019-NLR-NLR-V-13-VELUPILLAI-v.-SIVAKAMIPILLAI.pdf
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Feb. B3f 1910 Present: Mr. Justice Middleton and Mr. Justice Wood Renton.
VELUPILLAI v. SIVAKAMIPILLAI.
D. G. (Testamentary), Batticaloa, 488.
Tesawalamai—Jaffna Tamil resident in Batticaloa—Married tn Jaffna—
Matrimonial rights of spouses—Ordinance No. 21 of 1844, s. 6.
A Jaffna Tamil went over to Batticaloa and resided there torabout thirty-five years prior to his death (in 1007), and acquiredlands and other properties. In 1801 he married in Jaffna a nativeof Jaffna, and allowed bis wife and children to live in Jaffna andvisited them periodically. In . 1902 he removed his family toBatticaloa and lived there till his death.
Held, thatthematrimonialrightsof thepartiesweregoverned
by the Tesatoalamai.
The position of the widow would depend on her special legalrights underthecustomarylaw ofJaffnawhichwasapplicable
to her husband at the date of her marriage; it would not becompetent forthehusband todeprive.her ofthoserights,at least
by acquiring without her consent a subsequent domicil of choicein the District of Batticaloa.
Both underthegeneral lawand inview of thespecialprovisions
of section 6 of Ordinance No. 21 of 1814 the rights of the partieshave to be determined by the law of domicil of the Husband atthe time of the marriage.
According to section 6 of Ordinance No. 21 of 1844 the law ofthe matrimonial domicil (and not the lex loci ret sites) is the criterionby which the rights and powers of the spouses in regard to commonproperty situated in any part of the Colony are to be determined.
O
NE Alavapillai, who was a native of Jaffna, went over toBatticaloa about thirty-fiye years ago, and bought several
lands in the Batticaloa District. In 1891 he married the respondent,also a native of Jaffna, and for the next ten or eleven years allowedhis wife and family to live in Jaffna and visited them periodically.In 1902 he removed his wife and his family to Batticaloa and residedthere till his death. During his last illness he executed on January12, 1907, his testament, whereby he bequeathed to his* five childrenfour-sixths share of all his property, with certain reservation infavour of his wife, and the remaining two-sixths share to his brotherKauap'athipillai and his nephew, the appellant, in equal shares, andfurther appointed the appellant as his executor.
The value of the testator’s immovable property in Batticaloaamounted to about Rs. 28,000, and that in Jaffna to about Rs. 1,500.
On January 23, 1908, probate of the said will was issued to theapplicant, who filed his final account on May 5, 1909. Therespondent, alleging that one-half of the immovable property was,according to the Tesawalamai, her separate property, over which
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the testator had no testamentary disposition, objected to the passing Feb. 23,1910of the final account. At the inquiry the first issue tried was whetherthe matrimonial rights of the testator and his wife should be £tVo%amt-governed by the Roman-Dutch Law or the Tesawalamai. The pM™learned District Judge held that the Tesawalamai governed thematrimonial rights of the testator and his wife.
The executor appealed.
The case was argued on February 21 and 28, 1910.
W. Jayemardene (with him Tissaverasinghe), .for the appellant.—
At the time of his marriage the testator was a resident of Batti-caloa. The Tesawalamai applies only to the Malabar “ inhabitants 11of the Province of Jaffna. “ Inhabitant" means a “ dweller orhouseholder in any place ” (Wharton** Law Lexicon); 44 one whohas a permanent home in a place *’ (B. v. Mitchell,1 Stroud 969). Achange of domicil does not depend so much upon the intention .toremain in the new place for a definite or indefinite period, as uponan intention not to return; an intention to return at a remoteperiod does not affect, if the other circumstances show that the newdomicil is the permanent home. Domicil may be acquired by residencefor a single day, if that intention be clearly proved (1 Burge 41).
By a change of residence of a permanent character voluntarilyassumed there is a change of domicil. The fact that the testatorremoved in 1902 his wife and children to Batticaloa shows the inten-tion of the testator to make Batticaloa his permanent home or domicil.
Van Langenberg, for respondent.—The matrimonial domicilgoverns the matrimonial rights of the spouses (Ordinance No. 21of 1844, section 6). The matrimonial domicil, of the parties isJaffna-. They were inhabitants of Jaffna; they were married inJaffna; the wife and children resided there from 1891 to 190?.
One spouse cannot change the domicii after marriage against thewish of the other spouse..
Jayemardene, in reply.—The domicil of the husband at the timeof marriage is Batticaloa. His wife, although the marriage tookplace in Jaffna, acquires the domicil of the husband (4 Encyclopaediaof the Laws of. England 343).
Gut. adv. unit.
