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KATIRASAPILLAI v. KANAGASABAI
NLR20V478
1918 Present:
Ennis J.
KATIRASAPILLAI v. KANAGASABAI et al.
138-C. R. Kayts, 3,372.
Tesawalamai-Pre-emption-Share of well and right to lead water.
The defendant sold his land and "the share of well lying in the eastern boundary
land and the right of water-coarse for leading water" without giving the
plaintiff (the owner of the eastern boundary land) notice of inch intended sale.
Plaintiff brought this action for pre-emption of the. land sold, together with
the share of wall, & c.
Held, that under the Tesawalamai an action for pre-emption did not lie
under the circumstances.
"PLAINTIFF was the owner of an extent of 7 3/4 lachams on the eastern side of a
land (sailed Chekkathikaladu in extent 16 3/4 lachams, excluding a share of the
well on this portion and also the right of water-course from the well to the
remaining portion of the land. The second defendant, who was the owner of the
remaining portion of the land, with the share of the well on the plaintiff's
land and the right of water-course therefrom, sold her land, &c, to the second
defendant without giving notice of the intended sale to the plaintiff. The
plaintiff deposited in Court the sum of Rs . 70, for which the second
defendant sold her interests, and brought this action for pre-emption.
The Commissioner of requests (A. E. Christoffelsz, Esq.) dismissed the action.
The plaintiff appealed.
Balasingham, for the appellant-Under section 7 of the Tesawalamai the plaintiff,
who is entitled to a share of the well, is entitled Hi o right to pre-empt the
share of the well. [Ennis J.-The words in Motio-7 are " heirs, partners, and
owners of land who hold Mortgages over adjoining lands." But' the plaintiff is
not a partner.] The term "partner" has been always understood to mean co-owner
and not partners in the strict sense of the term.
It may be that as to the
adjoining land (apart from the well) the plaintiff has no right to ask for
pre-emption. But the plaintiff has a right to ask for pre-emption of the share
of the well. The plaintiff and the second defendant are clearly co-owners in
respect of the well. It may be hard on the defendant if the plaintiff insists on
his right to pre-empt the share of the well alone. He therefore offers to buy
the land also. The deed of sale to third defendant conveys " whole of this land,
share of well lying in the eastern boundary land, and the right of
water-course." This clearly shows that as regards the well the parties are
co-owners. But even if the defendant has only a servitude over the plaintiff's
land, even then the parties are in the nature of co-owners. The defendant has
one of the elements which go to make up the full right of ownership (dominium).
He is therefore in strict law a co-owner-
The right claimed is not an unreasonable one. The defendant suffers no loss by
sale to the plaintiff, but, on the other hand, the plaintiff will be seriously
inconvenienced if a neighbour has this right over his land. If a low-caste man
becomes owner of a share of the well, the plaintiff will not be able, under
existing social conditions (which we cannot ignore), to use the well.
Counsel cited 4 N. L. R. 328; 6 N. L. R. 356; 7 N. L. R. 151; 8 N. L. R. 62; 3
Tarn. 52; Muttukishna 529; 536, 560, 558.
Arulanandan (with him Joseph), for respondent, not called upon.
Cur. adv. vult.
July 18, 1918. ENNIS J.-
This was a claim for pre-emption of certain land in Jaffna. The learned
Commissioner of Requests dismissed the action, and the plaintiff appeals.
The plaintiff is the owner of land upon which there is a well. A share in the
well, and a right to lead water from it for the purposes of irrigation, belongs
to the defendant, an adjoining owner.
By section 7 of the Tesawalamai (English translation) heirs, partners, and
owners of land who hold mortgages over adjoining lands have the right of
pre-emption. Mr. Balasingham urged that , the English translation of
