NAGARATNAM (dd,o V. Murugappar), Appellant, and V. SUPPIAH, Respondent

015-NLR-NLR-V-74-NAGARATNAM-ddo-V.-Murugappar-Appellant-and-V.-SUPPIAH-Respondent.pdf


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JI. 1T. G. F_E Rlsr A_N DO, C.J.—N agaratnam v. Suppiah
Present : H. N. G. Fernando, C.J., and Samerawickrame, J.NAGARATNAM (d/o V. Murugappar), Appellant, and
SUPPIAH, RespondentS. C. 570j64 (F) D. C- Point Pedro, 7096
Thesavalamai—Persons to whom the law is applicable—Permanent residence acquiredby an Indian Tamil in Northern Province—Relevancy oj the Citizenship Actsof 10!S and 1940—Marriage contracted prior to Ordinance No. 5S of 1017—Dissolution by divorce in 1959—Rights of wife against the divorced husbandin respect of thediatheddam—Jaffna Matrimonial Rights and InheritanceOrdinance [Cap. 5S), as amended by Ordinance No. 5S of 1947—Scope of s. 20of the principal Ordinance.
An Indian Tamil, who, by his pormanont rosidonco and marriago in Jaffnaprior to 1940, is shown to havo boon an inhabitant of tho jNorthorn Province,is subject to tho Thosavnlamai. Tho fact that when tho Citizonship Actswore enacted in 194S and 1949 ho did not havo tho qualifications nocossaryfor citizonship undor those Acts is not relovnnt to tho question whothor hohad already bocorao a pormauont rcsidont of tho 'Northern Province prior to1949.
Tho Jaffna Matrimonial Rights and Inheritance Ordinance, as nmondodby Ordinance No. 5S of 1947, doos not affect any right acquirod prior to thodate of tho amending Ordinance. Accordingly, whoro a marriago contractedbeforo tho dnto of tho amending Ordinance is dissolved by a dccroo for divorcoafter tho amending Ordinanco came into forco, tho wifo is cntitlod to claimfrom tho divorced husband, undor tho law relating to tedialetum in soction 20of tho principal Ordinanco, ono-hnlf of tho unspent profits which, boforo thoamending Ordinance became law, had accrued after tho marriage from a businesswhich tho husband had commoncod beforo tho marriago. (Quaere, whethorsoction 20 of tho principal Ordinanco coased, after tho 1947 amendment, toentitlo tho wifo to profits arising from tho business subsequently to tho datoof tho amondment).
/VpPRAL from a judgment of the District Court, Point Pedro.
G. Ranganalhan, Q.C., with K. Thevarajah, for the plaintiff-appellant.
E. R. S. R. Coomarasicamy, with G. Chakradaran and V. Thciruma-lingarn for the defendant-respondent.
Cur. adv. vuU.
Octobor 16, 19G7. H. N. G. FkhvaNdo, C.J.—
The principal question for decision in this actionMvas whether thodefendant, who is tho divorced husband of tho plaintiff, is subject totho Tesawalamui. According to tho evidence of the defendant, ho had
H. N. G. FERNANDO, C.J.—Nagaralnam v. Suppiah
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been born in India about 1910. At Iho age of about 14 years, ho hadcomo to a village in the Northern Province whore he had been employedfor somo years. In 1930 ho started the business of a trader in tho samevillage and in 1935 he married tho plaintiff, who was herself a permanentinhabitant of Jaffna. Tho defendant had thereafter resided and carriedon business in tho Northern Province ; ho described himself as a permanentresident of the Jaffna District.
■ The Tesaualamai applies to tho “ Malabar inhabitants ” of thoNorthern Provinco, including persons of tho Tamil raeo who settledin Jaffna after the enactment of Regulation S of 1S06 (Chetly v. Chelly J).It was held in a series of decisions of this Court that “inhabitant”means a person “ who had acquired a permanent rcsidenco in thonature of domicile in the Northern Province ” (13 N.L.R. 74), or “ whohas his permanent home in the Province ” (1G N. L. R. 321), or “ a personwho has a Ceylon domicile and a Jaffna inhabitancy ” (45 N. L. R-. 414).Tho defendant’s admission that he is a permanent resident of Jaffna,coupled with tho facts that he lived and worked there for about 20 years,that he is of tho Tamil race, that he contracted a marriage to a Jaffnaresident, and that he has never resided elsewhere since 1924, amplyestablish that ho was an inhabitant of tho Northern Province.
