In re Application of V. COOMARASAMY, Proctor and Notary Public

037-NLR-NLR-V-19-In-re-Application-of-V.-COOMARASAMY,-Proctor-and-Notary-Public.pdf

(171 )
Present: Ennis *J. and Schneider A.J.
In re Application of V. Coomarasamy, Proctor and Notary Public.
Stamp Ordinance, No. 22 of 1909—Settlement—Deed of gift.
A by a deed purported to “ make over ” four lands to his childrenin equal shares. The instrument recited that the grant was madeas a “ deed of distribution of mudttsam, known as a deed of settle-ment.” The children of A did not expressly- signify their acceptanceon the face of the deed.
‘ Held, that the deed was a settlement, and had to be stampedaccordinglyunder article 49ofScheduleB, PartI.,of Ordinance
No. 22 of 1909.
T
HE facts are set out iu the judgment. The following translationof the deed in question was filed with the petition: —
Deed of Settlement. Rs. 1,500. Lands 4.
No. 150.
Know all men by these presents that we, Casy Qatar Sinnatampy andwife Annapillai, of Veemankamam, Jaffna, execute and grant deed ofdistribution ofmudusam knownasdeed ofsettlementtoour children,
viz., Sinnatampy Saddanatar, Sinnatampy Gnanasary, Pooranam,- daughter of Sinnatampy, Parimalam, daughter of Sinnatampy, Pak-kyam. daughter of Sinnatampy, and the fetus in the womb of the
1916.
1916.
( 172 )
second-named person of us, all ofthesameplace, forthehereinbelow
described properties, to wit: —
Application
of[Land Described.]
F. Goomara-The total value being Us.1,500.Theabove-describedfour pro-
perties of the said value of One thousand Five hundred Rupees we makeover in equal shares to the said Saddanatar, Gnanasary, Pooranam,Parimalam, Pakkyam, and the fetus in the womb of the second-namedperson. Hereby declaring that thesaidlandsare notin any manner
encumbered or alienated we execute and grant this deed of settlement.
In witness hereof we, the said grantors, set our signature beforePonnampalam Tampinatar, of Tellipallai West, and Sittampary Murukasu,of Veemankamam, the subscribing witnesses hereto, and before thehereinbelow-named Notary, at theofficeof the Notary atTellippallei,
on the 29th November, One thousand Nine hundred and Fifteen.
Signature of C. Sinnatampy.
Mark of Annapiliai.
We the witnesses know well the name, residence, and occupation ofthe grantors.
Witnesses:
Signature of Tampinatar.
Signature of S. Murukasu.
Signature of V. Coomaraswamy, Notary Public.
Arularuwdan, for petitioner.—By this deed in question the parentsdistributed their property among their children. The deed istherefore a settlement within the meaning of section 3 (24) of the’Stamp Ordinance, 1909. Apart from the fact that the deed iscalled a settlement on the face of it, the provisions of the deed makeit clear that it is a deed of settlement.
The deed has to be stamped under article 49 of the Schedule B,Part I., and not under article 30 as held by the Commissioner ofStamps. At any rate, it cannot be said to be free from doubtwhether the deed has to be stamped under article 49 or underarticle 30. As the Ordinance imposes a pecuniary burden, * aconstruction most favourable to the subject should be adopted(Maxwell on Interpretation of Statutes 429—430).
Garvin, S.-G., for Crown.—The term “ settlement- ” is not known-toour system of law. Under the Boman-Dutch law the deed inquestion would be a donation, and unless it is accepted it would potamount to a disposition of property. There being no valid dis-position of property, the deed does not fall within the definition ofterm “ settlement ” in section 3 of the Stamp Ordinance. We cannotlook beyond the deed for deciding the character of the deed. In reOhellappa,1 Counsel cited 25 Halsbury 226.
Arulanandan, in reply.—The Court need not consider the questionwhether the deed contains a valid disposition of property for thepurpose of stamping of the document.
