Ambalavasfm w. PofLnamma.
Present: Hearne and de Kretser JJ.
AMBALAVANAR v. PONNAMMA et al.
120—D. C. (Inty.) Colombo, 3,484.
Guardianship proceedings-—Father's right to custody of child—Thesawalamai—Jaffna Matrimonial Rights and Inheritance Ordinance, s. 40 (Cap. 48) —Stamping of documents—Stamp Ordinance, Schedule A, Part II.,para F (f). (Cap. 184).
In guardianship proceedings documents other than those mentionedin paragraph F (f) of Schedule A, Part n. of the Stamp Ordinance areexempt from stamp duty.
The father of a child subject to the Thesawalamai is entitled to itscustody on the death of the mother.
Kanapathipillai v. Sivakolunthu (14 N. L. R. 484), referred to.
PPEAL from an order of the District Judge of Colombo.
N. Kumarasingham (with him C. Renganathan).—There are two preli-minary objections to the hearing of this appeal, viz. : —^ (1) The appellanthas failed to deliver to the Secretary of the District Court together withhis petition of appeal proper stamps for the decree and order of theSupreme Court and the certificate in appeal.
(2) The appellant has failed to affijc to the petition of appeal thenecessary stamps. In fact no stamps have been supplied at all ; theappellant taking the view that in guardianship proceedings no stampsare .necessary.
Chapter 189 of the Legislative Enactments, section 2, states whatinstruments are chargeable with duty. Every document mentioned inParts IT., III., IV., and V. of the Schedule comes under that provision.
Section 5 saves certain instruments and does not affect the require-ments or exemptions created by other Ordinances. In the Civil ProcedureCode section 10 makes provision for exemption when a case is trans-ferred from one Court to another, section 449 makes provision for actionsby paupers. Section 581 specially exempts Lunacy Proceedings.There is no such exemption for guardianship proceedings underChapter XL. of the Civil Procedure Code. By implication it follows thatGuardianship Proceedings should be stamped unless otherwise exempted.
Under the Stamp Ordinance the position is quite clear. Schedule A,Part II., contains the duties on Law Proceedings in the various Courts.In Part II., head F, “ Miscellaneous ” defines the duties specially fixedin certain cases and the exemptions. Under this head special provisionhas been made for matrimonial actions, actions under the Small TenementsOrdinance, actions to give effect to public charity partition actions,Claim Proceedings, Actions under that Patents Ordinance, &c. Nosuch provision has been made for guardianship proceedings. Thelegislature intended that guardianship proceedings should bear theordinary class stamp.
!•'J. N. B 17623 (5/52)
AmbtlavanaT v. fonnamma. •
Special rates have been fixed for two items in guardianship proceedingsunder head F (f) certificate of curatorship and the half-yearly accounts,except where the Court has ordered the proceedings to be in blank.No such order has been made in this case. The reference to the order ofCourt that proceedings may be in blank again shows that the proceedingsordinarily should be stamped as any other proceedings. Similar provisionhas been made fixing special rates for certain documents in Part III. ofthe Schedule in Testamentary Proceedings under sub-head (7). Everycertified copy -of any will or codicil or of any other document mentionedin Part III. shall bear a stamp of Rs. 3 and not the class stamp. Actionsunder the Trusts Ordinance have been held to be. liable to the generalprovisions re stamps. See Saddanatha Kurukkal v. SubramaniamThambiah v. KasipillaiSaverimuttu v. Saiva Paripalana Sabha’. Afortiori actions in Guardianship under Chapter XL. of the Civil ProcedureCode should be stamped. Under section 583 the action is commencedby an application by way of summary procedure. Under section 273every*, application to Court by way of summary procedure “ shall beinstituted upon a duly stamped written petition ”.
[de Kretser J.—What is the required stamp ?]
