DR. R. SARAVANAMUTTU v. JOSEPH DE SILVA

141-NLR-NLR-V-42-DR.-R.-SARAVANAMUTTU-v.-JOSEPH-DE-SILVA.pdf


Saravanamuttu v. de Silva.
561
IPresent: de Kretser J.
Dr. R. SARAVANAMUTTU v. JOSEPH DE SILVA.
f
In the Matter of an Election Petition under the Ceylon(State Council Elections) Order-in-Council, 1931, as
AMENDED BY THE CEYLON STATE COUNCIL ELECTIONS
(Amendment) Order-in-Council, 1934 and-1935.
Election petition—Objections by respondent—To be filed within reasonable time—Objection to security—Number of sureties—Objection to security bond—Appointment of agent—Form of appointment—Notice of petition—■Stamping of act of appointment and proxy—Election (State Council)Petition Rules 9 and 16..
Objections to an election petition other than those provided for in theElection (State Council) Petition Rules must be taken within a reasonabletime. The respondent should be confined to the objections he has filedand objections taken at the hearing cannot be entertained.
» (1919) A. J. R. 203.*12 C. L. W. 9.
562
Saravanamuttu v. de Silva.
Where security is given by bond with two sureties and the securityrequired is Rs. 5,000, each surety must be worth the amount required.
Where the security bond filed described the petitioner as principal andtwo other persons as sureties, who bound themselves jointly and severally,and where the defeasance clause did not mention the name of thepetitioner,—
Held, that the bond was sufficient to comply with the requirements ofRule 16.
The requirement of Rule 9 that the appointment of agent mustaccompany the petition is directory. A writing which combines anappointment of an agent and an intimation to the Registrar of theappointment is sufficient for the purpose of Rule 9.
A proxy filed by a proctor is a sufficient notice by him of hisappointment.
Notice of the filing of the petition and the nature of the security offeredmay be given by the agent. Failure to stamp the proxy and the writingfiled with the petition does not invalidate the petition.
O
N May 19, 1941, an election petition was filed against the return ofthe respondent as Member of the State Council for Colombo North.
On May 31, 1941, the respondent through his agent filed a statementof objections to the hearing of the petition on the ground that it was notin accordance with the law in that there had not been filed with thepetition a proper and valid writing containing the appointment of theagent, that the document filed purporting to be the said writing bore nostamp and that the proxy filed was not duly stamped on the date ofpresentation. Objection was also taken to the sufficiency of the sureties.
On June 25, 1941, respondent filed an application praying that thepetition be dismissed on the ground that the recognizance was not inaccordance with the provisions contained in Rules 12 (2) and 16 of theElection (State Council) Petition Rules.
F. Gunaratne (with him S. R. Wijayatilake and G. P. A. Silva), forthe respondent.—Rule 12 (2) of the Order-in-Council requires security tobe given by recognizance with two sureties in the form set forth in Rule 16.According to that form those who enter into the recognizance should bejointly and. severally liable. The recognizance of the petitioner is adeliberate departure from the form in Rule 16. It speaks of petitioneras principal and the others as sureties. Further, the sureties do notrenounce the beneficium ordinis. Hence there is no joint and severalliability among all three as is required by Rule 16. The subsequent useof the words “ jointly and severally ” in the latter part of the recognizancecannot nullify the effect of the collateral security created by the first part.When there are two inconsistent clauses in a deed, unlike in a will, theearlier one is retained and latter rejected (Norton on Interpretation ojDeeds, p. 89).
The present case is distinguishable from Vinayagamoorthy v. Ponnam-balam' where there is'an express renunciation of the beneficium ordinisHere the two sureties are not primarily liable. The defeasance clauseshows the petitioner to be primarily liable. The distinction between theliability of the petitioner and that of the sureties in the first half of thebond is in fact maintained in the second half. In Vinayagamoorthy v.Ponnambalam {supra). All three names appear in both parts of the
i 40 N. L. R. 178.
Saravanamuttu v. de Silva.
