Tharmalingam Chetty and A rtinasalam Chettiar.
1914Present: Soertsz and Hearne JJ.THARMALINGAM CHETTY, Appellant, and ARUNASALAMCHETTIAR, Respondent.
5—D. G., (Inty.) Jaffna, 562.
Tbesawalamai—Malabar Tamils—Local law—Applicable to Tamils of NorthernProvince.
Theappellant wasborn in Jaffnaof parents,who were nativesof
Ramnad, in South India, but who had settled permanently in Jaffna.
Held, that the appellant was governed by the Thesawalamai.
TheThesmoalamaiis applicable toTamils ofCeylon, who arein-
habitants of the Northern Province.
Spencer v. Rajaratnam (16 N. L. R. 321) followed.
PPEAL from a judgment of the District Judge of Jaffna. The factsappear from the argument.
N.Nadarajah, K.G. (with him H. V. Perera K.G. and H. W Thambiah),for the appellant.—The appellant is the administrator in respect of hisdeceased -wife’s estate, and the respondents are the father and motherof the deceased. The question is whether the finding of the trial Judgethat the appellant is governed by the Thesawalamai is correct. Theappellant was bom in Jaffna, and is 42 years old. His parents, althoughthey settled in Jaffna, were both born in, and natives of, Ramnad, SouthIndia.
Tharmalingam Chetty and Arunasalam Ghettiar.
The Thesawalamai cannot be applicable to the appellant. Accordingto sections 2 and 3 of Ordinance No. 18 of 1806 (Cap,. 51) .that Code wouldbe applicable only to those who were the Tamil inhabitants of Jaffnain 1806 and their descendants. They form a close group or communitylike the Kandyans. This could be implied also from sections 17 and18 of Part I. of Cap. 51. Difficulty of proof is not a material objectionbecause it exists as regards the Kandyan Sinhalese too. It is wellsettled that no person who is not a Kandyan can ever become a Kandyan—Williams v. Robertson l; Wijesinghe v. Wijesinghe 1 2; Kapuruhamyet al. v. Appuhamy et al. 3 *; Mudiyanse v. Appuhamy et alPunchi-ham** et al. v. Punchihamy, et al.s. Similar exclusiveness would attach tothose governed by Thesawalamai.
Alternatively, Thesawalamai applies only to -Tamils from Malabar'who have come and settled in Jaffna. This question is considered tosome extent in Chetty v. Chetty 6 and Savundranayagam, et al. v. Savundra-nayagam et al.7. Sections 2 and 3 of Cap. 51 expressly refer to Malabarinhabitants. The Dutch meant what they said when they used the word
Malabar ”, for they were widely travelled and knew the differencebetween the people of Malabar and the people of the Coromandel Coast.The footnote appearing in Tillainathan et al. v. Ramasamy Chetty et al.*is incorrect. It is a historical fact that the people of Malabar were andshould still be regarded as Tamils and that Malayalam is only a Sanskrit-ised form of the Tamil language. The Tamils contemplated by theThesawalamai are the Malabar Tamils. The Thesawalamai is based onthe Marumahhathayam law of Malabar. Women under the generalHindu law cannot own property—Mayne on Hindu Law (10th Ed.),p. 763. It is not so in Malabar. The Thesawalamai laws relating toadoption, pre-emption, otti mortgages, the rights of women to own property&c., were all peculiar to the Malabar people and not to all Tamils. Theevidence given by the Travancore lawyer in this case is quite clear onthese points. See also Lewis Moore’s Malabar Law and Custom (3rd ed.),particularly the chapters dealing with Adoption, Quasi-Marriage Customs,and Land Tenures. Some writers refer to Thesawalamai as applicableto “ Malabar or Tamil inhabitants ”. See, for example, p. 737 ofLorenz’s Translation of Van Leeuwen’s commentaries. “ Tamilinhabitants ” would, in such a context, mean Tamils from Malabar.
S. Nadesan (with him C. Chellappah), for the respondents.—Theexpression “ Malabar inhabitant ” is synonymous with the expression“ Tamil inhabitant ”. The question whether a person, provided he is aTamil is a permanent inhabitant of Jaffna is a question of fact. TheKandyan law, to which reference has been made, is, unlike Thesawalamaia personal law. Spencer v. Rajaratnam et al. 9 contains a full discussionof the law on all these points.
H. W, Thambiah replied.
Cur. adv. vult.
1(1886) 8 S. C. C. 36.
2(1891) 9 S. C. C. 199.
3(1910) 13 N. L. R. 321.
* (1913) 16 N. L. R. 117.
(1915) 18 N. L. R. 294.B (1935) 37 N. L. R. 253.
(1917) 20 N. L. R. 274.
8 (1900) 4 N. L. R. 328 at 333
• 16 N. L. R. 321.
