*24 N. L. R. 35.
MACDONEL.L. CJ.—De Silva v. Commissioner of Stamps.
February 6, 1935. Macdonell. C.J.—
This was an appeal under section 32 of this Stamp Ordinance, No. 22 of1909, as to the article in the Schedule under which the deed propounded,No. 471 of July 16, 1934, ought to be stamped.
The facts were these. On a certain intended marriage the mother ofthe lady to be married promised in writing to her intended son-in-law topay him inter alia Rs. 5,000 in cash on his marrying her daughter. Hismarriage to the daughter duly took place. The bride’s mother findingherself unable to produce the Rs. 5,000 in cash which she had promised,gave the son-in-law certain immovable property in lieu of Rs. 1,000 of thatsum, and in satisfaction of the remaining Rs. 4,000 executed the deedpropounded, No. 471. This deed after reciting her right to certainproperties and the written promise to pay the Rs. 5,000 on the marriagetaking place, and likewise her inability to provide cash to that amount,as also her gift of immovable property in lieu of the Rs. 1,000, goes on tosay “ Now Know Ye and these Presents Witness that the said vendor(i.e., the mother-in-law) for and in consideration of the sum of RupeesFour thousand (Rs. 4,000) (the receipt whereof the said vendor dothhereby admit and acknowledge) doth hereby give, grant, convey, sell,assign, transfer, and set over and do, by these presents, give, grant,convey, sell, assign, transfer, and set over unto the said vendee (i.e., theson-in-law), his heirs, executors, administrators, and assigns, all her right,title, and interest in, to, and over the lands and premises described in theschedule hereto, with the buildings thereon, together with all and singularthe rights, ways, privileges, easements, servitudes, advantages, andappurtenances whatsoever thereof, or thereunto in anywise belongingor usually held, occupied, used, or enjoyed therewith, or reputed or knownas part and parcel thereof and all the estate, right, title, interest, propertyclaim, and demand whatsoever of the said vendor in, to, upon, or out of thesaid lands and premises and every part thereof.” There then follows theusual habendum, a covenant that the vendor has not encumbered oralienated, and a covenant for further assurance, likewise the schedule ofproperties. The deed was notarially executed. It was in form thereforea valid conveyance for value of the lands set out in the schedule. It doesnot contain any statement by the vendee (i.e., the son-in-law) that heaccepts the properties thereby conveyed. The parties concerned claimedthat it ought to be stamped under Article 22 (a) of Part I. of Schedule Bto the Stamp Ordinance, No. 22 of 1909, as being a “ conveyance ortransfer of immovable property where the purchase or considerationmoney therein or thereupon expressed or if the consideration is otherthan a pecuniary one the value of the property ” is Rs. 4,000, and sorequiring stamps to the value of Rs. 72. Their notary asked undersection 30 of the Ordinance for a ruling from the Commissioner of Stampson the question. In reply the Commissioner of Stamps ruled that thedeed was liable to duty as an unaccepted gift under item 30 (b) of thesame Schedule B, Part I., whereby it would require stamps to thevalue of Rs. 149. It is from this ruling that the present appeal isbrought.
MACDONELL C.J.—De Silva, v. Commissioner of Stamps.