563
bond. Here there is a deliberate omission of the petitioner’s name asbeing a party liable in the latter half of the bond. The word “ said ”in the second paragraph of the form in Rule 16 must refer to all thosementioned in the earlier paragraph (Silva v. Karaliadde ’).
If recitals are ambiguous and the operative part is clear, operative partmust prevail. (Norton, p. 197.) In the operative part petitioner is notmade liable.
The last day for filing election petition was May 19. Rule 9 requirespetitioner along with petition to file a writing appointing an agent. Hehas filed such a writing and also a proxy. Stamp Ordinance, Schedule A,item 37 requires this writing to be stamped with Rs. 5 stamp. Neitherthe writing nor the proxy was duly stamped. There is thus no regularappointment. Therefore there is no proper compliance with Rule 9.Petitioner comes on the 20th to Registrar’s Office and affixes stamp onthe proxy. This cannot create any legal effect inasmuch as the 19th wasthe last day for filing petition. Important consequence flows. If appoint-ment of agent is bad, all acts done by him are bad. His notice thereforeto the respondent in terms of Rule 18 is bad. Therefore there isno compliance with Rule 18. This is fatal—Aron v. SenanayakeVinayagamoorthy v. Ponnambalam ’.
Proxy is not the appointment in writing contemplated by Rule 9.Proxy gives no authority for acts outside Court. “ Act generally inpremises ” means nothing more than is necessary for the particular actspreviously mentioned Perry v. Hall'. Even if proxy is deemed to bethe writing under Rule 9 it is also bad because it is not duly stamped.
Petitions of appeal not duly stamped are rejected. They cannot becured. Salgado v. Peiris5; Goonesekera v. Silva'; Mohamed Hassen v.Abdul Wahid and Mohamed Marikar ’.
H. V. Perera, K.C. (with him N. Nadarajah, J. E. M. Obeyesekera andH. W. Thambiah), for the petitioner.—The respondent should be confinedto the objections filed. In matters of procedure or practice not providedfor by the Order-in-Council we have to follow the procedure and practicein England. See section 83 (4) Order-in-Council. Objections other thanthose provided for in the Order-in-Council should be taken within reason-able time—The Oldham Petition Therefore the respondent should notbe permitted to advance objections as regards irregularity of notice underRules 18 and 43.
The “ writing ” under Rule 9 is not a part of the petition. It is notessential that a writing should be filed and Rule 9 provides for a casewhere no such writing is filed. The petition cannot be rejected on thisground.
The proxy is a sufficient appointment and the fact that it was stampedout of time does not make it invalid. The object of stamping documentsis for the purposes of revenue. Here the revenue has not suffered as theproper stamp has been affixed although a day late. The objection on thisscore is too formal. Rule 60 of the Parliamentary Election Petition Rules> 1 C. L. W : at p. 21.* 12 N. L. R. 379.
5C.L. W. 51.
3 40 N. L. R. 173.
29 L. J. Ch. 677.
• 5.C. W. R. 135.i 15 C. L. W. 61.
8 19 Law Times Reports,
New Series, p. 501.
564
Saravanamuttu v. de Silva.
provides that no proceedings under the Parliamentary Elections Act,1868, shall be defeated by any formal objection. This rule should befollowed under section 83 (4) of the Order-in-Council.
The proxy form filed authorises the proctor “ to do or perform suchacts, matters, and things as may be needful and necessary ” on behalf ofthe petitioner and therefore it is quite sufficient under Rule 9.
As regards the form of the recognizance the form given in Rule 16 isonly a specimen. The mere use of the words “ principal ” and “ sureties ”does not nullify the joint and several liability created by the bond. Thepetitioner has described himself as principal because an order as to costs,&c., will be served against him.
Under Rule 12 (2) it is sufficient if one of the sureties has given therequired security. Therefore the objection to the insufficiency of thesecurity cannot succeed because the objection to the first surety has beenwithdrawn. /
V. F. Gunaratne, in reply.—The necessity to give notice of objectionto the non-compliance with Rule 18 does not arise in view of the fact thatit is a corollary to the objection to the non-compliance with Rule 9.Once the regularity of the appointment under Rule 9 is questioned allacts done by the professed agent under Rule 18 are caught up.
