MACDONELL C.J.—Kandar v. Sinnachipillai.
1934Present: Macdonell C.J. and Dalton S.P.J.
KANDAR v. SINNACHIPILLAI.
339—D. C. Jaffna, 22,324.
Thesawalamai—Property acquired by son during his bachelorship—Son notunder parental roof or control—Property does not fall into commonproperty of parents—Regulation No. 18 of 1806, s. 1, cl. 7.
Under the Thesawalamai property acquired by a son out of his ownmoney at a time when he was unmarried but was no longer under theparental roof or parental control does not become part of the commonproperty of his parents.
Per Macdonell C.J.—Under the Roman-Dutch law the Courts havepower to declare a statute obsolete if they are satisfied of its tacit repealby disuse or contrary usage.
^ PPEAL from a judgment of the District Judge of Jaffna.
K.Balasingham, for second plaintiff, appellant.
A. Gnanapragasam, for defendant, respondent.
Cur. adv. vult.
October 17, 1934. Macdonell C.J.—
I have read and agree with the judgment of Dalton J. in this case.
It is certainly a pity that the counsel for defendant-respondent did notlead evidence in the Court below to show that the provision in section 1,clause 7, of the Thesawalamai, that sons “ are bound to bring into thecommon estate (and there to let remain) all that they have gained orearned during the whole time of their bachelorship ” had become obsolete.Since this rule is one peculiar to the Jaffna- Tamils and not one affectingother “ bachelors ” anywhere else in the Island, the probability is thatthe law elsewhere in Ceylon, namely that an unmarried son takes for hisown whatever he earns by his own efforts even though his parents are
MACDONELL CJ.—Kandar v. Sinnachipillai.
Jiving, has been tacitly adopted as the law in the Jaffna peninsula also.It is at least striking that the learned counsel for appellant was unable todiscover any reported case in favour of his argument for allowing thisappeal. The case in Mutukisna at page 576 decided in 1828 shows thateven then “ bachelor ” was held to have the restricted meaning of a sonliving in his father’s house and under his control. There is a decisionthen of this Court, over a hundred years old, that the term *' bachelor ”in section 1, clause 7, of the Thesawalamai, cannot have the extendedmeaning that must be given to it if this appeal is to succeed.
If sufficient evidence had been led below, it might have been possibleto hold formally that section 1, clause 7, of the Thesawalamai, is obsoleteand no longer law even in cases where the marriage occurred before July17, 1911, when the amending Ordinance No. 1 of 1911 came into force ;with regard to marriages of Jaffna Tamils solemnized since that date, thepoint now contended for does not seem to arise. The decision in Mutukisnaat page 301 seems to me a clear instance of the Courts declaring part of theThesawalamai to be no longer law. That was a case tried in 1839 in whichplaintiff tried to make a son responsible for the debts of his parents“ although the parents do not leave anything ”, in accordance with thissame section 1, clause 7, of the Thesawalamai, and the Court read intothat enactment the qualification that the son would not be responsible forthese debts, if he repudiated the inheritance, and did not intromit or doany acts showing that he intended to appropriate the inheritance tohimself. In effect the Court substituted the more responsible ” rule ofthe Civil or rather the Roman-Dutch law ” for that of the Thesawalamaiand thereby declared the rule of the latter to be no longer law.
By Roman-Dutch law it would certainly seem that the Courts havepower to declare a statute obsolete if they are satisfied of its tacit repealby disuse or contrary usage. In Green v. Fitzgeraldl, Innes J.A. aftermentioning the principle of English law that there is no such thing as atacit repeal of a statute, goes on to say—“ The civil law on the other handrecognized the principal that a statute might not only be expresslyrepealed by the legislative authority, but tacitly repealed through disuseby silent consent of the whole community. In Holland the same-doctrinewas laid down …. In Seaville v. Colleys, it was held that aright of retraction, founded upon the lex Anastasiana, and recognizedby the law of Holland, had been abrogated by contrary usage and was nolonger in force in the Cape Colony. I do not think, however, that thedoctrine of the Roman-Dutch law can be confined to cases where contraryusage has been established; both in principle and on authority meredesuetude must in certain circumstances be sufficient”, and in Rex v.Detedy *, Kotze J.A. says practically the same, though he thinks that inSouth Africa the English rule as to statutes, namely, that they can onlybe abrogated by the legislative authority, had become established. Thishowever, was an opinion obiter, and I do not think that here we arebound by any such restriction, but that our law'with regard to obsoletestatutes is as laid down by Innes J.A. in Green v. Fitzgerald (supra) quotedfrom above. It would follow then that under Roman-Dutch law the Courts
1 (1914) A. D., South Africa, 88.
a (1916) A. D. at p. 224.
2 9 J. 39.
