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Present : Lascelles C.J. and De Sampayo A.J.KAPURUHAMY v. APPUHAMY et ah199—D. G. Anuradhapura, 629.
Stamp duty—Instrument executed on behalf of the Government of Ceylon—Ordinance No.. 9 of '1909, 8. 4—Irrigation Ordinance, s. 47—Certificate of sale—Bias—District Judge adjudicating on theregularity of certificate of sale issued by him as Government Agent. .
A certificate of sale issued under section 47 of the IrrigationOrdinancef No. 16 of 1906, is liable to stamp duty.
That exemption from stamp duty under section 4 (1) of theStamp Ordinance, 1909, applies to instruments executed on behalfof the Government only where but for such exemption the Govern*,ment would be liable to pay the duty.
It is improper for a Jud^e to try she irregularity of a certificatewhich he himself has issued in his capacity as Government Agent.
■Bt HE facts are set out in the judgment.
B. Jayatilehe, for defendants, appellants.^—The sale was badbecause the debt for which thA land was sold was not due at thedate of seizure. See section 42 of Ordinance No. 16 of 1906. The
seizure and sale were fraudulent. The learned District Judge *****should have allowed the issue as to whether the seizing officer had Kapuruhamt?the written authority under the hand' of the Government Agent, as Appuhamyis required by section 43 of the Irrigation Ordinance. The certi-ficate of sale should have been stamped, in accordance with section47 of the Irrigation Ordinance, 1906. The omission to do so is afatal irregularity.
Abdul Coder, for plaintiff, respondent.—The issue whether thedebt was due or not at the date of the seizure is raised in appeal forthe first time. It is not open to a party to raise a point of law forthe first tame in appeal, unless it might have been put forward inthe Court below under some one or other of the issues framed. SeeAppuhamy v. Nona.1 When the learned District Judge refused toframe an issue on the point whether the seizing officer had theauthority to seize, the appellant should have appealed at once if hethought that the point raised was one which went to the root of theplaintiff’s title. See Punchi Appuhamy v. Mudianse. 2 Fraud ismerely alleged, but not proved. A certificate of sale of this natureconfers upon the purchaser a title complete against the whole world.
A presumption arises under section 114 of the Evidence Ordinancein favour of the person relying on the certificate of sale that the salewas duly made under the Ordinance. The burden of proving fraudis on the defendants. See Ghinesekare v. Teberis et al. 3
The omission to stamp the certificate is not a fatal irregularity.
The defect can be cured under sections 36 (d) and 37 of OrdinanceNo. 22 of 1909.
B. JayatUeke, in reply, cited Abubakker Lebbe v. Ismail Lebbeet al. 4.
July 8, 1914. Lascelles C.J.—
This id an appeal in an action in which the plaintiff has recoveredjudgment for certain paddy fields at Talawa in virtue of a certificateof sale purporting to have been issued under section 47 of theIrrigation Ordinance, No. 16 of 1906.
The validity of the certificate has been attacked on certaingrounds, which I will proceed to consider.
In the course of the trial one Kiri Banda, a clerk to the IrrigationSuperintendent, was called to prove the condition of the land whenhe made the seizure. This witness deposed that he was authorizedby a Mr, Misso to sign seizure forms, and t-lJat on the occasion whenthe land in question was sold he signed the seizure form on thatauthority. 'He did not produce, and presumably had not, thewritten authority under the hand of the Government Agent, which
1 (1912) 15 N. L. B. 311.1 (1907) 2 A. C. B. 159.
3 (1906) 10 N. L. B. IS.
« (1908) 11 N. L. B. 309.
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1914. is required by section 48 of the Irrigation Ordinance. At this stagey.AOfTnrrr.Tfffl the defendants' proctor asked the learned District Judge to frameC.J.an issue on the point whether the seising officer had the authority
Kapuruhamy to 8e“se* This application was refused.