The petition is not complete in the absence of the “'writing ” contem-plated under Rule 9. The latter part of the rule which refers to addressesbeing left with the Registrar is no indication that the petition is still gooddespite the absence of a writing. That provision is there merely tosafeguard the interests of the respondent who must secure his costs asagainst a petitioner w;ho has not appointed an agent. Even if petition isbad, respondent must safeguard his costs. Unlike in Rule 10 where therespondent “ may ” appoint an agent, the use of the word “ shall ” inRule 9 makes it obligatory on the petitioner to file- a writing. If this isnot complied with the petition should be rejected.
There is no rule in the Order-in-Council or in any Legislative Enactmentwhich prevents preliminary objections being taken up for the first time atthe trial. The practice is only to deny costs unless notice of objectionsis given.
While not conceding that this is a mere formal objection—even if it isso, Rule 60 of the Parliamentary Election Petition Rules does not apply.Our rules under the Order-in-Council are borrowed verbatim from theParliamentary Rules, but Rule 60 finds no place in our rules. This mustbe treated as a deliberate omission in order that petitioners here might actin strict compliance with the procedure laid down.
Even if the writing under Rule 9 is not invalid because it is not stamped,that does not mean that it is valid. A species of inchoate right arises, theright becoming operative only when the stamp is affixed.
Section 14, Stamp Ordinance, requires instruments to be stamped“ before or at time of execution ”. The consequence of subsequentstamping is that no public officer can act on it—section 35 Stamp Ordi-nance. If executant wants to remedy the defect, he cannot do it himself.The Stamp Ordinance prescribes the remedy. When impounded undersection 32 and certified by Commissioner under section 44 (1), the docu-ment is made good but it has no retrospective effect. Contrast language
DE KRETSER J.—Saravanamuttu v. de Silva.
$65
of section 44 (2) with language of section 42, section 38 and section 30 (3).In last three sections where the executant points out the default to theCommissioner retrospective effect is clearly given. Under section 44 (2)the default is detected by a public officer who it is who sends the documentto the Commissioner of Stamps.
Subsequent cancellation of a stamp does not make it valid. 1925A. I. R. Bombay, 520.
An unstamped document, unless it is admissible under some specialprovision of law is mere waste paper for purpose of judicial proceedings.1926 A. 1. R. Allahabad, 360.
The “ writing ” contemplated under section 9 unlike any other docu-ment forms the very foundation of the election petition. Therefore a“ writing ” not in compliance with section 9 cannot be cured at this stageso as to validate all acts which flowed from it.
Cur. adv. vult.
July 11, 1941. de Kretser J.—
The respondent was returned as the Member for Colombo North andthe return was proclaimed in the Gazette of April 28, 1941. On May 19.the present election petition was filed. Along with the petition was filedan unstamped proxy and a writing, which is in the following form : —
The Registrar, Supreme Court, Colombo.
“ Sir—With reference to the election petition I have filed to-day,I have the honour to inform you that I have and do hereby authoriseMr. Nagalingam Navaratnam, Proctor, Supreme Court, of No. 375,Dam street, Colombo, to act as my agent for the purposes of the saidpetition and that all notices relevant to the said petition may be servedon him or left at the above-mentioned address.
(Signed) R. Saravanamuttu, M.B.”
The Registrar minuted that the proxy was not stamped and on the follow-ing day a stamp was affixed to it. The person nominated as agentnotified his appointment only on June 5.
