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Can Non - Tamils buy land in Jaffna?

Dec 9, 2010 3:20:08 PM- transcurrents.com

By C. V. Vivekananthan

There is often a general outcry in the South that non-Tamils cannot buy land in the Northern Province. It is commonly believed in the South that Thesawalamai lays down restrictions in transferring the ownership of immovable properties to non-Tamils. They articulate that Sinhalese and Muslims cannot buy land in the Northern Province and urge now and then that the Law of Thesawalamai should be amended or repealed.

Question arises whether the Law of Thesawalamai and/or any other law impose such restrictions as some of the Southerners assume. It is absolutely an incorrect view that the Law of Thesawalamai or any other law subject to Law of Thesawalamai prevents a Sinhalese or a Muslim from buying land in the Northern Province. It is a blatant misconception of the Law of Thesawalamai due to lack appreciation and understanding of the law.

The Law of Thesawalamai is a personal law applicable to ‘Tamils with Ceylon domicile and a Jaffna inhabitancy’. One who asserts the doctrine of ‘inhabitancy’ has to prove it. Thus, it is not applicable to all the Tamils who happened to be the Tamils of the Northern Province.

It is also a regional or municipal law, in that, it applies to all lands situated in the Northern Province irrespective of whether the land is owned by a Tamil, a Sinhalese, a Muslim, a Burgher or a Chinese or by any person of any other race. During the period of the Portuguese no attention was paid to the laws of the natives. The Portuguese did not codify the customs and usages of Thesawalamai.

In the year 1704 the Dutch Governor of Ceylon, Simons ordered the Disawa of Jaffna, Claas Isaakasz to compile the customs of the Tamil inhabitants of Jaffna as then existed for the due and proper administration of justice.

An extensive and deep study and investigations were made of the usages and customs of the Tamils inhabitants of Jaffna before such compilation. The Code was written in the Dutch language and the same was submitted to the Commander Van der Duyn in 1706.

In 1708 the codification of the customary laws of the “Malabar inhabitants of the province of Jaffna” came into force. Thus, the codification of Thesawalamai Code brought the preponderance of traditional customs, evolving as law-making rules to static.

In 1806 Ceylon was ceded to the British Crown. By Regulation No.18 of 1806 the British declared that the Code of Thesawalamai, as collected by the Order of Governor Simons in 1706 shall be in full force and that “all questions between ‘the Malabar inhabitants of the Province of Jaffna, or in which a Malabar inhabitant is a Defendant’, shall be decided according to this Code of customs”.

In 1814, Sir Alexander Johnstone caused the translation of this Code into English and the English translation of the Code of Thesawalamai derives force in law as at today.

Walter Pereira in his treatise of ‘Laws of Ceylon’ states that five systems of municipal laws were given royal sanction by the British. They were the Roman-Dutch Law, the Law of Thesawalamai, the laws and usages of the Muslims, the Mukkuva Law (now obsolete) and the Kandyan Law.

The Regulation No.18 of 1806 was enacted and came into force on 9TH December 1806 guaranteeing the continued operation of Thesawalamai. Later, the Ordinance No.5 of 1869 was enacted in this regard. In 1911, Matrimonial Rights and Inheritance Ordinance (Jaffna) was enacted to amend the law relating to the matrimonial rights of the Tamils who are governed by the Law of Thesawalamai with regard to Property and Law of Inheritance and it was amended by Ordinance No.58 of 1947. The Thesawalamai Pre-emption Ordinance No.59 of 1947 was enacted to amend and consolidate the Law of Pre-emption to lands affected by the Law of Thesawalamai.

It is notable that where-ever the above laws are silent the Roman-Dutch Law, the common law of the land, shall apply.

Many of the provisions of these laws were from time to time amended or repealed by legislation, and also they were modified by laws which apply through out the country without exception, for example, Prescription Ordinance, Partition Act, Pawn Broking Ordinance, Prevention of Frauds Ordinance and the like.

Thesawalamai Pre-emption Ordinance No.5 of 1947 regulates the law in relation to land affected by the law of Thesawalamai. This Ordinance came into force on the 1ST July 1948, repealing so much the Thesawalamai and of the Ordinance No.4 of 1895.

The term ‘Pre-emption’ means that certain classes of persons enjoy a preferential right to purchase immovable property over others. This right of pre-emption under the present law is restricted to two classes of persons, namely (1) Co-owners and (2) Heirs in the event of the intestacy.

Accordingly, when immovable property is co-owned, one co-owner cannot sell his share of the land to an outsider without first offering it to the other co-owner or heirs whether he is a Sinhalese or otherwise.

The right of pre-emption shall only be exercised in respect of an undivided share or interest of an immovable property.

The right of pre-emption shall not be exercised in property held in sole ownership. If the land to be sold is a divided and defined allotment of land, no right of pre-emption shall exist. In that case, the Vendor shall have the absolute right to sell the same to any person whom he prefers, whether he is a Sinhalese or not. No provision of the Ordinance prevents him from selling the land to a Sinhalese or a Muslim. No reasonable man would refuse to sell his property to the highest offer of consideration.

A pre-emptor has to be a co-owner or an heir of an undivided allotment of land. A pre-emptor can be a Sinhalese, a Tamil, a Muslim or any person of any other race. A careful reading of the provisions of the Thesawalamai Pre-emption Ordinance shows that the co-owners or ‘the would’ be heirs of the intending vendor of an undivided allotment of land, whether a Sinhalese or otherwise will have preferential right to purchase that share. If the co-owner is a Sinhalese, then, he will have the preferential right to purchase that share over others.

