074-NLR-NLR-V-13-KAPURUHAMY-et-al.-v.-APPUHAMY-et-al.pdf
Present: Mr. Justice Wood llenton.
Aug.
KAPURUHAMY et at. v. APPUHAMY et alC. EKumnegala, 17,990.
Ituyt’C* Ktif rtj Stniuricxe man pcnnanmUy xcHb'il in iiic Kamiyan dtorirta:id married !o u Kandyan woman—children n*d Ktindysri*.
A child of a Low-country Sinhalese man, who had becomej-r;.;:':iourly srrtM in the iiislric* of Kandyhad married a
Kandyan woman under the Kandran Marriage Law was held notto he a Kandyan.
rpJHE facts are set out in the judgment of Wood Renton J.
A. St. V. Jayewardene, for appellant.—The learned Commissioner'sjudgment is contrary to the general and natural rule that thenationality of the father decides that of the offspring.
Prom the earliest years of British rule Proclamations andOrdinances show that a well-marked distinction was alwaysrecognized between Kandyan and all other inhabitants, and it isonly those who can strictly be called Kandyans who can claim tobe governed by the Kandyan. Law, the conservation of which wasassured them—the Adigars, &c., being assured of this at the earliestconferences between the British and the Kandyans. (Proclamationscited.)
The case law on the subject is also in favour of the appellant,Kershaw's case1 having been over-ruled by Robertson's case.2Further, the decision in Wrje&inghe v. Wijesinghe a is a Full Courtauthority directly in point. See also Narayance v. Muttuswamy .4
Vernon Grenier, for respondent.—The special circumstances ofthe present case distinguish it from those cited.
With regard to the Proclamation relied on, it is submitted thatthe conferences which preceded them were not held for the purposeof determining whether Kandyan Law7 should be retained, or whomit should in the future govern. It was the change of rigime thatwas declared by them, and the declaration that Kandyan Lawwould continue to be administered was naturally addressed to theKandyan people, who alone were interested in the retention ofthat law.
As pointed out in Kershaw's caset later Proclamations did no morethan curtail the jurisdiction of the Kandyan "Adigars by makingnon-Kandyans subject to the jurisdiction of British officers, but
. 1 Ram. 60*62, 157.3 (1891) 9 S. C. O. 199.
* (1886) 8 S. C. C. 36.4 (1894) 3 S. C. R- 125. 11
11J.tf.A 89163 (5/49)
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Axy.19,1910 the same kind of law continued to be administered till OrdinanceKapurv- No, 5 of 1852, -which made no alteration in the law with regard tohomy tt. other “ natives, ” and was not followed by any other repealingenactment.
Perera'8 Collection, pp. 186, 207, is more in point than any casecited by the appellant, and even so late as 1881 Welayden v.Arunasalam1 recognized that Kandyan Law applied to othernatives than Kandyans. In Robertson's case a purely “ European ”test was applied, and that case cannot be regarded us an authorityin the present circumstances. In Wijesinghe’s case the Judges werenot unanimous as to their grounds of judgment, and the factsof that case are distinguishable, mere residence of Low-countrySinhalese in a so-called Kandyan district being relied on as groundfor application of Kandyan Law. In Narayanee v. Muttuswamy itwas not a point for decision whether Tamils could marry underthe Kandyan Marriage Registration Ordinance.
Manikkam v. Peter1 recognized that Kandyan and Low-countrySinhalese were not of different race or nationality, and there istherefore no anomaly in applying the Kandyan Law to thepresent case, as the father of the minor himself, it is submitted, hadbeen absorbed into the Kandyan population by marriage underthe Ordinance, particularly as Kandyan causes of divorce, &c.,recognized by the Ordinance would apply to his case.
There being no law written or unwritten in point, natural equityshould be resorted to.
A. St. V. Jayewardene, in reply.August 19, 1910. Wood Renton J.—
Cur. adv. vult.