On May 20, a recognizance was filed in the following form : —
“ Be it remembered that on the twentieth day of May, in the year ofOur Lord One thousand Nine hundred and Forty-one before meGuy O. Grenier, Registrar of the Supreme Court, came Dr. RatnajothiSaravanamuttu of Retreat road, Bambalapitiya, Colombo, as principaland Nanasothy Saravanamuttu of No. 93, Silversmith street, Colombo,and Handunetti Ranulu Jayasundera of Dikwella, in the MataraDistrict as sureties and acknowledged themselves jointly and severallyto owe to Our Sovereign Lord the King the sum of Rupees Ten thousand(Rs. 10,000) to be levied of their property movable and immovable tothe use of Our said Lord the King his heirs and successors. Thecondition of this recognizance is that if the said Nanasothy Saravana-muttu and Handunetti Ranulu Jayasundera or any of them shall welland truly pay all costs, charges and expenses in respect of the electionpetition signed by the said Dr. Satnajothi Saravanamuttu relating tothe Colombo North Electorate which shall become payable by the saidDr. Ratnajothi Saravanamuttu under the Election (State Council)
42/41
568
DE KRETSER J.—Saravanamuttu v. de Silva.
Petition Rules as amended by the Ceylon State Council ElectionAmendment Orders in Council, 1934 and 1935, to any person or personsthen this recognizance to be void, otherwise to stand in force.”
Annexed thereto were two affidavits and two certificates of value of thetwo sureties named in the recognizance.
On May 21, the respondent had filed a writing appointing an agent, in.the following form: —
“ I hereby authorise Mr. Arthur S. Fernando of No. 22, Smithstreet, Hulftsdorp, Colombo, Proctor of the Supreme Court, to be myagent for all purposes of any election petitions that have been filed ormay hereafter be filed against me in the Supreme Court of Ceylon, inconnection with the Colombo North Election held on the 26th day ofApril, 1941, and I hereby also authorise the Registrar of the SupremeCourt to issue to him all documents and papers thereof as he may deemnecessary. ”
On May 31, the agent gave notice of his appointment and filed astatement of objections to the hearing of the petition on the ground thatit was not in compliance with the law in that there had not been filed withthe petition a proper and valid writing containing the appointment of anagent inasmuch as the document filed and purporting to be the saidwriting bore no stamp and inasmuch as the proxy filed, if it be taken tobe the writing required by Rule 9, was not duly stamped on the date ofpresentation and was stamped too late. Objection was also taken to thesufficiency of the sureties.
On June 25, the Proctor for respondent filed an application prayingthat the petition be dismissed on the ground that the recognizance wasnot in accordance with the provisions contained in Rules 12 and 16.From the Registrar’s minute it would appear that the respondent’s agentproduced his letter of authority on May 21, and was then handed a copyof the petition and he perused the recognizance filed the previous day.
Rule 18 requires that notice of the presentation of a petition and of thenature of the proposed security accompanied by a copy of the petitionshall within ten days of the presentation thereof be served by the peti-tioner on the respondent. The service may be effected by delivery to theagent of the respondent.
Rule 19 requires the respondent within five days of service to object inwriting to the sufficiency of the sureties. From a statement made byMr. Gooneratne I understood that notice was given, and he sought to addto his objections the grievance that the notice had been given by thepetitioner’s agent and not by the petitioner himself. He also sought toenlarge his objections by stating that there were four charges in thepetition and therefore the security should have been in the sum of Rs. 7,000at least.
The objection to the surety N. Saravanamuttu was withdrawn. Theobjection to the other surety was pressed, and that objection must, in myopinion, succeed. The valuation report given by the Police Headmanof Dikwella does not appear to have been issued with any sense ofresponsibility. It refers to a land called Thundahewatta, “ containingin extent | acres 1 rood and 6 perches ”, and gives the name of the Notary
DE KRETSER J.—Saravanamuttu v. de Silva.
567
attesting the title deed incorrectly. From the evidence adduced for therespondent it appears that the property is 32.6 perches in extent, andthat on January 5, 1940, the surety had purchased it for Rs. 2,000.There is also a report by one William Neil de Alwis, who states that h’evalues the property at about Rs. 2,500 and explains that it is only anapproximate valuation and that he has not been able to arrive at a preciseand accurate assessment. In my opinion the property cannot be valuedat more than Rs. 3,000, and as the objections have been based on thefooting that the security required was Rs. 5,000 I shall take no notice ofthe attempt now being made to raise it to Rs. 7,000 but shall order thatthe deficiency be made good in the manner provided by Rule 13, i.e., by thedeposit of a sum of Rs. 2,000 within the period allowed by Rule 21.
