050-NLR-NLR-V-37-CHETTY-v.-CHETTY.pdf
Chetty v. Chetty.
253
1935Present: Poyser and Koch JJ.
CHETTY v. CHETTY.
23—D. C. (Inty.) Jaffna, 8,059.
Thesawalamai—Malabar inhabitants of Jaffna—Vanii/as settled in Jaffna forthree generations—Governed by Thesawalamai.
Where Tamils, belonging to the community known as Vaniyas, hadmade Jaffna their home for three generations and had observed thecustoms followed by other Hindu families,—
Held, that the parties are Malabar inhabitants of Jaffna within themeaning of Regulation No. 18 of 1806, to whom the Thesawalamaiapplies.
T
HE petitioner applied for letters of administration to the estate of adeceased person, Parameswary, on the footing that she is an heir
of the deceased according to the Thesawalamai. The respondent, thefather of the deceased, claimed to be the sole heir on the ground that theparties were governed by the Roman-Dutch law. The learned DistrictJudge held that the Thesawalamai applied to the parties.
Hayley, K.C. (with him Balasingham and N. E. Weerasooria), forappellant.—The parties to these proceedings are Vaniya Chetties. Theircustoms are different from those of the Tamils of the Northern Province.They are a distinct race and have not been assimilated into the communityof Jaffna Tamils. The Jaffna Tamils are the descendants of the Tamilinhabitants of the Kingdom of Jaffna when it was ruled by Tamil Kings.Thesawalamai applies only to those Jaffna Tamils who can be said to beinhabitants of the Northern Province. It does not apply to a differentrace such as the Vaniya Chetties.
Regulation No. 18 of 1806 speaks of “ Thesawalame or customs of theMalabar inhabitants of the Province of Jaffna”. This Regulation con-templated only those who were inhabitants of the Province of Jaffna in1806 and their descendants. The ancestors of the parties to this actionsettled down in Jaffna only for the last three generations and so theycannot be held to be governed by the Thesawalamai.
In Savundaranayagam v. Savundaranayagam' it was decided that aTamil coming over from outside the Province of Jaffna and settling inJaffna could not acquire the status of a Malabar inhabitant of the Provinceof Jaffna. The facts of the present case are very much stronger in favourof the appellant.
H. V. Per era (with him S. Nadesan), for respondent.—The word“ Vaniya Chetty ” does not mean a race. It is the name of a caste.There are a large number of castes among Tamils. One of such castes isthe Vaniya caste. The members of this caste belong to the Tamil race andare therefore Malabars within the meaning of Regulation No. 18 of 1806.That the parties to this action are Malabars has been conceded in thelower Court. The simple question in this case is whether Parameswary
37/201 30 N. L. R. 275.
254
POYSER J.—Chetty v. Chetty.
the deceased was a Malabar inhabitant of the Northern Province. Thereis no doubt that she was a Malabar. It is equally clear that she was aninhabitant of the Northern Province.
It is not necessary that Parameswary’s ancestors should have beeninhabitants of the Province of Jaffna in 1806. The regulation does notsay that it applies to those who were inhabitants in 1806 and not to thosewho were inhabitants in 1807. Considering the fact that the Thes<v-walamai is a special law and that the burden of proving that she is subjectto it is on him who pleads it, it will be almost impossible for many personswho consider themselves subject to the Thesawalamai to prove affirmativelythat their ancestors were inhabitants prior to 1806. Neither can a Courtof law profitably launch on such an investigation.
There is also no reason why 1806 and not 1707 the year of the collectionof the Thesawalamai should be taken as the crucial date.
In Spencer v. Rajaratnam1 Enns J. states the crucial date is the dateof death of the person in question. So the only question is whether aperson was a Malabar inhabitant on the date of his death. There is nojustification for a further limitation of the word “ inhabitant ”.
See Velupillai v. Sivakamipillai’, where too the meaning of the word“ inhabitant ” is considered.
Savundaranayagam v. Savundaranayagam (supra) does not decide that aTamil coming from outside the Northern Province cannot become subjectto Thesawalamai. It decides on the facts that the burden of proving thatSavundaranayagam was subject to the Thesawalamai was not discharged.
Cur. adv. vult.
