Kasinathan V. Thamotharam Pillai

1961 Present : Basnayake, C.J., and Sinnetamby, J.

T. KASINATHAN, Appellant, and K. THAMOTHARAM PILLAI
and another, Respondents

S. C. 498-D. C. Jaffna, 623/L

Thesavalamai-Pre-emption-Notice of sale by intending vendor-Mode of publication of it-Importance of due publication by prescribed officer-Thesavalamai Preemption Ordinance, No. 59 of 1947, ss. 3, 5, 6, 8,13.

When notice of sale of immovable property is given by an intending vendor in terms of section 5 of the Thesavalamai Pre-emption Ordinance No. 59 of 1947, it is his duty to see that the officer to whom the notice is sent has in fact published ' it. A notice under section 5 cannot be deemed to have been " given " for the purpose of section 8 if there is a failure on the part of the officer to whom the notice is sent to publish it in. the manner prescribed in sub-section 4 of section 5.

APPEAL from a judgment of the District Court, Jaffna.

H. V. Perera, Q.C., with C. Ranganathan and J. V. C. Nathaniel, for the 2nd defendant-appellant.

C. Thiagalingam, Q.C., with M. D. Jesuratnam, for the plaintiff-respondent.

Cur. adv. vult.

July 10, 1961. BASNAYAKE, C.J.-

I have had the advantage of reading the judgment prepared by my brother Sinnetamby, and I agree that this appeal should be dismissed with cost?.

Section 3 of the Thesawalamai Pre-emption Ordinance No. 59 of 1947 provides that the right of pre-emption shall not be exercised save in accordance with the provisions of the Ordinance. Section 6 provides that within three weeks of the date of publication of a notice under section 5, any person to whom the right of pre-emption is reserved by the Ordinance, may either tender the amount stated in such notice and buy the property from the intending vendor, or enter into an agreement to buy it. Where, as in this case, a land is sold to a purchaser who has no right of pre-emption without the publication of the notice under section 5, a person who has the right of pre-emption is denied the right conferred on him by section 6 ; because the publication of the notice is a sine qua non for the exercise of the right thereunder. He is then left with the remedy provided by section 8.

In the instant case the plaintiff having been denied the opportunity of exercising his right under section 6, as there has been no publication, of the notice under section 5, has taken the course of instituting a regular action as provided in section 8. The ground on which he has done so is that the notice required by section 5 was not given. It has been "proved that a notice was signed by the intending vendor before a Notary Public and forwarded by registered post to the Chairman of the Village Committee of Puttur. There is also evidence that the notice was neither registered nor published in the prescribed manner.

Where an enactment requires a person to give notice, the requirement is, in the absence of anything in the context to the contrary, ordinarily satisfied when the notice is posted to or delivered at the address of the person to whom notice has to be given. (See University of Ceylon v. Fernando[1 (1957) 59 N. L. R. 8.].) In the instant case the context is such that a notice under section 5 cannot be said to have been given till the notice is published in the prescribed manner, for, it is upon its publication that the right to pre-emption given by section 6 of the Ordinance may be exercised. Unless a notice is regarded as given only upon its publication a person who has the right of pre-emption would not only be denied the opportunity of exercising his right under section 6, he would also be prevented from pursuing the remedy of a regular action provided in section 8, for, he cannot assert in regard to a statutory notice which he has not seen, in the only place in which the statute says he may find it, that-

(a) it was irregular or defective,

(b) that the price set out in it was fictitious or not fixed i

Click Here to Read the rest of this document