Mr. Perera did not press his contention that one security would besufficient. The language of Rule 12 (2) and of Rule 19 makes it plainthat each surety must be worth the required amount. I find that underthe English Act one surety would be enough but that is because theEnglish rule requires that there shall be “ not more than four sureties ”while our Rule 12 (2) definitely fixes the number at two.
I pass to the objection regarding the form of the recognizance. Theobjection was that Rule 16 set out a form and according to that form thepersons named in the recognizance were to be bound jointly and severallywhereas in the bond filed the petitioner has been described as principaland the two others as sureties, and the two sureties not having renouncedthe beneficium ordinis they would not be bound jointly and severally, thewords to that effect being ignored because they were inconsistent withthe earlier words which ought to prevail in a document of this nature.Objection was also taken to the defeasance clause in the recognizance—which Counsel called the operative clause—in that the petitioner did notappear therein as a party. The argument was presented with greatenthusiasm and eloquence and in a much more varied and lesscompendious form but I have stated the substance of the objection. Avery similar objection was dealt with by Maartensz J. in the case ofVinayagamoorthy v. Ponnambalam 1 In my opinion the objection is notentitled to prevail.
Rule 12 recognizes that the sureties are persons other than the petitionerwho is liable as principal for costs. When therefore in the recognizancefiled the petitioner was described as principal that was merely a plainstatement of fact and in no way invalidated the recognizance. Thesureties bound themselves jointly and severally with the principal. Bydoing so they were clearly enlarging their liability. Besides, the use ofinappropriate words cannot alter the nature of the obligation (Wijey-wardene v. Jay aw ar dene ").
I would mention a matter that may deserve attention some day. Theobjection arises from a reading of Rule 12 (2) without refemce to Rule.12 (1), which does not require that, the petitioner should give securitypersonally, for he would be liable to pay costs if an order were madeagainst him, but what the Rule requires is that security should be givenon his behalf. It may be given by recognizance or deposit of money orboth. The provision is a close adaptation of sub-sections (4) and (5) of1 40 N. L. R. 178.* 26 N. L. It. 133.
568
DE KRETSER J.—Saravanamuttu v. de Silva.
section 6 of the Parliamentary Elections Act of 1868, which is quite clearon the point, viz., that the recognizance is by the sureties ; and in fact itwas held in Pease v. Norwood', that the petitioner himself could not be aparty to the recognizance." Rule 12 (2) is misleading and is capable ofthe interpretation that the recognizance should be given by the petitioneralong with sureties, but in my opinion the parenthetical clause “ withtwo sureties ” was only intended to indicate the number of the suretiesand that the form would be filled in with the names of the two sureties.This view i§ supported by the fact that the form in Rule 16 has only twoblanks and it is only in the defeasance- clause that provision is made forthe appearance of the petitioner’s name. Rule 15 and the first part ofRule 16 refer to the sureties alone. The matter, however, is not freefrom doubt and was not discussed before me.
pass now to the objection regarding the appointment of an agent.The agent contemplated by Rule 9 is not the same as the election agent.In England he must be a person “ entitled to practise as an attorney oragent in cases of election petitions ”. In Ceylon he must be a personentitled to practise as a proctor of the Supreme Court. In England theMaster is required to keep a roll for entering the names of persons entitledto practise as such agents, and he may allow any person upon the roll ofattorneys for the time being to subscribe the roll so kept. In CeylonRule 42 entitles a proctor, of the Supreme Court to act as agent and noseparate roll is- provided for.
