DALTON SJP.J.—Mahroof v. Saile.
1936Present: Dalton S.P.J. and Koch J.
MAHROOF et al. v. SAILE134—D. C. Galle, 680/33,891
Muslim Intestate Succession and Wakfs Ordinance—Stamping of documents—Ordinance No. 10 of 1931, s. 16 (1).
Documents produced in proceedings under section 16 (1) of the MuslimIntestate Succession and Wakfs Ordinance are liable to stamp duty as-documents in civil proceedings in the District Court under Schedule B,Part II. of the Stamp Ordinance.
PPEAL from an order of the District Judge of Galle.
H. V: Perera, for respondent, appellant.
M.I. M. Hanvffa, for petitioners, respondents.
February 20, 1936. Dalton S.P.J.—
This appeal arises out of proceedings commenced under the provisionsof section 16 (1) of the Muslim Intestate Succession and Wakfs Ordinance,No. 10 of 1931. Two questions arose on the appeal out of the judgmentof the Court below.
1 Times L. R. 259.
N. L. R. 164.
DALTON S.P.J.—Mahroof v. Saile.
The first question relates to the stamping of the documents. Objectionwas taken in the lower Court on behalf of the respondent to the petition,that the documents did not require to be stamped, on the ground thatthere was no provision for stamping them in the Ordinance under whichthe proceedings were taken. The trial Judge disagreed with this con-tention, holding that they were properly stampable, as civil proceedingsin the District Court, under Schedule B, Part II. of the Stamp Ordinance,1909, as amended by Ordinance No. 19 of 1927, as an action of the valuecf Rs. 1,000.
In the course of the argument on the first question, after opening hisargument Mr. Perera for the appellant stated that proceedings of thepresent nature, prior to Ordinance No. 10 of 1931, would be broughtunder the provisions of section 102 of Chapter X. of the Trusts Ordinance,1917, to which proceedings section 116 of the Ordinance applied. Heintimated that on consideration he was not in a position to show that theprovisions of section 116 of the Trusts Ordinance were inconsistent withthe provisions of Ordinance No. 10 of 1931. If not inconsistent, theprovisions of section 116 are not repealed by the latter Ordinance. Healso properly called our attention to the decision of Bertram C.J. inSathasivam v. Vaithianathan1. He was unable to urge, therefore, onfurther consideration, that on the question of stamping the learned Judgein the lower Court was wrong. If so, it is not necessary to consider otherreasons that might appear to support the judgment on this question.
The second question raised related to the Judge’s order that an arbi-trator or arbitrators be appointed under section 5 of Ordinance No. 15 of1866 (The Arbitration Ordinance) to scrutinize and make an award onthe accounts filed by the respondent (appellant in appeal). Counsel forthe petitioners (respondents in appeal), made it clear he had not asked forsuch an order and stated he did not support it.
The learned Judge no doubt thought that the Court should haveassistance in respect of the accounts, but he erred in applying the provisionsof the Arbitration Ordinance, 1866. The matter is amply provided forin the Ordinance under which the proceedings were taken, which hepossibly overlooked. Section 20 of Ordinance No. 10 of 1931 empowersthe Court to refer matters to arbitration or enquiry. The powers of thearbitrator or committee under this Ordinance do not appear to be sowide as those of an arbitrator under the Arbitration Ordinance, no doubtfor good reason.
The appeal therefore made in respect of the order for arbitration mustbe allowed and the order for arbitration under the Arbitration Ordinancemust be struck out. That will not prevent the Court hereafter, if onfurther consideration it thinks desirable, from making an order underthe provisions of Ordinance No. 10 of 1931.
Subject to that variation in the judgment, the appeal is dismissedwith costs.
Koch J.—I agree.
1 24 N.L. if. 94.
MAHROOF et al. v. SAILE