( 274 )
Present: Wood Benton C. J. and De Sampayo J.SAVUNDBANAYAGAM et al v. SAVUNDBANAYAGA3VI et al.375—D. C. Jaffna, 9,706.
Tesawalamai—Colombo Chetty residing in Jaffna—Son born in Jaffnaand married to Jaffna Tamil lady—Roman-Dutch law applicable.
S, who was born in Jaffna, and whose father was a Colombo Chetty,who had become a permanent resident of Jaffna, was held (in thecircumstances of this case) to be governed by the Boman-Dutchlaw, and not by the Tesawalamai.
THIS was an action for declaration of title to a half share of a^ piece of land situated in Jaffna. The plaintiffs-appellantsclaimed one-half by right of inheritance from their mother, whowas the first wife of G. P. Savundranayagam, who, the plaintiffsaverred, was governed by the Boman-Dutch law, and who marriedplaintiffs' mother in community of property. Savundranayagam’s
( 275 )
father was Tissera, who was a Tamil bom in Colombo—a memberof the Chetty class. Tissera married Wilhelmina Jurgan Ondatjee,who was a Tamil. The plaintiffs stated that she was also aColombo Chetty; the defendants asserted that she was “ a Malabarinhabitant of JafEna ” within the meaning of that term in theRegulation of 1806. Tissera and his wife lived at JafEna. Thehusband predeceased, leaving behind G. P. Savundranayagam andanother, Ariyanayagam. The land in dispute belonged to Wilhelmina.Savundranayagam became a lawyer and practised at Triohinopoly,where he died in 1882. He married twice, JafEna Tamil ladies; bothmarriages were prior to 1876. Plaintiffs are the children of the firstbed, the defendants children of the second bed.
The following issues were framed:—
Was Wilhelmina Ondatjee a Malabar inhabitant of JafEna ascontemplated in the Regulation of 1806?
Was Gabriel Tissera at the time of his marriage subject to
What would be the effect if only one of the two spouses wassubject to the Tesawalamai?
The learned District Judge, Dr. P. E. Pieris; after stating the facts,continued as follows: —
Plaintiffs say that Gabriel Tissera having been a Colombo Chettywas governed by the Roman-Dutch law, and therefore his sonwas
governed by theBsme.Thedefence say that Tissera by settlingin
Jaffna became subject to the Tesawalamai, and that Savundranayagamwas a Malabar, to whom,theTesawalamai applied. It furtherrelies
as an illustraiton, on the fact, which is well known, that Tamils fromIndia settle in Jaffna, and their descendants are absorbed among theJaffna Tamils, and are admittedly governed by the Tesawalamai.
By D 3 of 1824 the land to the west of land in dispute was purchasedby Wijeratne. Mudaliyar Bastiampulle, Madapally of Pandateripu.This fixes the fact thatthepurchaser was a Jaffna Tamil.The
purchaser having died, his son, Wijeratne Mudaliyar, the husband ofLavinda Ondatjee (who was sister of Wilhelmina), became the owner.Wijeratne died next, andhis widow, Lavinda, was appointedhis
administratrix. Assuchshe, in1845, gave a power of attorney, B 4,to
her son Anthony,thenlivingin Jaffnapatam, describing herself asof
Colombo. By this she, as administratrix, authorized the attorney tosell the entirety of the land which belonged to her husband, specificallyindicating that what was sold belonged to the deceased husband. Itis thus clear that she was acting under the Tesawalamai, for otherwise,on the death of her husband, half the land vested in herself, and onlya moiety belonged to the estate. In D 4 the land in dispute is describedas “ the property of Wilhelmina Tissera.” The attorney, by D 2. soldthe entirety to Wilhelmina,thenthe widow of Gabriel, and livingin
Jaffna, and described the disputed land as “the house of Tissera.”Wilhelmina herselfdiedshortlyafter, and her estate was administered
by the Secretary of this Court, who, by D I of 1850, sold what Wilhelminahad bought from Wijeratna’s estate to Puwarayasinghe Mudaliyar, by
( 276 )
D 1, In tingtransfer the landindispute is called“ the land of the
estate/’t.e.,of Wilhelmina’sestate.This makeB itclear thatthe
house in whichTissera had lived inhis lifetimewas recognized athis
deathastheexclusive property ofhis widow, therecognizationbeing
madebytheofficialadministratorof the Court,and also bythe
relativesofthe deceased. Inotherwords, duringthe lifetimeof
Wilhelmina, and after her death,it was recognized that her right3 were
governed by the Tesawalamai.
