Kapuruhamy Et Al V. Appuhamy

Present : Mr. Justice Wood Kenton.

KAPURUHAMY et al. v. APPUHAMY et al.

C. R., Kurunegala, 17,990.

Low-country Sinhalese man permanently settled in the Kandyan district and married to a Kandyan woman-Children not Kandyans.

A child of a Low-country Sinhalese man who had become permanently settled in the District of Kandy and had married a Kandyan woman under the Kandyan Marriage Law was held not to be a Kandyan.

THE facts are set out in the judgment of Wood Renton J.

A. St. V. Jayewardene, for appellant.-The learned Commissioner's judgment is contrary to the general and natural rule that the nationality of the father decides that of the offspring.

2. From the earliest years of British rule Proclamations and Ordinances show that a well-marked distinction was always recognized between Kandyan and all other inhabitants, and it is only those who can strictly be called Kandyans who can claim to be governed by the Kandyan Law, the conservation of which was assured them-the Adigars, &c, being assured of this at the earliest conferences between the British and the Kandyans. (Proclamations cited.)

3. The case law on the subject is also in favour of the appellant, Kershaw's case 1 having been over-ruled by Robertson's case.2 Further, the decision in Wijesinghe v. Wijesinghe 3 is a Full Court  authority directly in point. See also Narayanee v. Muttusivamy.4

Vernon Grenier, for respondent.-The special circumstances of the present case distinguish it from those cited.

With regard to the Proclamation relied on, it is submitted that the conferences which preceded them were not held for the purpose of determining whether Kandyan Law should be retained, or whom it should in the future govern. It was the change of regime that was declared by them, and the declaration that Kandyan Law would continue to be administered was naturally addressed to the Kandyan people, who alone were interested in the retention of that law.

As pointed out in Kershaw's case, later Proclamations did no more than curtail the jurisdiction of the Kandyan Adigars by making non-Kandyans subject to the jurisdiction of British officers, but

Foot Notes:

1 Ram. 60-62, 157.
2 (1886) 8 S. C. C. 36.
3 (1891) 9 S. C. C 199.
4 (1894) 3 S. C. R. 125.

the same kind of law continued to be administered till Ordinance No. 5 of 1852, which made no alteration in the law with regard to
other "natives, " and was not followed by any other repealing , enactment.

Perera's Collection, pp. 186, 207, is more in point than any case cited by the appellant, and even so late as 1881 Welayden v. Arunasalam [1 (1881) 4 S. C. C. 37. ] recognized that Kandyan Law applied to other natives than Kandyans. In Robertson's case a purely " European " test was applied, and that case cannot be regarded as an authority in the present circumstances. In Wijesinghe''s case the Judges were not unanimous as to their grounds of judgment, and the facts of that case are distinguishable, mere residence of Low-country Sinhalese in a so-called Kandyan district being relied on as ground for application of Kandyan Law. In Narayanee v. Muttuswamy it was not a point for decision whether Tamils could marry under the Kandyan Marriage Registration Ordinance.

Manikkam v. Peter [2 (1899) 4 N. L. R. 243.] recognized that Kandyan and Low-country Sinhalese were not of different race or nationality, and there is therefore no anomaly in applying the Kandyan Law to the present case, as the father of the minor himself, it is submitted, had been absorbed into the Kandyan population by marriage under the Ordinance, particularly as Kandyan causes of divorce, &c, recognized by the Ordinance would apply to his case.

There being no law written or unwritten in point, natural equity should be resorted to.

A. St. V. Jayewardene, in reply.

Cur. adv. vult.

August 19, 1910. WOOD RENTON J.-

My judgment in this case has been unavoidably delayed by absence

Click Here to Read the rest of this document