SOEBTSZ J.—Thamialingam Chetty and Amnasalam Cliettiar.
July 28, 1944. Soertsz J.-—
Counsel for the appellant sought to controvert the generally acceptedview that the Thesawalamai applied to Tamils inhabiting the NorthernProvince, and to Gontend that, in reality, it applied not to all Tamilinhabitants of that province, but only to such of them as were descendedfrom the Malabar Tamils who were inhabitants of JafEnapatam at thetime the Dissawe Isaakz’s collection of customs was given full forceby the Regulation of 1806, or if that be regarded as too rigid a restriction,then, alternatively, to those Malabar Tamils, and to other MalabarTamils who had since become inhabitants of the peninsula. For ^hesecontentions, Counsel relied, almost entirely on the fact that in ^ section3 of the Regulation, it is stated that:
“ All questions between Malabar inhabitants of the said Province,or wherein a Malabar inhabitant is defendant shall be decided aoaordingto the said customs.”
He characterised as fanciful and depreciatory of the histoical acumenof the Dutch, the view expressed by the trial Judge that the Dutch fellinto the error of mistaking all the Tamil inhabitants of Jaffna as Malabars,as they resembled in physiognomy, dress and habits, the people whomthey found on the Malabar Coast and that they so came to employ theterm Malabar indiscriminately for all Tamils who had come to Jaffnafrom the territories of the Chola and Pandiya Kingdoms as well. Counselsubmitted that the Dutch were well informed in these matters and thatthey, with a full and correct appreciation of the facts, diliberately,made the Thesawalamai applicable only to the Malabar Tamils. Ifthis contention of CounseL is correct, it would mean that the prevailingview is as erroneous as it is inveterate. I do not think the facts compelus .to such a conclusion. It would appear that by 1706, the year in whichGovernor Simons commissioned the Dissawe Isaakz to collect “ TheJaffnapatam ancient customs and rules according to which ■persons ofthis province are in the habit of recovering in Civil matters, &c.therewere residents in the Province of Jaffna—Tamils who had come from theMalabar, Chola and Pandiya Kingdoms—but all of them probably dis-playing a preponderant Malabar bias in the matter of customs in conse-quence, perhaps of .the majority of them, or the most influential of them,being of Malabar origin. It is difficult to read such well known autho-rities as Lewis Moore, Mayne and others without being convinced of theMalabar origin of most of the customs collected by Isaakz as radicallydifferent from the customs appertaining to the general Hindu Lawwhich obtained in other parts of the Deccan, and that fact leads almostinevitably to the inference that even those Tamils who had come fromother parts of India such as the Coromandel Coast adopted the Malabarcustoms. When the question is considered in that way it is easy tounderstand why in the Regulation of 1806 which gave full force to thecollection made by Isaakz in 1706, it is shortly described as a collectionof the customs of the Malabar inhabitants. It is worthy of note thatin the reproduction of this collection in the appendix to Van G. Leeuwen’scommentaries, the translator speaks of it as a collection of “ customs,usages, institutions according to which Civil Cases were decided among
Gliouse and Samsudeen.
the Malabar or Tamil inhabitants, &c. Likewise Thomson in hisInstitutes of the Laws of Ceylon 1866 (calls) the collection “ Thesa-walamaior Tamil Country Law ”. Again in Thillainathan v. Ramaswamy Chettiar x,Bonser C.J. refers to it as a collection of “ The ancient customs of theTamil inhabitants of the Province of Jaffna In Marshal v. Savari 2,Clarence J. with whom was associated Dias J., said, “ We are clearlyof opinion that the devolution of the land must be decided accordingto the Thesawalamai …. The persons concerned ….were all Tamils living in the Mannar District, a portion of the NorthernProvince”. These views have been consistently followed in the latercasesT To mention one, there is the well known case of Spencer v. Raja-ratnam3) in which Ennis J. made the observation that “ the Thesawalamaiare not the customs of a race or a religion common to all persons of thatrace or religion in the Island; they are the customs of a locality andapply only to Tamils of Ceylon who are inhabitants of a particular province”.
The words I have underlined appear to me, if I may say so respectfullyto state the position concisely and correctly. The Thesawalamai appliesto Tamils with a Ceylon domicile and a Jaffna inhabitancy. Bothquestions, that of domicile and inhabitancy depend ultimately onquestions of fact, and in this case, the evidence supports strongly thefindings of the trial Judge, that the father of the appellants, althoughhe came from India, settled in this Island, animo manendi et non rever-tendi, and that he, his.wife and his son, the appellant and the appellantswife were inhabitants of the Northern Province.
I would dismiss the appeal with costs.
Hbaknb J.—I agree.
THARMALINGAM CHETTY, Appellant, and ARUNASALAM CHETTIAR, Respondent