Mangaleswari V. Selvadurai

[IN THE PRIVY COUNCIL]

1961 Present: Lord Morton of Henryton, Lord Radcliffe,
Lord Dinning,Lord Morris of Borth-y-Gest,
Mr. L. M. D. de Silva

MANGALESWARI (a minor, appearing by her next friend Sinnamma),
Appellant, and V. SELVADURAI and others,
Respondents

PRIVY COUNCIL APPEAL No. 10 OF 1958
 
S. C. 21-D. C. Chavakachcheri, 315

Thesavalamai-Pre-emption-Land owned in common by father and daughter-  Daughter a minor-Sale of his share by father to a stranger without notice to daughter-Bight of daughter to have the sale set aside-Point of time at which cause of action arises-No onus on pre-emptor to show that she had sufficient money at time of sale-Natural guardian's knowledge of sale-Imputation of it to minor-Applicability of Roman-Dutch Law and Muslim Law principles of pre-emption.

Neither the Roman-Dutch Law nor the Muslim Law is part of the law of Thesavalamai, but, in regard to a question relating to pre-emption, it is permissible to derive assistance from the law obtaining in those systems when it is not in conflict with the principles of Thesavalamai.

In an action to enforce a light of pre-emption under the law of Thesavalamai in respect of an undivided half share of a certain land which had been sold by the co-owner in September, 1937, without notice to the pre-emptor-

Held, (i) that it is not fundamental to the cause of action in such a case that the pre-emptor should establish by positive proof that, had he in fact received the requisite notice, he had sufficient means to purchase the property at the time it was sold.

Velupillai v. Pulendra (1951) 53 N. L. R. 472, overruled.

(ii) that the point of time at which the cause of action arose was the time at which the pre-emptor came to know of the sale. This could be a considerable time after the sale and still further from the time at which the pre-emptor should have received notice.

(iii) that where the pre-emptor is a minor and the vendor is his natural guardian, the vendor's knowledge of the sale should not be imputed to the pre-emptor.

APPEAL from a judgment of the Supreme Court reported in (1952) 55 N. L. R. 133.

The plaintiff (born in 1930) and her father the first defendant inherited as co-owners in equal shares a certain land under the last will of her mother who died in 1935. In September, 1937, the first defendant sold his half share of it to the second defendant who in turn sold the property to the third and fourth defendants. The plaintiff as a co-owner fell into the category of persons entitled to pre-empt under the

Thesavalamai. The second, third and fourth defendants did not fall into this category. The plaintiff did not become aware of the sale till January, 1950.

The present action was instituted by the plaintiff (through her next friend) in August, 1950, to enforce her right of pre-emption in respect of the undivided half share that was sold by the first defendant in 1937. She prayed that the deed of conveyance executed by the first defendant in favour of the second defendant be set aside and that the first defendant be ordered to execute a deed of transfer in her favour on payment of due consideration.

Stephen Chapman, Q.C., with John Stephenson, Q.C., for the plaintiff-appellant.

Gilbert Dold, with J. B. Baker, for the respondents.

Cur. adv. vult.

April 26, 1961. [Delivered by ME. L. M. D. DE SILVA]-

The appellant, a minor at the time but now a major, instituted this action through her duly appointed next friend in the District Court of Chavakachcheri on the 30th August, 1950 to enforce a right of pre-emption under the law of Tesawalamai in respect of an undivided half share of a certain land. It is agreed that the law of Tesawalamai is applicable to the rights of parties in this case. She prayed that a deed of conveyance executed by the first respondent in favour of the second respondent be set aside ,nd that the first respondent be ordered to execute a de

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