Respondent’s Counsel urged that there was no provision in the rules fornotice of objection to be given, and on this plea he sought to enlarge hisobjections by taking exception to the form of writing filed and by drawingattention to the fact that the petitioner’s agent had not complied withRule 43, which requires an agent immediately upon his appointment toleave written notice thereof at the office of the Registrar. If this conten-tion were sound it might be argued—and in my opinion with morereason—that the rules having provided for certain types of objection noother objections should be entertained. It would be manifestly unfairto the opposite party to have objections sprung upon him and such aprocedure would offend against the canons usually obtaining in all Courtsof law. But Mr. Perera met this argument effectively when he drewattention to the fact that section 83 (4) provided that in any matter ofprocedure or practice not provided for by the orders or rules the procedureor practice in England shall be followed. In the case of The Oldham.Petition- Willes J. held that objections other than those provided formust be taken in a reasonable time. In my opinion the respondentought to be confined to the objections which he filed, and objectionstaken only at the hearing cannot be considered objections taken withina reasonable time. As the matter is not without interest I shallhowever express an opinion on the objections taken.
Respondent’s Counsel argued that the appointment of an agent mustaccompany the petition and that the petition should be rejected if thatwere not done. He based his argument on Rule 9 and stressed the use ofthe word shall, contrasting it with the use of the word may in Rule 10.Now, provision for the manner of filing an election petition is made in1 (1SG0) L. R.^4, C. P. 235.2 19 Law Times Reports, New Series, p. 501.
DE KRETSER J.—Saravanamuttu v. de Silva.
569
Rules 3, 4, 5, and 6, and when those rules have been complied with thepetition is in order. What is provided for in Rule 9 is something separate.It is true that Rule 9 provides that the appointment of an agent shouldaccompany the petition but that does not make it a part of the petition,and Rule 9 expressly provides for the case where no such writing is filed.The consequence is not that the petition is to be rejected but that thepetitioner has to put himself to the trouble and inconvenience of attend-ing at the office of the Registrar in order to ascertain what steps, if any, theopposite party has taken. Jf, therefore, no writing is filed till a later date,what happens is that in the interval the petitioner is liable to suffer theinconvenience I have just mentioned. In the rule the word “ shall ”is not imperative but directory, in the same way' in which “ shall ”—inRule 12 (2) for example—does not make the form in Rule 16 obligatory forRule 16 itself indicates that he form is merely a model. In Rule 10 theword “ shall ” could not have been used because the respondent is theregiven the option of appointing his agent even before an election petitionhas been filed. It is plain that once the matter comes before a Judgethe proper and wise course would be for the petitioner to have legalassistance and to leave an address for service at which notices may be left,and that is all Rule 9 seeks to bring home to the petitioner.
With regard to the form of the writing, I agree with Maartensz J. thatthe form given in Rogers on Elections (Vol. II., p. 524) is a model wfiichmay well be followed. It is both formal and extremely simple. In thecase before Maartensz J. (40 N. L. R. 178) a form of proxy ordinarily filedin civil proceedings had been used and he had not before him any otherwriting. He refused to accept the argument that Rule 9 only requiredan intimation to the Registrar of the name of the agent. That is theimpression which Rule 9 gives at first sight. I agree with Maartensz J.that the rule requires the appointment of an agent to be in writing andit is that act of appointment which must be left at the office of theRegistrar. It is that writing which gives the name of the person. InRule 10 too the writing appoints a person. The two provisions mean the
same thing.
The writing filed in the present case is a combination of an intimationto the Registrar and an. appointment. I think it sufficiently complieswith the requirements of Rule 9. In proceedings following on electionpetitions it is not the policy of the law to place obstacles in the way ofthe petition being heard, and Rule 60 of the rules framed under theParliamentary Elections Act of 1868 provides that no proceedings shallbe defeated by reason of any formal objection. From the point of viewof the respondent the formality of the appointment is of no consequence,and it ought to be as convenient for him to forward all notices to aprescribed address as to leave them at the office of the Registrar.
