( 183 ).
Present : Ennis, Shaw, and De Sampayo JJ.HETTIARACHY v. WILFRED.
363—C. B. Colombo, 59,273.
Cancellation of stomp—Name of maker—No date—Date' insetted by Judgenunc pro tunc—Does appeal lie against admission of note inevidence?—Ordinance No. 22 of 190''. ss. 9 and 37.
In an action on a promissory note the defendant (maker) tookthe objection that.the stamp on thenote wasnot dulycancelled,
inasmuch as it boreonly the name ofthe makerand notthedate.
The Commissionerof Keque'sts insertedthe datehimself(nuncpro
tunc), andentered judgment for the plaintiff. Thedefendant
Held, that no appeal lap against the admission of the document,in view of the provisions of section 87 (1) of the Stamp Ordinance.
T HE facts are set out in the judgment .of the learned Commis-sioner of Requests (W. Wadsworth, Esq.): —
The only question in this case is, Has the stamp on the note been dulycancelled? The defencedoes not raiseany issue on the merits,and
rested the whole case on this issue as to the cancellation of the stamp.The stamp onthe promissorynotesuedupon iscancelled by the
maker signing hisname across thestamp.Hehas notdatedit, and it
is contended by – thedefendant that thestamp isthereforenotduly
cancelled, and the note, therefore, is not admissible in evidence, andin support, Mr. Joseph, for defendant, cited Nakuran v. Ranhamy. 1
The question raisedis avery important one,and affects a large
number of documentscoming beforeour Courts.The objectionto
the cancellation of the stamp appears to me to be one purely of law,'arising from the requirements of theStamp Ordinance. The ■ proper
value of the revenue has beenpaid. It'is admittedthat the stamphas
been' cancelled by the signing of the name, and it is for the' Court to see/that this stamp is so cancelled as not to be used again. Their Lordshipsin Nakuran v. Ranhamy 1 had the case of Kistnappa Chetty v. Silva2before them.
The two cases appear to' me to be inconflictasto theprovisionof
sub-section (3) ofsection 9 of Ordinance Ho. 22of 1909beingoptional or
imperative, Lascelles C.J. holdingthattherequirements ofcancellation
of stamp therein mentioned are only optional, Wood Benton . C.J. inthe Anuradhapura case appears to have held that the requirementsare imperative.
Our old Stamp Ordinance, Ho. 3 of 1890,section8,speaksof the mode
of cancellation of stamp, and states “ thepersonrequiredto-
caneel the stamp . cancels thesame bywriting ormarkingin
1 (1917) 20 N. L.R.13S.
2 (1911) 14 N. L. R. 458.
link on or across the stamp his name nr initials together with
the date o£ his so writing or marking'." This i6 amended by the present
Ordinance, No. 9 of 1909, which follows the provision of the EnglishStamp Act of 1891, section 8, sub-section (!'» and section 12, sub-section(8), of the Indian Stamp Act of 1899.
IntheIndian Actthe wordsadded arc “ or in any othereffectual
manner,” and inthe English Actthe words •addedare *' orotherwise
effectively cancelsthe stamp * and renders thesameincapableof being
usedforany otherinstrument." Whereas oursection 9,sub-section
(3), of Ordinance No. 22 of 1909, adds the words "so as effectually, toobliterate and cancel such stamp or stamps, or so as not ' to admit of thesame being used again." It may be noted that the disjunctive ‘‘ or ” usedin the Indian and English Acts does not find its proper place in oursection but it is clear that the principle laid down in our law is the * sameas that found in the other two Acts. The English and Indian authori-ties will, therefore, enable us to find out how a stamp can be said to beduly cancelled. The date of the cancellation ot the stamp is a necessaryingredient, and is proof that it was used at some point of time, although,as his Lordship the Chief Justice remarked in' the Anuradhapura case,evenif thedate ofcancellationwere written onthe stamp,it' might
conceivably he used, again.
