Chapter 9

TESAWALAMAI

The word Tesawalamai means the “customs of the land”. This law is applicable to Tamils
(Malbars) with a Jaffna inhabitancy.

(1) ORIGIN & HISTORY OF TESAWALAMAI

The origin of the Tesawalamai can be traced back to the customs and usages of the Dravidians
from the Malabar coast of India.1

The first wave of Tamil immigrants came from the Malabar districts. The customs and usages of
the Malabars were derived from the Marumakattayam (law which constitutes the main basis and
groundwork of the Tesawalamai, from a matrilineal society).
Marumakattayam Law2 is a body of customs and usages which has received judicial recognition in
India and prevails among casts which form a considerable section of the people inhabiting the West
Coast of South India viz States of Travencore and Cochin and the Districts of Malabar and South
Canara which formed the ancient Kingdom of Kerala. There were also other Malabar customs
which prevailed among the Mukkuwas or Fisherman of the Coast.

The second wave of colonists were from the Coromondel coast where a patrilineal system.

Thus in the Tesawalamai we find a curious blend of principles governing a patriarchal as well as
a matriarchal system of society existing side by side.3

1(1) The Influence of Other Legal Systems on the Tesawalamai.

1(1) (a) Hindu Law & Tesawalamai

1 1
See J.D. Mayne, Hindu Law and Usage, (1938, Madras), p.41; H.W. Tambiah, Laws and Customs of the
Tamils of Jaffna (1949, Times of Ceylon) pp. 5-6.

2
Marumakattayam (Matrilineal system) influenced Tesawalamai. This was staed in Murugesu v Sabaratnam
69 NLR 540. In this case siste’sr son inherited the property of the sister.

3
Tambiah, op. cit., pp. 12-13. Thus the devolution of muthusam (paternal inheritance) was
on the sons, and the devolution of the chidenam (dowry) was on the females. This shows a curious
blend of the matrilineal and patrilineal systems.

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 In practice Hindu Law is restricted to the sphere of religious and charitable endowments and
trusts. The liability to pay estate duty in respect of the estate in Ceylon of a member of a Hindu
joint family domiciled in India was determined in accordance with principles of Hindu Law.
Thus Hindu Law is still relevant where questions relating to non-Ceylonese Hindus come before
the Courts in Sri Lanka but has ceased to supplement the law of Thesawalamai. 4

Hindu law influenced the development of the Tesawalamai after it had been planted in the
soil of Jaffna. The consequent establishment of a partriarchal system of society after the
advent of the immigrants from the Coromondel coast, was followed by the incorporation of
principles of Hindu law. In course of time Hindu law was administered in the event of a
casus omissus, as it was a mature and well developed system of law.

The influence of Muslim law may be said to be felt in the Tesawalamai law of pre-emption
[Karthegesu v Parapathy].5 According to the law of pre-emption when property is owned by
co-owners and one co-owner wishes to sell the property he should first offer it to the other
co-owners.

The Dutch altered the Tesawalamai in two ways. They changed it by express modification,
in that while codifying the Tesawalamai they incorporated therein certain changes made on
the orders of the Dutch Commander Bloom. The Dutch also applied the Roman-Dutch law in
certain cases thereby modifying the Tesawalamai.

1(2) The Codification of the Tesawalamai.

There were two strong influences on the codification of Tesawalamai, Dutch and English

1(2) (i) Dutch Influence on the Codification of the Tesawalamai.

During the time of the Dutch, the Commander of Jaffna, Zwardarcoon, in 1697 stated the
necessity for the codification of the Tesawalamai because there were no clear principles for
the proper administration of justice. Acting on this suggestion, Governor Simons entrusted
the task of collecting and codifying to Class Isaacsz. This work was completed in 1707.6

There after it was approved by the Dutch Govenor and was applied in civil disputes from
1707 to 1806.7

4
T Nadaraja The Legal System of Ceylon in its Historical Setting, p,188
5
Karthegesu v Parapathy, 46 NLR 162

6
Mangalasewarie v Seeladura 63 NLR 88

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 By the proclamation of 23rd September, 1799, the continued operation of the Tesawalamai
was guaranteed. The position was further clarified by the regulation of 9th December, 18068
which enacted that, “The Thase Walema or the Customs of the Malabar Inhabitants of the
Province of Jaffna as collected by the order of Governor Simons in 1806 and shall be
considered to be in full force”.

