In the Matter of an Application of Notary ABEYERATNE

094-NLR-NLR-V-22-In-the-Matter-of-an-Application-of-Notary-ABEYERATNE.pdf


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Present: De Sampayo J. and Schneider A.J.
In the Matter of an Application of Notary Abeyeratne.
Stamp Ordinance—Deed of exchange among co-heirs—Facts not disclosedin the deed.
A deed recited that A was entitled to property described inschedule X; and' B was entitled to property described in scheduleY, and that they had agreed to effect an exchange of the propertiesin the two schedules, and in consideration of the premises A con-veyed by the said deed property in schedule X to B, and B conveyedproperty in schedule Y to A. A stamp of Rs. 10 was affixed bythe notary to the deed on the footing that this was a deed of ex*change under article 27 of part I* of the schedule B. The notarysubmitted an affidavit to the Commissioner of Stamps stating thatA and B were stepmother and stepson, and as such co-heirs of G.
Held, that as there was nothing in the deed itself to show thatA and B were co-heirs, article 27 did not apply.
The affidavit provided for in section 30 (2) of the Stamp Ordi-nance is not to furnish evidence of facts and circumstances outsidethe instrument, but to prove that all the facts and circumstancesare fully and- truly set forth in the deed itself.
fJ^HE facts appear from the judgment.
A. St. V. Jayaioardene (with him Batuicantudawa and Weera-suriya), for appellant.
Dias, O.C., for Attorney-General.
October 20,1920. De Sampayo J.—
Cyrus de Silva Abeyeratne, Notary Public, attested the ^|eedNo. 8,726 dated October 4,1915. He affixed to it a stamp of Rs. 10considering that it was a deed of exchange and came under article
1920.
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1920. > 27 of part I. of schedule B to the Stamp Ordinance. A questionDn SuiffATo having keen raise<* aS to tihe sufficiency of the stamp, he appliedj.to the Commissioner of Stamps under section 30 (1) for his opinion.
—;—'The decision of the Commissioner was that the deed came under
arti°le No- 22 (a), and was stampable with ad valorem duty accordingAbeyeratne to the value of the lands dealt with by the deed, and called upon thenotary to supply the deficiency of stamps.
The notary has appealed to this Court under section 32.
There were two parties to the deed: Amelia Cornelia Gooneratne,Lama Etani, widow of E. It. Gooneratne, Gate Mudaliyar, of thefirst part; and Dr. Valentine David Gooneratne of the second part.
– The deed recited that the party of the first part was entitled to theproperty described in schedule A of the deed, and the party of thesecond part to the property described in schedule B, and that theyhad agreed to effect an exchange of the properties in the twoschedules, and the deed in the operative clause witnessed that theparty of the first part, “in consideration of the premises and of thetransfer hereinafter set forth and to be made in favour of herby the party of the first part, did give, convey, assure unto (theparty of the second part) by'way of exchange for the premisesdescribed in the said schedule B all that premises fully describedin schedule A.” And then was a similar conveyance by the partyof the second part to the party of the first part of the propertydescribed in schedule B.
The deed also contained the usual covenants for good title andfor further assurance.
Article 27, on ’which the notary relies, is as follows: “ Deed for theexchange of land without other consideration between co-heirs orpart-owners, Rs. 10.”
The notary submitted an affidavit to the Commissioner stating :“ The parties to the said deed are stepmother and stepson, and assuch co-heirs of the late Mudaliyar E. R. Gooneratne.” On thefacts thus disclosed, the notary contends, in the first place, that thedeed is a deed of exchange contemplated by article 27, and alter-natively that it is a deed governed by article, 28, which providesfor stamping with a stamp of Rs. 10 “ a deed or instrument nototherwise charged in the schedule not expressly exempted fromstamp duty.” With regard to the first contention, it should benoted that the deed itself does not in any part of it describe theparties as ‘ ‘ co-heirs ” of Mudaliyar E. R. Gooneratne. In the matterof the application of A. K. Chellappa, Notary Public,1 this Courtheld that the facts and circumstances affecting the chargeabilityof an instrument with duty or the amount of the duty with whichit is chargeable should appear in the instrument itself, and thatcalling a deed to be a deed of particular character would not makeit so. That decision is applicable to this case. The. deed not only
* (1916) 19 N. L. if. 116.
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does not refer to any fact or circumstance showing that the partieswere " co-heirs ” or “ part-owners,” but as a matter of fact thedescriptions in the schedules seem to indicate that they are not.Schedule A describes twelve entire lands and an undivided fifthpart of the soil and a tenth of the plantation of another land ; andschedule B describes half shares of nine other and entirely differentlands.
The above decision is also an authority for the proposition that theaffidavit provided for in section 30 (2) was not to furnish evidenceof facts and circumstances outside the instrument, but to prove,as the section itself says, that all the facts and circumstances arefully and truly set forth in the deed itself. Mr. Jayawardene, how-ever, contends that the decision in this respect, is not good law,and he cited Moore v. Garwood,1 Garnett v. Commissioner of InlandRevenue* and Maynard v. Consolidated Kent Collieries Corporation.3I do not think that any of these cases supports his contention. Thefirst and third cases are not appeal^ from the decisions of theCommissioner. Only the second of these cases is such an appeal.None of them deals with the question as to what evidence a partyhas the right to put before the Commissioners or with the specificpoint in issue in this case. I think the authority of the localdecision stands. Even assuming that the party who seeks theopinion of the Commissioner of Stamps is entitled to adduce evi-dence of facts which are not set forth in the instrument itself, I donot think that the notary has put in the evidence required for thispurpose. All that he has stated in his affidavit is that the partiesto the deed are co-heirs of the late E. R. Gooneratne. This initself is a curious way of putting it. I do not suppose the notarymeant to say that the two parties and E. R. Gooneratne are allheirs of some one else. He probably means that the two partiesare both heirs of E. R. Gooneratne, which even if true is a harmlessstatement. In„ order to avail himself of the provision, of article27 of the schedule to the Stamp Ordinance, the notary should haveshown that the two parties derived their title to the property,which they exchanged, by inheritance from E. R. Gooneratne, andwere therefore co-heirs. The evidence afforded by the affidavit is,therefore, wholly insufficient for the notary’s purpose. Nor do Ithink that the deed can be brought under article 28, inasmuch asit is not an instrument “ not otherwise charged in this schedule ”within its meaning, but is chargeable under the article referred toby the Commissioner.
In my opinion the decision of the* Commissioner of Stamps isright, and I would dismiss the appeal, with costs.
1920.
Du Sampayo
Applicationof NotaryAbeyeratne
Schneider A.J.—I agree.
Appeal dismissed*
1 (1848) 4 Exch. 681.* (7900) 81 L. T. 633.
* (1903) 2 K. B. 121.