079-NLR-NLR-V-12-FERNANDO-v.-PROCTOR-et-al.pdf
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Present: The Hon. Kir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Wood Benton.
1909.
October 27.
FERNANDb v. PROCTOR et oZ.
D. C., Chilaw, 3,924.
Tesawalaraai—Tamil woman marrying a Malabar inhabitant of Jaffna—Nationality—Regulation No. 18 of 1806—Ordinance No. 16 of1876, s. 2—Roman-Dutch Law.,
Where a Tamil woman, not an inhabitant of Jaffna, marries aTamil inhabitant of Jaffna, she does not become, by the marriage,an inhabitant of Jaffna, by operation of section 2 of OrdinanceNo. 15 of 1876.
A
PPEAL by the 4th and 5th defendants from a judgment of theDistrict Judge of Chilaw (T. W. Roberts, Esq.). The facts are
fully set out in the judgment, which was as follows (June 15,1909):—“ The plaintiff claims half share of the land in dispute on purchasefrom a gentleman known as Jolly Philips dated 1907. The landbelonged as dowry property to the wife of this Philips, and on herdeath he administered her estate after notice to her sisters and hermother. In 1907 he conveyed half this land to himself as her husbandand part heir, and the rest to her other relatives in their respectiveshares, and on the same day he sold plaintiff his half of this land,which, as administrator, he had just conveyed to himself as heir.
“ One of the deceased lady’s sisters and her husband are thecontesting defendants. Their case is that they are Jaffna Tamils,to whom the Tesawalamai applies, and that therefore plaintiff’svendor Philips inherited nothing from his deceased wife, and had notitle to convey to plaintiff. The question therefore is plain. Is theRoman-Dutch Law or the Tesawalamai the law applicable to thepresent case ?
“ Now, the Tesatocdamai is on the name of it the custom of acertain country, and in the description of it given in its preambleit is the law and customs of the Malabar inhabitants of the Provinceof Jaffna. In the Proclamation No. 18 of 1806, from which itderives its present force, that law is similarly limited to Malabarinhabitants of the Province of Jaffna.
“ It is clear on the evidence that the deceased wife of Jolly Philipswas a lady descended from a Jaffna Tamil long settled in Puttalamand Chilaw, and that she was bora in Puttalam and lived and diedin Chilaw, and there is no proof that she ever went to the Province ofJaffna. I am unable on these facts to see how that lady can be con-sidered to be or to have been an inhabitant of the Province of Jaffna.She was not born there, and she did not live there. She was neveran inhabitant of the Province of Jaffna. It was suggested that
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1909. Puttalam formed part of the Province of Jaffna in view of certainOctober 27. statements reported on page 115 of Ratnanathanf s Reports, Fof. 1872—1876. But I can find no clear foundation for this statement. It doesnot agree with the argument at top of the next page in regard tothe Charter of 1833. And if it eveu was the case under that Charterand subsequent enactments, Puttalam clearly ceased to have anyconnection with the Northern Province, and for many years nowthe law of succession among Puttalam Tamils has. I believe, beenthe Roman-Dutch Law.
“It is equally clear on the facts that the deceased lady was,properly speaking, an inhabitant of Chilaw District. And I observethat, in the matter of the division of a payment of Rs. 500 owed tothe deceased lady by her sister and father, all the members of herfamily adopted and followed the Roman-Dutch Law, although thatproperty was nothing other than dowiy property. There is nothingin the Tesawalamai which explicitly makes it applicable to JaffnaTamils living elsewhere, or applicable to any one but ‘ Malabarinhabitants of the Province of Jaffna.’ I must hold, then, thatin this case the Roman-Dutch Law applies, because the deceasedlady and her sister are, though Malabar inhabitants, not of Jaffna,but of Chilaw. I would also hold that the residence of her familyin Chilaw for the space of two generations constitutes Chilaw theirdomicile. And I find in testamentary case No. 69 of this Court thatthe husband of the deceased lady’s sister has adopted the same view,and,in 1905 taken out administration to his wife’s estate as heir ofHalf without so far raising any objection from the respondents, whoare the persons defending the present case.
“It is unnecessary, then, to go fully into the facts of the case,but I will briefly discuss them for the sake of completeness. I findmyself in considerable doubt of plaintiff’s statement that for ayear after he bought he had possession of this land, whfle the fifthdefendant flatly denied. But the point is immaterial, and may beleft there. On the plaintiff’s other allegations, viz., of fact creatingestoppel, I would accept plaintiff’s version. Fifth defendant’sdenial was in tins respect somewhat evasive and hair splitting. Thepresent fifth defendant acted as agent for his wife and her mother,and his action binds them. – He discussed with plaintiff the proposalthat plaintiff should buy this land from the administrator, and he' never told plaintiff plainly that the administrator had no right tosell nor that he would dispute the sale.
