Kandasamy V. Kumarasekaram

1960 Present : Weerasooriya, J., and H. N. G. Fernando, J.

KANDASAMY et al, Appellants, and KUMARASEKARAM et al,
Respondents

S. C. 598 (A-B)-D. C. Jaffna, 275/L

Civil Procedure Code-Section 16-Numerous defendants-Permission of Court to sue one or more of them as representing all-Procedure relating thereto.

Sale of immovable property-Unincorporated society or association-Capacity to acquire property-Thesawalamai Pre-emption Ordinance, No. 59 of 1947 s. 8 (7).

(i) Permission given by Court under section 16 of the Civil Procedure Code to sue one or more persons as representing numerous defendants need not 0 necessarily be in express terms if the granting of such permission is otherwise clear, considering the averments in the plaint, the application in the prayer  and the order of the Court allowing the application.

Although the notice given by a plaintiff by public advertisement in terms of section 16 of the Civil Procedure Code should, on the face of it, indicate that it is given by or on the order of the Court, failure to state therein that it is given by or on the order of the Court is, at the most, an irregularity which does not warrant a dismissal of the action.

(ii) An unincorporated society, not being a juristic person, has no legal capacity to acquire property. Accordingly, a sale of immovable property in favour of an unincorporated society or association (in the present case the transferee was the " Village Welfare Society, Veemankamam ") cannot pass title if it is not clear whether the transferor meant to benefit the present members of the society as individuals or to benefit the society as a quasi-corporation. In such a case, as there is no " sale ", a co-owner of the property is not entitled to institute an action to enforce a right of pre-emption under section 8 (1) of the Thesawalamai Pre-emption Ordinance.

APPEALS from a judgment of the District Court, Jaffna.

E. B. Wikramanayake, Q.C., with S. Sharvananda, for 1st defendant-appellant in 598A and 1st defendant-respondent in 598B.

S. J. V. Chelvanayakam, Q.G., with V. Arulambalam, for 2nd-4th defendants-appellants in 598B and 2nd-4th defendants-respondents in 598A.

G. Thiagalingam, Q.C., with A. Nagendra, for plaintiff-respondent in both appeals.

Cur. adv. vult.

December 8, 1960. WEERASOORIYA, J.-

The plaintiff-respondent filed this action to enforce his right of pre-emption as a co-owner in respect of an undivided extent of one lachcham out of a land called Vevari which the 1st defendant (the

appellant in appeal No. 598A) is alleged to have sold to the Village Welfare Society, Veemankamam, on deed No. 1809 of the 27th October, 1955, marked P 9. According to the caption in the amended plaint, the 2nd, 3rd and 4th defendants (who are the appellants in. appeal No. 598B) are sued as the president, secretary and treasurer respectively of the Pallai Veemswikamain Rural Development Society " on their own behalf and on behalf of the other members of the said Society ".  It would appear that the designations " Village Welfare Society, Veemankamam" and " Pallai Veemankamam Rural Development Society " refer to one and the same Society.
 
Of the numerous issues on which the case proceeded to trial one was whether the plaintiff is a co-owner of the land described in the plaint. Another issue raised the question whether P 9 is a conveyance of a divided or undivided extent of land. Both these issues were decided by the learned District Judge in favour of the plaintiff. No attempt was made at the hearing of the appeal, either by Mr. Wikramanayake who appeared for the 1st defendant, or by Mr. Chelvanayakam who appeared for the 2nd, 3rd and 4th defendants, to canvass the correctness of these findings.

The exercise of the right of pre-emption under the Thesawalamai is now regulated by the Thesawalamai Pre-emption Ordinance, No. 59 of 1947. Section 8 (1) of that Ordinance provides, inter alia,

Click Here to Read the rest of this document