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SABAPATHI v. SIVAPRAKASAM
NLR8V62
SABAPATHI v. SIVAPRAKASAM.
C. R., Jaffna, 2,795.
Tesavalamai-Right of pre-emption-Qualifications necessary to entitle a neighbour to such right-Dutch original, and English and Tamil translations, of the Tesavalamai.
The English text of the Tesavalamai published in vol. I. of the Revised Ordinances must be taken as the sole recognized official repository and declaration of the laws and customs of the Tamils of Jaffna.
It is not within the discretion of the court to alter the translation even after having recourse to the Dutch original and the opinion of experts.
According to section VII., part I., of that text, in order to entitle an adjacent landowner to the right of pre-emption, it is necessary that he should also be a mortgagee of the land, in respect of which the right is claimed.
THE first defendant had sold to the second defendant a plot of land which lay adjacent to another plot of land belonging to a Hindu temple whereof the plaintiffs were managers. The plaintiffs prayed for a declaration that they were entitled to the right of pre-emption, a cancellation of the sale by the first defendant to the second defendant, and an order on the first defendant that he should execute a conveyance in their favour.
The District Judge having given judgment in favour of the plaintiffs, the defendants appealed.
The case came on for argument before two judges and was ordered to be listed before a Full Bench. It was argued before Moncreiff, J., Middleton, J., and Grenier, A.J., on December 12, 1904.
Van Langenberg, for defendants, appellants.-The right of pre-emption is claimed by the plaintiffs under section VII., part I., of the Tesavalamai. In Tillainathan v. Ramasamy Chetty (4 N. L. R. 328) Bonser, C.J., questioned the right of an adjacent landowner to claim pre-emption unless he was also a mortgagee of the land in respect of which pre-emption was sought. So far back as 1834 the Supreme Court thought {Marshall's Judgments, p. 377) that the right of pre-emption only existed where the party claiming it held a mortgage or some other claim upon the land.
Walter Pereira, K.C. (with him Wadsworth), for plaintiffs, respondents.-The question involved has not yet been finally decided, the authorities cited by the other side being no more than mere expressions of opinion. The English translation of the Tesavalamai speaks of " neighbours whose grounds are adjacent to the lands (meaning the lands in respect of which the
right of pre-emption is claimed), and who might have the same in mortgage, should they have been mortgaged." There is no reason to suppose that the words " should they have been mortgaged " are redundant. They are susceptible of a meaning. Even supposing the law required the double qualification in a neighbour as contended for by the other side, to entitle him to the right of pre-emption, the qualification of being a mortgagee is necessary only when there is at all a mortgage in existence. In the present case there was admittedly no mortgage in existence in favour of anybody. It may, in reply to this contention, be said that a dishonest landowner might by executing a bogus mortgage deprive a neighbour of his right of pre-emption; but it is submitted that it is for the Court to inquire into the matter and decide the question whether the mortgage is bona fide, or merely intended to defeat a neighbour's rights.
Then, the paragraph of the translation of the Tesavalamai relied upon is unhappily worded. What was intended was to give the right of pre-emption to neighbours whose lands were adjacent, and to those who had a mortgage of the land in question. The original of the Tesavalamai-that is to say the Tesavalamai drawn up by Claas Isaaksz on the order of Governor Van Simons- was in Dutch. He (counsel) had information that it was to be found among the archives in the custody of the Government Archivist, and that it bore out his (counsel's) content
