086-NLR-NLR-V-16-SPENCER-v.-RAJARATNAM-et-al.pdf

A.C.J.
Elliott (with him Wadsworth and Arvlanandam), for the plaintiff,appellant.—The Tesawalamai is a personal law. A person who is■subject to the Tesawalamai cannot lose his rights under that law byceasing to reside in Jaffna. Once a Jaffna Tamil, always a JaffnaTamil, The Tesawalamai is part of the Hindu law (see Mayne’sHindoo Law, chapter J.). It has been held in India that a Hindufamily migrating from one part of the country to another does notlose their rights under their laws, as the laws applicable to them arepersonal laws. Debi v. Dhabal;1 see also Anni v. Subbaraya.* Hindufamilies are presumed to have retained the law of their origin untilit is clearly, shown that they have adopted a different domicil. (SeeSoorendronath Boy v. Burmoneah,* Debea v. Dobay 4).
At the time Ordinance No. 15 of 1876 was proclaimed the parentsof Naganathan were Tamils, who were subject to the Tesawalamai.Section 2 of the Ordinance specially excludes from its operation" Tamils of the Northern Province who are or may become subjectto the Tesawalamai.” After the proclamation of the Ordinance itis not possible for Tamils of Jaffna to acquire rights under thatOrdinance.
» (1902) 29 Cal. 433.* (1568) IS M. I. A. 81.
* (1901) Si Mai. 650.* (1864) Suth. W. R. 56.
Vol. XVI. “
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Regulation No. 18 of 1806 did not in any manner introduce anynew provision regarding the Tesawalamai. It only declared thatthe existing laws of the conquered people should be continued.The term “ Malabar inhabitants of the Province of Jaffna ” shouldnot be restricted to refer to persons who are actually residing, inJaffna. The expression is used as equivalent to Tamils of Jaffna.Ordinance No. 15 of 1876 indicates that the Tesawalamai is a personallaw, just as much as the Muhammadan law or the Kandyan law.Ordinance No. 1 of 1911 and Ordinance No. 15 of 1876 do not usethe term “ inhabitant. * * Section 8 of Ordinance No. 1 of 1911says that the Ordinance applies to “ those Tamils to whom theTesawalamai applies.*’ The Regulation of 1806 was not intendedto make actual residence in Jaffna a condition for the enjoymentof the rights.
It was held in Velupillai v, Sivakamipillai1 that both under thegeneral law and in view of the special provisions of section 6 ofOrdinance No. 21 of 1844 the rights of the parties have to be deter-mined by the law of domicil of the husband at the time of themarriage. It was further held there that the law of the matrimonialdomicil and not the lex loci rex sitce is the criterion by which therights and powers of the spouses, in regard to common propertysituated in any part of the Colony is to be determined.
. [Wood Renton A.C.J.referredcounsel toWellapullav.Sitambelem.*']* That case is not a decision against me. It merely holds that theTesawalamai is not applicable to the Tamils of Trincomalee. Itdoes not hold that a Tamil of Jaffna residing in Trincomalee wouldnot be governed by the Tesawalamai.
The conduct of Arumogan and Sinnatangam was that of personswho considered themselves Jaffna Tamils in every sense. Arumoganbought property in Jaffna and visited Jaffna. He sent his wife toJaffna for confinement. When his sister died he dealt with thewhole property as sole heir, as under the Tesawalamai a downedsister has no right to succeed to the property of an unmarried sister(Anthony v. Nathalie 3). Naganathan must be presumed to haveretained the domicil of his parents. He was bom in Jaffna. Hedied when about 29 years of age.’ As long as he was a minor hecould not have changed his domicil. He did not live sufficientlylong after he became a major to enable us to say that he had madeup his mind to throw off his Jaffna domicil. On the other hand,all his acts show that he retained his Jaffna domicil. He visitedJaffna; he had not cut himself off from his Jaffna relations.
