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Jaffna "Tesawalamai" Law: misconceptions, misunderstandings and misgivings

Nov 20, 2010 8:49:16 AM- transcurrents.com

By: Dr.Rajasingham Narendran

Tesawalamai ('Tesam' means country and 'Walamai'means customs), are the codified laws and customs of the inhabitants of the province of Jaffna (now the Northern Province) in Sri Lanka. Tesawalamai are customs that prevailed in North Ceylon for several centuries before the advent of the Portuguese

Tesawalamai is recognized within the overall laws governing Sri Lanka, as being applicable to the inhabitants of the province of Jaffna. It is among the approximately five system of Municipal Common Law recognized in the Sri Lankan legal system, namely, Roman-Dutch law; the Tesawalamai (Jaffna); the laws and usages of the Muslims; the Mukkuwar law (Batticaloa); and the Kandyan law. It is recognition that the customs of the people of Jaffna are distinct and different from those of other peoples on the island. The same recognition has been accorded to the customary laws of the peoples of Batticaloa and Kandy, and those of the Muslims, wherever they may live in the island.

The 'Tesawalamai' laws applicable to Jaffna have been misunderstood and much maligned in the context of the demand for a separate state spearheaded by the 'Jaffna Tamils'. These customary laws have been accused of being designed to prevent the 'Other' peoples of Sri Lanka owning property in Jaffna and even creating 'Bantustans'. These laws should be understood in terms of what Hegel has beautifully summarized:

" The State, its laws, its arrangements, constitute the rights of its members; its natural features, its mountains, air, and waters, are their country, their fatherland, their outward material property; the history of this State, their deeds; what their ancestors have produced, belongs to them and lives in their memory. All is their possession, just as they are possessed by it; for it constitutes their existence, their being."(G.W.H. Hegel in his essay ' Philosophical History').

I have exclusively referred to the book 'Tesawalamai'' written in 1962 by T.Sri Ramanathan, a proctor of the Supreme Court of Ceylon and a lecturer at the Ceylon Law College, in my library. The book in my possession is the fourth edition that appeared in 1972. Sri Ramanathan had compiled this book, in his words, " For the benefit of students primarily and also of those who would like to have a knowledge of the Tesawalamai". What follows is a summary of what is pertinent to the present times, abstracted from Sri Ramanathan's book.

Tesawalamai, meaning ' Country Customs', before it was codified and promulgated by the Dutch in 1708, was the customary law applicable to the Tamils who inhabited the Jaffna district. It is very difficult for one to trace the origins of this system of law. According to Sri Ramanathan, "The code of Tesawalamai like the law of Medes and Persians remains unchanged at least on paper in spite of many changes in the customs and many repeals of statute. The world has changed. Jaffna has also changed. Early customs are in disuse now. Customs regarding adoption, mortgage of slaves, still have legal sanction although the custom has disappeared. Slavery was abolished by ordinance 20 of 1844. Still the Tesawalamai code gives legal sanction to slavery. It must be remembered that good portion of the code of Tesawalamai as it stands is obsolete and ineffective".

According to Sri Ramanathan, some of the principles of the Hindu joint family system have found a place in Tesawalamai, namely, " So long as the parents live, the son may not claim anything whatsoever; on the contrary, they are bound to bring into the common estate (and there let remain) all that they have gained or earned, during the whole time of their bachelorship excepting wrought gold and silver ornaments for their ladies, which have been worn by them and which have been acquired by themselves or given them by their parents, and that until the parents die, even if the sons have married and quitted the paternal roof". He surmises that owing to the immigration of Tamils from the Coromandel Coasts of India, the usages of those Tamils have found a place in Tesawalamai.

Sri Ramanathan quotes Justice Pereira, as having said (Chellapah vs. Kanapathy, 17 New Law reports at page 295- presumably in the early 1900s):

"It is a crude and primitive compilation, which may fittingly be described in the words of Tennyson, used with reference to another collection of law, as no other than a "wilderness of single instances"; and there is, I may add, with feeling of relief that one contemplates the fact that practically the whole of this ill-arranged and ill-expressed mass of law and custom has been recently repealed and replaced by legislation on more modern lines". The Tesawalamai laws as they stand today have been streamlined to fit requirements of modern Courts of Law.

