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Present: Wood Benton C.J. and De Sampayo J.
SELLAMBRAM v. KADIBAIE et al.93—D. C. (Inty.)Nuwara EUya, 63.Domicil—Kangany residingin Ceylon forthirtyorthirty-five years—
Evidence that kangany stated that he had made Ceylon his home—Evidence Ordinance,ss.Siand 88and100—Casus omissus—English
law of evidence—Grant of letters of administration.
The statement of a person thathe. hadmadeCeylonhi3homeis
admissible in evidenceafter his death,whenthequestion at issue
is whether he had acquired a domicil in Ceylon.
“ It was argued that this evidence was not admissible, inasmuchas the provisions ofsections% and33of the Evidence Ordinance '
are exhaustive of the cases in which statements of deceased personsare capable of proof.But evidence ofthiskindwould clearly be
admissible under thelawofEngland,towhich we have' to look in
regard to casus ommissi in the Evidence Ordinance."'
A kangany, anative of India,residedin Ceylonforthirtyto
thirty-five years,till his death.Duringthatperiodhereturned
to India on three occasions.' The children of his first marriagewere in Ceylon, and heleft his secondwife in India. There was
evidence that hetold the superintendentofhis estatethathe
looked upon Ceylon as his home.
Held, that he had acquired a domicil of choice in Ceylon..
If a person is domiciled in Ceylon, the grant of administration to his estate isgoverned by the law of this colony.
^HE petitioner (Sellambram) applied for letters of administrationto the estate of his brother Avada, head kangany, on the groundthat he was entitled as such to a half share of his estate under theHindu law. He also relied on an agreement (P 1) between Avadaand himself, the effect of which he contended was to entitle him toa half share of the inheritance.
The learned District Judge held that the agreement was not agenuine document, and that Avada was domiciled in Ceylon, and notsubject to Hindu law.
The petitioner appealed.
The evidence in this case relating to the question of domicil wasas follows: —
Mr. Aiyadurai calls—
Sellambram, affirmed; Avada Kangany was my elder brother; hecame- to Ceylon thirty or thirty-five years ago. He first went to Kanda-pola. After that he went to India; about five or six years afterwards.He married his first wife in India. He was married when he first came.He left his wife in Ceylon and went to India. There he remained about
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sis months. First wife's name was Meya. Meya never went to Indiaafter she came. Herchildrenweretwodaughters, Karuppaie and
InIndiawe brothersownedone property in common. On his firstvisit
to India he did not buy lands. He returned to Ceylon. About seventeenyearsafterhe went asecondtimeto India. He married a secondtime
onthatvisit.Hername wasPeriani. They weremarried inIndia.
Butbeforemarriage he livedwithPeriani, and before marriage Kadiraie
wasborn.AfterKadiraie, PeriyaCaruppen was bom. Thesecond visit
wasabout< twenty-twoyearsago.The marriage ceremony wasabout
twenty-twoyearsago.Kadiraie was born in India. Duringthesecond
visit he remained one year. We lived in the same house- During thatvisithe boughtland.After thathe visited India in 1913andbought
a land. HeremainedinIndiasixmonths. Hecameback toCeylon.
He did not go back again. He died in 1916. I visited Ceylon whenhe was a kangany. Iused tocomeonceor twice a year, bringing-
cloths and coolies. He usually had 200 coolies
Cross-examined,—At the time of his last visit my brother came todefend an action instituted by me in the Indian Courts. I sued mybrother for a certain sum of money, alleging I was a partner with mybrother. Hestayedsixmonths orthree months..I cannot be certain
of the exactlengthof time.I amcertain itwasnot longerthan six
months. The agreement is dated March, 1913. When the case wasinstituted mybrotherwasin Ceylon.He camesolelyfor thepurpose
of defendingthe actionwhenhe came last timeto India. I had two
other . brothers besides the deceased. The lands which we inherited weowned in common. Community of property is only as regards paternalinheritance. That is the custom in India
. Re-examined.—In the Indian case I was asked to bring a partition suit.We were all born in India. When my* brother came to Ceylon he wasthirty-five or thirty-eight Mybrother has left approxi-
mately Bs. 3,000.
Allay an, affirmed;sonofMuttan, Tamil,Head Kanganyof Brom-ley estate.I havebeenfortyyearsin Ceylon.Iused to goto India
once in eight or tenyears. 1haveproperty inIndia.Landedproperty.
I consider India my permanent residence
Cadirevail,affirmed:son ofAndy. Tamil. Forty-eight. Kangany
of High Forest I have been . in Ceylon over thirty years.
. I go to India off and on, I consider India my permanent home. ThereI have land and houses
Mr. Modder calls—
ArthurDouglasAtkins, sworn: superintendent, Maha Uva estate,
I know Avada for five years. I used to speak about going to India toAvada. He gave me to understand he was not particularly keen to goto India, and said he was going to stop in Ceylon, -and he said he lookedupon Ceylon as his home.* He went to India in 1913 for the purpose-of defending himself in a case brought against him by SeUambram.Rellambramwas always writing asking for half share of Avada’s
property. I asked Avada. He-* said. Sellambram had nothing to dowith it. The coolies were his own. * As far as I know, Sellambiam didnot recruit coolies for Avada. I would expect to know if this were so.The impression which Avada gave me was that he never intended to goto India.