Arumogan and Sinnatangam were married before Ordinance No. 15of 1876 was proclaimed. All parties appear to have treated Sinnatan-gam *s dowry property as her separate property, and not includedin the property dealt with by the joint will. If parties were
1 (1910) 13 N. L. 12. 74.* (1875) Ram. 1872-78,114.
3 (1843) Muttukisna 167.
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considered to be governed by the Roman-Dutch law, all property IMS.would be treated as common property.Spmeer «
Counsel argtied on the facts.Rajaratnam
Kanagasabai (with him Joseph), for the heirs of fifth defendant,respondent, and the sixth to eighth defendants, respondents.—Thefact that Arumogan and Sinnatangam executed a joint will provesnothing. It is not correct to say that joint wills are executed bythose subject to the Roman-Dutch law only. Even persons subjectto the Tesawalamai do execute joint wills.
The expression “ Malabar inhabitant of the Province of JaSna ”means Jaffna Tamils as distinguished from Tamils of Batticaloa,
Ac., who were governed by other laws. Counsel cited The Lauder-dale- Peerage case.1
H. A. Jayewardene (with him Allan Drieberg), for the firstdefendant, respondent.
Van Langenberg, K.C., Acting Attorney-General (with him E. W.Jayewardene), for second and third defendants, respondents.—
Mr. Kanagasabai’s clients cannot claim any relief as they had notappealed. The District Judge held that they were not entitled to anyportion of Naganathan’s estate. It is not open to them to claimrelief without having filed an appeal. A cross appeal under section772 is not open to a party in the position of these respondents.
The Tesawalamai is not a purely personal law. It is a personallaw plus a territorial law. It affects only immovable propertywithin the district. No case has been cited to show that in thecase of intestacy any property situated in Colombo or elsewhereout of Jaffna was governed by the Tesawalamai. Nor has it beenshown that property owned by a Kandyan in Colombo was everin the case of intestacy governed by the Kandyan law. Counselreferred to Mudiyanse v.Appuhamy et al.,2 Wijesinghe v.Wijesinghe-3There is the right of pre-emption in Jaffna. This cannot be intro-duced into Colombo. This is a purely local law.
The word “ Tesawalamai ” means customs of the country.
Customs refer to a particular locality. See Halsbury’s Laws ofEngland, tit. Customs.
Regulation of 1806 shows clearly that the Tesawalamai is a locallaw, and that it refers to land tenure mainly. Wellapulla v. Sitam-belem «• is an authority to that effect. The term “ inhabitant ” canrefer only to a person having a permanent home in Jaffna.'
In The King v. Perumal 5 it was held that the Tesawalamai didnot apply to Indian Tamils resident in the Central Province.
The preamble of Ordinance No. 4 of 1895 makes it clear that the -Tesawalamai is a territorial law and not a personal law. If the
» 10 A. C. 692; 2 Burge 63.* (1891) 9 8. C. C. 199.
a (1913) 16 If. L. IB. 117.* (1875) Ram. 1872-76,114.
* (1911) 14 N. L. R. 496.
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Tesawalamai is to be applied to Jaffna Tamils living in Colombovit would not be possible to say what portion of the law is to beapplied. A good part is obsolete (UmatavipiUai v. Murugasar l), andit is impossible to say what portion of the living law is applicable.
Fernando v. Proctor 3 is opposed to the doctrine, once a JaffnaTamil always a Jaffna Tamil.
There.is only one domicil in Ceylon, viz., a Ceylon domicil. Thereis no Jaffna domicil in Ceylon as opposed to a Ceylon domicil.The only question which we have to decide is whether Naganathanwas a Malabar inhabitant of the Province of Jaffna. It cannot besaid that Naganathan had a permanent home in Jaffna, or that hewas a permanent inhabitant of Jaffna. We are here concerned withNaganathan's estate, and not with Arumogan*s estate. Counselreferred to Velupillai v. SivdkamipUlai,s Robertson's case.i 4. * *
Even Arumogan conducted himself as if the Tesawalamai didnot apply to him. When his sister died he disposes of his sister'sproperty. Under the Tesawalamai he would not have been heirto his sister. The rule of the Tesawalamai is that property of malesdevolves on males, and the property of females on females. Thereis no law which excludes a downed sister from succession to hersister. A downed daughter is no doubt excluded from successionto her father's estate, but not from her sister's estate. See Thidga~rajah v. Parmchotipillai et al5 Thambar v. Chinnatamby;6 Muttu-kisna, p. 728 (sec. 10); 61, 625.