If the application is for the appointment of a guardian arid curatorthen the value will be determined by the value of the assets of the minor.If the child has no such assets, then the smallest class will apply. Thesmallest class in Part II. of the Stamp Ordinance in the District Court isthe class up to and including Rs. 1,000. That would include all mattersfrom zero up to and including Rs. 1,000. In this case that difficulty isobviated as the minor is already entitled to certain assets. On the deathof her mother she became entitled to the same and the mother’s estateis being administered in th District Court, Colombo.
N. Nadarajah, (with Chelvanayagam and H. W. Tambiah) for appellant.—A proceeding for the appointment of a guardian or curator over theminor is not a civil proceeding and is not stampable. The CourtsOrdinance states that the District Court is vested with Civil Jurisdiction,Insolvency Jurisdiction, Matrimonial Jurisdiction, &c., and Jurisdictionover Minors and Idiots.
Therefore Civil Jurisdiction is something different from the JurisdictionCourts exercise over minors. The. Stamp Ordinance adopts this divisionmutatis mutandis.
It is only in the'case of civil proceedings Schedule A, Part II. will apply.
There is a letter from the Registrar of the Supreme Court and theSecretary of the District Court of Colombo to the effect that it is a longstanding practice that guardianship • and curatorship proceedings arenever stamped. This practice amounts to a cursus curiae and in the' matter of procedure cursus curiae must be followed, Boyagoda v. Mendis *.
Even if it is regarded as a civil proceeding, the only provision regardingthe stamping of curatorship proceedings is found in the proviso whichsays that every certificate of curatorship under Chapter XL. of the CivilProcedure Code, section 582, shall bear a stamp of Rs. 6 and every accountfiled thereunder shall bear a stamp of Rs. 3, unless the Court shall order
1 39 X. L. R. 387.1 40 .V. L. R. 29S.
» 13 C. L. W. 141.• 30 N. L. R. 321.
Ambalavanar v. Ponndmma.
the proceedings to be on blank. None of the other documents have beenstamped in the lower Court and therefore the District Judge has impliedlyordered that the proceedings must be in blank.
N. Kumarasingham (in reply).—-The definition of the Civil Jurisdictionof the District Court in the Courts Ordinance has no bearing on thisquestion. On the question of stamps we have only to look to the StampOrdinance or other Ordinances where special exemptions have beencreated. The Stamp Ordinance makes provision for all proceedings inCourt. It does not speak of Civil Proceedings but of Law Proceedings.The only exemption it creates in guardianship proceedings is in thecase of affidavits. That exemption appears under the head Civil Proceed-ings. That again shows that guardianship proceedings come under thegeneral head. The whole scheme of the Stamp Ordinance supports myproposition. The Courts Ordinance does not help the appellant.Matrimonial jurisdiction is defined there as something other than Civiljurisdiction, yet provision for it is made under head (f) in Part II. and aspecial rate is mentioned. Guardianship proceedings have all beensimilarly treated. That again shows that the ordinary stamp duty ispayable. A special part of the schedule deals with testamentarymatters, probably because that has been a substantial source of revenue.One cannot think of any other reason.
The case Boyagoda v. Mendis (supra) has no application. This isnot a matter of procedure. If by long established practice the revenuehas been defrauded then that practice must go. See the observationsof Bertram C.J. in Sathasivam v. Vaithianathan
The Stamp Ordinance does not create any exemption in the case ofGuardianship proceedings. The absence of stamps is a fatal objection.Guardianship proceedings on the question of stamps are in the sameposition as proceedings under the Trust Ordinance.
[At this stage their Lordships intimated that they will hear the caseon the merits also.]
N. Nadarajah, (with Chelvanayagam and H. W. Tambiah) for appellant.—This raises the question whether under the law of Thesawalamaia father who remarries loses the custody of the minor child. Underthe old Thesawalamai the law on this subject is contained in section1, sub-section (11) of the Thesawalamai Code which states “ If a fatherwishes to marry a second time the mother-in-law or nearest relationgenerally takes the child or children in order to bring them up ; andin such a case the father is obliged to give at the same time with hischild or children the whole of the property ”. The words “ generallytakes ” show that the provision was not obligatory and it was a matterof arrangement, but was revived in Kanapathipillai v. Sivakolunthu."
