Vyramuttu Et Al. V. Periyatamby Et Al.,

Present: Akbar J.

VYRAMUTTU et al. v. PERIYATAMBY et al.

327-C. R. Point Pedro, 23,270.

    Thesawalamai-Right of pre-emption-Failure to claim right in partition action-Res judicata.

Where in a partition action a party fails to claim' a right of pre-emption to which he is entitled with respect to a share of the land,-

Held, that the right of pre-emption was not barred by the decree in the partition action.

THE plaintiffs, who are co-owners of a land, brought this action for pre-empting under the law of Thesawalamai the undivided share which one Walliamma sold to the first defendant-respondent on a deed of 1924. Walliamma had sold the same share in 1918 to the plaintiff's predecessor in title, namely, Sivasidamparam, her brother, by an unregistered deed. The first defendant respondent by registering his deed obtained priority over Sivasidamparam's deed. In D. C. Jaffna, 20,024, Sivasidamparam together with the other plaintiffs brought a partition action with respect to the land, in which the first defendant claimed title to his share for the first time. The plaintiffs unsuccessfully attacked the deed on several grounds and interlocutory decree was entered in the partition action allotting the share to the first defendant. The present action was then instituted by the plaintiffs, pending the partition action, claiming the right to pre-empt the share. The learned Commissioner of Requests dismissed the plaintiffs' action on the ground that they had notice of the sale.

Tisseverasinghe (with Marikar), for appellant.-The finding as to-the knowledge of the plaintiffs is not borne out by the evidence. The right of pre-emption is not wiped out by the decree, in the partition case. It is a right in rent and attaches to the land. In Marikar v. Marikar1[1 (1920) 92 N. L. R. 137.] it was held that a trust, express or constructive, is not wiped out by a final decree in a partition case. A right of preemption should be placed on the same footing. It was not possible for the plaintiff to put forward the right of pre-emption in the partition suit. Counsel cited Voet, XVIII, 3, 24.

Croos da Brera (with Rajakariar), for respondent.-The appellant is bound by the partition decree. His right to pre-emption should have' been put forward before that decree was entered; This right affects the land and differs from a trusty In the latter case it is-

merely an equitable interest and the partition decree sets apart a specific portion of the common land to which this interest applies.  In the case of preemption it affects title, which must bf taken to have been wiped out by the decree (Silva v. Silva1[1 (1910) 13 N. L . R. 87.], Galgamuwa v. Weerasekera2[ 3 (1923) 25 N. L. R. 421.]). The question of pre-emption could have been settled in the partition suit and an appropriate order made (Appuhamy v. Marihamy3[2 (1919) 21 N. L. R. 108.], Senathi Raja v. Brito4[ 4 (1922) 4 C. L. R. 149.]).

Tisseverasinghe, in reply.

May 21, 1929. AKBAR J.-

This appeal raises an important question on the law of Thesawalamai. The facts are as follows :-

The plaintiffs-appellants are co-owners of a land situated at Alavay and they bring this action for pre-empting under the law of Thesawalamai, by which the parties are governed, the undivided share which one Walliamma sold to the first defendant-respondent on a deed dated 1924. It appears that this Walliamma had sold the same share previously, in 1918, to the plaintiff's predecessor in title, namely, a- man called Sivasidamparam, her brother; but this deed was not registered and the first defendant-respondent by registering his deed in 1924 obtained priority over Sivasidamparam's deed. Sivasidamparam together with the other plaintiffs brought a partition suit in respect of this same land in a D. C. Jaffna, case, 20,024. It is stated by the plaintiffs that the first defendant for the first time asserted title to his share

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