In 1665, the Commander of Jaffnapatnam is quoted as saying," The natives are governed according to the customs of the country, if these are clear and reasonable; otherwise according to our laws". The Roman-Dutch law applied when the Tesawalamai is silent.

Tesawalamai is divided into two categories:

1. Personal laws applicable to Malabar inhabitants of the province of Jaffna.

2. Law that is applicable to all lands situated in the Northern Province.

According to legislative enactments, "Tesawalamai, or customs of the Malabar inhabitants of the province of Jaffna, as collected by order of Governor Simons, in 1706, shall be considered to be in full force". On questions that are decided according to Tesawalamai, these enactments state that all questions between Malabar inhabitants of the said province, or wherein a Malabar inhabitant is defendant, shall be decided according to the said customs.

The term 'Malabar inhabitants' of the province of Jaffna, means a person to be governed by Tesawalamai must be 'Malabar'. He/she must be an inhabitant of a particular locality, namely the province of Jaffna. 'Malabar' corresponds to the State of Travancore in Western India. To the question whether the law of Tesawalamai applies only to the inhabitants of Jaffna who came from 'Malabar' or to all Tamils having a Jaffna inhabitancy, the preface to the Tesawalamai code written by Claas Isaakz provides an answer, " A description of the established usages and institutions, according to which civil cases are decided among the 'Malabar' and Tamil inhabitants of the province of Jaffna on the Island of Ceylon". He uses the word 'Malabar' as synonymous with Tamil. The question whether 'Malabar' means 'Tamil' is settled by several judicial decisions. Justice Ennis (year?) had also made the observation that, "The Tesawalamai are not the customs of a race or religion common to all persons of that race or religion in the Island; they are the customs of a locality and apply only to Tamils of Ceylon who are inhabitants of a particular province".

The trend in case decisions show that Tesawalamai is applicable to the inhabitants of Northern Province and did not apply to Tamils of Trincomalee and Batticaloa. Further, if a person governed by Tesawalamai dies in a foreign country leaving immovable property in Sri Lanka, the law of interstate succession will be the Tesawalamai. If the immovable property is situated outside Sri Lanka, then the law of interstate succession will be the English law or the Roman-Dutch law.

Division of property according to Tesawalamai is governed by different rules, depending on whether the property is Ancestral/hereditary-patrimony inheritance (Mudusam), Ancestral/hereditary –non-patrimony inheritance (Urumai), Dowry (Chidenam), Residuary property (Thanam?) donated by a stranger or Acquired (Thediatettam). Property devolving on a person by descent at the death of his or her parents or of any other ancestor in the ascending line is Mudusam (patrimonial inheritance). Property devolving on a person by descent at the death of a relative other than a parent or an ancestor in the ascending line is called Urumai (non-patrimonial inheritance). Thediatettam (Acquired property) is property acquired by a spouse during the subsistence of the marriage for valuable consideration, such consideration not forming or representing any part of the separate estate of that spouse. It also includes profits arising during the subsistence of the marriage from the separate estate of that spouse. Chidenam, meaning dowry property is an adaptation of the matrimonial system of succession. It is a relic of the 'Marumakkattayam' law, introduced into Ceylon by its earlier Malabar settlers.

Tesawalamai code states that," Property brought by the wife was called in the Tamil language 'Chidenam' or by us as dowry. Dowry can be given at any time before marriage. It may be given even when no marriage is contemplated or even after marriage. There is a distinction between dowry property under Tesawalamai and property granted by a deed of dowry. Consideration in a deed must be given the same meaning as in the English Law. Dowry should be given as a quid pro quo to consummate the marriage".

Thediyattetam (Acquired property), consists of the profits derived from the separate properties of the spouses and all properties acquired by either of the spouses by their exertions during marriage. However, no property other than acquired by a spouse during the subsistence of the marriage for valuable consideration, such consideration not forming or representing any part of the separate estate of that spouse and profits arising during the subsistence of the marriage of that spouse , shall be deemed to be Thediyattetam. Thediyattetam should be a new acquisition, should have been acquired for a valuable consideration and should have been acquired during the subsistence of the marriage.

According to 'Tesawalamai' acquired property (Thediattetam) has been defined to include profits arising during the subsistence of marriage from the property of a husband or wife. Therefore, rent and profits from dowry property will be liable to seizure for the husband's debts, although the dowry property itself is not liable. If the dowry is diminished during marriage by the husband, it has to be replaced from the acquired property of the husband when the wife dies and the property is divided. If the wife squandered the dowry property then the loss need not be made good out of the husband's half of his acquired property. If the property of the wife or husband is improved considerably, either the husband's heirs or wife's heirs on his or her death cannot claim the expenses incurred in improving it.