D & is thebaptismal registerofSavundranayagam.It shows Tissera
Andhiswifewere recognized asinhabitants of aJaffna parish,that
Savundranayagam was bom in Jaffna, and was solemnly baptized
as Joshua. Itis admitted thatallthis did notprevent a Roman
Catholic priestfrom interferingata later dateand rs-baptizing
Savundranayagam as Gabriel Peter
Savundranayagam was a lawyer, and married before 1876. He verywell knew the meaning of the Roman-Dutuh. law community. By hiswill (D 6) he disposed of all his property, including the jewels he hadgivento hiswife in hislifetime.Hecertainlyconsideredthat'his
interests were in Jaffna, for he directed that on certain contingenciescertain moneys were to be deposited with the Procurator of the JaffnaRoman Catholic Mission, with the cognizance of the Vicar Apostolic ofNorthCeylon,and that theProcurator orBishop, should deal ' withthe
moneys in certain fashion. He left the entirety of the land in disputeto his secondwife, and specificallydeclared that the second plaintiff
is not -entitled to any share of the property he died possessed of.Savundranayagamclearly consideredhimself aJaffna Tamil,and
governed by the Tesawalamai. It is abundantly clear that for tbelast seventy-five years Tissera, his wife, her sister, and the latter’shusband,with tbeir descendants,havebeen recognizedas governedby
the Tesawalamai. No court of law would be entitled’ at this time of tbe -day to open up tbe question of whether such recognization was correct,and whether the action of parties for three-quarters of a century wasnot based onan error. I musthold thatSavundranayagamwas
governed by the Tesawalamai. It is a satisfaction to know that whenSimonJurg&nOndatjee, admittedlya Chetty ofColombo,suedhis
father-in-law, Hon John Mark Pulle Mudaliyar, at Jaffna in 1803, theheadsofthecaste,ThamoderamPulle Coomarakulasooriya Mudaliyar
and Virasinghe Mudaliyar,took part in the trial,whichwas dealtwith
under the Tesawalamai. (See Mutukishna 225.)
In my view the plaintiffs’ actionfails.Incase my viewis wrong,
andtheRoman-Hutchlaw shouldgovern, thenarisesthe question of
prescription. Since 1883the second wife andthoseclaimingunder
her have possessed the entirety oftheland. The first plaintiff lived
withhis stepmother for a' considerabletime, butmarriedin 1895.
Prom thetidkeof hismarriage hewas pressinghis stepmother to make
some provision for him. It is quite clear that since 1895 he was awarethatthetitlewas inhis stepmother, and alsoof theprovision in the
will directing the widowto makesome provisionforthe cnildren on
their attaining majority, or at theirmarriage.Since 1895 thepossession
hasthusbeenadverseto the firstplaintiff. Asfor thesecond – plaintiff,
he was a major at the time of thedeathofhis father; therehas been
thirty-five years’ possession adverse tohim,andhis claim,' too,mast fail.
The plaintiffs’ action is,therefore,dismissed, withcosts.
( 277 )
Bawa, KX. (with him Arulanandan), for plaintiffs, appellants.—Tissera was admittedly a Ghetty of Colombo. His son, Savundra-nayagam, must be governed by the Roman-Dutch law, and not bythe Tesawalamai. No person who is not a Malabar inhabitant ofJaffna can claim to be governed by the Tesawalamai. A ColomboChetty, or a person of any other community, does not become sub-ject to the Tesawalamai by residing in Jaffna. It has been held thata person who is not a Kandyan cannot acquire a Kandyandomicil by residing in a Kandyan district.
Counsel referred to Spencer v. BajaratnamJ Fernando v. Proctor,2The non-possession of the land in question by the plaintiffs doesnot give prescriptive title to the defendants. The plaintiffs* step-mother was in occupation, and such possession cannot be said tobe adverse to the plaintiffs.
Samarawickreme (with him A. St. V. Jayawardene and Keuneman)ffor defendants, respondents.—Tissera was an “ inhabitant of Jaffna,**and he was a Tamil or Malabar. His wife was a Jaffna Tamil. Forseveral generations the family was governed by the Tesawalamai.The property in question, moreover, belonged to Tissera’s wife, whowas a Jaffna Tamil. Even if Tissera was not governed by theTesawalamai, the estate of Tissera*s wife must be governed by theTesawalamai. The possession was adverse, at least since 1895.
Cur. adv. vult.