Even under the old Thesawalamai the law governing guardianship wasthe Roman-Dutch law. Since there was no definite provision in Thesa-waiamai under the Roman-Dutch law the father did not cease to be aguardian on his remarriage.
Section 1, sub-section (11) of the Thesaulalamai Code was long obsolete.Vide the dictum of Pereira J. in Theivanapillai v. Ponniaha. It was
1 24 N. L. R. 94:'‘ 14 N. L. R. 448.
’ 17 X. L. R. 437.
Ambalavanar v. Ponnamma.
only revived by the case of Kanapathipillai v. Sivakolunthu. This caseis distinguishable from the present case. The case of Kanapathipillai v.Sivakolunthu (supra) was decided, before Ordinance No. 1 of 1911 cameinto operation.
The effect of sections '39 and 40 of Ordinance No. 1 of 1911, nowsections 37 and 38 of the Jaffna Matrimonial Rights Ordinance, is to repealby implication section 1, sub-section (11) of the Thesawalamai Code.Section 1, sub-section (11) primarily deals with the right to manage theminor’s property. The right of guardianship was only incidental.The property had to be handed over to the grandmother when the fatherremarried. But section 39 of Ordinance No. 1 of 1911 gives the fatherthe'right to retain the property even on the remarriage. These are in-consistent provisions of law. Section 2 of Ordinance No. 1 of 1911 (nowsection 40 of the Jaffna Matrimonial Rights Ordinance) states that if someprovision of Ordinance No. 1 of 1911 is inconsistent with a provisionof the collection of customary law known as Thesawalamai thenthe latter provision is repealed (vide Anhapillai v. Saravanamuttu).’Therefore section 1, sub-section (11), is repealed and the law of guardian-ship is governed by the Roman-Dutch law.
The learned District Judge holds that the child will be happy in bothplaces and hence the custody must be given to the father who has alegal right.
N. Kumarasingham, for respondent.—Section 11 of the ThesawalamaiRegulation provides that “ if a father wishes to marry a second time themother-in-law or the nearest relation generally takes the child orchildren (if they be still young) in order to bring them up ; and in such acase the father is obliged to give at the same time with his child orchildren the whole of the property brought in marriage by the deceasedwife, and half of the property acquired during his first marriage ”. Thewords “generally takes the child or children” does not mean that thetaking of the children by the grandmother was a matter of arrangement.If it was a matter of arrangement, the handing over of the property to,the grandmother might as well be a matter of arrangement. But thelanguage used is “ the father is obliged to give The expression“ generally takes ” has been used to denote the idea that the grand-mother cannot be compelled to take the child. In other words, she isunder no obligation or duty to take the child. She has the right whichshe generally exercises. Kanapathipillai v. Sivakolunthu (supra) is theonly case in point. It is a judgement of a bench of two Judges where thegrandmother’s right to guardianship of the children on the remarriage ofthe father was recognized. (Theivanapillai v. Ponnaiah) (supra) and(Annapillai v. Saravanamuttu) (supra) are cases under the MaintenanceOrdinance. The obligation of the father to maintain the child under theMaintenance Ordinance is independent of the Provision of -Thesawalamai.
In interpreting the provisions of the Thesawalamai Regulation, onemust have regard to the fact that it is a compilation of Customs andnot a statute drafted in precise language.
1 40 -Y. L. R. 1.
DE KRETSER J.—Ambalawanar v. Ponnamma.
It is correct that the provision regarding the custody of childrenappears in a section dealing with succession to property. Nevertheless,it forms part of the Thesawalamai Regulation where it is recognized ascustom having the force of law.
The provisions of section 11 of the Thesawalamai Regulation regardingthe custody of children on the remarriage of the father are not inconsist-ent with sections 37 and 38 of Ordinance No. 1 of 1911. Under section 11the father was obliged to hand over the property to the grandmotherwhen she took the children. Under sections 37 and 33 the father is giventhe right to continue in possession and enjoy the income till the childmarries or attains majority. If he continues in possession, he is obligedto maintain the child till the child attains majority or marries.