DALTON S.P.J.—Kandar. v. Sinnachipillai.
have, what they do not have under English law, power to declare a statuteobsolete on sufficient proof that it has been disused and that contraryusage has been established or even by proof of the former only of thesethings. But in the absence of evidence below on the matter, I wouldconcur in the reasons given by my brother Dalton for the dismissal of thisappeal with costs.
This appeal raises an important question as to whether Jaffna Tamils,whether sons or daughters, who are unmarried, suffer from the disabilityof being unable to acquire any property for themselves whilst they remainunmarried and during the lifetime of their parents.
The facts in this case are as follows : One Sinnakuddy in the year 1912when he was 29 years of age, but still unmarried, purchased and obtaineda conveyance of a piece of land, 21 acres in extent. The conveyance(document P 1) is stated to be to Sinnakuddy, his heirs, executors,administrators, ,and assigns, who are to possess and enjoy for ever the saidproperty. He purchased this property out of his own separate earnings,and his parents after the purchase lived with him in his house on theproperty. There is evidence also to the effect that his brothers livedthere also with him, and both parents and brothers helped him to plantthe land. The trial Judge finds they did so merely as close relatives.Sinnakuddy also purchased another block of land, 3£ acres adjoining the21-acre property, after his father’s death, but while he was still unmarried.There is no claim by plaintiffs in respect of this latter property.
Sinnakuddy’s father died in the year 1914 and he married in the year1921. He died in the year 1926.
This action was then commenced by Sinnakuddy’s mother (Pattiny)and his brother (Kandar) as plaintiffs against Sinnakuddy’s widow asadministratrix of his estate for a declaration that the 21-acre propertybelonged as to one half to her (the mother of Sinnakuddy) and as to theother half to the children of her deceased husband. This claim is basedupon the provision of the Thesamalamai, stated to be contained in clause 7of section 1, the material parts of which are in the following terms : —
“ So long as the parents live, the sons may not claim anything what-soever ; on the contrary, they are bound to bring into thecommon estate, and there to let remain, all that they havegained or earned during the whole time of their bachelorship…. and that until the parents die, even if the sons have
married and quitted the parental roof.
So that when the parents die, the sons first inherit the property left bytheir parents, which is called modesium or inherited property
The plaintiffs’ case is that the 21-acre block was property acquiredby Sinnakuddy during bachelorship and therefore became part of thecommon property of his father and mother. It would in that event, Itake it, fall under the category of property known as tediatetam, i.e.,acquired property. There is no other class mentioned in the Thesawalamaiunder which it can come. Even admitting all the facts found to have been
DALTON SJP.J.—Kandar v. Sinnachipillai.
proved, Mr. Halasingham urges that, on the plain meaning of the words ofclause 7, the plaintiffs must succeed. The first plaintiff, Pattiny, died afterthe commencement of this action, which was continued by the secondplaintiff for himself and as executor of his mother.
One argument advanced on behalf of the defendant in the lower Courtwas to the effect that the provision of the Thesawalamai relied upon bythe plaintiffs is obsolete. In support of that argument we have theopinion of de Sampayo J. in Nalliah v. Ponnammah1, which is obiter. Thedate of that case is 1920. He states there that this disability of un-married sons and daughters to acquire anything for themselves duringthe lifetime of their parents had long since, become obsolete. Theargument against that view has been elaborated before us, it being urgedfor plaintiffs that a provision of the statute law cannot be abrogated bydisuse. Even if, however, the Roman-Dutch law is not so stringent asEnglish law on this question, I do not think we have material before us todecide it, however much one might for other reasons incline to the sameview as de Sampayo J. One would, I take it, first of all, require evidencefor example, of the application of the law or existence of the custom, orof the fact that the law or custom had fallen into disuse or of a contrarypractice existing and the length of time during which it had existed or thelaw had not been applied or made use of. This aspect of the case doesnot seem to have been gone into at all, so far as the evidence is concerned.
Whilst feeling unable for these reasons to decide this question of theabrogation by disuse of the provision of the law relied upon by plaintiffs,I am satisfied, however, there are other grounds upon which the judgmentappealed from must be affirmed, having regard to the facts proved inthis case.
There are some few decisions of the Courts covering a long period oftime showing how the clause of the section 1 I have set out above hasbeen construed. The Thesawalamai is described in section 14 of Regu-lation No. 18 of 1806 (Vol. I., Revised Laws, 1923, p. 25) as the customsof the Malabar inhabitants of the Province of Jaffna. It appears to havebeen recognized that these customs and usages might in course of timebecome modified, and it seems to have been the practice at any rate inthe first half of the nineteenth century, when questions arose for decisionunder the Thesawalamai, for the Courts, when called upon to apply theprovisions of the law in the Code, to obtain the help and assistance ofCommissioners or special assessors well acquainted with Tamil usages andalso of the more experienced inhabitants to speak as to the customs of thepeople for the purpose of ascertaining what exactly the customs inpractice were and also whether there had been any modification to softenwhat has been called “ the rigour of the general principle ”. (See Mutu-kisna’s The Thesawalamai, p. 298-301, judgment No. 1,531, April 24,1839.)