The learned District Judge held to the contrary for two reasons—
because at tho time of his marriage, tho defendant had describedhimself as an “ Indian Tamil ”, and (b) because it was not proved thattho defendant was a citizen of Ceylon by descent or registration.
The description “ Indian Tamil ” is referable to the fact that thodefendant was not a Jaffna Tamil in tho sense that his family had notbeen resident in Jaffna and that he himself had been an immigrant fromIndia. But that description does not alter the effect of tho proved factof tho defendant's permanent rcsidenco in Jaffna which constitutedhim an actual inhabitant of the Northern Provinco.
Tho Citizenship Acts define the political status of citizens of Ceylon.These Acts were enacted only in 194S and 1949, and the fact that aperson did not at that stago havo the qualifications necessary forcitizenship is not relevant to the question whether that person had alreadybecome a permanent rosident of the Northern Province. We aro notconcerned in this caso with tho more difficult question whether a personwho has como to Ceylon after 194S, and does not acquire citizenshipin Ceylon, can claim that lie has nevertheless been a permanent inhabitantof Ceylon.
Counsel appearing for tho defendant at tho appeal did not seriouslysupport tho finding of tho trial Judge, and for tho reasons stated, woreverse that finding and hold that the defendant is subject to theThesawalamai.
i (1935) 37 N. b. R. 253.
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H. N. G. FERNANDO, C.J.—Nagarctlnam v. Suppiah
The marriage between tho plaintiff and defendant was dissolved in'1959 by a decree for divorce. By that time the Jaffna MatrimonialRights and Inheritance Ordinance had been amended by OrdinanceNo. 58 of 1947. Prior to that amendment, s. 20 (1) of the Ordinance(Chapter 4S of the 1938 Edition) provided that the tediateiam of each6pouse included one-haLf of tho profits from tho separate property oftho other spouse ; on that basis the plaintiff in this case became entitledto one-half of tho profits which arose after tho marriage from a businesswhich tho plaintiff had commenced before the marriage. By sub-section (2) of s. 20, the plaintiff become entitled upon the divorce in1959 to tako her half of tho accumulated profits.
But Counsel for the defendant argued that because s. 20 was repealedin tolo by the Ordinance of 1947, and because the present s. 20 of thoprincipal Ordinance {now Chapter 5S) contains no provision correspondingto the former s. 20, these profits are not now recoverable by tho plaintiff.Tho answer to this argument is similar to that given by the majorityof a Bench of 5 Judges in tho case reported in 53 N.L. R. 3S5. Theamending Ordinance did not affect any right acquired before thoamendment. Under the former s. 20 (1), tho plaintiff was entitled toone-half of tho profits of the business, i.o., she was, at the time when thoamending Ordinance become law, the owner of that one-half,, subjectonly to her husband’s right as manager of the property to dispose ofit. That ownership was a right she acquired under the former section,and since the husband did not exercise his power of disposition, sheremained tho owner immediately prior to the amendment. Thatright was not affected by the amending Ordinance, and with the entryof tho divorco decree in 1959 tho husband ceased to havo tho powerof disposition of the wife’s share.
According to tho findings of fact of the trial Judge, tho half-shareof tho profits from tho business from the time of the marriage until1947 far exceeded the sum of Rs. 10,000 which tho plaintiff has claimedin this action. Hcnco it is not necessary to decide in this case thequestion whethor tho former s. 20 of the Ordinance ceased, after tho1947 amendment, to entitlo tho wife to profits arising from the businesssubsequently to the date of the amendment.
The decree dismissing the plaintiff’s action is set aside, and decreewill bo entered in favour of the plaintiff for—
Rs. 10,000 and Rs. 9S9'56 being interest at tho legal rate on
Rs. 10,000 from 7.7.59 till date of action, i.e., 2S.0.61;
interest at tho legal rate on Rs. 10,9S9 56 from date of action till
dato of decree and further interest at the same rato on theaggregate amount of the dccreo till pa3Tnent ;
costs in both Courts.
Sauebawickrame, J.—I agree.
Appeal allowed.