In re Estate of Harry Douglas Graham
1941Present : Moseley S.P.J.
In re ESTATE OF HARRY DOUGLAS GRAHAM
In the Matter of an Application under Section 68 ofthe Courts Ordinance
Testamentary application—Transfer of case—Testamentary proceeding—StampOrdinance (.Cap. 189), Schedule A, Part 111.
An application to the Supreme Court under section 68 of the CourtsOrdinance for the transfer of a testamentary case from one District Courtto another should be stamped under Part III. of Schedule A of the StampOrdinance.
HIS was an application for the transfer of a testamentary case undersection 68 of the Stamp Ordinance.
H. V. Perera, K.C. (with him F. C. W. VanGeyzel), for appellants.—Thequestion for decision is whether applications to the Supreme Court undersection 68 of the Courts Ordinance, Chapter 6, for sole testamentaryjurisdiction and for the transfer of testamentary cases should be stampedunder Part III. of Schedule A, of the Stamp Ordinance, Chapter 189, as theappellants contend, or as the Crown claims, under Part II, which containsthe duties on civil proceedings in the Supreme Court.
The application for sole testamentary jurisdiction is the foundation ofa testamentary proceeding for administering the estate of a deceased whohas died out of the Island ; it has no significance except in relation totestamentary matters in which the Supreme Court has no original juris-diction. Accordingly, the schedule appropriate to it is that contained inPart III. according to which the relevant documents have been stamped.
A review of earlier legislation supports this view. Part II. of the StampOrdinance of 1861 contained inter alia two schedules of duties on civilproceedings in the Supreme and the District Courts, and eachschedule contained a footnote as follows:—“Testamentary proceedingsshall be charged in the class corresponding, with the value of the estate…. ” ; there was also a schedule in Part III. enumerating a few
items “ containing the duties in testamentary proceedings, on probatesof wills and letters of administration ”, and it is clear, therefore, that theLegislature intended that proceedings in the Supreme Court relating totestamentary matters outside Part III. should be stamped as civilproceedings in the Supreme Court.
The Ordinance of 1861 was, however, replaced by Ordinance No. 3 of1890. The items in Part III. are substantially the same as those in thepresent Ordinance, the footnotes to the schedules relating to proceedings
412 MOSELEY S.P.J.—In re Estate of Harry Douglas Graham
in the Supreme and District Courts were deleted and Part III. wasenlarged, indicating that thereafter the duties on testamentary proceed-ings were to be governed entirely by Part III, This was the view taken bythe Supreme Court in the case of Re estate of Margaret Wernham',and in the course of his judgment in that case Bonser C.J. regardedan application to the Supreme Court for the conferring of jurisdiction ona particular District Court as a testamentary proceeding. This, it issubmitted, concludes the matter.
M.T. de S. Amerasekere, K.C., Acting S.-G. (with him H. H. Bas-nayake, C.C.), for the Attorney-General on notice.—The Supreme Courthas no original testamentary jurisdiction and the orders in question aremade on a totally different basis. Neither the applications nor the ordersare in their nature testamentary and, therefore, do not come underPart III.
These proceedings are in the nature of civil proceedings and would fallunder Part II. “ Civil Proceedings in the Supreme Court ”. Part III.provides for the steps to be taken in the District Court and provides aspecial tariff for testamentary proceedings in that Court. Proceedingsin the Supreme Court in an appeal in a testamentary proceeding in theDistrict Court would fall for duty under Part II. “Civil Proceedings inthe Supreme Court ” and not under Part III. Similarly proceedings undersection 68 of the Courts Ordinance would attract duty under the appro-priate heading of Part II. The Solicitor-General also examined thehistory of Part III. of the Stamp Ordinance and argued that its legislativehistory supported his contention.
Cur. adv. vult.
April 8, 1941. Moseley S.P.J.—
This was an application to this Court made under the provisions ofsection 68 of the Courts Ordinance (Cap. 6) for the transfer of testamentaryaction No. T/197, brought in the District Court of Kandy, to the. DistrictCourt of Colombo. Order was made in terms of the motion, but thepoint has been taken on behalf of the Crown that the proxy and affidavit,which have been stamped as provided by Part III. of Schedule A of theStamp Ordinance (Cap. 189), should be stamped under Part II. of thatschedule, and further, that the order of this Court directing the transfershould'be stamped under the same part.
Part II. of the schedule is described in the caption as “containing theduties on law proceedings ” and has several sub-divisions of a somewhatirregular character, the first of which is headed “ In the Supreme CourtThe column wherein appear the descriptions of the documents liable toduty is headed “ In, civil proceedings ”. I would observe parentheticallythat it is into this subdivision that the Crown seeks to bring thedocuments now under discussion. The next subdivision is headed “Inthe District Courts ”, and there is a further subdivision as follows : —“A.—In Civil Proceedings., B.—Claim Proceedings”. The next head-ing is “ C ” which might also be expected to refer to proceedings in theDistrict Courts. That is not the case. It is further labelled “ in theCourts of Requests”, and is followed by “D.—Claim Proceedings”,
1 4 A’. L. R. 236.
MOSELEY S.P.J.—In re Estate of Harry Douglas Graham
which merely appears , to be the third part of “ C “E” refers to“ Exhibits ”, and “ F ” is styled “ Miscellaneous ” and deals inter oliowith matters in connection with Guardianships and Matrimonial suits.
Part III. in the caption, claims to contain the “ dutes in testamentaryproceedings For a considerable time applications of this nature havebeen stamped in accordance with the scale here laid down. The presentwould appear to be the first occasion upon which the correctness of thepractice has been challenged.