[On February 23 Mr. Jayewardene obtained leave to submitfurther argument and authorities for the appellant.]
The Tesawalamai applies only to property situated in the “ Pro-vince of Jaffna." Even non-Tamils owning lands in Jaffna aregoverned by the Tesawalamai (Suppiah v. Tambiah2). Similarly,the lex loci rei sites would apply to property situated in Batticaloa.
1 10 Bast 311.* (1904) 7 N. L. B. 131.
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Feb. 23,1910 Counsel cited Robertson's case;1 Wijeeinghe v. Wijesinghe; *VdupiUm v. Wetiapillai v. Sittambelam;3 Bank of Africa, Ltd. v. Cohen;* Laws
Swakami- of England, vol. VI., 691.ptllai
February 23, 1910. Middleton J.—
In this case the appeal is against an order of the District Judgemade in a testamentary action, holding on an issue which wasdecided, in the first instance, that the matrimonial rights of thetestator and his wife were governed by the Tesawalamai. Thisquestion depends upon the wording of an Ordinance, and thatOrdinance says that “ all questions between Malabar inhabitants ofthe Province of Jaffna.M are to be decided according to the customswhibh axe laid down as applicable to the Malabar inhabitants in theTesawalamai. The questions really here are: “Was the deceaseda Malabar inhabitant of the Province of Jaffna? " And secondly,
“ Was he married to his wife in accordance with the law applicable ^to the Malabar inhabitants of the Province of .Jaffna? *’ We haveto depend for the decision of this question upon facts which havebeen deposed to by the widow of the deceased man and by theexecutor in this case, and in my opinion the widow has succeededin establishing that the deceased man was a Malabar inhabitantof the Province of Jaffna, and that his wife was married to himin Jaffna as an inhabitant also of the Province of Jaffna. I thinkthat we must construe the.word “ inhabitant ” in a more extendedmeaning than is given to it in the dictionaries from whichMr. Jayewardene drew his definition. I would construe it asindicating a “ permanent inhabitant “—one who has his permanenthome in the Province of Jaffna. The question of domicil has beenintroduced here; and, of course, in a measure that question affectsthe inferences as to the meaning of the word “ inhabitant/’ It iscontended by Mr. Jayewardene that the will is inconsistent with .theTesawalamai, and also that the evidence shows that the deceased hadan intention of abandoning his ** inhabitancy ”—if I may use. theword—of Jaffna, and taking up his abode in Batticaloa; but I think,
■ on the contrary, the terms of the will may be well open to a con-struction that they were drawn under the belief that the man wasstill an inhabitant of Jaffna.
The important part ol our decision in this case is the .applicationof what is said to be the law from the Tesawalamai to the circum-stances of the widow in this case. That, I think, would be governedby section 6 of Ordinance No. 21 of 1844, which provides that “ in-all cases of marriages contracted either within any part of thisColony or abroad without a nuptial contract or settlement, Sherespective rights and powers of the parties during the subsistenceof the marriage in and about the management, control, disposition,
i {2886) 8 S. 8. O. 36.8 (1575) Ram. 114.
8 (ISM) 9 8. 8. C. 199.* {1909) 2 Ch. 129.
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or' alienation of any immovable property situated in any part Feb.23>1910of this Colony, which belonged to either party at the time of the tfwtnT3HWmarriage or has been acquired during the coverture, and also their J.respective rights in or to such property, or any portion thereof, vdvpwiai v.or estate, oj interest therein, either during the subsistence of Sivdkami-the marriage or upon the dissolution thereof, shall in all cases ******be determined according to the law of the matrimonial domicil.”
That sub-section is repealed in so far as it is inconsistent withOrdinance No. 15 of 1876, but in my opinion in respect to JaffnaTamils it would not be repealed, and the rights of the parties, wherethere has been no previous settlement, must be,determined by thelaw of. matrimonial domicil. That law, in my opinion, was thelaw of the Teswalamai, and it will be in consideration of the findingof this Court on that point that the District Judge will in the futuredetermine the rights of the parties. I may add, however, as regardsthe law of domicil, The Lauderdale Peerage Case1 lays it down thata change of domicil, which, I think, is very much equivalent towhat I call ” inhabitancy ” here must be sine ammo revertendi, and,
I think, that the Judge was right in holding in accordance with theruling in that case that every presumption is to be made in favourof original domicil, and that no new domicil can be taken to havebeen acquired without a clear intention of abandoning the old. Ithink the order of the District Judge, therefore, must be upheld,and the appeal' dismissed with costs. 1 desire most emphatically,in giving my judgment, not to be associated with any theory as towhat is the law of the Tesawalamai on the particular point whichmay arise on the construction of the will, and I propose only todecide that in this case the parties married subject to the law of theTesawalamai, whatever it may be, and that the estate of the deceasedmust be administered according to that law.