The facts proved in this case do not show that Naganathan everintended to make Jaffna his home. There is nothing to show thateven Arumogan had an intention of returning to Jaffna. Eventhose who have made Colombo their permanent home and. havedivided their properties according' to the Boman-Dutch law havegone to Jaffna occasionally and have owned some properties there.In determining the question of a man's domicil, it is material toconsider where his wife and family have their permanent residence.(Platt v. The Attorney‘General of New South Wales;7 see also BullenSmith v. BulUn Smith,9 Chalmers v. Wingfield *). Section 6 ofOrdinance No. 21 of 1844 refers only to the rights of spousesinter se.
H. J. C. Pereira (with him Sansoni and Retnam), for the fourthdefendant, respondent.
Elliott, in reply.—The Tesawalamai may be divided into twoheads. One part deals with personal relations, &c*., which JaffnaTamils carry with them Wherever they go. The other part deals
i (.1899) 8 Bal. 119.
(1909) 12 N. L. R. 309, page 312.
» (1910) 18 N. L. R. 74.
* (1886) 8 8. C. C. 36.
» (1887) 67 L. T. 898.
5 (1908) 11 N. L. R. 846.e (1908) 4 Tamb. 60.
T (1878) 38 L. T. 74.
* (1888) 68 L. T. 578.
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with land tenure and other matters, which are purely local. Thissecond part governs even persons other than Jaffna Tamils. Aforeigner buying lands in Jaffna will be governed by the law ofpre-emption. See Suppiah v. Thambiak.1 The law as to ottimortgages would apply to all persons resident in Jaffna. Thereare some portions of the Tesawdlamai which are applicable to landsin particular villages only.
The portions of the Tesawalamai which deal with the matrimonialrights of the parties and with inheritance are not local. Theyattach to the person, and are applicable to Jaffna Tamils whereverthey be resident.
No argument can be based on the fact that'a joint will wasexecuted by Aromugan and his wife. Such a form of will isexecuted even by Jaffna Tamils resident in Jaffna. But it isnoteworthy that the joint will makes provisions which Tamilssubject to the Tesawalamai would make. The separate propertyof the wife was not brought into community. It was not inven-torized when the will was proved on Arumogan’s death.
Kanagasabai, in reply.
Cur. adv. vult,
June 17, 1913. Wood Renton A.C. J.—
The question for decision in the present case is whether the distri-bution of the estate of a deceased intestate, Arumogan Naganathan,is governed by the Tesawcdamai or by the general law of inheritance.The properties of which the estate consists are described inthree schedules to the plaint, and comprise various lands, shares,insurance policies, and other movables. Neither the immovablenor the movable property with which we are here concerned issituated within the Northern Province. The intestate Naganathanwas the son of a Tamil gentleman, Naganathan Arumogan, andhis wife Sinnatangam, and derived his title to the propertiesdescribed in the first and second schedules from their joint will.The first defendant-respondent is Naganathan’s widow, who hasbeen found lunatic, and appears by her guardian ad litem, herfather. The second, third, and fourth defendants-respondents arethe joint executors of Sinnatangam. The plaintiff-appellant andthe fifth and seventh defendants-respondents, whose interests areidentical with those of the plaintiff, are the heirs of Manicam,Arumogan's sister. The sixth and eighth defendants-respondentsare respectively the husbands of the fifth and seventh. The plain-tiff’s case is that Naganathan was a “ Malabar inhabitant of theProvince of Jaffna,” within the meaning of Regulation No. 18of 1806, and that his estate, therefore, must be-distributed underthe TesavxUamai. The representatives of the fifth and the sixth,seventh, and eighth defendants associate themselves with this
i (1904) 7 N. L. R. 152.