It was claimed for the appellant that this was a conveyance for valuepure and simple. There was a previous binding contract in writing topay Rs. 5,000 on the man marrying the daughter. He did marry herand therefore gave good and valid consideration for the promise made tohim, and deed No. 471 was a conveyance to him of certain lands in satis-faction of the balance of a binding promise to pay him Rs. 5,000. Caseswere cited to us in support of this argument, In re Chellappa (19 N. L. R.116) and In re Coomaraswamy (19 N. L. R. 171.) In the former of thesecases de Sampayo J. pointed out that “ A notary or party who wishes tobring an instrument within a particular description for the purpose ofregulating .the stamps must see that the instrument itself discloses itsnature. ” In that case a gift by husband and wife to the daughter byway of mudusam was described as a “ settlement ”, but the deed did notshow by way of recitals or otherwise that it could fall within the definitionof “ settlement ” in section 3 (24), as it then stood, of the Stamp Ordinance.In the latter case the instrument did recite that the grant was a deed ofdistribution of mudusam “ known as a deed of settlement ”, and it wasruled that the deed was stampable as a settlement and not as a gift.These cases however were decided before the alteration of the law by theamending Ordinance No. 16 of 1917, and the present law on the matterwill be found in the case In re Veeravagu (23 N. L. R. 67). There, deSampayo J., after stating that the deed was on the face of it called adowry deed and in the operative portion purported to convey lands “ byway of dowry in consideration of marriage ”, went on to say, at page 68,“ The Commissioner of Stamps decided that the deed should be stampedunder Article 30 as a ‘ gift or deed of gift I think his decision is right.A dowry, though it may be given in consideration of marriage, is never-theless, a gift. The history of legislation shows that a dowry deed is nowintended to be brought as a deed of gift under Article 30. The principalOrdinance, No. 22 of 1909, by Article 49 provided for ‘instrument ofsettlement, including deed of dower*, while it contained article corre-sponding to Article 22 (a) and Article 30 of the amending Ordinancesection 3 (24) defined ‘ settlement ’ as meaning ‘ any non-testamentarydisposition,. in writing, of movable or immovable property made (a) inconsideration of marriage, &c.’ This being so, when the Schedule to theprincipal Ordinance was in operation, a dowry deed would be stampedunder Article 49 as a ‘ settlement *. But by the amending OrdinanceNo. 16 of 1917, section 3 (24) of the principal Ordinance defining ‘settlement’was wholly repealed, a new schedule was substituted, and the old ArticleNo. 49 was entirely omitted. The present Ordinance likewise omits tomake any separate provision for * settlement *. Consequently a dowrydeed, which is after all a gift, though it may be a gift of a special kind,must be stamped, as the Commissioner has decided, under Article 30.”
This judgment, then, decided on the plain words of the statute that itwas no longer possible to claim that a dowry deed or conveyance or giftin consideration of marriage, whatever we may call it, could be stampableas a ‘ settlement ’, since the special item ‘ settlement ’ had by the amendingOrdinance No. 16 of 1917 been taken out of the law. Such a deed shouldbe stamped therefore as a gift, and in the case just cited de Sampayo J.decided that it must be stamped as such.
MACDONELL C.J.—De Silva, v. Commissioner of Stamps.
Suppose it be argued, as it very well can, that the deed now before usis in all respects a conveyance for value. Such an argument seems tobe effectively met by the decision in In re Coomaraswamy (supra)where at page 63, Bertram C.J. says as follows : “ We have, therefore, toask ourselves whether upon the face of the document it is in substance adeed of gift. For that purpose it does not matter what it may be called.We have to determine from what appears within the four corners of thedocument its essential nature. Now the material words are, ‘ In consi-deration *, or as it is suggested it may be translated in the alternative, * indischarge of the sum of Rs. 1,500 agreed by me to be given as dowrymoney, I sell, assign, and convey all the right, title, and interest belongingto me in and to the under-mentioned mortgage bonds and otty bond’.Do these words in fact constitute the document a deed of gift? It wassuggested by Mr. Arulanandan that they really point to two transactions,an initial agreement to give a sum of money as dowry, and a subsequentagreement vacating the original agreement; under which substitutedagreement the mortgages were to be executed in lieu of the money origi-nally provided for, and an assignment of these mortgages in pursuanceof this substituted agreement. I think that if we look at the words of thedocument as they stand, there can be no doubt that this is in substancea deed of gift. It may be taken as settled by the decision of this Court(In re Veeravagu) that a dowry deed, even though it is executed inpursuance of marriage and in consideration of marriage, is, in fact, insubstance a gift by the parent or parents to the daughter ”. The effect ofthis ruling interpreted most favourably for the appellant in this case isthat a deed such as the present, even though it may be in the eye of thegeneral law a conveyance for value, is none the less under the provisionsof the Stamp Ordinance a gift, and therefore to be stamped under Article30 of the Schedule. If it be urged for the appellant that this deed beinga conveyance he can stamp it as such, he is met by another passage in thisjudgment of In re Coomaraswamy (supra), which adopts the principle thatrules in England (Speyer Brothers v. Commissioners of Inland Revenuel)“ that where a document is chargeable in the. alternative under two cate-gories, the Crown has a choice whether to charge it under the one or underthe other ”. In effect, granting to the full, if you wish, that this deed No. 471was a conveyance for value, still, by virtue of decisions which are bindingupon us, it is also a gift which has not been accepted and therefore, if theCrown wishes to stamp it with the higher duty chargeable under Article30 (b) of the schedule, it is entitled to do so. If that is so, then the rulingof the Commissioner of Stamps is correct, and this appeal must bedismissed.
As the Crown consents to waive its claim to costs, this appeal will bedismissed without costs.
Poyser J.—I agree.
Appeal dismissed.
1 (1908) A. C. 92.