MCC E-Land Registry with Bim Saviya REPEALS PERSONAL LAWS – END OF Thesawalamai, Muslim law & Kandyan Law
Will personal laws have a place in Sri Lanka with the MCC e-land registry & Bim Saviya? Deeds which had described the various rights and description of property under these laws have been repealed. The land contracts are reduced to about 17 published in a gazette and the e-register will operate only with the forms as they call them. The forms after they are notatrised is not given to the owners. In fact, they are destroyed after entering the ownership in the e-register. All of your deeds passed down through generations will cease to be valid. Please refer section 53 destruction of instruments in Title Registration Act 21 of 1998.
How many Tamils, Muslims and Kandyans are aware that with the implementation of e-land registry converting deeds to titles and signing of MCC may permanently remove all personal laws that exist.This is clearly stated in the Title Registration Act 21 of 1998 section 73 which does not allow conflict with other laws. This will result in the end of restrictions & conditions prevailing in existing customary laws applicable to land.
Title Registration Act 21 of 1998 is the Torrens law also called Title registration practiced in Australia, but in Sri Lanka it has been promoted as Bim Saviya (this name is not legally binding) This also prevents anyone from referring to the literature that is available to understand the law.
Title Registration law gives ownership by registration only to ONE OWNER not MULTIPLE OWNERS as the present deed system allows.
Title Registration law does not allow SHARED OWNERSHIPnor does it give ANY SPECIAL STATUS to a MAN or WOMAN as required under the personal laws mentioned. What matters is who the owner is – not whether the owner is man, female, Sinhalese, Tamil or Muslim or whatever customary laws that they have been historically adhering to.
This will certainly be a jolt to all those currently practicing Kandyan Laws, Thesawalamai Law & Muslim laws. What they had been following over centuries will be brought to zero with full implementation of Act 21 of 1998/Bim Saviya in digital e-land registry format.
Kandyan Law – rights that cannot be written in deeds will not even be considered on a title e-registrar!
- Binna marriage– where husband joins wifes family, where wife inherits her family’s property in equal or more portion but husband does not inherit his wife’s estate which transfers to their children on her death though husband may administer her holdings & has life interest over her estate (will no longer prevail)
- Diga marriage– where wife joins husbands family, where wife may only inherit a lesser share of her family property or her dowry is incorporated into the wealth of her husband’s family.
Jaffna Matrimonial Rights & Inheritance Ordinance / THESAWALAMAI
Thesawalamai was a foreign customary personal law practiced in India by Malabars and was codified in 1701 by the Dutch after bringing scores of Tamils from India to Sri Lanka as slave workers. It was a personal law applicable to the “Malabar Tamils’ in Jaffna.
- Under Thesavalamai law, husband is required to sign for land transactions – Title Registration (Bim Saviya) does not require husbands signature for land transactions.
- Pre-emption law which is the right over immovable property in the Northern Province by which a co-owner, co-sharer or adjacent landowner, who has mortgaged a particular land has the right to demand the seller to sell it to him at a price which any bonafide purchaser is prepared to pay a higher price than the persons entitled to pre-empt. Pre-emption would benefit non-Tamils because of the territorial nature of Thesavalamai. However, Act 21 of 1998 Title Registration once fully implemented will not require this obligation.
- No SHARED OWNERSHIP can be registered in Title Registration system
- Property acquired during Thediathetam (marriage) with ½ share owned by husband & wife will no longer prevail
- Deeds specifying land as Mudusam, Urumai, Thediathetam WILL NOT BE ENTERED under Title Registration (Bim Saviya) transaction forms. In short, all included in the Janna Matrimonial Rights & Inheritance Ordinance will not be entered into Title Registration & subsequently to the MCC e-land registry
- Under Jaffna Matrimonial Rights & Inheritance Ordinance there are applications relating to interest of land that can be taken to the District Court for grievance hearing. But this status will be repealed under the Title Registration Act when in full operation.
- Act No. 13 of 1951 Marriage & Divorce (Muslim) Act. Act 10 of 1953 Muslim intestate Succession Ordinance and Act No. 51 of 1956 Muslim Mosques and Charitable Trusts or Wakfs Act.
- Shares get transferred and restrictions prevail specially on inheritance not recognized under Title Registration (Bim Saviya) as whoever is registered becomes the full owner.
There are many other laws governing the country which are likely to be repealed automatically without anyone even knowing it once the entire country has been given title registration and all land titles are given to MCC e-land registry team to register.
As of now we can assume that ALL PERSONAL LAWS, PRESCRIPTION LAWS, PARTITION LAWS, CONVEYANCE PRACTICE, RIGHT for INJUNCTIONS and WRITS will all be non-existent or have no teeth once Title Registration is fully operational and all of Sri Lanka’s land are given a Title Registration 10-digit number.
If an e register is required why not continue with the deed registration system and the customary laws that are known to the lawyers and the land owners.
What has to be fixed is the loopholes available for land fraud not arbitrarily removing customs and traditions without even obtaining consent of the People.
What is repealed are the laws of the country
What is not repealed are the loopholes to prevent fraud.
Even the forms for land transactions and the e-register continues with the loopholes available in the old colonial statutes of 1907 and 1927.
What is the big deal in claiming to ‘modernize’ a system but legalizing fraud?
The Central Bank regulations to retain identification data to prevent fraud for monetary transactions are not adhered to. Anyone can sign with an illegible signature and move the ownership to a man or woman ignoring the personal laws.
Once registered owner cannot be questioned in any country of law whether it be under Theswalamai Kandyan law or Muslim law as section 33 of the act 21 stipulates.
Have Sri Lanka’s IT Personnel and Legal Fraternity as well as National Policy Makers completely ignored MCC clause 3.9 which GoSL without even signing MCCis virtually handing over to the US Government, Sri Lankan citizen’s land rights as well as all State Lands by entering all data into the e-land registry which is owned and controlled and is a key component of the MCC Compact in Sri Lanka.
Are Kandyans aware that their personal laws to land are getting repealed?
Are Tamils practicing Thesawalamai personal laws to land aware that the Thesawalamai laws will not exist?
Are Muslims aware that their Muslim personal laws to land will not exist?
By Shenali D Waduge