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Spencer o.Rajaratnam
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Wood
Benton
A.C.J.
Spencer «.Rajaratnam
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contention. The remaining defendants maintain that Naganathanwas not a “ Malabar inhabitant of the Province of Jaffna/’ andthat his estate must, therefore, be distributed under the generallaw. The learned District Judge has adopted the defendants’ viewof the law and the evidence, and has dismissed the plaintiff’s action,directing him to pay the costs of the fifth, sixth, seventh, andeighth defendants, who, at the close of the trial in the District Court,were made co-plaintiffs with the original plaintiff by an order undersection. 18 of the Civil Procedure Code, and also the costs of theother defendants. The original plaintiff appeals, and the addedplaintiffs seek to obtain special relief by a notice of objections undersection 772 of the Civil Procedure Code. The argument in supportof the appeal ranged over a wide field, and raised many problems ofgreat interest and difficulty. But the only question that has to bedirectly decided in the present case is whether or not Naganathanwas a “ Malabar inhabitant of the Province of Jaffna ” in theBense in which these words are used in Regulation No. 18 of 1806.In answering this question we must exclude the idea of domicil,properly so called. The term ** domicil ” is used in the statutelaw, and at least in the older case law, of the Colony, sometimesin its legal and sometimes in its loose and popular acceptation.But it is well settled (Wijesinghe v. Wijesinghe *) that nothing buta Ceylon domicil can be acquired in this Colony. Moreover, it is,in my opinion, clear both upon, and apart from, the authorities,that the Tesawaldmai is not a personal law in Ceylon as the Hinduor the Muhammadan law is in British India. The case of Wellapullav. Sitambelem2 is a decision—and a, decision, as we have ascertainedby reference to the Supreme Court Minutes of June 1, 1875, of theFull Court—to that effect. The question involved in the case waswhether the Tesawalanuu was applicable to the Tamil inhabitantsof Trincomalee. Morgan C.J., in delivering the judgment, adoptedthe following passage from a report prepared for the Supreme Courtby Mr. Grenier, Secretary of the District Court of Jaffna: “ So farit is beyond the possibility of a doubt that the country law or Tern*walamai was designed to have effect only in the Province of Jaffna,
of which Trincomalee never formed a part or parcel and
said that *' an exceptional custom, in derogation of the commonlaw of the land, is not lightly to be presumed.”
A similar decision waa given with reference to Batjticaloa in
C. Batticaloa, No. 13,925.® It results from these authorities thatthe Teswumlamai is not a personal law attaching itself by reasonof descent and religion to the whole Tamil population of Ceylon,but an exceptional custom in force in the Province of Jaffna—novft the Northern Province—and in force there, primarily, andmainly at any rate, only among Tamils who can be said to be
i (1891) 9 S. C. C. 199.2 (1875) Ram. 1879-76, 114.
* 11875) Ram. 1872-76,116.