The grandmother’s right to the custody of the children is unaffectedby sections 37 and 38.
Cur. adv. vult.
March 7, 1941. de Kbetser J.—
Respondent's Counsel took a preliminary objection to the appealbeing heard, viz., that the petition of appeal was not stamped nor hadstamps been supplied for the decree of the Supreme Court and thecertificate in appeal. He urged that guardianship proceedings werecivil proceedings and as such fell to be stamped under Part II. of ScheduleA to the Stamp Ordinance. He proposed that the lowest class should betaken for the purpose of stamping, urged that the provisions in paragraphF (b) was supplemental so far as it related to the certificate of curatorshipand to accounts, and that the concluding sentence indicated that theproceedings had to be stamped. He drew attention to the fact thatspecial provision was made for exempting proceedings in Lunacy fromstamp duty in section 581 of the Civil Procedure Code, for Pauper Actionsin section 449, and for Affidavits in proceedings under chapter XL.,in Part I. of Schedule A. He also drew our attention to decisions of thisCourt on the stamping of appeals under the Trusts Ordinance.
For the appellant our attention was invited to section 62 of the CourtsOrdinance which showed that proceedings in District Courts wereof different types and were not divided merely into civil and criminal.Counsel argued that the Stamp Ordinance had had these different typesof cases in mind. He also argued that the District Judge must be takento have exempted the proceedings from stamp duty, and finally urged a 'cursus curiae in support of which he produced two letters from theSecretary of the District Court, Colombo, and the Registrar of this Court.
I may say at once that the Court was of opinion that even if these lettersdid establish a cursus curiae the Court would not give its sanction to thecontinuance of the practice if it felt the proceedings required to be -stamped. Nor did it think the omission in the District Court amountedto exemption by the District Judge. There remain therefore the otherpoints. It is not safe to argue that, because express provision was maderegarding Lunacy and Pauper proceedings and none exempting guardian-ship proceedings, therefore, the latter ought to be stamped. One wouldrequire to know the history of the different enactments. It may be thatthe sections regarding Lunacy were taken bodily from one source andthose regarding guardianship from another. Both lunatics and minors
DE KRETSER J.—Ambalavanar v. Ponnamma.
may have valuable estates, both are placed under the special care ofDistrict Courts, and there seems to be no reason why the one class shouldbe more favoured than the other.
The exemption regarding affidavits followed necessarily from thearrangement of the schedules in the Stamp Ordinance : once stamps foraffidavits were required all exemptions had to come in under that head :it would be wise to make the exemptions clear even if it were notnecessary.
It seems to me that the $tamp Ordinance does follow the lines ofsection 62 of the Courts Ordinance. Section 63 of that Ordinance definesthe civil jurisdiction of a District Court and later sections define itsjurisdiction with regard to revenue, matrimonial, testamentary, lunacyand guardianship matters. The District Court is also given jurisdictionby various other Ordinances, such as the Insolvency, the Trusts andPatents Ordinances. It will be noted that its civil jurisdiction isdistinct from its jurisdiction over minors and lunatics. Its civil juris-diction covers the type of case with which we are familiar and which theCivil Procedure Code requires to be valued with regard to the subject-matter of the action. That the Stamp Ordinance adopts this divisionand this definition of civil proceedings will be seen from the circumstancethat the duties imposed in paragraph A all relate to the class of the caseand the items specified are such as are found in, what I may call, theordinary civil action. It makes special provision in Parts III. and V.for testamentary and insolvency proceedings. In paragraph F, as thevery heading states, provision is made for a number of miscellaneousmatters. In this paragraph are included different types of cases nototherwise provided for. Matrimonial suits are to be stamped on aspecified class basis “ according to the classification of suits in CivilProceedings in District Courts ”. Note the reference to “ Civil Proceed-ings ”. So also proceedings under the Small Tenements Ordinance aregiven a value, as are proceedings under the Patents Ordinance andactions for carrying into effect Trusts for Public Charity. Nothing issaid about Lunacy or Pauper proceedings, probably because the CivilProcedure Code had already exempted them from stamp duty. Comingto proceedings under Chapter XL., i.e., guardianship proceedings, itimposes stamp duty on only two instruments, and the duty imposedhas no reference to the value of the estate and seems to be purelyarbitrary. If the legislature considered that guardianship proceedingsshould be stamped according to value, or according to class, it could aseasily have provided for that being done as it had with reference to othertypes of proceedings. It thus follows that no duty other than those speci-fied in (f) have been imposed in guardianship proceedings, and even if theexcepting clause indicates an intention to impose a duty that intentionhas not been given effect to. But that clause refers to the particularinstruments previously named, a certificate or an account being a“ proceeding ”, as paragraph A and Part HI. show.