The husband has the power to sell Thediattetam without joining his wife. This power to sell acquired property during the subsistence of marriage has been well recognized. However, after the death of the wife the husband has no power to alienate. In the event of death, divorce or separation, the husband cannot sell more than half the acquired property. When a husband and wife sell immovable property belonging to the wife, notice to warrant and defend title must be given to the wife separately if she is to be held liable. In such a case, notice to the husband cannot be construed as notice to the wife as well. The husband has the right to mortgage Thediattetam property during the subsistence of marriage and action can be brought against the husband alone without joining the wife. If the property mortgaged was Thediattetam and at the time of action, the wife was dead, it would be necessary to make the heirs of the wife parties to the action to bind her half of the estate. If a wife predeceases her husband, her share of the Thediattetam property passes to her children of the marriage as her heirs, to the exclusion of the husband.

The provisions in the Tesawalamai Code make it clear that gifts are regarded as the separate property of the spouse to whom the gift was made but any profits or proceeds from the subject matter of the gift was regarded as the acquired property of both spouses. If the gift is made by relatives on the father's side, then the property so gifted is regarded as father's side property. If given by the relatives of the mother, it is regarded as mother's side property.

The Jaffna Matrimonial Rights and Inheritance Ordinance apply only to those Tamils subject to the Tesawalamai. If a woman to whom Tesawalamai applies marries a man to whom it does not apply, she shall not during the marriage be subject to the Tesawalamai. However, when a woman to whom Tesawalamai does not apply marries a man to whom it applies, she shall be subject to Tesawalamai during the marriage. Further, according to Tesawalamai, property inherited by a child from its deceased mother goes on the death of the child, interstate, without brothers or sisters, but leaving its father surviving, to the mother's next of kin and not to the father.

A married woman governed by Tesawalamai, is subject to the marital power of the husband. The right of the husband to give his consent to the alienation or mortgage of the wife's immovable property is an incidence of his marital power. If a wife is given a cash dowry and if the wife uses the cash for the purchase of immovable property, such property would be termed Thediattetam (Acquired property) of the spouses.

All immovable or movable property any woman was entitled at the time of her marriage or which she may have acquired or received as inheritance, gift or conversion thereafter, belong to the woman for her separate estate, and shall not be liable for the debts or engagements of her husband, unless under specified circumstances. Similarly, all movable and immovable property belonging to the husband is his separate estate.

There is nothing in the Tesawalamai forbidding the sale of properties to outsiders, including the Sinhalese or Muslims. However, it sets certain procedures regarding the disposal of properties based on the above classifications. Examination of Title in respect of land where people are governed under Tesawalamai should be considered with great care. Sri Ramanathan recommends that when a Jaffna Tamil executes a deed it is always necessary to ascertain whether:

1. Such a person was married at the time of the execution of the deed

2. Whether he or she was married to a person governed under Teswalamai.

3. Whether the other spouse was living at the time of execution of the deed.

4. Whether the property was ancestral (Mudusam) or acquired (Thediyatettam).

5. Whether either spouse was dead at the time of alienation in which case the surviving spouse had the right to convey only one-half of the acquired property (Thediattetam).

These precautionary steps have to be taken by any person acquiring property in the Northern Province, irrespective of whether they are Tamils, Sinhalese, Muslims or other. Fixed property- lands- were highly valued in Jaffna and customs dictated that these are passed within families through various devices. Jaffna is yet a village centric society. The 'Jaffna men/women' yet identify themselves by the village of origin and marriage. The locality within a village is also important, as it provides information on the person's ancestry, linkages and caste. Tesawalamai customs evolved out of an inward looking society and are losing their relevance in modern times, especially after the end of the war for separation and the mass migration (both internal and external) and deaths it involved. There was definitely no malicious intention behind these customs that evolved over time, to create 'Bantustans'.

I hope those Tamils in the legal profession, who have practiced law in Sri Lanka, and have dealt with Tesawalamai, would clarify matters further to clear misconceptions, misunderstandings and misgivings that have taken root among our Sinhala compatriots.