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“inhabitants” of that Province, and further that, as the Tesawalamaiis a custom in derogation of the common law, any person whoalleges that it is applicable to him must affirmatively establish thefact. The principle of these decisions has been adopted by theSupreme Court in determining the scope of Kandyan law also(Wijesinghe v. Wijesinghe, ubi supra, Mudiyanse v. Appuhamy 1),and is clearly deducible from the various enactments on which the.authority of the Tesawalamai depends. The English text of theTesawalamai published in Volume I. of the Bevised Ordinances hasbeen held by the Supreme Court to be the sole recognized officialrepository and declaration of the laws and custom of the Tamilsof Jaffna (Sabapabhi v. Sivaprakasam i 2). In that translation theTesawalamai is described as “ the laws and customs of the Malabarsof Jaffna,” and also as the Jaffnapatam ancient customs andrules.” In the letter (Bevised Ordinances, Vol. I., p. 30) dated June4, 1709, by which the Dutch Government promulgated the Tesa-walamai, authenticated copies of the collection are directed to besent “ to the Court of Justice and the Civil Landraad for theirguidance,” and not, as might have been expected, to the Courtsgenerally throughout the Island, if it had been intended that theTesawalamai should have an extra-provincial application. Begu-lation No. 18 of 1806, which kept the Tesawalamai on foot underBritish rule, assigns as the reason for its promulgation the necessityof re-establishing the security of property within the Province ofJaffna and the prevention of “ enormities, which for the last yearshave disgraced ” that Province. Sections 1 to 13, which have nowbeen repealed, have a practically exclusive provincial application,while Ordinance No. 4 of 1895, which modified the law of the Tesa-walamai as to the publication of sales or other alienations of immov-able property, expressly states in its preamble that it is dealingwith “ immovable property situated in those parts of the NorthernProvince to which the Tesawalamai applies.” It is in the lightof these provisions that the words in sections 14 and 15 of BegulationNo. 18 of 1806, “the Malabar inhabitants of the Province of Jaffna,”have to be interpreted. We are not here concerned with the ques-tion which came before the Supreme Court in Velupillai v. Sivakami-pillai* whether section 6 of Ordinance No. 21 of 1844 had not madethe rights and powers of spouses to whom the Tesawalamai appliesdepend on that enactment even as regards immovable propertysituated outside the limits of the Northern Province. But I adhereto the opinion which I expressed in that case that the term “ in-habitant ” in Begulation No. 18 of 1806 must be interpreted in thesense of a person who at the critical period had acquired a permanentresidence in the nature of domicil in that Province. It is notdesirable or possible to lay down any general rules as to the
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Benton
A.C.J.
Spencer ©.Rajaratnam
i {1913) 16 V. L. R. 117.
{1910) 13 N. L. R. 74.
* {1905) 8 N. L. R. 26,
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Spencer v.Jtajaratnpm
circumstances which will suffice to establish the existence of such aresidence. Each case must depend on its own facts. There maybe, on the one hand, a residence in Jaffna which will not suffice tomake a Tamil an " inhabitant " of that Province within themeaning of the Regulation of 1806, and, on the other hand, aresidence elsewhere, even for protracted periods, which will notdeprive him of that character. An advocate practising before theSupreme Court in Colombo or a Government servant permanentlyattached to the kachcheri at Galle or Matara might well, if he werea Jaffna Tamil, retain such a connection with his native Provinceas to entitle him to the benefit of its customary law. But the merefact that a man is a Jaffna Tamil by birth or by descent, while itis a circumstance of which account must be taken in consideringhis. real position, will not bring him within the scope of the statutorydefinition of the class of persons to whom the Tesawalamai applies.These conclusions, 1 think, necessarily arise on a fair construction ofthe statutory provisions with which we have to deal in the presentcase. They are justified also by the well-known conditions ofsocial and public life in this Colony. The evidence shows, and thefact is notorious apart from it, that there are many Jaffna Tamilswho, while retaining all their natural affection for the Province inwhich they were born, h^ve severed their personal and family andprofessional or business connections with it to an extent whichmakes it impossible that they can fairly be described as being anylonger* * * inhabitants ’ ’ of that Province. . To subject persons ofthis description to a customary law so complicated, confused, anduncertain in many of its provisions, as is the Tesaimlamai, wouldbe a grave step.
