079-NLR-NLR-V-61-A.-P.-PODIHAMINE-Appellant-and-JORANIS-PERERA-et-al-Respondents.pdf
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Podihamine v. Joranis Per era
Present: Basnayake, C.J., and Pulle, 3.
A- P. PODIHAMINE, Appellant, and JORANIS PERERA et al.,
Respondents
. S. C. 81—D. C. (Inty.) Colombo, 15330jT
Stamps—Testamentary proceedings—Appeal (herefrom—Decree of Supreme Court-—Duty payable—Stamp Ordinance, Schedule A, Part II (9), Part III.
In an appeal from a decision in a testamentary proceeding the appellantmust supply stamps for the Supreme Court decree. Failure to do so is fatalto the reception of the appeal.
./^kpPEAL from a judgment of the District Court, Colombo.
H. W. Jaye> car dene, Q.C., with D. It. P. Goonetillelce, for Petitioner-Appellant.
W.D. Gunasekera, for 1st Respondent-Respondent.
P.N. Wikremanayake, for 19th Respondent—Respondent.
V. Tennekoon, Senior Crown Counsel, with E. ft, de Ponseka, CrownCounsel, as ^ppicus Curiae- (on notice),
BASNATAKE, C.J.—PocKhamine v. Joranis Per era
3X1
November 6, 1959. Basstatakb, C.J.—
This appeal comes up before us for an order whether it should be listedfor hearing as the necessary stamps for the Supreme Court decree havenot been supplied by the appellant. Learned counsel contends thatunder the Schedule to the Stamp Ordinance no stamp doty is payableon the decree of the Supreme Court as the appeal is from a decision in atestamentary proceeding and all stamp duties payable on such proceedingsare prescribed in Part HI of Schedule A of the Stamp Ordinance whichmakes no provision for stamp duty on the deoree of the Supreme Court.He relies on two decisions of this court reported in 42 N. L. R. 289 and42 N. L. R. 411 as supporting the proposition that the only stamp dutypayable in testamentary proceedings whether it be in the original courtor in appeal is contained in Part HI of the Stamp Ordinance. The formerof the two cases decided, that in guardianship proceedings documentsother than those mentioned in paragraph P (/) of Schedule A, Part II,of the Stamp Ordinance are exempt from stamp duty. In the latter caseit was held that proceedings under section 68 of tbe Courts Ordinance forthe transfer of a testamentary case from one District Court to anothershould be stamped under Part HE of Schedule A of the Stamp Ordinance.In the course of the judgment in the latter case Moseley, S.P.J., said“ Indeed in the case referred to immediately above, Withers J. describedthe purpose of Part HI in the Ordinance of 1890 as ' to exhaust the dutieschargeable in testamentary proceedings in the Supreme Court and theDistrict Courts’.”
We are unable to agree that that statement applies to the StampOrdinance in its present form and that Part HI of Schedule A of theStamp Ordinance does contain the stamp duties payable in proceedings inthe Supreme Court and on instruments passed under its seal.
In our opinion it is clear that Part III of the Stamp Ordinance containsonly duties payable in the District Court in testamentary proceedings.No provision is made therein for the stamp duty payable on the decreeof the Supreme Court for the same reason that no such provision is madein Part H in respect of proceedings other than testamentary proceedingsin the District Court. If learned counsel’s contention is sound thenall decrees of the Supreme Court would not be liable to duty. Such aview is untenable in the face of item 9 of Part H of the tariff prescribedfor law proceedings in the Supreme Court. The scheme of the Ordinanceis that each part of the tariff is exhaustive of the duties payable onproceedings in the court in respect of whicn the duties are prescribed.In respect of the stamp duty payable on the decree of the Supreme Court
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BA3NATAEE, C.J.—Podihamine v. Jorani* Perera
j.
the duty on -which is prescribed In the tariff applicable to the SupremeCourt; the legislature has enacted a special provision which reads— "
“ In'appeals to the Supreme Court the appellant shall deliver to-theSecretary ofthe Ufstrict Court or cleirk of the Court of Bequests, togetherwith his petition of appeal, the proper stamp for the decree or orderof the Supreme Court and certificate in appeal which-may be requiredfor such appeal.”
It has been authoritatively decided by this court that failure to complywith that provision is fatal to the reception of an appeal. {Attorney-General v. Karunaratne a).
' The appeal is rejected with costs.
Perms, J.—I agree.
1 fc:1935) 37 -N. L. B.67.
Appeal rejected.