The real object in cancelling a stamp used on a document being that^it should notbeused againand nothing more, has thisCourt the right
to seethatthe stampmay. not beusedagain, andthus satisfythe real
requirementsofthe law?Plaintiff'scounsel, Imightmention,' applied
that t-hc stamp be cancelled now, andcited the case ofViale v.Michael 1
in support, whereBlackburn J. said:‘‘Ican seeno reason whythe bills
shouldnot havebeencancelledin open Court atanymoment before
verdict, though it is not necessary' now to decide that point " (at p. 464).If, therefore, the date be placed on it now. nunc pro tunc, the require-ment of the law will be fulfilled, and the stamp will be so effectuallycancelled as not w be used again.
I am bound to follow both ■ the rulings oftheSupreme Court, and,
feelingas I do,thatI cannotexpress any opinion, orarrive at any
findingcontrary toor inconsistentwith either of thejudgments of their
Lordships, I find myself free to adopt a via media m having the dateof the making of the note placed on the 6tamp now, so that the stampmay not be used again, and then to find that the stamp is fully cancelled.
Sub-section (1) (6), section 9, of our Ordinancerequires the person
executing ittocancel thestamp atthe timeof executing it.He has
cancelled thestamp b\ signing it, buthas notdatedit. Canhe be
allowed to take advantage of his own neglect, or it may be fraud in somecases, to defeat justice? It is quite conceivable that a dishonest debtormay only sign his name over the stamp and fraudulently omit to date' it,with the express objectof settingup a defence lateras tothe insufficiency
of the cancellation. This will open a door to fraud, especially whenthe other party is ignorant or illiterate, and no law will permit a personto take advantage of his own fraud.
Both equity and justice demand that the Court should exercise itspowers to see that substantial justice is done, and that the real object•of the requirement of the law is in effect satisfied, in this case to see that
(1874) 30 L. T. 463.
the stamp may uot be used agaia without prejudice to the r:ghtb of
parties. I, therefore, place on the stamp the _ date May 23, 1914, thedate of the making of the note by defendant, nunc pro tunc, and enterjudgment for plaintiff, with costs.
The case was reserved for argument before a Bench of threeJudges by De Sampayo J.
Joseph, for the defendant, appellant.—The stamp on the notesued on was not cancelled by the maker, and the note is thereforeinvalid. The writing of the name over the stamp is not enough.The stamp should also bear the true date of the writing. Seesection 9, sub-section (3), of Ordinance No. 22 of 1909. [Ennis J.—Sub-section (3) does not say that writing the name and the date isthe only way of cancelling a stamp. It gives an illustration.] Itwas held in Nakuran v. Ranhamy 1 that when the signature overthe stamp is not dated there is no cancellation of the stamp.[Ennis J.—Does an appeal lie in this case? Section 37 (1) enactsthat the admission of a document by a Court shall not be called inquestion- at afpy stage of the suit.] That does not prevent an appealagainst the order. Moreover, a promissory note cannot be stampedsubsequent to the making thereof. [Ennis J. referred counsel toKistnappa v. Rutnain.'-]
In the present case the action itself is based on the note. It ::snot merely a document read in evidence in the course of the trial.[Ennis J.—The note has to be read in evidence.]
Balasintjham (with him Croos-Dabrera), for the respondent (notcalled upon).
Cut. adv. vult.
• February 21. 1918. Ennis J.—
J would follow the decision in Kistnappa o. Rutnam 2 and hold thatthe admission of this document'cannot be called in question now.
Shaw -J.—I agree.
De Sampayo J.—1 agree.
The point in appeal is as to the admissibility of the documentfor want of due cancellation of the stamp, and that- having beendisposed of, there is no further point to be considered in the appeal.The appeal will, therefore, be dismissed, with costs.
Appeal dismissed. 1
1 (1917) 20 X. 1. R. 135.2 (1914) 17 A L. R. 230.
[See, re cancellation of stamp : 23 Bom. 432 ; 71 L. J. Ch. 706 : 3 All. L. J.326.—Ed.]
HETTIARACHY v. WILFRED