Chanaka Bandarage

Many Sinhalese believe that due to Thesavalamai law they cannot buy (or lease) property in the North. This seems a misconception on their part.

There are only two classes of people who are benefitted by the Thesavalamai Ordinance (No 59 of 1947).  They are bestowed with the right of pre-emption:

• Persons who are co-owners of a property.

This means the subject land must be of undivided (un-partitioned) – jointly owned by two or more people.  

When selling the property, before anybody else, it must be offered to the other co-owner/s at market price.

Majority of the land in Sri Lanka including the North are held under sole ownership; the Ordinance does not apply to them.

• In the event of intestacy (owner dying without a will), the heirs (next of kin) of the deceased person have the right to buy the property at market price. 

Others including the Sinhalese of the south are able to buy the subject land only if the offer made to the heirs (at market price) fails.

During the late 17 and early 18 centuries, lots of Tamils from South India’s Coromandel Coast migrated to Sri Lanka, mainly to work in the newly established tobacco plantations. They brought with them their laws. In order to please them, the then Dutch Governor Simmons codified these laws (in 1706). 

The Dutchman, Jan Pirus, translated the Code into Tamil.

It may perhaps be that with these new Malabar laws the Dutch amalgamated any existing Tamil customs and rules of Jaffna (Jaffenapatnam – යාපා පටුන).

During the British period, the laws were continued to be applied. Sir Alexander Johnston translated the Thesavalamai Code into English.

In the early periods it seems the Thesavalamai law only applied to Jaffna.  The word ‘Jaffna’ was the key term, there was no mentioning of ‘Northern Province’.

But, in a landmark case in 1988 (Sivaganalingam v Suntheralingan) the then Chief Justice Sharvananda (of the Supreme Court) held that the law applied to the whole of the Northern Province, not just to Jaffna. His Honour further held that the law applies to inhabitants of the Northern Province irrespective of where they live in Sri Lanka. This benefitted many Colombo domiciled Tamils who had maintained a close nexus with the Northern Province.

Recent case law (after 1988) shows that sometimes Thesavalamai law applies to movable property (a car in Manikkasagar v Kandasamy). The right of pre-emption now applies to adjacent land owners also.

Case law is how the judiciary interprets codified law/legislation; in this instance, the Thesavalamai Ordinance. The judiciary cannot create law, only the State.

The State can legislate to override any case law errors/anomalies.

Thesavalamai law does not apply to the Eastern Province. So, the Sinhalese can freely and readily purchase any immovable property in the Eastern Province.

The writer reiterates that except in limited situations – as exemplified above, there should be no major impediment for the Sinhalese to purchase land in the North. 

Thus, they should go ahead and buy Northern lands that are not affected by Thesavalamai law, after obtaining legal advice.