015-NLR-NLR-V-27-In-the-Matter-of-the-Application-of-V.-COOMARASWAMY,-Notary-Public.pdf
( 62 )
1824.
Present: Bertram C.J. and Jayewardene A.J.
In the Matter of the Application of V. Coomaraswamy,Notary Public.
Stamps Ordinance—Dowry deed—Transfer of mortgage bonds—Ordinance
No. 22 of 1909, schedule B.
Where a document in consideration of a sum of Bs. 1,500 agreedby the maker to be given as dowry to his daughter transferred toher a number of mortgage bonds.
Held, the document was chargeable with stamp duty, both asa deed of gift under item 30 of schedule B of the Stamp Ordinanceand as a transfer of mortgage under item 51 of the schedule, andthat the Crown was entitled to charge it at the higher rate of duty.
PPEAL from a decision of the Commissioner of Stamps upon
-A A- an application made to him under section 30 of the StampsOrdinance.
Arulanandan (with him J. Joseph), in support.
Akbar, S.-G. (with him M. W. H. de Silva, C.C.), contra.
September 12, 1924. Bertram C.J.—
This is an appeal brought against the decision of the Commis-sioner of Stamps upon an application made to him under section 30of the Stamp Ordinance, No. 22 of 1909. The document underreference in consideration of the sum of Bs. 1,500 agreed by themaker to be given as dowry money to his daughter transfers tothat daughter a number of mortgage bonds. The question iswhether this is a deed of gift under item 30 of schedule B of thatOrdinance. Mr. Arulanandan, who appears for the appellant,contends, and in my opinion contends rightly, that the instrumentis a transfer of mortgages within item 51 of the same schedule.There is no question that it does transfer mortgages. But thatdoes not conclude the matter. It may very well be a transfer ofmortgages, but a transfer of mortgages may also be a deed of gift.It is settled law in England, and there appears to be no reason whywe should not follow the principle obseved in England, that wherea document is chargeable in the alternative under two categories,the Crown has a choice whether to charge it under the one or underthe other—see Speyer Brothers v. Commissioners of Inland Revenue.1
A
1 (1908) A. C. 92.
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In the Court of Appeal in the same case the principle was expressedin another way. It was there said that in such a case the InlandRevenue authorities were entitled to charge the document at thehigher rate of duty.,
We have, therefore, to ask ourselves, notwithstanding the factthat the document does come under item 51, does it also comeunder item 30 of the same schedule. In determining this questionwe have to look at the terms of the document itself. We areprecluded from making any inquiry into the circumstances underwliich it was given, and considering any evidence aliunde as to thenature and the purpose of the deed—see In re A. K. Chdlappa1and In re Abeyeratne.2
We have, therefore, to ask ourselves whether upon the face ofthe document it is in substance a deed of gift. For that purposeit does not matter what it may be called. We have to determinefrom what appears within the four corners of the document itsessential nature. Now the material words are,11 In consideration/*'or as it is suggested it may be translated in the alternative, “ indischarge of the* sum of Rs. 1,500 agreed by me to be given asdowry money, I sell, assign, and convey all the right, title, andinterest belonging to me in and to the under-mentioned mortgagebonds and otty bond/*
Do these words in fact constitute the document a deed of gift ?It was suggested by Mr. Arulanandan that they really point totwo transactions, an initial agreement to give a sum of money asdowry, and a subsequent agreement vacating the original agree-ment ; under which substituted agreement the mortgages were tobe executed in lieu of the money originally provided for, and anassignment of these mortgages in pursuance of this substitutedagreement. I think that if we look at the words of the documentas they stand, there can be no doubt that this is in substance a deedof gift. It may be taken as settled by the decision of this Court{In re Veeravagu3) that a dowry deed, even though it is executedin pursuance of marriage and in consideration of marriage, is, infact, in substance a gift by the parent or parents to the daughter.
Our Courts, indeed, have gone further, and in a subsequent case,not necessary here to consider {In re Ooonesekera4), it has been heldthat even a payment which under the Muhammadan law is a matterof compulsory obligation is also for the purpose of the Stamp Actto be treated as a voluntary gift. Treating this as a dowry,as indeed in the nature of the case it is, what do these words cometo ? They recite that in consideration or in discharge of the promiseto pay Rs. 1,500 dowry money, certain mortgages are transferred.
It would be difficult to find plainer words to indicate that thesemortgages were transferred by way of dowry and for the purpose
' (1916, 19 N. t. R. 116.»(1921) 23 N. L. R. 67.
* {1920} 22 N. L. R. 331.* (1923) 24 K. L. R. 35U
1924.
Bertram
C.J.
Applicationof V.Coomaro-steamy
27/7
I 64 )
1924.
Bertram
C.J.
Application
of V.Coomara■swamy
of fulfilling the undertaking to give a dowry. Even if we acceptthe suggestion of Mr. Arulanandan and say that the words indicateor suggest first of all an agreement to pay money by way of dowry,and then afterwards a subsequent agreement to transfer mortgagesin lieu of the money originally promised, even so it would only bea case of an agreement by which one form of gift was substitutedfor another.
It appears to me, therefore, that the decision of the Commissionerof Stamps was right. The transaction falls under both paragraphs,and the Crown is entitled to insist on its being treated as comingunder item 30 (6), and on this view of the case, I am of opinion thatthe appeal must be dismissed with costs.
Jaykwardene A.J.—I agree.
Appeal dismissed.