If an owner of an undivided land has conveyed it to an outsider, a pre-emptor has the right to institute an action to set aside the sale of the undivided share of the land on any of the grounds set out in the Ordinance but there are defences to defeat such action.

No action is maintainable for pre-emption if more than one year has elapsed from the date of registration of the purchaser’s deed of transfer.

If the intended vendor of a co-owned property had given valid notice of sale in terms of Section 5 of the Thesawalamai Pre-emption Ordinance, and the pre-emptor failing to purchase the vendor’s undivided share, the vendor is free to sell it to any person, whether he is a Sinhalese or a Muslim.

It does not apply to property in respect of a share of a land which has been possessed and dealt with in divided lots by amicable partition among the shareholders, with each other’s knowledge and consent’. It also does not extend to an exchange of land.

There is a general misunderstanding that Law of Thesawalamai or the Thesawalamai Pre-emption Ordinance gives exclusive right of purchase of immovable property in the Northern Province only to Tamils of that province and that the Sinhalese cannot have the right to buy any immovable property. It is a myth rather than a legal concept: it is a misperception of the law of Thesawalamai.

An examination of the Law of Thesawalamai and of the Thesawalamai Pre-emption Ordinance would demonstrate very clearly that it is an erroneous thinking due to the lack of understanding, appreciation and tolerance of the applicability of these laws. Both these laws do not prohibit a person, whether, Sinhalese, non-Jaffna Tamil or Muslim or a member of any other race from purchasing any allotment of land situated in the Northern Province.

The right to own or dispose any immovable property situated in the Northern Province is not at all restricted to Tamils alone as perceived by some of the politicians in the South. Neither the provisions of Thesawalamai nor the Thesawalamai Pre-emption Ordinance have any such provision. The widespread thinking that Sinhalese cannot buy land in Jaffna has no foundation at all both in fact and law.

It is only a fanciful emotional feeling that Sinhalese cannot buy land in the Northern Province or in Jaffna though it is common knowledge that there are hundreds of Sinhalese and many thousands of Muslims owners of land at Jaffna.

It is notable that Vavuniya and Manner come within the territorial limits of the applicability of the Law of Thesawalamai, Thesawalamai Pre-emption Ordinance and Matrimonial Inheritance Ordinance (Jaffna). Can anyone state that Sinhalese and Muslims do not own lands in these districts?

Even a non-citizen could purchase immovable properties under certain conditions in terms of the provisions of the Finance Act No.11 of 1963. When the Finance Act No.11 of 1963 was repealed by the UNP Government there was an outcry that foreigners were allowed to buy immovable properties at their will and the former Act was re-introduced by the Finance (Amendment) Act No.8 of 2004 whereby foreigners were prevented from owning immovable properties in Sri Lanka subject however to certain exceptions. Northern Province is not at all entitled to enjoy such privileges as provided by Act No.8 of 2004 inasmuch as it is not a separate state in law and the Sinhalese and Muslims are not foreigners.

Thus, a wrong conception of these laws has created imaginary scenarios that Sinhalese and Muslims are excluded from ownership of part of the land of Sri Lanka without understanding that this ‘exclusive doctrine of ownership’ is one of the attributes of a separate statehood.

Do these miscreants say that Northern Province has enjoyed the legal efficacy of a separate statehood since the Dutch Governor, Simons compiled in 1704 the customs of the Tamil inhabitants of Jaffna as then existed? Do they contend that Parliament has conferred such statehood by the aforesaid three Ordinances?

It would be apposite to mention that neither the Dutch nor the English would have tolerated such anti-national law to remain in force. No government since independence would have acquiesced the doctrine of exclusive ownership of land to the Jaffna Tamils.

Justice, Dr. H.W. Tambiah published a treatise under the name of ‘The Laws and customs of the Tamils of Jaffna’. It is an accepted authoritative text book on Thesawalamai. The Women’s Education and Research Centre (WERC) brought out the second revised edition under the same title. It appears that they have discussed with Professor Savitri Goonesekere as they needed expertise in the law. Since the Professor was busy with her own work she recommended Mr.Shivaji Felix from the Faulty of Law, University of Colombo.

In his Introduction to the Second Edition (Revised Edition) Mr. Shivjii Felix states that “It is widely believed that the Sinhalese cannot buy land in Jaffna and that such a law exists in order to ensure that the land remains within the same family or community. …. It is submitted this belief is based upon an inadequate appreciation of the law of pre-emption. It should also be noted that any person could buy land in the Northern Province if he or she was prepared to pay a higher price than the persons who are entitled to preempt”.

At page 259 of this Book, under the Caption, “Law of Pre-emption benefits Non Tamils”, it is stated inter-alia that ‘As erroneous view has been taken by some, who do not know the applicable law, to state that a non-Tamil cannot buy any immovable property in the Northern Province. There is not a single provision in the Pre-emption Ordinance which supports this view’.

It is submitted that a meticulous reading of the aforesaid Revised Edition of ‘The laws and customs of the Tamils of Jaffna’ would dispel the doubt that some of the southerners have so far entertained and clear their misunderstanding and distrust and make them to refrain from acting on fallacies and emotional feelings.