Rule 43 was not strictly complied with inasmuch as the agent who wasappointed on May 19 did not give formal notice till June 5. He had,however, filed his proxy on the former date, and that was a fair indicationthat he was acting for the petitioner, who had already notified the agent’sappointment. In any case the delay on his part cannot affect the validityof the petition. If the Registrar had any doubt as to his willingness to
570
DE KRETSER J.—Sarauanamuttu ». de Silva.
act as such agent, or if the opposite party had any such doubt by reasonof his not having left written notice, the agent’s default might havejustified their ignoring his existence, but no such contingency arose.
With regard -to the objection that notice of the petition and of thesecurity was given by the petitioner’s agent, I see no reason why thatshould not be done. The maxim qui facit per alium facit per se wouldapply. The rule only states whose the responsibility is and is not intendedto mean that the petitioner personally should give notice. The object ofthe rule is to ensure that the respondent receives notice. When theagent, in terms of his appointment, took delivery of the petition andperused the recognizance, further notice was not, required and the respond-ent has in reality had notice twice over and in fact has acted on thenotice by filing his objections to the sufficiency of the sureties. Whatthe respondent is doing is to stress formal defects and this Court will notentertain objections of a purely formal nature, which have caused nomanner of prejudice.
The main objection taken was on the omission to stamp both thewriting and the proxy. I find some difficulty in understanding the needfor a proxy when once a proper writing has been filed. I see no objectionto the ordinary proxy form being adapted for use though it is generallyquite unsuitable. It was conceded by Mr. Perera for the petitioner thatboth documents required to be stamped. The effect of a document notbeing stamped is not to invalidate the document but to place it under thedisability of not being recognized by any public officer or received inevidence.
The Stamp Ordinance is concerned with the recovery of the dutyimposed and many provisions have been made to secure this effect. Itrequires stamps to be cancelled (section 7) so that they cannot be usedagain. It imposes a duty on notaries and on Government and bankofficials to examine documents and to see that they are stamped(section 8). In section 14 it requires instruments to be stamped beforeor at the time of execution. That is what ought to be done and section 62provides penalties designed to secure the due stamping of instruments.Persons in doubt may apply for the Commissioner’s adjudication.Section 30 (3) states the effect of complying with the Commissioner’sadjudication, viz., the instrument becomes receivable in evidence and maybe acted upon and registered as if it had originally been duly stamped.Section 32 requires persons entitled to receive evidence and public officersto impound instruments which are not duly stamped. When impoundeda public officer is required to send it to the Commissioner, and when theCommissioner has recovered the duty the instrument is receivable inevidence and may be acted upon as if it had been duly stamped (section44). I am taking the ✓general rule and not the exceptional cases. It hasbeen argued that there being a difference in phraseology between section30 (3) and section 44 (2) in the latter case the instrument acquires validityonly at the date when the defect is cured. That is not correct. Thesections state the effect quite plainly. The date of the instrument is notadvanced but the disadvantage attaching to it is removed as from itsinception. If in section 30 (3) the word “ originally ” had been omittedthe meaning would have been still the same. Attention was also invited
In re m.v. “ Maro Y
571
to section 42. That section deals with instruments executed out ofCeylon and is irrelevant, for the purposes of this case, but here again theinstrument is given force and validity from its very inception. Section 35permits certain documents being received in evidence on the prescribedpenalty being paid. There is not a word regarding their validity oreffect and it would be extraordinary if a document was valid in a Courtof law from its inception and not equally valid when stamp duty had beenrecovered otherwise. The matter is really clear beyond any manner ofdoubt. When in Vinayagamoorthy v. Ponnambalam (supra) Maartensz J.said it was too late to stamp the proxy he meant, in my opinion, to saythat it was only when stamped that it could be recognized and the timefor recognizing it had passed.
The only question now is how the duty should be recovered. TheRegistrar should have impounded the instruments. He may still do soand forward them to the Commissioner. The two instruments referredto will be impounded and the Registrar is directed to forward them to theCommissioner of Stamps.
Each party has succeeded to some extent and each will therefore bearhis own costs.
All objections except one overruled.