Cur. adv. vult.
i (1916) 19 N. L. R. 116.
(173 )
August 29, 1916. Ennis J,—1016.
This is an application under section 32 of the Stamp Ordinance, ApplicationNo. 22 of 1909, by V. Coomaraswamy, Proctor and Notary Public, y Cownaraappealing against a decision of the Commissioner of Stamps deter- * gamymining that an instrument, submitted for his opinion as to idleamount of duty with which it is chargeable, is chargeable underSchedule B, Part I., article 30, as a gift in whieh donees have notexpressly signified acceptance of the gift.
The instrument in question, according to the official translation,purports to “ make over ” four lands to the children of the donorsin equal shares. The instrument recites that the grant is made asa “ deed of distribution of mudusam, known as a deed of settlement. ”
For the appellant it is contended that the instrument is onechargeable with the duty prescribed in article 49 for an instrumentof settlement.
It is to be observed that article 49 includes a deed of dower in aninstrument of settlement. Section 3 (24) defines a* settlement ” asfollows:—** Settlement means any non-testamentary disposition, inwriting, of movable or immovable property made (a) in considerationof marriage; (6) for the purpose of distributing the property of thesettlor among his family or those for whom he desires to provide, orfor the purpose of providing for some person dependent on him; or
for any religious or charitable purpose; and includes an agree-ment in writing to make such a disposition. *’
In England “ settlement ” has been defined (25 Halabtiry 526) asan instrument whereby property is limited to or in trust for personsby way of succession.
In Ceylon the inclusion of a deed of dower with settlements forthe purpose of duty, and the terms of the definition of settlement,which are wide enough to include direct gifts in certain cases, showthat it was not the intention of the Legislature to limit the meaningof the term to the ordinary meaning when considering the characterof a document for the purpose of duty. The rule for the constructionof revenue laws is that they are to be read in favour of the subject,but so that effect is given to the intention of the Legislature(Maxwell on the Interpretation of the Statutes, 4th ed., pp. 430 to.434).
The case of Chellappa1 decided that the document only canbe looked to determine its character, and that it must containwords to show that it was made for one of the purposes mentionedin section 3 (24) before it is chargeable with duty as a settlement.
The present document contains such words; it is to effect a “ distri-buting ” of the property of the settlors among their “ children
It was finally submitted by the Solicitor-General that an instru-ment of settlement under the terms of the definition is a “ non-testamentary disposition of property ”; that by Roman-Dutch law
» (1916) 19 N. L. R. 116.
( 174 )
1916.
Ehhis J.
Application
of
T Ooomarasarmy
it would fall under the head of “ donations ”, and would not becomplete until accepted. In other words, it would not be a disposi-tion pf property until accepted, and could not, therefore, fall withinthe definition of settlement given in the Stamp Ordinance. On the- other hand, it has been pointed out that the words *’ non-testa-mentary disposition of property ” have probably been used in theStamp Ordinance in contradistinction to the words ” testamentarydisposition of property ” used in the Wills Ordinance, and that adonation under a will purports to be a gift, notwithstanding thatthe legatee may decline to accept it. In my opinion an instrumentis chargeable with duty when it falls within the character which itpurports to have, apart from any question as to whether or not itis effective for the purpose. The settlors in the present case purportby the instrument to ” make over ” certain lands to their children,and this is a disposition of property by them. They have putit in the hands of others to complete the alienation or not. Theacceptance may be inferred from conduct in the absence of anexpress acceptance, and the disposition operates from the date ofthe document just as a gift under a will operates from the deathof the testator. There is in fact a ‘ ‘ disposition ” of property,notwithstanding that the ” alienation ” is complete.
In the circumstances, I am of opinion that the instrument beforeus in this case is a settlement within the meaning of the term asused in the Stamp Ordinance, and is chargeable with duty as such.I would allow the appeal.
Schneider A.J.—I agree.
Appeal allowed.
♦