My judgment in this case has been unavoidably delayed byabsence on circuit and by the necessity of obtaining access to acertain official paper. The respondents sue the appellants upon amortgage bond No. 3,381, dated November 16, 1906, alleged tohave been executed by one Brampi for a sum of Rs. 50. Themortgage was a usufructuary one. The first defendant-appellant isthe legal representative of Brampi, the second and third are subse-quent purchasers of the mortgaged premises. The . first defendant-appellant pleaded, and formal proof has been adduced in the case,that Brampi was a minor at the date of the alleged execution of themortgage bond. If he was a Kandyan, and if the case is to bedecided according to Kandyan Law, the mortgage would only bevoidable at bis option, and if he died without having taken stepsto avoid it, it would be building on his legal representative and onany party claiming through him. On the other hand, if the Roman-Dutch Law- applied, the bond would have been void, unless themoney had been borrowed for the purpose of trading, or the loan
* (1899) 4 N. L. R. 243.
(1381) 4 S. C. C. 37.
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could be brought under the head of necessaries. It was agreed – at Aug. 19,1910the hearing of the case between the parties that if the Commissioner . WoODof Requests held that the Roman-Dutch Law applied, evidence Rknton J.pould be led on both sides as to the circumstances under which and Kapuru-the purposes for which the loan was made, and that the Court should hamy «.consider whether, in point of law, it is competent for third parties Appuhamyto set up a plea of minority. The Commissioner of Requests held,however, that Brampi was a Kandyan, and that therefore, thebond in question was no longer voidable under Kandyan Law, andhe gave judgment in favour of the plaintiffs-respondents. From thatjudgment this appeal is brought. The decision of the Commissioneris based on the following admissions of parties: —
" (1) That the father of the minor was Appuhamy, the defendantm this case.
" (2) That his father was Niculas Appu, a low-country man.
“ (8) That Appuhamy settled in the Kandyan district, and wasmarried here to a Kandyan woman under the Kandyan Ordinance,
“ (4) That Punchappuhamy alias Brampi, the mortgagor, wasthe issue of that marriage, and is living in the Kandyan district. ’ ’
On these admissions the learned Commissioner of Requests held,in effect, that, inasmuch as Kandyan and Low-country Sinhalesebelong to the same race, a Low-country Sinhalese man who hasbecome permanently settled in the District of Kandy, and has marrieda Kandyan woman under the Kandyan Marriage Law, is himself toall intents and purposes a Kandyan. After careful consideration,and after an examination of all the authorities cited by Mr. A. St. V.Jayewardene in support of the appeal, and by Mr. Vernon Grenieroh the other side, I have come to the conclusion that the decisionof the learned Commissioner of Requests cannot be upheld. I donot propose to examine the authorities cited by Mr. Jayewardenehere in detail. They fall under two classes: in the first place,various enactments (for example, Proclamation of March 2, 1815,sections 7 , 8, 9, 13, 34, 89, and 51; Proclamation of January 24,
1822, sections 3 and 5) relating to the administration of justice inthe then Province of Kandy, and drawing a distinction between thelaw applicable to Kandyans and that governing other natives whomight- happen to be resident in that Province; and in the secondplace, certain decisions of the Supreme Court, to which I will referimmediately.
I do not find in any of the enactments above mentioned anydefinition of the term “ Kandyan,” or any express provision exclud-ing a Low-country Sinhalese man who has taken up his permanentresidence in the District of Kandy and has married there underKandyan Marriage Law from its purview. In addition to theauthorities cited at the argument, I have obtained from the ColonialSecfetary’s Office a copy of the ” Instructions to the Second or
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Aug. 19,1910 Judicial Commissioner in respect to Jurisdiction over native ofWood *h® Maritime Povinces, or other native Foreigners or EuropeansRenton J. not in His Majesty’s or the Honourable Company’s Military Service,”Kapuru- which are referred to in Ram. 1822—33, Appendix, p. 256, buthomy «. they throw no further light upon the question. There can be noAppuhamyhowever, but that in these enactments a distinction is
drawn between Kandyans and the other native races of thecountry. Under these circumstances we must refer to the judicialdecisions.