1(2) (ii) English Influence on the Codification of the Tesawalamai.

Sir Alexander Johnston, a Chief Justice in the early British period, had the code translated
into English with marginal notes and caused copies to be sent to all courts and judges. From
1806 the English translation has been regarded as authoritative [Thesawalami
Regulation No. 18 of 1806].
In Sabapathi v. Sivaprakasam9 it was held that the English translation and not the Dutch
original was authoritative. After the publication of the Revised Edition of the Legislative
Enactments in 1938 there can be no doubt that the English translation must be treated as
law, since this is incorporated in the Enactment.10

19(2) (iii) Statutory Influence on the Codification of the Tesawalamai During & After the
English period.

Following statutes have influenced Teswalamai:

(i) Jaffna Matrimonial Rights and Inheritance Ordinance of 1911. This repealed so
much of the provisions of the Tesawalamai as are inconsistent with the English
legal mindset.
(ii) The Jaffna Matrimonial Rights and Inheritance (Amendment) Ordinance, No. 58 of
1947;
(iii) and the Tesawalamai Pre-emption Ordinance of 1947.

7
See Tambiah, op.cit., pp. 27-30.

8
Regulation No. 18 of 1806. In the course of time Courts held that Thesawalamai did not apply
to Trincomalee and Batticaloa.
9
(1905) 8 N.L.R. 62.

10
Tambiah, op.cit pp. 35-36.

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 Other provisions of the Tesawalamai have been altered by statutes which apply throughout the
country without exception –such as the Prescription Ordinance of 1871, the Partition
Ordinance of 1863 and the Partition Act of 1951, the Pawnbrokers Ordinances of 1893 and
1942 and the Frauds Ordinance of 1840.

There are many obsolete provisions in the Tesawalamai code. The Tesawalamai Commission,
1930, recommended11 that those sections which were obviously obsolete should be repealed
by statute.

In the absence of statutory repeal the question arises whether the judges have the power to
declare obsolete a provision of the code (which is a statutory enactment). According to the
principles of the Roman-Dutch law, but not according to English law, an obsolete statutory
provision can be disregarded by a court of law.12

(2). APPLICABILITY OF TESAWALAMAI

The Tesawalamai applies to:

(a) all persons who come within the description of the Malabar
(b) Having an inhabitancy in the province of Jaffna.

But certain sections of the Tesawalamai apply to lands in the Northern Province irrespective of
the race or nationality of the owner.13 These sections are territorial in their application, but are
however limited. It applies to;

● a particular kind of mortgage (otti);

● servitudes; and
● Preemption.

Section 3 of the Tesawalamai Code enacts that it applies to all questions between Malabar
inhabitants of Jaffna or wherein such a person is a defendant. An analysis of this section shows
that a person to whom this part applies must be (i) a Malabar (ii) an inhabitant of the province of
Jaffna.

2(1) The Meaning of Malabar.

11
Sessional Paper, 3 of 1930, pp. 10-11.

12
But see Nalliah v. Ponnamah (1920) 22 N.L.R. 198: Kandar v. Sinnachipillai (1934) 36 N.L.R. 362.

13
See article 19.d.

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 The word “Malabar” has been held to be synonymous with “Tamil”. Its application is not
confined to those immigrants from the Malabar coast but includes Tamils from wherever
they come. In Chetty v. Chetty14 it was held that the word “Malabar” means ‘Tamil’ and that
the Vanniya Chetties who could be regarded as a particular caste of the Tamils were
governed by the Tesawalamai.

“The Tesawalami applies to Tamil inhabitants of Jaffna in 1806 and their descendants, but to any
Tamils who have come or who may come at any time to settle down in Jaffna and who
acquire a Jaffna inhabitancy. In Tharmalingam Chetty v. Arunasalam Chettiar15 it was held
that a person whose father had come from Ramnad in South India long after 1806 was
governed by the Tesawalamai.

In Savundranayagam v. Savundranayagam16 the issue arose whether Savundranayagam was subject

to the Tesawalamai. His parents were Colombo Chetties, born in Colombo, but they had later
settled down in Jaffna. It appears that Savundranayagam was a lawyer who had practiced at
Trichinipoly in South India where he died. Wood Renton, J. held that he was not subject to
the Tesawalmai. This decision must be restricted to its facts and regarded as turning on the
fact that the Colombo Chetty did not have a Jaffna inhabitancy, and not on the basis that he
did not come within the category of Malabar.

