Present ; Bertram C.J.
WIJESURIYA v. SAM ARASINGHE.
P. C. Colombo, 48,021.
Stamp duty—Lease—Mortgage affeottng mare lands than one embodiedin leases—0 rdtnanoe No. 10 of 1010 s ParL J, Schedule B.
Mortgage* affecting more land* than one embodied in leases arechargeable with the full duty chargeablo on mortgages, includingthe duty leviable in respect of additional lands, and they are notentitled to the benefit of the third proviso to paragraph 81a.
pp HE facts appear from the judgment.
J.3. Jayawardene.—Paragraph S1a of Part 1 of Sohedule B ofOrdinance No. 10 of 1919 provides that a lease should be stampedwith the same stamp duty as on a mortgage bond. Now the provisoto that paragraph provides that no duty shall be paid ixi respectof any additional lands. This is a general provision, and must betaken to apply to all duties mentioned in this paragraph, so thatit applies to a mortgage bond embodied in a lease as well as tothe lease itself. There does not seem to be any ambiguity in thelanguage of this proviso, but even if it is held to be ambiguous, itmust be interpreted in favour of the subject.
M. W. H. de Silva,—Paragraph 81a deals only with the duty onleases, and in ease of leases there is no extra duty for additionallands ; but when a lease embodies a mortgage of land also thedocument has to be stamped as two separate documents, namely,a lease and a mortgage. The duty oh the mortgage is provided forby paragraph 15; which provides that there shall.be an extra stampduty on each additional land. '• It is conceded that if – theinterpretation suggested by the appellant is adopted, a lease anda mortgage executed separately would be liable to more stamp dutythan if they were embodied in the same document. But the secondproviso to paragraph 81a shows that it should be the same.
This Ordinance was enaoted to enable the registration duty tobe collected at the time of the execution of the document itselfand to prevent the non-registration of deeds. Under the old lawthere was an extra duty for the registration of every additionalland in the case of transfers and mortgages of laud, but not in theease of leases. The paragraph in question gave effect to . this
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*922.distinction, and the proviso must be taken as referring only to leases.
Wijeauriya The proviso to this paragraph must be read independently, and there^erre<l ^ in the third proviso is the duty on leases only,and not the duties referred to in the other provisos.
September 1, 1922. Bertram C.J.—
This point is an obscure one, but Mr. de Silva has cleared it upbeyond reasonable doubt. The question for consideration wasthis. Paragraph 31a of Part I. of Schedule B of the Stamp Ordi-nance, No. 10 of 1919, like the corresponding provision Of theprevious Stamp Ordinance, declares that, a lease shall be stampedin the same manner as a mortgage.. It then proceeds to enactthree provisos. The first proviso limits the duty to. what wouldbe the duty for a lease for six years. The second proviso providesthat where the lease also contains a mortgage, the mortgage shallbe separately chargeable. The third' proviso" declares that noduty is leviable in respect of any additional lands. It is agreedthat in this third proviso the word “is'’ should be construed as“shall be,’’ and it is further agreed that the third proviso hasreference to a new enactment introduced for the first time .into ourstamp legislation by Ordinance No. 10 of 1919. The new enactmentreferred to is to be found in the proviso to paragraph 15, whichlays down a special scale of duties in the case of mortgages com-prising more lands than one. Now the question to be determinedis whether these three provisos are three independent provisos,or whether they are interdependent. If they arre interdependent,it is argued that the exemption from duty oontained in the thirdproviso affects *all references to duties in paragraph. Theparagraph provides for a duty upon leases. It also refers to theduty chargeable on mortgages and it is suggested by Mr. Jaya-wardene that, when the third proviso says that no duty is chargeable,it refers both to the duty on leases and to the duty on mortgagesreferred to in the two previous provisos.
The solution of the problem we have to solve will be found inthe history of the enactment, and that history is as follows: Upto 1919 there was payable in respect of both transfers and mortgagesaffecting more lands than one, not only a duty under the StampOrdinance, but also a special registration duty. That registrationduty is provided for by. section 20 of the Land Registration Ordi/nance., No. 14 of 1891, and by the. 5th schedule to that Ordinance. Itappears to have been found inconvenient to levy these two dutiesseparately, ancf accordingly it would seem to have been determined,when Ordinance No. 10 of 3919 was passed, to consolidate thetwo. It will be found, therefore, that, both in regard to transfersand in regard to mortgages/ these registration duties are embodiedin Part 1 of Schedule B to the New Stamp Ordinance (see paragraph
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15; the proviso immediately following sub-paragraph 1 and para-graph 22, the. proviso immediately following paragraph TE). Atthe same time by an Ordinance bearing the next serial number, *.e.,No. 11 of. 1919, .the. registration duties on transfers, and mortgagesdealing with more lands than one were repealed. See section 2,Ordinance No. 11 of 1919, and paragraph 4 of section 3 of thesame Ordinance. ‘
Now there was no special registration duty in respect of leasescomprising more than one property. The draughtsman, therefore.,when he came to consider paragraph 31, which declared that theduty on leases shall be the same as that on mortgages, quite reason-ably* and naturally added a proviso, that‘no duty shall be leviablein the case of additional lands.? It is – thus clear that this provisowas intended to refer to the duty oh' leases. The consolidation ofthfe stamp-duties with: the registration duties,, in respect of transfersand mortgages affecting more lands than one, was not intended tobe an increase oFduty, but to leave the duties in the same position,except that, instead of being separate, they should be paid together.It is clear, therefore, that in the mind of the draughtsman, whenthe third proviso was enacted, the matter in contemplation wassimply the duty on leases. With regard to the duty on mortgages,referred to in the same paragraph, that was a different matter.The Second proviso to the paragraph simply says that mortgagescontained in lease bonds shall be separately chargeable. Suchmortgages, if they affected more lands than one, would havepreviously had to pay both the stamp duty and the registrationduty under the law as it stood before the enactment of the newStamp Ordinance. There was no reason why they should beexempted from the second of these duties now that it was con-solidated with the first. That is the history of the enactment. Inthe light of this history we are in a position to interpret the thirdproviso. In the light of that history, it is clear that the threeprovisos are not interdependent but independent. It is clearthat mortgages affecting more lands than one embodied in leasesare chargeable with the full duty chargeable on mortgages, includingthe duly leviable in respect of additional lands, and that they arenot entitled to the. benefit of the third proviso to the paragraph.The conviction, therefore, is right, but the point was obscure, andI think that the fine should be the most nominal possible. I there-fore reduce the fine from Bs. 5 to Be. 1, but otherwise dismiss theappeal.
Application refused. *
WIJESURIYA v. SAMARASINGHE