As early as 1828 there is a reported decision (Mutukisna p. 576) fromPoint Pedro which according to the sidenote deals with “ propertyacquired during bachelorship The report is very short but it seemsfairly clear that in order to constitute the property common property,under the clause of section 1 set out above, at that date it was held that
* 22 N. L. R. at p. 201.
DALTON S.P.J.—Kandar v. Sinnachipillai.
the property must be property acquired by a son during the time he wasunder the roof of his parents. It is probable that as a general rule at thetime the Thesawalamai was compiled, and for long after, a son who was abachelor necessarily remained under his parental roof. It may almost beinferred from some of the words used in the clause that the son does notquit the parental roof until his marriage. It is quite possible thereforethat the term “ bachelorship ” is used in the Code having that custom inview. It has been pointed out (Seelachy v. Visuvanathan Chettyjudg-ment of W. Wadsworth D.J. at p. 100) that' this Code was compiled at anage when the people of Jaffna were mainly agriculturalists, when parentsand children joined together in working their fields and gardens. Theywould have a common home under the parental roof, the sons and daugh-ters remaining there as a rule until married.
This idea of residence under the parental roof playing an importantpart in the application of this provision of the Thesawalamai is alsobrought out in a case referred to by Mutukisna at p. 589, under dateApril 17, 1837. The sidenote there is “ property purchased in favour ofchildren while under parental roof ”. The father purchased propertyfor his son when the latter was unmarried and under the. protection of hisfather. It was held that the land belonged to the father’s estate.
Another instance in which the provisions of clause 7 of section 1 of theThesawalamai on another point have come to be more leniently construedthan perhaps the literal meaning of the words themselves might at firstsight allow is in respect of the liability of sons for the debts of theirparents. The sons are stated to be at all times accountable for the same,whether they have the means to pay or not. It had been held in 1839that this provision of the law as set out in the section is nothing more orless than a rule of the Roman-Dutch law and that an heir may avoidliability by repudiating the inheritance (Mutukisna p. 301). If thatdecision is correct, it affords support for a view I have previously expressedthat the Roman-Dutch law has had some influence in the compilation ofthe Code contained in the Thesawalamai. This decision of 1839 as to thequalification upon the general proposition set out in section 1, clause 7,was followed in a decision in 1856 reported in Lorenz’s Reports, Part I.tat p. 224, although apparently on different grounds.
I now come to the more recent decision (Umatavipillai v. Murugaser'),decided in 1899 by Lawrie A.C.J. and Brown J. The facts are not set out,but the Court held that if section 1, clause 7, is still in force, it did notaffect the case before them, because the clause referred only to a casewhere the son who acquires property is living unmarried in his father’shouse and under his father’s control. No authorities are referred to in thejudgment, but Sir Ponnambalam Ramanathan was one of the counselengaged in the case. It will be seen that the decision appears to be inaccordance with the earlier cases I have cited, the father’s control and theparental roof, I take it, being for the purpose synonymous terms.
No decisions of the Courts expressing a view contrary to those I havementioned have been brought to our notice, and' in these circumstances,especially having regard to the view that appears to have been taken asto the meaning of clause 7 over a period of nearly a century, I have no1 23 N. L. R. 97.3 3 Balasingham’s Reports 119.
MACDONELL C.J.—Neiyappa Chettiar v. Seyadu Lebbe.367
difficulty on the facts herein upholding the decision appealed from.Sinnakuddy purchased the property in question when he was unmarriedbut out of his own money, at a time when he was no longer under parentalcontrol or under the parental roof, and hence the property was his ownproperty and did not become part of the common property of his parents.
In cases where the marriage of parents has taken place after OrdinanceNo. 1 of 1911 came into force, although of course it is not a matter to bedecided in this action, it is doubtful whether any such question as hasarisen here could arise, since the term tediatetam or acquired property isnow defined in that Ordinance (see decision in Avitchy Chettiar v.Rasamma1). The term as there defined does not include any propertyacquired by the earnings of any son or daughter, such as are mentionedin clause 7 of section 1. It is to be noted that by section 2 of the Ordi-nance that “ so much of the provisions of the collection of customarylaw known as the Thesawalamai …. as are inconsistent with theprovisions of this Ordinance are hereby repealed
The appeal must be dismissed with costs.
KANDAR v. SINNACHIPILLAI