In the case of 'Williams v. Robertson' it was held by the FullCourt, over-ruling the decision in Kershaw’s case,2 that it is not-possible for Europeans or Eurasians settled in the Kandyanterritory to acquire a Kandyan domicil, as distinguished from aCeylon domicil. That case, however, throws no light on the positionof Low-country Sinhalese, and a similar criticism might be offeredon the case of Natayanee v. Muttuswamy,3 in which it was heldthat the marriages of immigrant Tamils resident in the KandyanProvinces are not governed by Kandyan Law. In Wijesinghe v.Wijesinghe,* however, a Sinhalese native of the Maritime Provincesand a Buddhist had settled at Ambepussa in the Four Korales, andhad there in 1843 married before the District Judge a Sinhalese Budd-hist from the low-country. . He acquired land at Ambepusssa, andresided there continuously in an official capacity till his death. Ina question whether the succession to his land was to be governed byKandyan , or by Boman-Dutch Law, the Full Court held that theBoman-Dutch Law must be applied. It was argued by Mr. VernonGrenier, however; that each of the Judges came to that conclusionon a different ground. Burnside C.J. held that as Ambepussa wasincluded in the low-country, effect must be given to the Boman-Dutch Law as the lex loci rei sitce; Clarence J. said that the KandyanLaw did not amount to a distinct lex loci rei sitce; while it was only .Dias J. who had formally held that the Kandyan Law did not applyto the case of a. Low-country Sinhalese who had settled in theKandyan Provinces. I am unable to adopt this view of the scopeof the decision- If the report of the case is carefully considered, itwill be seen that Clarence J. and Dias J. do in substance decide thecase on the same ground. As regards Clarence J., this is clear,
1 think, from the following passage in his judgment:
” It cannot be maintained that what has been conserved as' Kandyan Law ' amounted to a distinct lex) rei sitce governingabsolutely the devolution of land, like, for instance-, gavelkind landin Kent. All we know is that a certain section of the communitywithin the Kandyan Provinces, viz., the Kandyan Sinhalese, wereallowed to retain their own customary law. Wijesinghe and hiswife, being Sinhalese from another part of the Island not within
1 (1886) 8 S. C. C. 36.2 (1891) 3 S. O.R. 125 .
* (1862) Ram, 1860-1862, 157.• (1891) 9 S. 0. G. 199'
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the Kandyan Provinces, came and settled in Ambepussa. and .there Aug. 19*1910Wijesinghe acquired .this land. It is impossible to hold that their wooddescendants .thereby became subject to incidents of what is called RbSton J.Kandyan Law, so that, for instance, daughters leaving the tCapuru*
parents' house in marriage forfeit their inheritance as diga married katngdaughters.”A*P*M*
As to the view of Dias J. Jbhere can be no controversy. Moreover,it is evident that Burnside C.J. took the same view; -—
“ Now the owner of this land was not a Kandyan, he and his wife• were low-country people, who had lived all their lives in thelow-country, and they could not by any means be included in theclass of persons to whom the Proclamation applied."
It seems to me that Wijesinghe v. Wijesinghe is au authoritydirectiy applicable to the present case, and that I am bound tofollow it. It is unnecessary for me to consider the decision ofWithers J. in Manikkam v. Peter,1 further than to say that itturned on the construction of section 2 of Ordinance No. 15 of 1876.The decision of the Full Court in Wijesinghe v. Wijesinghe is, Ithink, binding upon me.
I set aside the decree under appeal and send the case hack fortrial on evidence in the Court of Requests. The appellent isentitled to the costs of the appeal. The costs of the originalproceedings and of the subsequent proceedings will be costs in thecause.
Appeal allowed.
1 {1899) 4 K. L. R. 243.