The learned District Judge has traced the history of Naganathanand his family, and it is unnecessary to repeat what he has said.I agree with the conclusion at which he has arrived. The plaintiffhas not, in my opinion, shown that Naganathan was a " Malabarinhabitant of the Province of Jaffna." If the plaintiff had beenobliged to rely on evidence directly applicable to Naganathan, hercase would have been hopeless from the outset. He left Jaffnawhen he was a few months old, and lived and died in Colombo.He married in Colombo a lady—the first defendant—whom theDistrict Judge has found to have been a Colombo, and not a JaffnaTamil, and the plaintiff’s counsel themselves elicited from the firstdefendant’s father in cross-examination the fact that when themarriage was proposed Naganathan told him “ that he was aColombo man and domiciled in Colombo." The only circumstancesthat can be said in any way to counterbalance this evidence arethe alleged visits of Naganathan to Jaffna in 1888, again in 1895,and twice between 1895 and 1898. This evidence, most of whichthe learned District Judge describes as "extremely vague,"-is,however, quite insufficient, even if accepted in its entirety, to show
1918.
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that Naganathaa was an “ inhabitant of the Province of Jaffna,"or had any intention of becoming one.
But the plaintiff’s oaBe does not rest exclusively on the evidencespecially applicable to Naganathan. She depends also, as she isentitled to do, on the evidence as to Arumogan and his wife Sinna-tangam, and Arumogan’s parents before him. The fact thatNaganathan’s parents and grandparents were “ Malabar inhabitantsof the Province of Jaffna " would not, of course, necessarily showthat Naganathan was one. But it might create a presumption infavour of that conclusion. The learned District Judge holds—andhis finding on the point is not challenged—that Arumogan’s fatherTilliyan Naganathar, and mother Kadiresu, lived and died in Jaffna,and were " inhabitants " of that Province. The evidence reliedupon to prove that Arumogan preserved the local status which hethus acquired at birth may be summed up as follows. He preservedthe family name and religion. He married a Jaffna lady. Hevisited Jaffna in 1874, 1875, and 1888 for business and ceremonialpurposes. Although he sold one of his lands in Jaffna, he tookcare that the purchaser was a relation. He bought another landin the Province for over Bs. 800—a high price for a comparativelypoor man, as he is then said to have been. When his sister They-vanai died in 1870, he dealt with her property as sole heir—on thebasis of the provisions of the Tesawalamai, which, it is alleged,would exclude his other sister Manicam, who had been downed,from the succession. The provisions of his joint will recognizedSinnatangam’s separate rights under the Tesawalamai to her dowryproperty. Sinnatangam too evinced,1 an intention to remain an“ inhabitant " of the Province of Jaffna. Although she wasmarried in the district of CKilaw, she returned to Jaffna for her* first confinement. Her dowry property was not inventorized on theadministration of the estate of either Arumogan or Naganathan.Whatever might be said as to the conduct of her husband in thisrespect, she at least appointed Tamil executors. She spoke in herwill of '* my house at Anacotta," directed that her personalproperty should be taken and kept there, and left a bequest to alocal temple for the purpose of securing the perpetual observanceof a religious ceremony in memory of her.
But there are very serious considerations that have to be reckonedwith on the other side. Although Arumogan might cease to be an“ inhabitant " of the Province of Jaffna, he did not cease to be aTamil and' a Hindu. There is, therefore, nothing surprising in the.fact that he retained the family name and religion, and kept himselfin occasional touch with his friends in Jaffna. Moreover, theevidence shows that it is not unusual even for members of theColombo Tamil community td retain portions of their ancestralproperty in the Province of their birth. Although Arumoganmarried a Jaffna lady, the marriage itself was not celebrated in
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Spencer u.
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Jaffna, and the home was undoubtedly in the district of Colombo*It was in that district that most of his immovable and, with theexception of some shares in the Jaffna Trading Company, hismovable estate was locally situated. His sister Theyvanai, in whosehouse he was brought up, had severed her connection with Jaffna.