In my opinion no stamps were required for the petition of appeal or thecertificate in appeal or the decree in appeal and the preliminary objectionfails.
DE KRETSER J.—Ambalavanar v. Ponnamma.
I pass to the appeal. The facts giving rise to it are these Theappellant married the respondent’s daughter and they had a child,regarding whose custody the appellant and his mother-in-law arequarrelling. The appellant’s wife died and shortly afterwards theappellant, who is a medical man, married a second time and went toEngland. He then left his child with the respondent, who entered into awritten agreement, filed of record, agreeing to return the child to himon his coming back but reserving her legal rights, if any.
On his return respondent did not abide by her Undertaking but insteadshe started proceedings to have a curator appointed for the minor’sestate and herself appointed as the guardian. The estate of theappellant’s deceased wife is being administered by the Secretary of theDistrict Court of Colombo, and as the minor is the sole heir and therespondent is her guardian ad litem there is no reason to believe that thefull estate will not be ascertained and in due course pass to the minor.There being sufficient provision for administration of the estate and thetestamentary proceedings being, I understand, far from complete, itseems to be quite unnecessary to appoint a curator of the minor’sproperty at this stage. It will not be necessary even later, for accordingto section 37 of the Jaffna Matrimonial Rights and Inheritance Ordinance(Cap. 48) the appellant is entitled to possess the minor’s estate until thechild is “ married or attains majority
These proceedings seem to have been taken purely for the purpose ofhaving the question of guardianship decided and if the District Judgedoes decide to continue the curator tod to have all accounts filed periodi-cally I trust he will see that all the expenses for these useless proceedingsare paid by the respondent personally. He is given full power to cancelhis order appointing a curator.
Turning to the question of the guardian, in the absence of expressprovision the Roman-Dutch law would apply and both in that law and inEnglish law the father would have a paramount right to the custody ofhis child, but overriding his right would be the welfare of the child.The learned District Judge has held that the child would be as well caredfor and happy with either party but that perhaps the grandmother mightbestow just a little more love on it. There would then be no adequatereason why the appellant should not have his own child except somelegal right in the respondent overriding the natural rights of the father.The learned District Judge in a very careful and analytical judgmenthas found such a right for the grandmother in the provisions of paragraph11 of the Thesawalamai. He is supported by the judgment of this Courtin the case of Kanapathipillai v. Sivakolanthu1. The judgment is by aBench of two Judges, and if we differed from the view there taken,as we do, we should ordinarily refer the question for decision by a fullerBench. But this step is unnecessary in view of the fact that the passingof the Jaffna Matrimonial Rights and Inheritance Ordinance (Cap. 48)alters the situation and leaves us free to consider the question foroverselves.
The first thing to decide is whether paragraph 11 of the Thesawalamaihas been repealed. Chapter 48 deals with the matrimonial rights of
1 14 N. L. R. 484.
