1934 Present: Macdonell C.J. and Dalton S.P.J.

KANDAR v. SINNACHIPILLAI.

339-D. C. Jaffna, 22,324.

    Thesawalamai-Property acquired by son during his bachelorship-Son not under parental roof or control-Property does not fall into common property of parents-Regulation No. 18 of 1806, s. 1, cl. 7.

Under the Thesawalamai property acquired by a son out of his own money at a time when he was unmarried but was no longer under the parental roof or parental control does not become part of the common property of his parents.

Per MACDONELL C.J.-Under the Roman-Dutch law the Courts have power to declare a statute obsolete if they are satisfied of its tacit repeal by disuse or contrary usage.

APPEAL from a judgment of the District Judge of Jaffna. K. Balasingham, for second plaintiff, appellant.

A. Gnanapragasam. for defendant, respondent.

Cur. adv. vult.

October 17, 1934. MACDONELL C.J.-

I have read and agree with the judgment of Dalton J. in this case.

It is certainly a pity that the counsel for defendant-respondent did not lead evidence in the Court below to show that the provision in section 1, clause 7, of the Thesawalamai, that sons " are bound to bring into the common estate (and there to let remain) all that they have gained or earned during the whole time of their bachelorship " had become obsolete. Since this rule is one peculiar to the Jaffna Tamils and not one affecting other " bachelors" anywhere else in the Island, the probability is that the law elsewhere in Ceylon, namely that an unmarried son takes for his own whatever he earns by his own efforts even though his parents are

living, has been tacitly adopted as the law in the Jaffna peninsula also. It is at least striking that the learned counsel for appellant was unable to discover any reported case in favour of his argument for allowing this appeal. The case in Mutukisna at page 576 decided in 1828 shows that even then " bachelor " was held to have the restricted meaning of a son living in his father's house and under his control. There is a decision then of this Court, over a hundred years old, that the term " bachelor " in section 1, clause 7, of the Thesawalamai, cannot have the extended meaning that must be given to it if this appeal is to succeed.

If sufficient evidence had been led below, it might have been possible to hold formally that section 1, clause 7, of the Thesawalamai, is obsolete and no longer law even in cases where the marriage occurred before July 17, 1911, when the amending Ordinance No. 1 of 1911 came into force; with regard to marriages of Jaffna Tamils solemnized since that date, the point now contended for does not seem to arise. The decision in Mutukisna at page 301 seems to me a clear instance of the Courts declaring part of the Thesawalamai to be no longer law. That was a case tried in 1839 in which plaintiff tried to make a son responsible for the debts of his parents " although the parents do not leave anything ", in accordance with this same section 1, clause 7, of the Thesawalamai, and the Court read into that enactment the qualification that the son would not be responsible for these debts, if he repudiated the inheritance, and did not intromit or do any acts showing that he intended to appropriate the inheritance to himself. In effect the Court substituted the more responsible " rule of the Civil of rather the Roman-Dutch law " for that of the Thesawalamai and thereby declared the rule of the latter to be no longer law.

By Roman-Dutch law it would certainly seem that the Courts have power to declare a statute obsolete if they are satisfied of its tacit repeal by disuse or contrary usage. In Green v. Fitzgerald1[1 (1914) A. D., South Africa, 88.] Innes J.A. after mentioning the principle of English law that there is no such thing as a tacit repeal of a statute, goes on to say-" The civil law on the other hand recognized the principal that a statute