December 19, 1917. Wood Renton C.J.—
This is an action for declaration of title to a house called AriyaLodge, situated in the town of Jaffna. The property originallybelonged to the wife of Gabriel Pulle Tissera, who left two eons,Gabriel S. Ariyanayagam and Gabriel Peter Savundranayagam. Theplaintiffs allege that, after Mrs. Tissera’s death, Ariyanayagam andSavundranayagam divided the family property between them-selves, and that, on this division, Ariya Lqdge was allotted to thelatter. In 1856 Savundranayagam married the mother of theplaintiffs. After her death he married again, in 1869, the defend-ants' mother, to whom he left the house by his last will, and who, inturn, donated it to her two sons in 1906. The plaintiffs claim ahalf share of the property on the basis that its devolution isgoverned by Roman-Dutch law. The defendants contend thatSavundranayagam was subject to the Tesawalamait and that,therefore, as Ariya Lodge was inherited property, he had full powerto dispose of it, as he did, by will. The defendants further set uptitle to the house by prescription. The learned District Judge hasdecided both points in favour of the defendants. The plaintiffsappeal. The law applicable to the question whether Savundra-nayagam was or was not governed by the Tesawalamai is defined
* (1909) 12 N. L. R. 309.
1 (1913) 16 N. L. R. 321.
( 278 )
in the decision of this Court in Spencer v. Rajaratnam 1: 44 TheTesawalamai is not a personal law attaching itself by reasons ofdescent and religion to the whole Tamil population of Ceylon, butan exceptional custom in force in the Province of Jaffna—now theNorthern Province—and in force there primarily, and, mainly atany rate, only among Tamils who can be said to be 4 inhabitants *of that Province; and further, as the Tesawalamai is a custom inderogation of the common law, any person who alleges that it isapplicable to him must affirmatively establish the fact/*
The defendants have, in my opinion, failed to discharge thisburden. Gabriel Tissera was a Colombo Chetty. The name of hisfirst wife was Wilhelmina Ondatjee. There is no proof whateverthat she was a Jaffna Tamil.. The learned District Judge himselfsays that she was “ a member of a large and well-known familyrepresentatives of which are to be found in various parts of theIsland, claiming to be Tamils, Sinhalese, or Burghers, according totheir circumstances and environment.” But he reaches the conclu-sion that she was subject to the Tesawalamai by a series of elaboratebut unsubstantial inferences or conjectures from the conduct ofanother lady of the same name, Lavinda Ondatjee, from the baptismof Savundranayagam, from his will, from the name of his brotherAriyanayagam’s wife, and from the fact, which the District Judgesays that it is a 44 satisfaction to know,” that 44 when Simon JurganOndatjee, admittedly a Chetty of Colombo, sued his father-in-law,Don John Mark P(ulle Mudaliyar ,i at Jaffna in 1803, the heads ofthe caste, Thamoderam Pulle Coomarakulasooriya Mudaliyar andVirasinghe Mudaliyar, took part in the trial, which was dealt withunder the TesawalamaiHowever interesting and ingenioussuch speculations may be, they are not a safe basis for a judi-cial decision, and I do not think that the learned District Judge wouldhave acted upon them if his attention had been directed to theprinciple enunciated in Spencer v. Rajaratnam 1—an authoritybinding upon him, as it is binding upon us.
In the enthusiasm with which in this case the history of theOndatjee family has been pursued, the question of prescription hasbeen almost lost sight of. The burden of proof-in this matter alsowas on the defendants, and they have, not, in my opinion, in anyway succeeded in discharging it. The plaintiffs* stepmother couldnot prescribe against them merely by her continued occupation ofthe family property.2 The failure of the, first plaintiff to pressmatters to a decision while he was living with her is perfectly'intelligible, and the correspondence between him and both Mr.Muttunayagam and Mr. Tambiraja, entirely uncontradicted as itwas, in so far as the latter is concerned, is inconsistent with anyabandonment of his rights.
1 (1913) 16 N. L. R. 321.
8 In re Qunasekera (1890) 1 S. G, JR. 64.
( 279 )
I would allow the appeal, and direct judgment to be entered upin favour of the plaintiffs as prayed for, .with Bs. 10 damages amonth from the date of this judgment till they are restored topossession, and with all costs in this Court and in the District Court.
Db Samfayo J.—
1 agree with the above judgment on both the points argued beforeus, and consider that this appeal should be allowed.
SAVUNDRANAYAGAM et al. v. SAVUNDRANAYAGAM et al