119-NLR-NLR-V-59-MERCANTILE-BANK-OF-INDIA-LTD.-Appellant-and-1-DE-SILVA-2-COMMISSIONER-OF-.pdf
J3ASXAYAKK, C.-J.—JMercantile Bank of India Ltd. v. (1) do Silva,
(2) Commissioner of Estate But;/
553
1958 Present :Basnayake, C.J., de Silva, J., and Sinnetamby, J.MERCANTILE BANK OF INDIA LTD., Appellant, and (1) DE SILVA,(2) COMMISSIONER OF ESTATE DUTY, Resiiondents
S. G. 257, with Application 159—D. C. Galfe, No. X 1,773
Estate Duty Ordinance (Cap. 1S7)—Recovery of estate duty out of debts, etc.—Scope ofSection 5-5.
Section 55 of the Estate Duty Ordinance lias no application to money lyingto tho account of any suit, and the- Commissioner of Estato Duly has no authorityin law to issue a notice under that section to a Court or Judge.
-AppEAL from an order of flic District Court, Gallc.
I Valter Jayaicardene, with Neville Wijeratne, for Plaintiff-Appellant inS. C- No. 257 a nd in support of Application No. 159.
V. Tenneloon, Senior Crown Counsel, with B. G. F. Jayaratne, CrownCounsel, for 2nd Dcfendant-Resj>oiident in S. C. No. 257 and for Applica-tion No. 159.
No appearance for 1st Defendant-Respondent.
January 21, 195S. Baskayakb, C.-J.—
Tho question that arises for decision in this case is whether the Commis-sioner of Estato Duty has authority hi law to give notice under section55 (1) of the Estate Duty Ordinance requiring the District Judge of thoDistrict Court of Gallo to pay, as directed in tho notice hereinafter set out,a stun of Rs. 20,165/90 out of the money lying in deposit with thoGovernment Agent on account of this action.
It is urged on behalf of tho appellant that the Commissioner of EstatoDufy has no such authority. The grounds submitted in support of thoappellant’s contention are as follows :—
(a) the money is not in tho custody of tho District Judge as an.individual,
;' (b) the District Cour t is not a legal person,
the District Court was not about to pay any money to an executor
for or on account of the estate of tho deceased,
tho District Court did not hold any monoy for or on account of tho
-. estato of tho deceased,.-
tho District Court did not have authority from some other person –
to pay any monoy to an executor for or on account of the estate-. ……of the deceased,
24lix—
2J.x. B 6315—1‘492(3/58)
55i
BASNAYAKE, C.J.—Mercantile Bank of India Ltd. v. (I) de Silva,
.(2) Commissioner of Estate Duty
(/) the District Court was not liable to pay for or on account of theestate of the deceased money which, if paid to an executor, isbound to be credited by him to that estate.
Tiie material facts shortly are as follows :—The appellant the Mercan-tile Bank of India sued and obtained judgment against the adminis-tratrix of the Estate of the deceased Liyana Peeris Mcndis for a sum of •Rs. 117,026. In execution of the decree a total sum of Rs. 36,750/87was recovered. This amount was deposited with the Government Agentto the account of the case as required by section 296 of the Civil ProcedureCode.
On 9th March 1956 the Commissioner of Estate Duty issued thofollowing notice :—
" CEYLON ESTATE DUTY"
Charge No. ED/9550Collection File No. AJ/10275
Notice under Section 55 of the Estate Duty•Ordinance (Cap. 1S7)
To/The District Judge,
District Court, Gallo.
Whereas the sum of Rupees Twenty Six Thousand One Hundred andSixty Five and Cents Ninety (Rs. 26,265 ’90) being the amount of EstateDuty with interest thereon at 4 per cent per annum from 12th January
1953.to date of payment and accrued interest Rupees—(Rs.) payable •
By Mrs. E. Dolly'Nona de Silva, Dadalla, Galle, the executor of the estateof L. P. Mendis (deceased), is in default, and whereas it appears to me tobe probable that you—
(1) owe or are about to pay money to the executor for or on accountof the deceased abovenamed ;
or (2) hold money for or on account of the said estate* ;
or (3) have authority from some other person to pay certain sums ofmoney to the said executor for or on account of tho said estate;
or (4) are liable to pay for or on account of the said estate moneywhich if paid to the executor is bound to be credited by himto that estate.. j 1 2
1,L. G. Gunasekera, Deputy Commissioner of Estate Duty by virtuo
of the powers vested in me under section 55 of the Estate Duty Ordinance(Cap. 187) do hereby require you to pay to me at the Estate Duty Officeof the department of Income Tax, Estate Duty and Stamps, Colombo,any such moneys referred to above, not exceeding the said amount of theestate duty in default..
2.This Notice shall apply to all such monies referred to above which•are in your hands or due from j ou or about to bo paid by you at tho date
Perera v. Martin
555
of tho receipt of this notico, or como into 3-oitr hands, or become duo fromyou, or are about to bo paid bj‘ 3*011 at ary time within a period of THIRTYDAYS AFTER THAT DATE.
♦Monies now 13'ing in deposit in D. C. Gallo Case Xos. X-1356, X-1773and S-I445 being amounts realized b3* tho salo of lands belongingto tho Estate of the abovenamed deceased.
Sgd. D. G. Gunasekera,
Deput3r Commissioner of Estate Dut3’
Department of Income Tax,
Estate Dut31- and Stamps,-
Colombo, 9th March, 195G ”.
Learned counsel’s submissions arc in our viow sound and must boupheld. The law requires that moncj' received b3' Fiscal’s officers atexecution sales should be paid in to tho office of the Government Agent(section 296 (4) C. P. C.). Such monies remain in deposit with theGovernment Agent until the3- are paid out on an order of Court (section297 C. P. C.). The Court has power to make such an order rrnder section350 of the Civil Procedure Code. Section 55 has no application to mone3'13-ing to the account of aiy suit and the Commissioner has no authorityin law to issue a notice under that section to a Court or Judge.
The appeal must therefore be aIlowcd. We according^ set aside theorder of tho learned District Judge and allow tho appeal with costs bothhere and in the court below.•
In application Xo. 159 the same relief is sought as on this appeal.As we have allowed tho appeal, to tho hearing of which no objection hasbeen taken by the respondent, we make no order on this application asit is not necessary to do so.
de Silva, J.—I agree.
StN.VETAMBV, J.—I agree.
Appeal allowed.