106-NLR-NLR-V-24-In-the-Application-of-GOONESEKERA,-Notary-Public.pdf
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Present; Porter and Schneider JJ.
In re the Application of Goonesekera, Notary Public.
Stamp duty—Deed executed by Muhammadan husband in favour of wifeafter marriage for Maggar.
A Muhammadan husband executed a deed in favour of his wifeafter the consummation of the marriage for the Maggar.
Held, that the document should be stamped under item 30 (6) ofStamp Amendment Ordinance, 1919.
M. W. H. de Silva, for the applicant.
Dias, CD., for the respondent.
January 31, 1923. Porter J.—
This is an appeal from a decision of the Commissioner of Stamps.The sole question for ns to decide in this case is whether deedNo. 57 of July 27, 1922, should be stamped as coming under item22 (a) or 30 (6) of the Stamp Amendment Ordinance.
By virtue of the ruling in re the application of K. S. Veeravagu,Notary Public, reported in 23 N. L. R. 67, I am of the opinionthat the document in dispute should be stamped under item 30 (6),mid that the ruling of the Commissioner of Stamps is correct.
I would, therefore, dismiss this appeal, with costs.
1923.
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1928.
Application
of
Goonesekera
SoWuiDJflft J.—
&ie question raised by this appeal has been decided in re theapplication of K. S. Veeravagu, Notary PabEo.1 It was thereheld that a transfer of land as a dowry in consideration of a marriage,although it had been contracted before the date of the deed, wasin the nature of a settlement by the husband in favour of the wife,and must be stamped as a deed of gift.8 The reasoning being thatit was not a transfer within the meaning of the Stamp AmendmentOrdinance, but a deed of gift, because a settlement is a gift of aparticular kind.
Mr. de Silva, who appeared for the appellant, raised an ingeniousargument. He contended that the deed (No. 57) under considera-tion in this application was executed by a Muhammadan husbandin favour of his wife after the consummation of the marriage forthe “ Mahar,” which, under the Muhammadan law, a husband isunder obligation to pay to the bride, and that, therefore, the con-’sideration for the deed was a debt due. He cited a number ofauthorities in support of his argument.3
He argued that as the consideration was debt, therefore the deedwas a transfer, as it was for a pecuniary consideration. I amunable to uphold this contention. When an instrument is submittedin circumstances such as those in this appeal for the determinationof the stamp duty, the instrument must be looked into, and theactual consideration for the transaction gathered from it. It is ofno importance what the parties to it may call or describe the trans-action. Apart from the authorities cited, sections 68, 72, and 78of our Code of Muhammadan law make it clear that “ Mahar ”as the deed calls it, and “ Maskawien or Maggar ” as the Code callsit, is a settlement which the law requires should be made by ahusband for a wife.
The real consideration for the deed in question is not money orits equivalent paid by the wife to the husband, but that with whichthe husband dowers the wife in consideration of her marriage.I am, therefore, unable to draw any distinction as to their naturebetween the instrument connected with this appeal and thatwhlcJTwas the subject-matter of the decision mentioned above. I would,therefore, dismiss this appeal, with costs.
Affirmed.
1 {1922) 23 N. L. R. 67.
a Article 30, The Stamp Amendment Ordinance, No. 10 of 1919.
* Thyabji ; Muhammadam Law, pp. 54, 60, and 119 ; V. D. S. Reports162 and 196 ; 14 N. L. R. 276 ; and 25 Hals. Laws of England 448,section 811.