Hayley, K.C., in-reply.
September 13, 1935. Poyser J.—
The question to be decided in this appeal is whether succession to theestate of the deceased child Parameswary is to be governed by the Thesa-walamai or the Roman-Dutch law.
The petitioner applied for letters of administration on the footing thatshe is an heir of the deceased according to the law of the Thesawalamai.Th£ third respondent, the father of the deceased, claimed to be the soleheir of the deceased on the ground that the law to which the parties aresubject is the Roman-Dutch law.
The material facts as found by the trial Judge are breifly as folows : —The parties in the case are admittedly Tamils and belong to the commu-nity known as the Vaniyas, they have for about three generations madeJaffna their permanent home and they observe the main customs observedby the other Hindu families of Jaffna. Further, the third respondenthimself has previously acted as if he were subject to the Thesawalamaifor he caused his deceased wife’s estate to be administered accordingto that law.
Those being the facts, the question for decision is whether the partiescan be said to be Malabar inhabitants of Jaffna within the meaning ofRegulation No. 18 of 1806.
» 16 N. L. R. 321.
* 13 N. L. R. 74.
POYSER J.—Chetty v. Chetty.
255
It is conceded that the word Malabar used in the above Regulation issynonymous with * Tamil ’ ; it was also admitted in the lower Courtthat the parties have a Ceylon domicile.
It was argued on behalf of the appellant that the Thesawalamai appliesonly to those who were Malabar inhabitants of Jaffna in 1806 and theirdescendants and does not apply to those Tamils from India or Ceylon whohave settled in Jaffna after that date.
In this case the deceased’s great-grandfather Nagalingam Chetty camefrom India, the date is uncertain but would be at least 50 or 60 years ago.
The District Judge has rejected that argument; he points out that theThesawalamai itself indicates that it was intended to apply to futuresettlers from India.
Clause 17 of section 1 commences as follows :—“ If a Pagan comes fromthe Coast or elsewhere and settles himself here ….” The Coast
presumably means the Coast of India. While this clause strongly supportsthe Judge’s finding, there is nothing in the Thesawalamai to indicate thatit would not apply to Tamils who subsequently became inhabitants ofJaffna. The following authorities also support the Judge’s finding.VelupUlai v. Sivakamipillai,1 in which Middleton J. observes : —
“ I think that we must construe the word ‘ inhabitant ’ in a moreextended meaning than is given to it in the dictionaries from whichMr. Jayewardene drew his definition. I would construe it as indicatinga ‘ permanent inhabitant ’, one who has his permanent home in theProvince of Jaffna. The question of domicile has been introducedhere; and, of course, in a measure that question affects the inferenceas to the meaning of the word ‘ inhabitant
Wood Renton J., in the course of his judgment in the same case,said:—
“ I think that the term ‘ inhabitant ’ must be interpreted in thesense of a person who, at the time in question, had acquired a permanentresidence in the nature of domicile in that Province ”.
In a later case, Spencer v. Rajaratnam Wood Renton A.C.J-stated: —
“ I adhere to the opinion which I expressed in that case (Velupillaiv. Sivakamipillai) that the term * inhabitant ’ in Regulation No. 18 of1806 must be interpreted in the sense of a person who at the criticalperiod had acquired a permanent residence in the nature of domicil inthat Province. It is not desirable or possible to lay down any generalrules as to the circumstances which will suffice to establish the existenceof such a residence. Each case must depend on its own facts ”.
In the same case Ennis J. stated:—
“ The Thesawalamai are not the customs of a race or a religion,common to all persons of that race or religion in the Island; they arethe customs of a locality, and apply only to Tamils of Ceylon who are
116 N. L. R. 321.
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POYSER J.—Chetty v. Chetty.
inhabitants of a particular Province. The customs constitute a localrather than a personal law, and this turns on whether Naganathan wasor was not in fact an inhabitant of Jaffna at the date of his death
If the principles set out in the above cases are applied, and they arebinding on us, there cannot be the slightest doubt that the parties in thiscase are inhabitants of Jaffna.
I think the District Judge, who dealt at length with both the facts andthe law, has come to a correct conclusion.
I would dismiss the appeal with costs.
Koch J.—I agree.
Appeal dismissed.