034-NLR-NLR-V-16-MUDIYANSE-v.-APPUHAMY-et-al.pdf
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Present: Wood Benton J. and Pereira J.
MUDIYANSE u. APPUHAMY et al.
31S—D. C. KegaBa, 3,236.
Law applicable to offspring of Kandyan father by Low-country Sinhalesewoman—Domicil as a test on questions relating to applicabilityof Kandyan law—Buie of law as to nationality of wife orp child—Applicability of section 2 of Ordinance No. IS of 1876 to unionbetween Kandyan and Low-country Sinhalese woman.
The offspring of a Kandyan father by a Low-country Sinhalesewoman cannot be regarded as a Kandyan, subject to the incidentsof the Kandyan law.
Domicil is not a test to be applied in the solution of questions asto the applicability of the Kandyan law.
The rule of law that the wife takes the husband’s nationality, andthe child the father’s, holds good only where the term “ nationality ”is used in its strictly legal sense, that is to say, in the sense ofsubjection to the flag of a particular sovereign power. It has noplace when the word is used in a loose sense, in the sense, forinstance, of “ race,”, there being no rule of law that the offspring ofa mixed union belongs to the race either of the father or the mother.
Held, further, following Manikkan v. Peter,1 that a Low-countrySinhalese woman is not a person, of different race or nationalityfrom a Kandyan. Section 2 of Ordinance No. 15 of 1876 does nottherefore apply to the case of a union between a Kandyan and aLow-country Sinhalese woman.
T
H Hi facts are set out in the following judgment of the DistrictJudge (W…deLivera, Esq.):—
I have to decide in this case pure questions of law. The plaintiff atthe trial restricted his claftn to Kehelkotuwawatta (half share) and halfshare of the other land; they belonged to Julia Appu, who died leavinga widow, Lucyhami, and two children, Mango Nona and Brampy. Theywere Low-country Sinhalese.
• Mango Nona was married to Samuel Appu, a Kandyan, on June 2,1887. Samel Appu lived with her in her house. They had a son, JohnSinno, bom in 1888, May 20 (P 1).
By mutual consent the marriage of Samel Appu and Mango Nonawas dissolved on June 10, 1889 (D 6), and the child was to remain withthe mother by agreement. Mango Nona died in January, 1899. JohnSinno died on January 3, 1904, in the Karawanella hospital when hewas sixteen years old (P 2).
Plaintiff purchased from Samel Appu by deed 20,579 in March, 1910,the entirety of the lands in question. The plaintiff at the trial restricted• hip claim to an undivided half share of the lands.
1918*
14 N. L. 2*. m.
1013.
Mudiyatuev♦
Appuhamy
( H8 )
Brampy, the brother of Mango Nona, died about ten years ago,leaving his widow, Agidahamy, and two children, Mico Nona andPunohi Mahatmaya.
The defendants have purchased the entirety of the land from them—6,171, March 7, 1910 (D 1).
The first defendant has sold half share to one Funchi Appuhamy andDingiri Appuhamy—20,689, June 29, 1910 (D 2). On the facts admittedseveral issues have been framed* In the view I take of this case onlythe first and second need be decided.
Though it was denied at first that John Sinno was a child of MangoNona, later on, after production of documents, the defendants' counseldid not*deny John Sinno was the child of Mango Nona and Samel Appu.
The important question, then, is, who is the heir of that child, thefather, or Brampy, the uncle (child’s mother's property) l
Mango Nona was a Low-country woman settled in the Kandyancountry; Samel Appu was a Kandyan. The child, I hold, acquires thenationality and domicil of the father, and would have to be taken as aKandyan; and that being so, in my opinion the inheritance to thechild’s property would have to be regulated by the Kandyan law.
It was not disputed by the plaintiff’s proctor that if the Kandyan lawwere to apply Samel Appu would have no right. In a recent case(11,017—C. R. Kegalla) decided by me on October 8* 1912, I held thefather is not the heir of the property of his children bom in a binamarriage, which they have acquired through their mother; the maternaluncles or next of kin on the mother’s side are the heirs to such children.{Sawer's Digest 18,)
I have discussed all the authorities bearing on the point in 11,017,in which an appeal has been filed. The source from which the childacquired the property seems to me to be immaterial; once it is vested inthe child, it must devolve according to the rules of the Kandyan law.
I' hold Brampy, the uncle of John Sinno, succeeded to John Sinno’sproperty, and not John Sinno’s father, Samel Appu.
Holding, as I do, against the plaintiff on the second issue, there is nonecessity to discuss questions of estoppel. If I had to decide them, Iwould hold the plaintiff is not ..estopped from denying title of‘Brampy'owing’ to his taking a lease from Brampy, and the plaintiff’s vendorsigning as an attesting witness to the lease.