AppuhamyjU(jg6j |n my opinion, was wrong in refusing to accept this
issue. He had power to frame an additional issue under section 149of the Civil Procedure Code. The point raised was one which wentto the root of the plaintiff's title. The inquiry which the additionalissue would have involved would have been of the simplest nature if,indeed, any further inquiry was needed. The result is that judgmenthas been given for the plaintiff on a title which, on the officialevidence in the record, is of . no value whatever. As it is possiblethat some explanation may be given of what is apparently a fatalflaw in the title, the. case must go back for'the trial of the suggestedissue.
There is another point raised, I understand, for the first timeon appeal. The certificate of sale is bad on its face, inasmuchas the land purports to have been sold for a debt which was. notdue at the time of the sale. The certificate recites that Es. 17.25was owing for irrigation interest and labour rates for the year 1912,and Re. 1.50 for costs, and that the land (which was more than 8acres in extent) was seized in conformity with Ordinance No. 16 of1906 and sold for Es. 20.50 on June 18, 1912. Now, under section42, all contributions under the Ordinance are due and recoverableon June 30 in each year. The seizure and sale are, therefore, onthe face of the document contrary to law. It makes no differencethat the payments are primarily due under the Kalawewa Yoda-elaIrrigation Ordinance, No. 20 of 1908, as by section 6 of this Ordi-nance the rates and charges due under that Ordinance are enforceableand recoverable under Part IjX of the Irrigation Ordinance, 1906.The certificate is apparently bad, but the plaintiff should have anopportunity of offering any explanation which he may be able toplace before the Court.
The next point is with regard to the liability of the certificateto stamp duty. The learned District Judge has held that, inasmuchas the instrument was executed “ on behalf of the Governmentof Ceylon/' it is exempt from stamp duty under section 4 (1) of theStamp Ordinance, 1909. This decision is clearly erroneous, as theexemption extends to instruments executed on behalf of the Govern-ment of Ceylon only where “ but for such exemption the Governmentwould be liable to pay the duty chargeable in respect of suchinstrument.” But. by section 47 of the Irrigation Ordinance, 1906,it is provided, not only that such certificates are liable to the stampduty on conveyances, but that the duty is payable by the purchaser.The Government would in no case be liable to pay the stamp duty.The exemption thus has no application. In terms, of section 87 (6)I make a formal declaration that the instrument, in my opinion,
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should not have been admitted without payment of stamp duty 1914.of 25 cents, and a penalty under section 36 (a) of Bs. 2.50. I directa copy of this declaration, and also theinstrument, be sent to theC.J.
Commissioner of Stamps under section37(2) (o). I may state, gapuruhamy
with reference to the proviso to seotion 37, that I do not think »• Appuhamythat there was any intention on the part of the purchaser to evadepayment of duty.
The principal defence set up on the facts was that the plaintiff,who was a vel-vidane, and was in charge of the whole share belongingto the plaintiff, defendants, and others, received the amount due forthe share, and then, instead of paying over this amount, allowedtiie land to be sold, and bought it himself at the very low price ofBs. 20.50. The learned District Judgehasacquitted the plaintiff
of anything worse than sharp practice,andI accept his finding,
though he has overlooked the evidence that one of the shareholders,
Muttu Menika, is dead.
The result is that the judgment must be set aside, and the caseremitted for the trial of the following issues, namely: —
Was the land in dispute seized by the Government Agent,
or by any person authorized by writing under the handof the Government Agent?
In view of seotion 42«of the Irrigation Ordinance, 1906,
and section 6 of the Kalawewa Yoda-ela IrrigationOrdinance, 1908, was the amount of Bs. 17.25owing at the date of seizure?
As it would be manifestly improper that the District Judgeshould try the regularity of a certificate which he himself has issuedin his capacity as Government Agent, I direct the further pro-ceedings to be tried before another Judge. The evidence alreadyrecorded will stand, and either party will be at liberty to adducefurther evidence bearing on the additional issues.
The appellants are entitled to their costs of the appeal, and theother costs will be costs in the cause.
De Sampayo A.J.—I agree.
KAPURUHAMY v. APPUHAMY et al