DE KRETSER J.—rAmbalanavar v. Ponnamma.
husband and wife with reference to property and with rights of inheri-,ance. Section 40 enacts that so much of the provisions of the Thesa-walamai as are inconsistent with the Ordinance are repealed by it. TheThesawalamai (Chapter 51) purports to be a collection of customs of theInhabitants of Jaffna made by Governor Simons in 1706, and theheading of this collection states the subjects covered by it. Guardianshipof minors is not one of the subjects mentioned. Part I. expressly deals“ Of Inheritance and Succession to Property ”. Presumably that partwould be repealed by Chapter 48 which deals with the same matters.In Part I. are various sub-heads, all dealing with property. Paragraphs9 and 10 deal with the position where the father dies and children andtheir mother are left. Paragraph 11 deals with the case of the motherdying and the father and children being left. The case of both thespouses is now dealt with by section 37 of Chapter 48. The obviousresult is that paragraphs 9 to 11 are no longer of effect. Chapter 48 hadnot been brought into force at the time Kanapathipillai v. Sivakolonthu(supra) was decided and in the course of his judgment Lascelles C.J.repelled the suggestion that paragraph 11 had become obsolete. Heseems to have thought that paragraph 11 contained a statement as regardsthe rights of the maternal relations with regard to the person andproperty of the child when the father is married a second time, and laterhe speaks of the rule of the Thesawalamai with regard to guardianship.With all respect to him, I think he went too far if he meant to say thatthe paragraph stated an absolute right and a universal rule as regardsguardianship alone. He coupled guardianship of the child with custodyof its property and there he has some support in the paragraph. If thencustody of its property also decided the guardianship of the child,Chapter 48 gives the custody of the property to the surviving spouseand the surviving spouse should be its guardian also. The Thesawalamaiimposed no forfeiture on the widow who married again but it did on thewidower. The forfeiture was with respect to his possession of the child’sproperty. Chapter 48 abolishes that forfeiture with regard to propertyand there must be a strong reason shown why it should attach to thecustody of the children.
With all respect I would submit that guardianship of the children isonly incidentally referred to and that it was not intended to be dealt withat all. The statement i$ too vague and general and finds too casual aplace to be construed as a considered statement of the rights to guardian-ship. The scheme which the compiler seems to have had in mind wassomewhat as follows : —
The father remains in possession so long as he does not marryagain. That is a statement of his customary right. (2) If he marriesagain he forfeits the usufruct. The question at once arises—Who takespossession of the property ? It is a question Which has practicalimportance only when the children are young. The compiler in effectsays—“ Well, that presents no difficulty, the mother-in-law or nearestrelation generally takes the children, and with the children goes theirproperty.” With respect to the property, which alone he set out to dealwith, he uses language showing the rights of the surviving spouse. Hedoes not say the father is not entitled to the custody of the children or
The King v. Ahamadu Ismail.
that the maternal relations are so entitled but he says they generallyhave the children. That happens generally: there is no question ofrights. It happens generally and not invariably. It is not confinedto the maternal relations but any near relative may take the children.So casual is the reference to guardianship that he deals only with the caseof the children being young and only with a situation that is often metwith. There is no reference to the guardianship of tne children if there isno near relative nor to the case of there being one who is not willing totake them. He is content to deal with the father’s rights to possessionof the property and to leave the rare case of there being no one to takecharge of the property to be dealt with if and when it arises.
The paragraph would indicate a family arrangement which verycommonly was made, but it was an arrangement and nothing more.It was bound up with the possession of the property and the maintenanceof the child. Both matters have been dealt with in Chapter 48. In myopinion paragraph 11 of the Thesawalamai has been repealed and thepassing remark about the custody of the children has not escaped repeal.
The learned Judge having found that the father would be a suitableguardian of the child, there is no reason why his natural rights shouldnot be recognized and the order will be that he be appointed its guardianand declared entitled to its custody. That custody is what the respond-. ent promised him on the written agreement, an agreement which sheought to have honoured. The father is a medical man and presumablyhe is sensible enough not to let the question of his rights affect therelations of the child with its grandmother.
Now that the rights of parties are decided, I trust that suitable familyarrangements will be made to secure the happiness of all concerned.
The appeal is allowed and order will be entered in appellant’s favourwith costs of the inquiry in the Court below and of this appeal.
Hearns J.—I agree.
AMBALAVANAR v. PONNAMMA et al