The plaintiff’s action for declaration of title is dismissed with costs.
Bawa, K.C.y for plaintiff, appellant.
De Sampayo, K.C.t for defendant, respondents.
•Cur. adv. vult.
February 28, 1913. Pebeiba J.—
The main question in this case is whether the deceased, JohnSinno, an offspring (bom within the Kandyan Provinces) of aKandyan father by a Low-country Sinhalese woman, can; be said,to have been a Kandyan, subject to the incidents of what is knownas the Kandyan law. As observed by Clarence J. in the case ofWijesinghe v. Wijesinghe,1 Kandyan law is the customary law which
i 9 S. C. C, 119.
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a certain section of the community within the Kandyan Provinces,namely, the Kandyan Sinhalese, were allowed by the BritishGovernment to retain. “ It did not amount to a distinct lexloci rei cites governing absolutely the devolution of land.” It istherefore not what may be termed a " local law ” governing allpersons living within a certain area; it is rather a personal lawattaching to the individuals, wherever they may be, belonging to acertain particular class or section of the Sinhalese subjects of theGrown. That being so, the mere fact that a person is bom or isresident within the Kandyan Provinces is insufficient to bring him.within the pale of the Kandyan law. The District Judge seems to-think that because a child acquires the nationality and domicil ofthe father, John Sinno should be regarded as a Kandyan. Asregards domicil, it will be seen that Burnside C.J., in the case ofWilliams v. Robertson,1 was of opinion that a person could notacquire a Kandyan domicil as distinguished from a Ceylon domicil.He argued: ” It would not be possible in the present day to contendsuccessfully that a domicil of choice could be obtained in a com-munity which does not possess supreme or sovereign power.” But,
' perhaps, the District Judge has used the term ” domicil ” in the lesstechnical sense in which it is used in section 8 of Ordinance No. '5 of1852, which speaks of “ Europeans and persons commonly known asBurghers ” who are “ domiciled ” within the Kandyan Provinces.In any sense, however, domicil, as shown above, is no test to beapplied in the solution of questions as to the applicability ofKandyan law. As regards “ nationality,” the District Judge isapparently using the word in its strictly legal sense. It is only whenthe word is used in that sense that it can be said that the wifetakes the husband’s nationality and the child the father’s. Thus,every subject of the Crown, be he Sinhalese, Tamil, Chinese, orHottentot, is British in nationality, that is to #ay, he is subject tothe British flag; but where the word is used in a looser and morepopular sense—in .the sense- of race for instance—the rule relied onby the District Judge has no application at all. I am aware of norule of law that makes the offspring of a mixed union belpng to therace of either the father or the mother. Like the Eurasians ofCeylon and India, and the Mulattos of the Spanish settlements, they. must fall into some separate and. special group or groups to beknown by some distinctive designation or designations. Eor thesereasons, the offspring of a Kandyan father by a Low-countrySinhalese woman cannot be said to be Kandyan. It is not necessaryto inquire how he may be classified. If he is not Kandyan, thespecial Kandyan law cannot, of course, apply to him. He must-be governed by the general law of the land.
Section 2 of Ordinance No. 15 of 1876 has been cited in thecourse of the argument in appeal. With reference to this section,
* 8 S. C. C. 86.
IMS.
Pbbeiba J.
Mudiyanse
v.
Appuhamy
IMS.
Phrbiba 7,MudiyanstAppuhomy
( WO )
it .has been held by this Court, in the ease oi Manikkan v. Peter,*-that a Low-oountry Sinhalese woman is not a person of differentraoe or nationality from a Kandyan Sinhalese, and that, therefore,the seotion has not the effeot of rendering a Low-oountry Sinhalesewoman who marries a Kandyan liable to be regarded as a Kandyan.This decision is, I think, quite justified by the plain words usedin the seotion, and it is therefore not permissible to speoulate as towhat was intended by it by the Legislature. The seotion referBalso to Tamils of the Northern Provinoe, who are governed by theTesawalamai, and, whatever the Legislature may have intended,it will, I think, be doing violenoe to language to say that theseTamils are of a raoe or nationality different from that of the otherTamils in the Island. Moreover, the section is silent as to theoffspring of a union between persons who are not of the same raoeor nationality.
For the reasons given above, I would set aside the judgmentappealed from and remit the oaso to the District Judge for final .decision, on the footing that the devolution of the property of JohnSinno should be aooording to the general law of the land, and notthe speoial Kandyan law.
The appellants should have their costs.
Wood Benton J.—
I have had some doubts, but on the whole I agree.