As Tambiah points out on the authority of Paul Peiris, the Colombo Chetties are Tamils, if they
retain the customs, traditions and language of the Tamils. Thus if a particular Colombo
Chetty does not mix with the other races so as to lose his identify he should be regarded as a
Tamil.17 If he has a Jaffna inhabitancy he will be governed by the Tesawalamai. Whether or
not in any particular case a Colombo Chetty is a Tamil is a matter of fact which must be
decided by the courts.

2(2) Jaffna Inhabitancy.

“The Tesawalamai applies to Tamils with a Ceylon domicile and Jaffna inhabitancy.” 18

The term “inhabitancy” has no fixed legal meaning. In Velupillai v. Sivakamipillai19 Wood
Renton, C.J. thought that the word “inhabitancy” applies to a person who had acquired a
permanent residence in the nature of a domicile in Jaffna. Middleton, J. in the same case

14
(1935) 37 N.L.R. 253.
15
(1944) 45 N.L.R. 414 at 416-17.
16
(1917) 20 N.L.R. 274.
17
See Tambiah, op. cit., pp. 56-59, See also Chetty v. Chetty. supra n. 19, discussed above.
18
Soertsz, J. in Tharmalingam Chetty v. Arunasalam Chettiar, supra n. 20.
19
(1910) 13 N.L.R. 74, 79.

5
 said;20 “One who has his permanent home in Jaffna.” These definitions which refer to
concepts such as home, domicile and residence bring in terms more difficult than
inhabitant.21 The meaning attached to the word “inhabitant” in ordinary usage as construed in
the light of decided cases might be a better way of approaching the problem.

It is undesirable to lay down any general rule to the circumstances which would suffice to
establish the existence of an inhabitancy. Each case must be decided on its own facts. There
may be on the one hand residence in Jaffna which would not suffice to make a Tamil an
inhabitant of the Province. On the other hand residence elsewhere even for protracted periods
(employment outside Jaffna) will not deprive him of that character. The mere fact that a man
is of Jaffna Tamil parentage though relevant is not conclusive. In King v. Perumal22 it was
held that a Hindu Tamil born in India and settled in the Central province is not governed by
the Tesawalamai. In Spencer v. Rajaratnam23 a Jaffna Tamil had left Jaffna when very young
and settled down and married a person in Colombo. He was held not to be governed by the
Tesawalamai.

In Fernando v. Proctor24 a Mrs P. who was descended from Jaffna Tamil parents and had
settled down in Chilaw was held to be not subject to the Tesawalamai. In Somasunderam v.
Charavanamutthu25 a Jaffna Tamil born and educated in Colombo, was living in Colombo
for the purpose of practicing his profession. He had settled down in Colombo and considered
it his home. His parents had a permanent house in Jaffna. He had married in Jaffna but never
kept house there. It was held that he was not an inhabitant of Jaffna. The crucial date of
inhabitancy of married persons is the date of marriage.

In Velupillai v. Sivakamipillai26 it was said obiter if a person is governed by the

Tesawalamai at the time of marriage he cannot change his inhabitancy later to the detriment
of his wife. For unmarried persons the conclusive date would be the time when the
particular dispute arises. According to section 3 of the Jaffna Matrimonial Rights and
Inheritance Ordinance the law applicable to the wife at the time of marriage exists till the end
of the marriage.

A Tamil who has not got a Sri Lankan domicile cannot by settling in Jaffna acquire a Jaffna
inhabitancy.27

20
Ibid., p. 76.
21
For a discussion of the meaning of these terms and their relation to each other, see Tambiah, op. cit., pp. 60-61.
22
(1911) 14 N.L.R. 496.
23
(1913) 16 N.L.R. 321.
24
(1909) 12 N.L.R. 309.
25
(1942) 44 N.L.R. 1.
26
(1910) 13 N.L.R. 74
27
K. Balasingham, Law of Persons, Vol. 1 (1929, Caves, Colombo and Sweet and Maxwell, London), p. 123.

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2(2)(1) Sivagnanalingam v Suntheralingam: Revolutionary doctrine28

Sivagnanalingam v Suntheralingam [This case revolutionized the understanding of inhabitancy.

