claimed to exercise it herself,-

Held, that the action, though brought in the name of the husband, wife and mother-in-law, was in fact the husband's action only, and that ho was not competent to maintain it.

THE first plaintiff in this case was the husband of the second plaintiff and the son-in-law of the third plaintiff, and they sued the two defendants as vendor and vendee of a property situated in Jaffna, which the plaintiffs alleged should have been sold to them by the defendant in preference to the second defendant.

The right of pre-emption thus claimed under the "'esavalamai of Jaffna appeared to rest on the following allegations. The second plaintiff and her mother, the plaintiff, were owners of a property which adjoined the first defendant's property at Vannarpannai in Jaffna; that by reason of the second and third plaintiffs being the adjoining landowners of the first defendant's said land, they had and still have a right of pre-emption to purchase the said land whenever the first defendant wished to sell it; that in violation of the right of preemptor the first defendant secretly, and without any notice to the plaintiffs, transferred the land in question to the second defendant by deed dated 12th February, 1899; that as soon as the plaintiffs became aware of the execution of the said deed, they preferred through the first plaintiff the claim of the second and third plaintiffs to pre-empt the land; that the defendants have refused to entertain their claim, and that the plaintiffs have. the right to avoid the sale to the second defendant and to have the land conveyed to the second and the third plaintiff, on their paying the sum for which it Lad been sold to the second defendant.

The plaintiffs brought into Court the sum of Rs. 12,000, being the price which the second defendant had paid to the first defendant for the land.

The prayer of the plaintiffs was, (1) that second and third plaintiffs be declared entitled to the right of pre-emption in respect

of the said land; (2) that the deed granted by the first defendant to second defendant be cancelled and set aside; and (3) that the first defendant be ordered to convey to the second and third plaintiffs the said land upon receiving payment of Rs. 12,000 for the benefit of the second defendant.

The first defendant did not appear. But the second defendant pleaded that there was no law or custom of pre-emption obliging him to forego the benefit of the deed in his favour; that even if the custom of pre-emption once existed in Jaffna, it had become obsolete; that as adjoining proprietors the second and third plaintiffs were not entitled to any notice of the sale of the property in question; and that, in fact, the first and third plaintiffs had known that it was for sale, and that the second defendant had informed the first and third plaintiffs of his intention to buy the land.

On the trial day the issues settled were the following: -

(1) Had plaintiffs the option of buying the land?

(2) If plaintiffs had no notice previous to the sale, are they entitled to exercise the right of pre-emption?

(3) Is the law of pre-emption still in force in Jaffna

After argument, plaintiff's counsel called the plaintiff and one witness and' closed his case.

For the defence the first defendant and two other witnesses were call

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