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Cross-examined.—Avada went to India fonr or five months after I hadbeen on theestate. He neverspoketome about hie property in India.
I wired toSellambram tocometoCeylon.Sellambram's relatives
asked me to wire to him. When hecametoMahaUva andrequested
me to put h"" in charge ofAvada’saffairs Irefused. He may have
remained on the estate forthree or fourweeks. Hehas beenon the
estate off and on. It was about two or three weeks after he came Iobjected to his being' on the estate. This was because there were rowsin the lines. I object to Sellambram. I would rather fifth respondentobtained letters of administration thanthepetitioner.I gavenoticeto
seven coolies the other day who oweddebtstoAvadaKangany.
Re-examined.—The' cooliesbeing estateservants have beentaken
over to the estate account.I am runningthem withouta kangany.
Cross-examined.—The totalamount dueto AvadaKanganywould
probably be from Bs. 5,000 to Bs. 7,000.
The judgment of thfe District Judge on the question of domicilwas as follows:—
The third issue, which I will deal with' next, depends upon the questionof domicil. The question for decision is – whether the deceased hadacquired a domicil of choice in Ceylon. The question of his residencein Ceylon is easily established, and for a period of twenty-two years heresided here,and only went toIndiaonce, whenhe was compelled to do
so owing to the institution of the . casereferredto inD 1; itmightbe
reasonably deduced from this that the deceased really had intended tomake his home in Ceylon. On the -question of intention, there is theevidence of Mr. Atkins to the effect that the deceased said '* he lookedupon- Ceylon as his home. ” I had some hesitation in deciding thatMr. Atkins’s evidence was sufficient to establish the fact that Ceylonwas deceased’s domicil of choice, but in view of the deceased’s failure tovisit India for twenty-two years, except on an occasion when compelledto do bo, I think it may be fairly held that the intention to make Ceylon„ his home, as stated by Mr. Atkins, may be construed as indicating thatCeylon was his domicil of choice. On the third issue, I, therefore, decidethat, so far as the movables are concerned, the daughters of the deceasedare heirs to his estate.
A. St. V. Jayawardene (with him Mutunayagam), for petitioner.Bartholomeiisz, for respondents.
Gut. adv. vult.October 12, 1917. Wood Renton C.J.—
The point involved in this appeal is whether Sellambram, thebrother, or Sinna Kadiraie, a daughter, and Arumugam, the husbandof another daughter, of Avada, the deceased head kangany ofMiahauva estate, Halgran-oya; should be allowed to administer hisproperty. The learned District Judge has decided this question infavour of Kadiraie and Arumugam, and Sellambram appeals. Theappeal was presented to us in the following. way. Avada Wasdomiciled in India, and by Hindu Law or Custom Sellambaram was
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Renton C. J.
entitled to a half share of his estate. He should, therefore, havehis olaims to the administration considered, and, in any event,letters of administration should not be granted to the respondents 'whose interests were adverse to his own.' The learned DistrictJudge held that Avada had acquired a domicil of choice in Ceylon,but gave no adjudication on the question of Sellambram’s positionunder Hindu law, for the simple and sufficient reason that theappellant based his case in the District Court on an entirely differentground. He relied on an alleged agreement in writing (P 1) onMarch 14, 1913, between Avada and himself, the effect of which, hecontended, was to entitle him to a half share of the inheritance.The learned District Judge held that this agreement was a forgery,and I see no reason to doubt that his conclusion on the point was acorrect one. There is no material in the record that would enable uato deal with Sellambram’s' supposed claim to a share of theinheritance under Hindu law. I am of opinion that the learnedDistrict Judge’s decision that Avada had acquired a domicil ofchoice in Ceylon is correct. He had been resident in the Island fora period of from thirty to thirty-five years- During that period hehad returned to India on only three occasions, and on the last ofthese occasions he went because he was compelled to defend anaction brought against him by Sellanbram himself. The childrenof his first marriage are in Ceylon. It is true that he left his secondwife in India, but she had been his mistress before she became hiswife, and he may very well have desired to legalize the relationship.Sellambram’s evidence as to the purchase of lands by Avada inIndia is of the vaguest and most unsatisfactory character. Finally,there is the circumstance that he told Mr. Atkins, the superintendentof his estate, that he looked upon Ceylon as his home. It wasargued in support of the, appeal that this evidence was not^admissible, inasmuch as the provisions of sections 32 and 33 of theEvidence Ordinance are-exhaustive of the cases in which statementsof deceased persons are capable of proof. But evidence of this kindwould clearly be admissible under the law of England, to which 1we have to look in regard to casus omissi in the Evidence Ordinance.If Avada was domiciled in Ceylon, the grant of administration tohis estate is governed by the law of this Colony, and, under section523 of the Civil Procedure Code, the claim of the respondents, whoare his heirs, must be preferred to that of the appellant, who ismerely , a creditor under the alleged .agreement of March 14, 1913.
On these grounds I would dismiss the appeal, with costs.
De Sampayo J.—I agree.
SELLAMBRAM v. KADIRATE et al