I am by no means certain that the case of Anthony v. Nathalie,1on which the plaintiff’s counsel relied as proving that a dowriedsister in the position of Manieam would, under the Te&awalamai,take ho interest in a deceased sister’s estate, does in fact supportthat proposition. The general rule enacted by the Tesawalamai isthat the property of males devolves on males and that of femaleson females, and the case of Thamber v. Ghinnatamby 2 seems to meto indicate that Manieam’s rights of succession would not, in a caselike the present, be excluded. The appointment by Arumogan inhis joint will of European executors—an appointment of a kindadmittedly unusual among Tamils—is a circumstance to which con-siderable weight must be given, and which is by no means explainedaway by the fact that the executors in question were his ownemployers. Thef inventory of Arumogan’s property was notadduced in evidence by the plaintiff, and there is, therefore, nothingto show that it did not include Sinnatangam’s separate property.Sir Stanley Bois, one of Arumogan’s joint executors, was asked noquestion—as he ought to have been if the plaintiff relied on the{act—as to whether or not Sinnatangam’s separate property hadbeen included in the inventory of Arumogan’s estate, or as to why itwas not included in that of Naganathan, of whom he saw a greatdeal after Arumogan’s death. That Sinnatangam should have goneback to her parents’ house for her first confinement is a considerationof almost no importance. It was the natural and usual course for alady in her position to adopt. But she subsequently gave birth totwo other children, and on neither of these occasions did she returnto Jaffna. The removal of some of her personal property to herhouse at Anacotta and the foundation of a religious ceremony in atemple there in memory of her are circumstances open to the sameobservations that I have already made in dealing with Arumogan.She remained a Tamil, although her matrimonial home had beenin the district of Colombo. It was quite natural that she shouldretain her house in Jaffna, although it is worthy of notice that shedid not continue to live in it after Naganathan’s death. Sinna-tangam was a Hindu as well as a Tamil, and might reasonablydesire that her memory should be preserved in a temple situatedin the district where she had been bom and brought up.
I agree with the learned District Judge that the evidence doesnot show that either. Arumogan or Sinnatangam was a Malabarinhabitant of the Province of Jaffna, and can, therefore, addlittle strength to the plaintiff’s case as regards Naganathan himself.
* (1848) Muttukiena 197.
• C1903) 4 Tomb. 90.
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The appeal must be dismissed. But I would materially varythe order of the District Judge as to costs. The fifth, sixth, seventh,and eighth defendants-respondents should not, in my opinion, havebeen made, as they were made, added plaintiffs against theirconsent. On the other hand, they had no right, as their counselMr. Kangasabai admitted in his reply, to prefer a cross notice ofobjections under section 772 of the Civil Procedure Code, inasmuchas that section contemplates cases in which the notice of objectionsis to be pressed against the appellant. Here the interests of theoriginal plaintiff and the added plaintiffs are the same. The plain-tiff’s counsel Btrongly urged that the denial by the contestingdefendants of those portions of the family history Which the DistrictJudge has held to have been conclusively proved was vexatious,and should be taken account of in his favour in the apportionmentof costs. There would seem, however, to have been some degree ofuncertainty as to some of the points which have now been clearlyestablished. Mr. Spencer, the plaintiff’s son, for instance, statedthat he was not aware of the existence of Arumogan till 1888. Butthe order which I propose to make as to costs will give whateverweight is due to the arguments, on behalf of the added plaintiffsand the original plaintiff, which I have just mentioned. Theinterests of all the contesting defendants were identical. Theyhave elected to support-their position by an army of separateproctors and counsel, both in the District Court and for thepurposes of the appeal. They muBt bear the expenses of thisluxury themselves. It is wholly • unreasonable that the jointexecutors of Sinnatangam should have severed their defences orthat the first defendant-respondent should not have associatedherself in a single defence with them. I would direct, While dis-missing the appeal, that the original plaintiff and the addedplaintiffs should pay the costs of action and of appeal of one setof respondents only.
Ennis J.—
The question for decision in this appeal is whether succession to-the property of one Arumogan Naganathan, a Tamil gentleman,who died intestate on October 8, 1904, is governed by the Tesa-walamai or by Roman-Dutch law.