After hearing further argument of counsel, I desire to say thatI have nothing to add to what I have stated yesterday, and Iagree with what has fallen from my brother as to the effect of section6 of Ordinance No. 21 of 1844.
Wood Benton J.—
I entirely concur both in the reasoning of my brother Middletonand in the conclusion to which he has come. But in view of theimportance of the question raised in this case, and of the very greatcare with which it has been argued on both sides, it is perhapsdesirable that 1 should say a few words. We are at present con-cerned only with the following issue:” Whether the matrimonial
rights of the testator and his wife, the first respondent, should begoverned by the Boman-Dutch Law or by the Tesawalamai.” Forthe purpose of deciding that issue, it is necessary to consider whatis the critical point of time in the csBe. It appears to me that, both110 A. C. 692 ; House of Lords,.Scotch Appeals,
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WoodHismtok J.
i v.
Sivakami-
pillai
Feb. 23,1210 under the general law and in view of the special provisions of section
6 of Ordinance No. 21 of 1844, the rights of the parties have to bedetermined by the law of the matrimonial domicil, which I see no
reason for interpreting in any other way than in its recognizedlegal sense, namely, the law of the domicil of the husband at thetime of the marriage. I have no doubt that the learned Judgecame to a right decision when he held that the evidence adducedon behalf of the appellant fell very far short of showing that therehad been on the husband’s part, at the date of his marriage in 1891,any change in his legal position as a Malabar inhabitant of theProvince of Jaffna. I think that the term “ inhabitant ” must beinterpreted in the sense of a person who,, at the time in.question,had acquired a permanent residence in the nature of domicil in thatProvince. 1. should be inclined .to hold, if it were necessary, that,even if the rights of the parties depended upon the domicil of thetestator at the date of the execution of the will, the appellant hasfailed to show that he had thrown off his admitted domicil of origin.But it is unnecessary to decide that point, inasmuch as I think thatunder the law the date of the marriage must be taken as the pointon which the decision of the issue that is now before us must turn.
If I am right so far, there are obviously two different states of factsthat may arise in the future. If it should be proved, and I desire toexpress no opinion as to what the state of the law on that pointwould be, that under the Tosawalamai as interpreted by the com-mentators and by any decisions of the Supreme Court a wife acquiresat the date of her marriage a permanent proprietary interest in thematrimonial property, of which her husband has no power to depriveher by will, the principle that was laid down, in the first place as tomovables, by the House of Lords in De Nicols v. Curlier,l and in thesubsequent proceedings in the same case by the Chancery Division,2as to immovables, in regard to the property of French spouses whohad been married without any marriage contract, but under thespecial law of community enacted by the Code Civil, would apply.The position of the widow in the present case would then depend onher special legal rights under the customary law of Jaffna whichwas applicable to her husband at the date of the marriage; and itwould not be competent for the husband to deprive her of thoserights, at least by acquiring without her consent a subsequentdomicil of choice in the District of Batticaloa. The rule of law laiddown in the case of De Nicols v. Curlier, ubi supra, would hold .goodin regard to the immovable property of the husband, even if itwere not situated in the Province of Jaffna. On the other hand,if it ultimately be shown that there is no special customary law ofthis character applicable to Malabar inhabitants of the Province ofJaffna, we should still have to consider the express provisions ofsection 6 of Ordinance No. 21 of 1844, which has not, for the
(1900) A. C. 21.
(1900) 2 Ch. 410.
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purpose of a case like the present, been repealed, in my opinion, Feb. 23,1910by Ordinance No. 15 of 1876, and which provides that in all caseswood
of marriages contracted without a nuptial contract or settlement, Kenton J.the respective rights and powers of the parties, not only during the y^upiilai o.subsistence of the marriage, but even upon its dissolution, in regard Sivakami-to immovable property situated in any part of this Colony, shall in all p*tto*cases be determined according to the law of the matrimonial domicil.
In my opinion, the clear effect of that enactment is to make thelaw of the matrimonial domicil the criterion by which the rightsand powers of spouses in regard to immovable property situated inany part of the Colony are to be determined, and there is thereforeno room for the. application of the rule (see Bank 'of Africa, Ltd. v.
Cohen1) that the lex loci ret sitee should be applied. If it had beennecessary to deoide the point, it might well, I think, have been heldthat the effect of section 15 of Begulation No. 18 of 1806 is to subjectall questions between persons who, at the date that the point is inissue, are within the meaning of that section “ Malabar inhabitantsof the Province of Jaffna ” to the provisions of the customary law.
But, apart from that, section 6 of Ordinance No. 21 of 1844 is, Ithink, decisive. On the grounds I have endeavoured to state Iagree with my brother Middleton.
Appeal dismissed.
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