Velupillai V. Sivakamipillai

Present: Mr. Justice Middleton and Mr. Justice "Wood Renton.

VELUPILLAI v. SIVAKAMIPILLAI.

D. C. (Testamentary), Batticaloa, 488.

    Tesawalamai-Jaffna Tamil resident in Batticaloa-Married in Matrimonial rights of spouses-Ordinance No. HI of 1844, s. 6.

A Jaffna Tamil went over to Batticaloa and resided there for about thirty-five years prior to his death (in 1907), and acquired lands and other properties. In 1891 he married -in Jaffna a native of Jaffna, and allowed his wife and children to live in Jaffna and visited them periodically. In 1902 he removed his family to Batticaloa and lived there till his death.

Held, that the matrimonial rights of the parties were governed by the Tesawalamai.

The position of the widow would depend on her special legal rights under the customary law of Jaffna which was applicable' to her husband at the date of her marriage; it would not be competent for the husband to deprive her of those rights, at least by acquiring without her consent a subsequent domicil of choice in the District of Batticaloa.

Both 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 be determined by the law of domicil of the husband at the time of the marriage.

According to section 6 of Ordinance No. 21 of 1844 the law of the matrimonial domicil (and not the lex loci rei sitce) is the criterion by which the rights and powers of the spouses in regard to common property situated in any part of the Colony are to be determined.

ONE Alavapillai, who was a native of Jaffna, went over to Batticaloa about thirty-five 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 allowed his wife and family to live in Jaffna and visited them periodically. In 1902 he removed his wife and his family to Batticaloa and resided there till his death. During his last illness he executed on January 12, 1907, his testament, whereby he bequeathed to his five children four-sixths share of all his property, with certain reservation in favour of his wife, and the remaining two-sixths share to his brother Kanapathipillai and his nephew, the appellant, in equal shares, and further appointed the appellant as his executor.

The value of the testator's immovable property in Batticaloa amounted 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 the applicant, who filed his final account on May 5, 1909. The respondent, alleging that one-half of the immovable property was, according to the Tesawalamai, her separate property, over which

the testator had no testamentary disposition, objected to the passing Feb. 23,1910 of the final account. At the inquiry the first issue tried was whether the matrimonial rights of the testator and his wife should be governed by the Roman-Dutch Law or the Tesawalamai. The learned District Judge held that the Tesawalamai governed the matrimonial rights of the testator and his wife.

The executor appealed.

The case was argued on February 21 and 23, 1910.

E. W. Jayewardene (with him Tissaverasinghe), for the appellant.- At the time of his marriage the testator was a resident of Batticaloa. The Tesawalamai applies only to the Malabar " inhabitants of the Province of Jaffna. " Inhabitant " means a " dweller or householder in any place " (Wharton's Law Lexicon); " one who has a permanent home in a place " (R. v. Mitchell,1 Stroud 969). A change of domicil does not depend so much upon the intention to remain in the new place for a definite or indefinite period, as upon an intention not to return; an intention to return at a remote period does not affect, if the other circumstances show that the new domicil is the permanent home. Domicil may be acquired by residence for a single day, if tha

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