. On the death of Naganathan his estate was distributed accordingto the rules of Roman-Dutch law, and the appellant bases his claimon the ground that Naganathan was an inhabitant of the NorthernProvince, to whom the Tesawalamai applied, and that the estateshould have been distributed according to the rules of the Thesa-walamai. It is admitted that the whole of the "property, with theexception of a few shares in the Jaffna Trading Company, consistsin lands and personal property in Ceylon outside the limits of theNorthern Province.
Wood
Heston
A.C.J.
Spencer «.Bajaratnam
( 882 )
Regulation No. 18 of 1806 prescribed that “ the Tesawalamai,or customs of the Malabar inhabitants of the Province of Jaffna, ascollected by order of Governor Simons in 1706, shall be consideredto be in full force,” and that “ all questions between Malabarinhabitants of the said Province, or wherein a Malabar inhabitantis a defendant, shall be decided according to the said customs.”The collection of customs above referred to, now generally knowsas the Tesawalamai, included customs relating to Btatus andcustoms relating to land. So far as these customs relate to landas distinct from persons, they have been held not to apply outsidethe limits of the Northern Province (Wella-pulla v. Sitambelem1), andlegislation has been enacted, e.g., Ordinance No. 4 of 1896, on theassumption that they do not apply beyond those limits. It iscontended, however, that, so far as the customs relate to statusincluding therein the rules for the distribution of estates on intestacy,the Tesawalamai is a personal law, similar to the Hindu law inBritish India, whioh could be shaken off only by acquiring a newdomicil. The statute law of Ceylon has more than once used theword ” domicil ” as though more than one domicil could beacquired in Ceylon. The word is found in section 6 of OrdinanceNo. 21 of 1844 and in'section 25 of No. 15 of 1876. In the latterOrdinance reference is made to a person having a domical ina " part of this Island ” as distinct from the Maritime Provinces,but as the Ordinance does not apply to Kandyans, or to Tamilsof the Northern Province subject to the Tesawalamai, I do notunderstand the reference. Only one domicil can be acquired inCeylon (Wijesinghe’s ease 2); and the common law of the land isthe Boman-Dutch law, which would apply unless it can be provedby the party asserting it that a special custom applies in anyparticular case.
The Tesawalamai are not the customs of a race or a religioncommon to all persons of that race or religion in the Island; theyare the customs of a locality, and apply only to Tamils of Ceylonwho are inhabitants of a particular Province. The customs consti-tute a local rather than a personal law, and this case turns on whetherNaganathan was or was not in fact an inhabitant of Jaffna at thedate of his death.
In questions relating to domicil there is a presumption of law thatthe domicil of origin is retained-until a change is proved, but itseems to me that when the question is one of inhabitancy, for thepurpose of the application of a local custom, the presumption is notin favour of the original inhabitancy, but of the actual residence ata particular time; that there is a presumption that a change ofresidence to a place outside the limits of local custom indicates anintention to depart from local custom. In my opinion, the presentcase must be approached from this point of view.
> (1875) Bam. 1872-76,114.2 (1891) 9 S. C. C. 199.
(333)
As to.the facts, it is admitted that Naganathan was a JaffnaTamil by descent, and it is now conceded that he was bom in Jaffna.
■ He however lived, carried on business, married, and died in Colombo;,and, except for a few months after his birth and occasional visits,he was never in the Northern Province. The learned District Judgehas found that Naganathan's wife was a Tamil of Colombo, and herfather gave evidence saying that he arranged the marriage of hisdaughter with Naganathan on the footing that Naganathan waspermanently settled in Colombo and not subject to the Tesatoalamai.The evidence as to whether Naganathan's father and mother couldbe considered inhabitants of the Northern Province is of littleweight, if any, against the evidence relating directly to Naganathan,which leaves no doubt in my mind that Naganathan was aninhabitant of Colombo and not of the Northern Province. Thedistribution of his estate would, therefore, be governed byRoman-Dutch law.
– I would dismiss the appeal, but as the interests of the defendantsseem to be the same, I would allow them one set of costs only bothin the original action and on the appeal.
Appeal dismissed.
♦
1918.
Bkhis J.
Spencer o.Rajaratnam