Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,
and Mr. Justice Wood Renton.

FERNANDO v. PROCTOR el al.

Tesawalamai-Tamil woman marrying a Malabar inhabitant of Jaffna- Nationality-Regulation, No. 18 of 1806-Ordinance No. 15 of 1876, s. 2-Roman-Dutch Law.

Where a Tamil woman, not an inhabitant of Jaffna, marries a Tamil inhabitant of Jaffna, she does not become, by the marriage, an inhabitant of Jaffna, by operation of section 2 of Ordinance No. 15 of 1876.

APPEAL by the 4th and 5th defendants from a judgment of the District Judge of Chilaw (T. W. Roberts, Esq. ). The facts are fully set out in the judgment, which was as follows (June 15, 1909): -

" The plaintiff claims half share of the land in dispute on purchase from a gentleman known as Jolly Philips dated 1907. The land belonged as dowry property to the wife of this Philips, and on her death he administered her estate after notice to her sisters and her mother. In 1907 he conveyed half this land to himself as her husband and part heir, and the rest to her other relatives in their respective shares, and on the same day he sold plaintiff his half of this land, which, as administrator, he had just conveyed to himself as heir.

" One of the deceased lady's sisters and her husband are the contesting defendants. Their case is that they are Jaffna Tamils, to whom the Tesawalamai applies, and that therefore plaintiff's vendor Philips inherited nothing from his deceased wife, and had no title to convey to plaintiff. The question therefore is plain. Is the Roman-Dutch Law or the Tesawalamai the law applicable to the present case ?

" Now, the Tesawalamai is on the name of it the custom of a certain country, and in the description of it given in its preamble it is the law and customs of the Malabar inhabitants of the Province of Jaffna. In the Proclamation No. 18 of 1806, from which it derives its present force, that law is similarly limited to Malabar inhabitants of the Province of Jaffna.

" It is clear on the evidence that the deceased wife of Jolly Philips was a lady descended from a Jaffna Tamil long settled in Puttalam and Chilaw, and that she was born in Puttalam and lived and died in Chilaw, and there is no proof that she ever went to the Province of Jaffna. I am unable on these facts to see how that lady can be considered to be or to have been an inhabitant of the Province of Jaffna. She was not born there, and she did not live there. She was never an inhabitant of the Province of Jaffna. It was suggested that

Puttalam formed part of the Province of Jaffna in view of certain statements reported on page 115 of Ramanathan's Reports, Vol. 1872-1876. But I can find no clear foundation for this statement. It does not agree with the argument at top of the next page in regard to the Charter of 1833. And if it even was the case under that Charter and subsequent enactments, Puttalam clearly ceased to have any connection with the Northern Province, and for many years now the law of succession among Puttalam Tamils has, I believe, been the Roman-Dutch Law.

" It is equally clear on the facts that the deceased lady was, properly speaking, an inhabitant of Chilaw District. And I observe that in the matter of the division of a payment of Its. 500 owed to the deceased lady by her sister and father, all the members of her family adopted and followed the Roman-Dutch Law, although that property was nothing other than dowry property. There is nothing in the Tesawalamai which explicitly makes it applicable to Jaffna Tamils living elsewhere, or applicable to any one but ' Malabar inhabitants of the Province of Jaffna. ' I must hold, then, that in this case the Roman-Dutch Law applies, because the deceased lady and her sister are, though Malabar inhabitants, not of Jaffna, but of Chilaw. I would also hold that the residence of her family in Chilaw for the space of two generations constitutes Chilaw their do