In re the Application of J. J. WEINMAN, Notary Public

014-NLR-NLR-V-26-In-re-the-Application-of-J.-J.-WEINMAN,-Notary-Public.pdf


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Present : Schneider J. end Jayewardene A.J.
In re the Application of J. J. Wbxxmak, Notary Public.
Stamp Ordinance,1909—Amendment,1919—Administration*—Land
belonging to estate of deceased person sold by auction—Purchaseby heir in part settlement of amount due to him under an awarddistributing the estate—Stamp duty—Item 22 (a) and (c).
It was recited in a deed of conveyance granted by the adminis-trators of A's estate to B that under anawardofan arbitrator
appointed by the heirs of the estate to settle their disputes B(an heir) got Rs. 80,000 in property orcash,that aproperty
belonging to the estate was sold by auction by leave of Court,that B purchased the same for Rs. 37,400 at the auction, and thathe had been allowed credit for that sum. The deed then proceededto convey the property to B in consideration of the premises.
Held. that the instrument was not a conveyance of propertyby the administrator without consideration to the personbeneficially entitled to such property underitem22(c)of the
Stamp Ordinance of 1919; but that it was a sale falling under item» (a).
B was not a person “ beneficially entitled, " asbewasentitled
to only an undivided share of the property as heir.
HE deed in question was as follows :—
No. 270.
To Af.fi TO WHOM THESE PRESENTS SHALL COMB—
Neemath Uxnma of St. Joseph's street in Colombo, widow of thelate Uduma Iiebbe Marikar Ahamado Lebbe Marikar Alim of Colombo,deceased ; Ahamado Iiebbe Marikar Alim Abdul Majeed and Ahamado.Ijebbe Marikar Alim Mohamed Thassim, both of Colpetty in Colombo,as administratrix and adminstrators, respectively, of the estate andeffects of the said Oduma Lebbe Marikar Ahamado Lebbe Marikar Alim,deceased (hereinafter sometimes called and referred to as the grantors).
Send Greeting—
Whereas under and byvirtue of the deedinthe schedulehereto
mentioned, the said Oduma- Lebbe Marikar Ahamado Lebbe MarikarAlim was the lawful owner and proprietor of, and otherwise well andsufficiently entitled to, the land and premises in the said schedulehereto fully described :
And whereas the saidUduma Lebbe Marikar AhamadoLebbe
Marikar Alim died intestate at Colombo on or about the 13th day ofDecember, 1917, leavinghim surviving ashisheirs hiswidow,
Neemath Umraa, and several children, including* Ahamado LebbeMarikar Alim Uduma Lebbe Marikar Alim Abdul Majeed and AhamadoLebbe Marikar Alim Mohamed Thassim:
And whereas disputes and differences having arisen among the heirs,of the said deceased in respect of the estateandeffects of the said
deceased, such disputes and differences were referred by the heirs ta
1924.
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the arbitration of 8Kmi Lebbe Naina Marikar Hadjiar of Colombo forthe settlement of such disputes and differences:
And whereas by his award dated the 10th day of November, 1919,the said Sterna Lebbe Naina Marikar Hadjiar awarded, inter alia, thatin respect of his share of the estate and effects of the said deceased,the said Ahamado Lebbe Marikar Alim Oduma Lebbe Marikar Hadjiarshould get property to the value of Eighty thousand Rupees (Rs. 60,000),nr a sum of Eighty thousand Rupees (Rs. 80,000) in cash:
And whereasthe saidNeemathUmma, Ahamado Lebbe Marikar
Alim Abdul Majeed, and Ahamado Lebbe Marikar Alim MohamedThassim were appointed administratrix and administrators, respectively,•of the estate and effects of the said Oduma Lebbe Marikar AhamadoLebbe MarikarAlim, deceased, intestamentaryproceedings No. 6,415
of the DistrictGourt ofColombo,and lettersof administration were
on the 4th day Of November, 1919, accordingly issued to them in the.said testamentary proceedings:
And whereas on an appeal preferred against the said order of the saidDistrict Court dated the 30th day of August, 1920, the Supreme Courtby its order dated tile28th dayof January,1921, upheld (he said
award and directed the said grantors to administer the said estate intorms of the said award:»*
And whereas the said District Coart by its order dated the 8th dayof September, 1921, and mitered of record in the said testamentaryproceedings No. 6,415, authorised and empowered the said grantorsto sell, inUr alia, the said premises by public auction:
And whereas conditions of sale having been submitted to andapproved by the said District Court, the said premises were put up forsale by public auction by Hettige Don John Pieris of Colombo, licensedauctioneer, on the 10th day of October, 1921, at which sale the saidAhamado Lebbe Marikar Alim Oduma Lebbe Marikar Hadjiar (herein-after sometimes called and referred to as the grantee) did bid fsr thesame, and as the highest bidder war declared the purchaser thereofat or for the price or sum of Rupees Thirty-seven thousand and Four.hundred (Rs. 37,400) as will appear on reference to the conditions ofsale No. 930 dated the 10th day of October, 1921, and attested by.J. A. Perera of Colombo, Notary Public.