“ Similarly, the mother and sisters of the deceased lady in silenceallowed the widowed husband to take out administration and conveyto himself half the property. They were doubtless well aware aJlalong that he had as administrator derived title in himself as heir andobtained grant on that footing. Against that they raised no protest.Plaintiff was misled by their silence in the administration proceed-ings and by the fifth defendant’s more positive conduct previous
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to the sale into a belief that the administrator had title to sell. Ithink that validly estops defendants from denying his title. I findthat the parties are entitled to this land in the shares given in theplaint. Enter decree for partition as prayed for and for the costsof this contention.”
The fourth and fifth defendants appealed.
. Walter Pereira, K.C., S.-G. (Balasingham with him)., for theappellants.
Sampayo, K.C. (Cooray with him), for the plaintiff, respondent.
Giir. adv. vuU.
October 27, 1909. Hutchinson C.J.—
The land, for the partition of winch this action was brought,belonged to Susan Pliilips. On her death her husband took outadministration to her estate ; he claimed to be entitled to one-halfof the land by inheritance from her, and conveyed it to himself andthen transferred it to the plaintiff. If the ordinary law of inherit-ance applied to her estate, he was so entitled ; but the appellants,the fourth and fifth defendants, assert that the Tesavxdamaiapplied, and if they are right, the husband was not entitled to anyshare in this land, which was part of her dowry property.
The Tesawalamai apply to “ the Malabar inhabitants of theProvince of Jaffna.” And Susan Philips was not and never hadbeen an inhabitant of that Province. The Solicitor-General, how-ever, contended for the appellants that, by virtue of section 2 ofOrdinance No. 15 of 1876, on her marriage with her husband, who,tie says, was a Tamil inhabitant of that Province, she also became aTamil inhabitant of that Province. If she had been a Sinhalese,she would doubtless by virtue of her marriage with a Tamil havelieen thenceforth, so long as the marriage subsisted and until shemarried again, taken to be of the same race and nationality as herhusband. But she did not become an inhabitant of the Province ofJaffna. So that whether her husband was or was not an inhabitantof that Province, the judgment of the District Court in favour of theplaintiff was right.
I think the appeal should be dismissed with costs.
Wood Renton J.—
The point at issue in this case may be shortly stated thus. Therespondent claims a half share of the land in suit, for the partitionof which lie has instituted these proceedings, by virtue of a deed oftransfer in his favour by one Jolly Philips, administrator of theestate of his wife, Susan Philips, part of whose dowry propertythe land is alleged to have been, and who died in Colombo withoutissue. If the rights of Jolly Philips in his deceased wife’s estateare governed by Roman-Dutch Law, lie was entitled to the share that
1909.
October 27.
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190»» he has disposed of. If, on the other hand, those rights depend onOctober 27. the TesawalamcU, Jolly Philips inherited no part of his wife’s dowryland. The learned District Judge has held that the TesawalamaiBenton j. does not apply to the case. I think that he is right.
Regulation No. 18. of 1806 provides that the Tesaivalamai, “ orcustoms of the Malabar inhabitants of the Province of Jaffna,as collected by order of Governor Simons, in 1706, shall be con-sidered to be in full force.” On the face of this Regulation, theoperation of the Tesawalamai is restricted to persons who can fairlybe said to be “ inhabitants ” of the Province of Jaffna, now theNorthern Province. Susan Philips was not herself an “ inhabitant”of that Province. Although she was of Jaffna Tamil descent, herfamily had long been settled in Puttalam and Chilaw. She wasbom in the former, and lived and died in the latter, town, andthe District Judge finds that there is no proof that she ever wentto the Province of Jaffna. The learned Solicitor-General argued,however, that on her marriage with Jolly Philips she became a“ Tamil of the Northern Province ” within tlje meaning of section2 of Ordinance No. 15 of 1876. That section is in the followingterms :—“ Whenever a woman marries, after the Proclamation ofthis Ordinance, a man of different race or nationality from her own,she shall be taken to be of the same race and nationality as herhusband for all the purposes of this Ordinance, so long as themarriage subsists and until she marries again. Save as-aforesaid,this Ordinance shall not apply to Kandyans or Muhammadans, orto Tamils of the Northern Province who are or may become subjectto the Tesawalamai.”
Apart from the fact that this section deals in terms only withthe wife and with her position during a subsisting marriage, or tilla re-marriage, I do not think that a marriage between Tamils isone between persons of “ different race or nationality ” within themeaning of the section, even if the husband is, and the wife is not, an“ inhabitant ” of the Northern Province. It may be that, apart fromOrdinance No. 15 of 1876, the matrimonial domicile of the spouseswould, in such a case, be that of the husband. But I express noopinion on that point now; for the evidence here does not show thatJolly Philips himself, any more than his wife, was an “ inhabitant ”of the Northern Province. Although his father was a Jaffna Tamil,he himself was bom in Trincomalee, where his family was settled forforty-five years or more. His father was Kachcheri Mudaliyar atTrincomalee, and returned to Jaffna after he retired. It wassuggested that his official absence from Jaffna did not deprive himof his legal position as an “ inhabitant ” of that Province. Butthere is nothing to prove that Jolty Philips ever acquired a right tobe so described.
I would dismiss the appeal with costs.
Appeal dismissed.