The question for decision is shortly this : Is an application, made tothis Court under the provisions of section 68 of Cap. 6, a testamentaryproceeding?
In regard to the broad meaning of the word “ testamentary ” I wouldobserve that it seems to be beyond doubt that it has ceased, as Kekewich J.put it in In re Clemow, Yeo v. Clemou“ to have its purely etymologicalmeaning …. it may be equally applied to the case where thereis no testament, but where the estate is being administered according tothe law of the land ”. Is then, an application of this nature a testa-mentary pi'oceeding within the meaning of the caption of Part III.?
Chapter VI. of the Courts Ordinance (Cap. 6) is headed “DistrictCourts ” and the first section therein, viz., section 62, confers upon everyDistrict Court original jurisdiction in “ all civil, criminal, revenue,matrimonial, insolvency, and testamentary matters …. ”.
Section 63 deals with civil jurisdiction in respect of what was describedin a recent judgment of this Court (S.C. 120/1940) as an “ ordinary civilaction ” i.e., an action between party and party. Sections 64, 66 and 67deal respectively with criminal, revenue and testamentary jurisdiction.The wording of section 62 and the arrangement of the following sectionsseems to indicate that proceedings in revenue, matrimonial, insolvencyand testamentary matters are regarded as something apart from thecivil jurisdiction of the District Court. The scheme of Parts II. and III.of the schedule of the Stamp Ordinance may be said to conform, to somedegree, with this view. We now come to section 68 which confers uponthis Court a power of a two-fold nature. It first deals with the case of aperson who dies out of the Island leaving property within the Island.In such a case this Court may appoint the District Court which appearsmost expedient to exercise sole testamentary jurisdiction in respect ofthe estate of the deceased. It further empowers this Court to transfer,in appropriate cases, a. testamentary cause from one District Court toanother. The present application was made under the latter provision.It should be observed that these powers are conferred upon the SupremeCourt by a section which forms part of the chapter dealing with DistrictCourts. On the other hand the Criminal and Appellate jurisdictions ofthe Supreme Court are conferred by section 42, in the chapter headed“ The Supreme Court ”. Moreover the jurisdiction of this Court toentertain proceedings such as mandamus and prohibition is conferred bysection 42 in a chapter styled “ General Provisions ”. That section 68should appear in its present context is at least an indication that theLegislature regarded the matters therein provided for as being in thenature of a step in a testamentary action.
42/31M1900) 2 Ch. 1S2.
414MOSELEY S.P.J.—In re Estate o] Harry Douglas Graham
In the course of argument the history of the legislation in regard tostamp duties was closely examined.
In the Stamp Ordinance, 1861, there was a Part III. of the schedulewhich contained a limited number of items among which, for the sake ofexample, there is no duty prescribed for a proxy. In Part II. the arrange-ment of duties in the Supreme Court and in the District Courts respectivelyis for practical purposes the same as in the present Ordinance. There ishowever at the foot of the scale in each case a note under the heading“exemptions” to this effect:—“Testamentary proceedings shall becharged in the class corresponding with the value of the estate whichmust be set out by affidavit when the application for probate or letterof administration is made ”. As Bonser C.J. pointed out in Re estate ofMargaret Wernham' “It. is obvious, therefore, that this Part III. did notcomprise all the duties payable on testamentary proceedings, butthat the duties on documents such as petitions, affidavits, proxies,applications to the Supreme Court for the conferring of jurisdictionon a particular District Court, and the like, were left to be determinedby Part II.
In 1890, the footnotes above referred to were struck out in both cases,and Part III. was amplified by the inclusion of a number of items hithertochargeable under Part II. The removal of the footnotes and the enlarge-ment of Part III. seem to me together to form a circumstance whichirresistibly points to the conclusion that Part III. was intended to be acomprehensive table of duties payable in testamentary proceedingsirrespective of the Court in which the proceedings were taken. If thisview is taken it must be conceded as a fact that there is what appears tobe an omission in that no duty is prescribed for an order of this Courtmade under section 68 of the Courts Ordinance. The Legislature may .however have regarded such an order as inter-departmental and theapparent omission may be intentional. Indeed in the case referred toimmediately above, Withers J. described the purpose of Part III. in theOrdinance of 1890 as “ to exhaust the duties chargeable in testamentaryproceedings in the Supreme Court and the District Courts”.
In the case of In re the Guardianship of Richard and James Henry ~,minors, it was held that in guardianship matters, since a specialduty is prescribed for a certificate of curatorship, and another foran account, “ this would seem to exclude the position that anyother duties were chargeable in respect of proceedings of the samenature …. ”. This authority does not appear to have been
brought to the notice of the Court in the case to which I have referredabove (S. C. 120 1940). The Court nevertheless arrived at the sameconclusion.
So, here, it seems to me that, since Part III. provides expressly for dutiesin testamentary proceedings, the Legislature did not intend that any otherduties, such as one in respect of the order of the Supreme Court, shouldbe payable. Moreover, in my view, it is unnecessary to consider whatthe intention of the Legislature may be in a case where the actual wordsof an enactment do not bear any ambiguity. Further, if any ambiguity1 4 X. L. R. 236.'is. C. R. IS.
HOWARD C.J.—Achi v. Palaniappa Chettiar
existed in an enactment of this nature which imposes a burden upon thesubject, it would be the duty of the Court to construe it in favour of thepeople.
The conclusion at which I have arrived is that a testamentary proceed-ing is something apart from the civil jurisdiction of the Courts, that anapplication made to this Court under section 68 of the Courts Ordinanceis a testamentary proceeding and that the documents in connectiontherewith are properly stamped under Part III. of the schedule.
In re ESTATE OF HARRY DOUGLAS GRAHAM