And whereas the said grantee having been allowed credit for the.said purchase amount in part satisfaction of the amount awarded tohim as one of the heirs of the said Oduma Lebbe Marikar Ahamado.Lebbe Marikar Alim, deceased, under tile said award has called uponthe said grantors to execute a conveyance of the said premises in hisfavour:
And whereas the said District Court by its order dated the 26th.day of February, 1923. and entered and record in the said testamentary.proceedings No. 6,415, authorized and empowered the said grantorsto execute a transfer, infer alia, of the said premises in favour of the•said grantee.
Now know ye, these presents witness, that the said Neemath Umma,Ahamado Lebbe Marikar Abdul Majeed; and Ahamado Lebbe MarikarMohamed Thassim, as administratrix and administrators, respectively,of the estate and effects of the said Oduma Lebbe Marikar AhamadoLebbe Marikar Alim, deceased, io consideration of the premises, dohereby convey, transfer, assign, set over, and assure unt6 the saidAhamado Lebbe Marikar Alim Oduma Lebbe Marikar Hadjiar, his heirs,executors, administrators, and assigns all that the said land and premisesin the said schedule hereto fully described, together with all and
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singular the rights,privileges,easements, servitudes,and appurte* 1984.
nances thereof or thetreunto in anywise belonging or used or enjoyed — .therewith, or reputedto be orknown as partor parcel thereof, and
nil the estate, right,title, interest, claim, anddemandwhatsoever of
them, the said grantors and of the said Oduma Lebbe Marikar Ahamado WeinmanLebbe Marikar Alim, deceased, in, to, upon, or out of the said premises•and every part thereof, and all deeds and writings relating thereto:
To have and tohold thesaid premisesherebytransferred and
-assigned and every part thereof unto the said Ahamado Lebbe MarikarAlim Oduma Lebbe Marikar Hadjiar and his aforewritten absolutelyand for ever:
And the said grantors do hereby for themselves, their executors, and-administrators covenant and declare with and to – the said grantee, &c.
shall dr may be necessary for the better or more perfectly assuringthe same and every part thereof unto the said grantee and his afore-written as by him, them, or any of them shall or may be reasonablyrequired.
Signed, witnessed, and attested.
A. E. Keuneman, for appellant.
M. TF. H. de Silva, G.G., for respondent.
Cut. adv. vult.
•July 30, 1924. Schneider J.—
This is an appeal by a notary under the provisions of section 32•of the Stamp Ordinance, No. 22 of 1909, against the ruling ofthe Commissioner of Stamps under section 30 of that Ordinance.The question involved is whether a deed of transfer brought tothe Commissioner of Stamps by the notary who had prepared and•attested it should be stamped under item 22 (a) of schedule B ofthe Stamp Ordinance as amended by the Stamp (Amendment)Ordinance, No. 10 of 1919, as the Commissioner has ruled, orunder 22 (c) as the notary submits. The ruling of the Commissioner•of Stamps is that the instrument in question is a writing by wayof conveyance of immovable property for the consideration men-tioned in the instrument. The notary's submission is that it is a•conveyance by an administrator of properly without considerationto the person beneficially entitled to such property. The matter,in my opinion, presents no difficulty. The language of section•30, sub-section (2) of the Stamp Ordinance clearly shows that ''allthe facts and circumstances affecting the chargeability of theinstrument with duty" should be fully and truly set out in theinstrument. This view of the construction of that section was•expressed by Wood Eenton C.J. and De Sampayo J. " In theMatter of the Application by Chellappa, Notary Public.1M Accord-ingly, in determining the question of the duty chargeable,-the only.material upon which this Court should proceed is that which is
1 (1916) 19 N. L. R. 116.