Sharvananda CJ held that a person born to Tamil parents are presumed to have his inhabitancy in
Jaffna]

There is a strong presumption in favour of the continuance of a domicile of origin. The burden of
proving a change of domicile from one of origin to one of choice is a heavy one. With regard to
the standard of proof necessary to rebut the presumption the judicial conscience must be satisfied
by evidence of change. Otherwise the domicile of origin persists.

2(3) Meaning of “Jaffna Province”

During the Dutch period the term “Jaffnapatam” applied only to the Jaffna peninsula and the
islands. But as a result of interpretation by our courts the “Province of Jaffna” was extended
to a much wider area almost coinciding with the Northern Province of modern times. The
Tesawalamai has been applied to Tamils of the Mannar District. But it does not apply to the
Tamils of Trincomalee or Batticaloa. 29 But it does not apply to the Tamils of Trincomalee or
Batticaloa.30

2(4) Marriage between Tamils Subject to Tesawalamai and Those not Subject to It.

Section 231 of the Matrimonial Rights and Inheritance Ordinance. 1876 applies when a Tamil
marries non-Tamil. But a marriage between a Tamil subject to the Tesawalamai and a Tamil
not subject to the Tesawalamai is not a marriage between persons of a different race or
nationality.32 Section 3 of the Jaffna Matrimonial Rights and Inheritance Ordinance clarifies
the position.

According to section 3 (1) whenever a woman to whom the Tesawalamai applies marries
a man to whom the Tesawalamai does not apply, she shall not during the subsistence of
the marriage be governed by the Tesawalamai.

Section 3(2) provides that whenever a woman to whom the Tesawalamai does not apply,
marries a man to whom the Tesawalamai applies, she shall during the subsistence of the
marriage be subject to the Tesawalamai.

28
Sivagnanalingam v Suntheralingam (1988) 1 Sri Lanka LR 86
29
Marisal v. Savari (1878) I.S.C.C. 9.
30
Wellapulla v. Sitambelem (1872-76) Ram Rep. 114.
31
Quoted above, article 17.b. at p. 115.
32
Fernando v. Proctor (1909) 12 N.L.R. 309.

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2(5) The Extent to which Tesawalamai Could be Considered a Personal Law.

The Tesawalamai is not a personal law in the real sense of the term. Whereas Muslim law is
personal in the full sense of the word since it applies to all who answer to the description of
Muslims. Whatever part of Sri Lanka a Muslim lives, or whatever part of Sri Lanka he wants
to make his permanent home, he will be governed by Muslim Law.

Part I of the Tesawalamai Code applies to a class of persons namely Tamils, who are bound
together by a personal link (Malabar or Tamil), but who must in addition be resident in a
particular territory (Jaffna Province). It is thus a personal law in some respects, with a
territorial limitation.

Persons subject to the Tesawalamai could change the law by which they are governed by
changing their inhabitancy.

All persons subject to Kandyan law however cannot rid themselves of its incidence except by
marriage.

Not being the customs of a race or religion common to all persons of that race or religion in
the island. Part I of Tesawalamai cannot properly be called a personal law, but an exceptional
custom imposed in the province of Jaffna and in force there primarily among the Tamils who
can be said to be inhabitants of that province.33

3. PROPERTY IN THESAWALAMAI

Under this sub heading, following will be discussed:

(i) Application of Tesawalamai outside Jaffna province;

(ii) Law of preemption

3(1) Does the Tesawalamai Apply to Property Outside Jaffna?

A personal law will apply to the property of a person subject to it wherever it is situated
within the limits of his native country. The question whether the Tesawalamai applies to
property situated outside Jaffna but belonging to persons subject to the Tesawalamai was

33
Tambiah, op. cit., p. 33.

8
 fully considered in34 Seelachchy v. Visuvanathan. Bertram, C.J. after citing Voet came to
the

The Jaffna Marimonial Rights and Inheritance (Amendment) Ordinance, No. 57 of 1947,
amending section 3 of the Jaffna Matrimonial Rights and Inheritance Ordinance, No. 1 of
1911, clarifies the position. It makes the Tesawalamai applicable to all properties of a person
subject to it, whether situated in Jaffna or any other part of Sri Lanka.

