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THEVAGNANASEKARAM v. KUPPAMMAL et al.
NLR36V337
1934 Present :
Macdonell C.J. and Dalton S.P.J.
THEVAGNANASEKARAM v. KUPPAMMAL et al.
3-5-D. C. (Inty.) Colombo, 5,653.
Domicil-Indian Tamil settled in Ceylon-Acquisition of domicil of choice-Children
born in Ceylon-Domicil of origin of child-Validing of Marriage-Ordinance No. 19
of 1907, s. 17.
Where a person claiming to be the wife of an intestate applied for
administration to the District Court and agreed to go to trial on
issues-involving questions of her status,-
Held, that the party was not entitled afterwards to challenge the
jurisdiction of the Court to give the decision invited by her, on the ground
that there was no property of the deceased to be administered.
An Indian Tamil, M, came to Ceylon in 1850 and joined two of his brothers in a
partnership business in Colombo, where he resided.
He married in Ceylon, owned property, carried on business and continued to live
at Colombo, save for occasional visits to India till his death in 1896.
His children, among whom was S, born in 1886, were all born in Ceylon. S married
his niece (sister's daughter) in India in 1906, and after his marriage lived
continuously in Ceylon till his death in 1931.
Held, that M had acquired a domicil of choice in Ceylon and that
the domicil of origin of his son S was also in Ceylon.
Held, further, that S's marriage was -invalid as being within the
prohibited degrees of relationship under section 17 of Ordinance No. 19 of 1907.
THIS
was an application for administration of the
intestate estate of one Supramaniam Chetty, who died on January 24, 1931. The
application was made by a person named Sellatchi, claiming to be the widow of
the deceased on behalf of herself and her minor children. Supramaniam was the
son of Muttucaruppen, who died in 1896 leaving three children-the deceased, a
daughter Kaliamma who married one Kalimuttu Chetty and became by him the mother
of the applicant Sellatchi, and another daughter Veeratha, mother of Vadivel who
opposed the grant of letters on the ground that the marriage between Supramaniam
and the applicant was invalid as being within the prohibited degrees of
relationship. The learned District Judge held that the marriage was invalid
under section 17 the Marriage Registration Ordinance, No. 19 of 1907.
N. E. Weerasooria, for substituted petitioner, appellant.-The District Judge was
wrong in saying that the domicile of the deceased and of Sellatchi was a Ceylon
domicile. The marriage took place in 1906; the Judge has not considered whether
domicile was in India in 1906. The original member of the family not only came
from India but the family in fact retained. their connection with India.
The Court has no jurisdiction to administer an estate which does not exist. See
sections 516 and 524 of the Civil Procedure Code. Section 530 presupposes the
existence of property of the intestate deceased- vide Forms 82 and 83 of the
Code. In Glasgow Navigation Co. v. Iron Ore Co.1[1 (1910) A. C. 293.
36/25] Lord Loreburn stated that " it is not the function of a Court of
law to advise parties in the
hypothetical case ". The intestate was only a fiduciary, and on his death his
interest devolved on the fidei commissarii, and there is no property left for
administration. See section 70 of the Courts Ordinance and its proviso which was
introduced as a result of the decision in 1 Bal. Rep. 51.
On the question of domicile, see Winans v. Attorney-General 1[1 (1904) A.
C. 287.]; domicile of choice is not acquired even after 25 years'
residence. Also Attorney-General v. Yule and Mercantile Bank of India2[ 2
(1931) 145 L. T. 9.], on discharge of burden of proof re intention to
change a domicil of origin.
[DALTON J.-Is there anything to prevent a person applying for letters of
administration in the case of an estate below Rs. 2,500 in value?]
Nothing. But before order absolute is entered, the Court should be satisfied
that there