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1024.
j’CBMBIDEB
J.
In re tJ»eApplication.o/J.J.Weinman
afforded by the instrument in question. It is a conveyance ofan allotment of land with the buildings standing thereon by theadministratrix and administrators of the estate of one Ahamado>Lebbe Marikar Alim to one Alim Uduma Lebbe Marikar Hadjiar.
It is set out in the instrument that the deceased had died intestateleaving certain persons as his heirs ; that disputes had arisen amongthe heirs and were referred by the heirs to arbitration ; that anaward was made that Alim Uduma Lebbe Marikar Hadjiar, whowas one of the heirs of the deceased, should get property to thevalue of Es. 80,000, or that sum in cash, and that the administratrixand administrators were authorized and empowered by the DistrictCourt of Colombo to sell, inter alia, the premises described in thedeed by public auction ; that the premises were put up for sale bypublic auction by a licensed auctioneer under certain conditions of.sale which had been approved by the District Court ; and thatat this sale the grantee, Alim Uduma Lebbe Marikar Hadjiar, wasdeclared the purchaser, as highest bidder, at or for the price ofEs. 37,400 ; and that as the grantee had been allowed credit for thepurchase of the property in part satisfaction of the amount awardedto him as one of the heirs of the estate, he had called upon thegrantors to exeoute a conveyance ; and that the District Court hadby its order subsequent to the sale by auction authorized andempowered the grantors to convey the said property to the grantee.The deed then proceeds to convey and transfer the property “ inconsideration of the premises. ” I am unable to see how this-instrument can be regarded as a conveyance of property by theadministrator " without consideration to the person beneficiallyentitled to such property.” (Item 22 (c)). The recitals in thedeed show the true nature of the transaction, namely, that it wasa purchase of a property belonging to the estate by a person whenthat property was put up for sale to the public by auction. Themere accident that the purchaser happened to be one of the heirs-of the estate, or that instead of paying in money the sum for whichthe property had been purchased, he was atlowed credit for thatsum out of the money due to him from the estate makes no differencein the nature of the transaction. Mr. Kenneman, who appearedfor the appellant, contended that “ there was no consideration,except the fact that, it was a transfer to the person beneficiallyentitled. It seems to me that this contention is unsound. As Ihave already pointed out, the real nature of the transaction was asale of the property. The conveyance of title by deed was inconsequence of that sale, and the consideration for the conveyance-was the price which the purchaser was paying for the property.To bring the instrument within the purview of item 22 (c), it was notonly necessary that the conveyance should be “ without con-sideration, ” but it should be ‘‘to the person beneficially entitledto such property. ” It is not possible to say that the instrument
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In question was a conveyance of properly to the person beneficially(entitled to that property. The recitals show that the deceasedleft several heirs to his estate besides the grantee. The grantee’sinterest, therefore, in the property in question, was an undivided■share in it as one of the heirs. Furthermore, when the propertywas sold it ceased to be a part of the estate, and the interests ofdihe heirs was converted into the money which represented theprice for which the property was sold. It was also submitted byMr. Keuneman that the essence of the transaction was a conveyancenot by way of sale to the grantee, but as the result of an arrange-ment by which he agreed to accept the property in part satisfaction*of his claim to the sum of Bs. 80,000 awarded to him. Thisargument, too, I am unable to accept. The property was put upfor sale to the public at large, and the grantee became entitledto a conveyance of it to him, only because he was declared thepurchaser of the property as a result of the sale by auction.
I would, therefore, uphold the ruling of the Commissioner, and•dismiss the appeal, with costs.
1924.
S0BKBZDB&
J.
In re theApplicationofj. J.Weinman
-Jayewabdene A.J.—I agree.
Appeal dismissed.