Sivagurunathan Et Al., V. Visaladchi Et Al.,

1954 Present: Gratiaen J. and Fernando A.J.

T. SHIVAGURUNATHAN et al., Appellants, and VISALADCHI et al.,
Respondents

S. C. 482-483-D. C. Jaffna, 1,105 L

Thesavalamai-Pre-emption-" Partners "-Requirement of plenum dominium- Cap. 51, Part 7, s. 1.

A person whose title to a share in a common property is limited by rights of occupation enjoyed to his exclusion by someone else is not a " partner" within the meaning of section 1 of Part 7 of the Thesavalamai (Cap. 51) and is not entitled, therefore, to claim rights of pre-emption. In this context the word " partners " is necessarily confined to co-owners who exercise (or are at least entitled to exercise) plenum dominium over the common property.

APPEALS from a judgment of the District Court, Jaffna.

H. V. Perera, Q.C, with C. Shanmuganayagam, for the 3rd to 6th. defendants, appellants in No. 482.

S. J. V. Chelvanayakam, Q.C, with C. Renganathan, for the 7th and 8th defendants, appellants in No. 483.

C. Thiagalingam, Q.C., with H. W. Tambiah and S. Sharvananda, for the plaintiffs respondents.

Cur. adv. vult.

June 21, 1954. GRATIAEN J.-

This was an action for pre-emption under the Thesawalamai. The plaintiffs claimed to have purchased an undivided 1/2 share of two properties by P 14 dated 17th August 1943 subject to a life-interest in their predecessor-in-title Arunachalam. Three months later, Arunachalam conveyed his life-interest to them by P 15 dated 24th November 1943.

The plaintiffs' complaint was that the 7th and 8th defendants had purchased the remaining half-share of the properties either from the 4th and 6th defendants (by P 18 dated 21st November 1943) or from the 1st and 2nd defendants (by P 8 dated 22nd November 1943). They were presumably uncertain as to whether the title to this share had in truth-belonged to the purported vendors under P 18 or to the purported vendors under P 8, but they claimed that in either event the conveyance had been executed without notice to them in derogation of their rights as " partners " under the Thesawalamai. They accordingly asked for a decree for pre-emption (binding on both groups of purported vendors) whereby, on payment of such consideration as may be fixed by the Court, they should be substituted as purchasers of this share in the place of the 7th and 8th defendants who were admittedly " strangers ".

The learned District Judge entered a decree (1) declaring the plaintiffs entitled to pre-empt the share conveyed to the 7th and 8th defendants under P 8 dated 22nd November 1943 (i.e. on the basis that it was the 1st and 2nd defendants who previously had title to this share), (2) declaring that the 4th and 6th defendants had no title which they could have conveyed under P 18.
I shall assume (without deciding) for the purposes of this appeal that the learned Judge's findings as to title were correct. We are also bound by an earlier judgment of this Court (reported in 51 N.L.R. 500) rejecting the plea that this action was bad for misjoinder of parties and causes of action.
Mr. Chelvanayakam submitted for our consideration the argument (which was supported by Mr. Perera) that, even upon the basis of the learned Judge's findings, the plaintiffs did not possess at the relevant date (i.e. 22nd November 1943 when P 8 was executed) the requisite qualifications entitling them to exercise rights of pre-emption under Part 7 section 1 of the Thesawalamai (Cap. 51). Admittedly they were

not the " heirs " of either group of vendors who had purported to sell a share of the property to the 7th and 8th defendants; nor were they adjacent landowners with hypothecary rights over the common property. The only question, therefore, is whether on 22nd November 1943, by virtue of the earlier conveyance P 14 dated 17th August 1943 in their favour, they were " partners " who could impugn the sale of the share to a " stranger " by the other " partners ". I

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