Sabapathypillai V. Sinnatamby

1948     Present : Canekeratne J.

SABAPATHYPILLAI, Appellant, and SINNATAMBY,
Respondent

S. C. 65-C. R. Point Pedro, 382

Thesawalamai-Where silent-Recourse to Roman-Dutch law.

As regards pre-emption in Thesawalamai, where the Thesawalamai is silent the Roman-Dutch law is applicable.

APPEAL from a judgment of the Commissioner of Requests, Point Pedro.

N. Kumarasingham, for the defendant appellant.

H. W. Thambiah, for the plaintiff respondent.

Cur. adv. vult.

June 22. 1948. CANEKERATNE J.-

This is an appeal by the defendant from a judgment declaring the plaintiff entitled to pre-empt the shares of certain lands. By deed PI, dated January 8, 1944, one Alvatti transferred these shares to the defendant. In his answer the defendant pleaded the purpose for which the transfer was made and excepted to the jurisdiction of the Court.

There were six issues framed at the trial, the first and second are the only issues material for the purposes of the appeal. The answer to issue 1, which relates to the value of the lands which are! the subject-matter of the action, is thus stated :- Rs. 200 for the purpose of this case. Mr. Thambiah contends that the principles relating to pre-emption of the Mahomadan law in India are applicable to this case. With all due respect to the learned Judge who decided the case referred to in the judgment, I venture to think that one should resort to the Roman-Dutch law wherever the Tesawalamai is silent, because (a) a customary law is a deviation from the general or common law and 'he common law applies in all oases except where the customary law is in operation, (b) even if there was a rudimentary conception of pre-emption among the inhabitants of Jaffnapatam before the advent of the Dutch,1[Cf. the silence of De Queyroz-the Conquest of Ceylon (Translation by Fr. Perera) p. 53 ; Balasingham, Laws of Ceylon, Vol. I, 136.] there can be no doubt that the rules found in the compilation by the Dutch Dissawe bad been influenced by the principles of the Roman-Dutch law and in the course of nearly half a century the forms and principles of Dutch Jurisprudence became gradually introduced. Paviljoen. Commander of Jaffnapatam, in his Instructions in 1665 states " The natives are governed according to the Customs of the country if these are clear and reasonable, otherwise according to our laws ",2[Balasingham, op. cit. p. 157.] " The laws and customs of Jaffnapatam " were composed by tha Dissawe Claas Isaaksz after an experience of thirty-five years in that province:

it was sent with a letter dated January 30, 1707, to the Governor. Th Dutch version was in the same year translated into Tamil (the appendix to the translation of Van Leeuwen's Roman Dutch law published in England, p. 741, pp. 773-777). Pre-emption, jus retractus, was a recognised right in the Roman-Dutch law. It arose from convention (e.g., agreement of parties) or from a provision of the law (i e., independently of contract). In the latter case the right arose under a variety of heads : it was available to co-owners (sociis), to adjoining proprietors to mortgagees of immovable propert

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