032-NLR-NLR-V-19-APPUHAMY-v.-THEODORIS-et-al.pdf
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.1916.
Present: De Sampayo J.
APPUHAMY i>. THEODORIS et al.
<s. .
,115—C.B. Colombo, 46,721.
Stamp—Cancellation byoneofseveral partiesexecutinganinstrument—
Regulations as tosaleofstamps—Stampsnot datedormarked with
his initials by stamp vendor.
Where an instrumentrequiring to bestampedisexecuted by
several persons. itisnotnecessary that they should all cancel
the stamp.
facts are set out in the judgment.
A. St. V. Jayewardene, for plaintiff, appellant.
,P. G. F. de Soyza, for first defendant, respondent.
Cur. adv. vult.
May 12, 1916. De Sampayo J.—
This is an action on a promissory note for Rs. 150 dated February10, 1912, and alleged to have been made in favour of the plaintiff.by one Barbara Boteju and the fifth and sixth defendants. BarbaraBoteju is now dead, and she is represented in the action by .the first,second, third, and fourth defendants. The first defendant, who isher husband, alone filed answer. He denied that Barbara Botejumade the promissory note, and pleaded that what purports to .beher mark was a forgery. He also charged the fifth and sitfthdefendants with fraudulent collusion with the plaintiff. The issuestated at the commencement of the trial was whether Barbara Botejuhad signed the note, but after the plaintiff had given evidence,/-the Commissioner added the further issue:“Was the note duly
stamped? ’’ The Commissioner ultimately decided this latter issueagainst the plaintiff, and dismissed the action.
The ground of the decision is that in the opinion of the Commis-sioner the stamp which the note originally bore has Been removed,and the stamp now appearing on it has been substituted. This• opinion is not based on any express evidence, but on an examination
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of the document by the Commissioner himself. The stamp on the
note is of the description in vogue before the postage stamps re- Db g^^,AYO-placed the old judicial and revenue stamps, and the Commissioner J.says that, looking through the paper with its back to the light, he Appuhamyfinds indications that there was a smaller stamp on the paper v. Theodorisbefore. My own observation does not enable me definitely toconfirm this view. Moreover, no questions appear to have beenput to the plaintiff and his witnesses on the point, nor was anyevidence given with regard to it on behalf of the defendant. In hisjudgment the Commissioner says that the defendant’s proctor com-plained that the stamp now on the note was not the stamp thatwas on it when he first saw it. The proctor’s statement appearsto have influenced the Commissioner to some extent. If thestatement was to be utilized at all, the proctor should have beencalled as a witness. The matter appears to me to require furtherinvestigation.
But before making an order on the appeal, I think it is right to dealWith one or two points in the judgment with reference to the stamp.
The Commissioner says that the stamp should have borne the •stamp vendqr’s initials and date of issue, and that it should havebeen cancelled by all the three makers, and not by Barbara Botejualone. As regards the first point, the Commissioner is mistaken as-to the requirements of the law as it existed at the date of the note.
Section 74 and the following sections of the Stamp Ordinance, No. 22of 1909, provided for stamps being sold by licensed vendors, and.section 77 required such a vender to mark the stamps at the bottomthereof with his name or initials and with the date of sale. Butsection 83 (1) and (2) enables the Governor in Council, to discontinuethe issue of licenses, and to make rules entrusting the sale of stampsto public officers, and regulating the manner and conditions in andsubject to which such sale shall be carried on. By notification dated.
March 28, 1911, the Governor in Council, in exercise of the abovepower, directed that the issue of licenses to sell stamps should bediscontinued after December 31, 1911, and by notification datedDecember 12, 1911, certain officers were appointed ex officio vendorsof stamps, in addition ,to the shroffs of local Treasuries and post-masters. Notification dated March 28, 1911, contained the rulesregulating the manner and conditions of sale of stamps by publicofficers, and rule No. 7 required such officers to mark the stamp with,their initials and date of sale, just as section 77 of the Ordinance -required the former licensed vendors to do. But these rules were-superseded by those of August 15, 1911, and by the latter rules theabove duty is not required of ex officio vendors of'stamps. Since thedate of the promissory note in suit is subsequent to the date on.which the new rules came" into operation, the Court will reasonablypresume, in the absence of any specific evidence to the contrary,that the stamp on the promissory note was sold by an ex officio
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0D» sIhpayo ven<^or stamps, and at a time "when the marking of them withj. the date of sale and the initials of the vendor was no longer required.
A —hamThe Commissioner’s opinion that when an instrument is executed
v. Theodor is by several persons they must all cancel the stamp is, 1 think,also erroneous. The following are the relevant provisions of theOrdinance: —
9.(1) (a) Whoever ■ affixes any adhesive stamp to any instrument
chargeable with duty which has been executed by any person Bhall,after affixing such stamp, cancel the same so that it cannot be usedagain.
(b) Whoever executes any instrument on any paper bearing anadhesive stamp shall, at the time of execution, unless such stamp hasbeen already cancelled in the manner aforesaid, cancel the same- sothat it cannot be used again.
The paragraph (a) of sub-section (1). does not make it very clearthat the – person there contemplated includes the first executant of.the .instrument. But in the case of an instrument which is requiredto bear a stamp at its execution, the person who is supposed to affixthe adhesive stamp is presumably the person who first executes it.The paragraph (b) is, however, sufficiently plain. It requites asubsequent executant to cancel the stamp, “ unless such stamp hasbeen already cancelled,” and in that event he need not cancel itany further. In the present case, the first maker of the note wasBarbara Boteju, if she, indeed, did sigh the note at all, and her cross:and name, if, again, they are hers, appear across the stamp, togetherwith the date, in such a manner that it cannot be used again. Thatbeing so, the fifth and sixth defendants, so far as the requirements•of the Ordinance are concerned, need not on the above hypothesishave cancelled the stamp again. It should be borne in mind inthis connection that the whole object of the provisions as to can-cellation is to see that stamps once used should not, through imper-fect cancellation, be allowed to be availed of again, and when that•object is attained by effective cancellation by one party, any further.cancellation by subsequent parties will be purposeless, and cannotbe supposed to have been intended by the Ordinance.
Apart from the law bearing oh the question of stamps, the circum-•stances of the case on the merits are undoubtedly suspicious. Butthose matters have not been decided by the Commissioner, and Ithink the case should go back for the determination of all the ques-tions of fact involved in the case, including the question whetherthe cross and date on the stamp were in fact put by Barbara Botejuor by her authority, and whether the stamp has been cancelledwithin the meaning and intention of the Ordinance, as above-construed.
The judgment appealed from is set aside, and the case sent backfor further proceedings.
All costs will be- costs in the cause.
Set aside and sent back.