V. Sivapiragasam, V. Vellaiyan.S

1954 Present: Gratiaen J. and Gunasekara J.

V. SIVAPIRAGASAM, Appellant, and S. VELLAIYAN et al,
Respondents

S. C. 328-D. C. Point Pedro, 3,611L
 

Thesavalamai-Pre-emption-Effect of partition decree thereon-Mortgagor's rights or against pre-emptor.

A co-owner's right of pre-emption under the Thesavalamai is extinguished by a decree for partition entered in respect of the common property.

Vyramuttu v. Periathamby (1929) 30 K. L. R. 492, overruled.

A co-owner's right of pre-emption cannot defeat the rights of a bona fide mortgagee for value whose interests had been created before the right of pre-emption was asserted in a Court of law.

APPEAL from a judgment of the District Court, Point Pedro.

N. E. Weerasooria, Q. C., with C. Renganathan, for the defendant appellant.

H. V. Perera, Q. C., with S. Subramaniam, for the plaintiffs respondents
 

Cur. adv. vult.
 

January 26,1954. GRATIAEN J.-

This appeal calls for a decision on issues relating to certain aspects of a co-owner's rights of pre-emption under the Tesawalamai, and on the question whether, when exercised, they extinguish hypothecary rights acquired by a third party during the interval between the date of the impugned sale and the date of purported pre-emption.

A woman named Mathy, her son Sithambaram and her daughter (the 2nd respondent) were admittedly governed by the Tesawalamai. They owned a property in common by right of inheritance from Mathy's-husband Kathiram. On 6th June 1945 Mathy and Sithambaram sold some of their undivided shares to Letchumipillai who, jointly with her husband, mortgaged her interests to the appellant by two notarial bonds dated 2nd July 1945 and 7th October 1945.

On 17th October 1945 Letchumipillai and her husband instituted an action for the partition of the common property, joining as parties all the co-owners including the 2nd respondent and her husband the 1st respondent. The appellant was also added for the protection of his hypothecary rights. On 12th December 1947 a final decree for partition was entered inter paries whereby a divided portion (hereinafter referred to as Lot 3) was allotted to Letchumipillai subject to the mortgages of 1945 in favour of the appellant; a separate portion was allotted to the 2nd respondent. No appeal was filed against this decree, and its validity-has not been challenged.

On 5th October 1948 the appellant sued Letchumipillai and her husband for the enforcement of the mortgage bonds subject to which she had been declared entitled to Lot 3. A hypothecary decree was entered in his favour on 20th January 1949 ; the property was thereafter duly put up for judicial sale, and on 19th August 1949 the appellant, being the highest bidder, obtained a conveyance of Lot 3.

Under these circumstances, the appellant might well have regarded his ownership of Lot 3 as unassailable ; he had bought the property at a judicial, sale in execution of the mortgage decree in his favour, and the title had at least been strengthened (if not made conclusive) by virtue of the partition decree of 12th December 1947. Nevertheless the respondents instituted the present action against him for, inter alia, a declaration that their title to Lot 3 was superior to his by virtue of a conveyance dated 14th May 1949 executed in their favour in pursuance of a decree in action No. 2,505 of the District Court of Point Pedro.

The basis of the respondents' claim is that on 24th October 1945, i.e., during the pendency of the partition action which I have previously mentioned, they had filed an action against Letchumipillai and her husband for the enforcement of their right under the Tesawalamai to pre-empt the undivided shares of the larger land (including Lot 3) which Mathy and Sithambaram had previously sold to Letchumipillai. On 31st July 1947 a decree was entered declaring the respondents entitled, as against Letchumipillai and her husband, to pre-empt

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