3(2) Law Relating to Pre-emption & Otti mortgages

3(2) 1 Law of Preemption

Pre-emption, under Thesawalamai, may be explained as a right recognized over immovable

property situated in the Northern Province of Sri Lanka relating to coowned property.

Prior to Preemption Ord. no. 59 of 1947, this right extended to:

co-owner, co-sharer; or

heirs of coowners; or

adjacent landowner, who has a mortgage of the land in question

Under sec. 4 of the Ordinance, this right does not extend to the 3rd category (adjacent
landowner, who has a mortgage of the land in question)

This right enabled the coowners and sharers to demand the prospective seller to sell it to
them at a price which any bona fide purchaser is prepared to pay,befoe the property could be
sold to ousiders. Pre-emption would also benefit Non-Tamils because of the territorial
character of Thesawalamai.

Any person, irrespective of race, owning land in the Northern Province has to comply
with the postulates as they applied.

The relevant legislation is Ordinance no. 59 of 1947, which is titled as Ordinance to

Amend and Consolidate the Law of Pre-Emption Relating to Lands Affected by the
"Thesawalamai”. Short title is The Thesawalamai Pre-Emption Ordinance.

Sec. 2. Restrictions on the right of Pre-Emption.

34
(1919) 23 N.L.R. 97.

9
 (1) When any immovable property subject to the Thesawalamai is to be sold, the right of
Pre-emption will apply to whomsoever to buy the property for the price proposed or at
the market value, shall be restricted to the following persons or classes of persons—
(a) the persons who are co-owners with the intending vendor of the property which is
to be sold; and
(b) the persons who in the event of the intestacy of the intending vendor will be his
heirs.
(2) For the purposes of this Ordinance, the term "heirs” means all descendants,
ascendants and collaterals up to the third degree of succession, and includes—
(a) children, grandchildren and great-grandchildren;
(b) parents, grandparents on both the paternal and the maternal sides and great-
grandparents on all sides;
(c) brothers and sisters whether of the full or of the half-blood;
(d) uncles and aunts, and nephews and nieces, both on the paternal and the maternal
sides, and whether of the full or of the half-blood.
Sec. 3 states that the right of Pre-Emption shall not be exercised save in accordance with
the provisions of this Ordinance.

Sec.4- cases in which right is permitted

The right of preemption shall not be exercised except in cases where the property to be
sold consists of undivided share or interest in immovable property and shall in no case be
permitted where such property be held in sole ownership by the intending vendor.

3(2)(2) Otti Mortgages

The form of the usufructuary mortgage known has otti as its counter part by the same name in
Marumakattayam Law. This type of mortgage enables the mortgagor (who has received the loan)
to allow the mortagagee to set off his debt by deriving fruits of the property.

3(3) Kinds of Property under Tesawalamai

There are three kinds of property

muthusam (paternal inheritance)
chedannam
thediathettiam (acquired property)

10
When marriage unions became permanent and when the structure of society came to be based on
the patriarchal system the corresponding rule was recognized that males succeeded males.

Thus the devolution of muthusam (paternal inheritance) was on the sons, and the devolution of
the (dowry) was on the females. Similarly when one’s brother dies interstate, his property devolved
on his brothers to the exclusion of his sisters on the basis that in a patriarchal family each brother
formed a family unit but all brothers are agnates, when one of them dies his property devolved
upon his agnates, his only relations

The dowry system that prevailed in Jaffna society and the incident of chedannam peculiar to
Thesawalami are traceable to a system of usages o prevalent among the first colonist who
organized on matriarchal lines

In Thesawalamai the husband had powers not only to manage the thediathettiam (acquired
property) and his own mudusam but also the dowry. Under Thesawalamai rules on the death of
ones wife the property of his former wife and ½ of thediathettiam and the custody of children
had to be handed over to the grandmother [Sec.20 of Jaffna Matrimonial Rights and Inheritance
Ord. (58 of 1947)]

The managerial role of the husband was given judicial recognition in Rajaranam v Chinnakone35 “…
husband has the right to sell or mortgage the property which comes within Thediattem….during the
subsistence of a marriage he is the manager”>

Illegitimate children will inherit mother’s property. If the illegitimate child has no children, the
property will devolve on the mother and the State has no title to it.

35
Rajaranam v Chinnakone, 71 NLR 241

11