110-NLR-NLR-V-05-Re-Last-Will-of-RIGBY.pdf
APPENDIX.
*
Re Last Will of RICtBY.
D. C.; Kandy, 2,104:
*Stamp duty—Ordinance No. 3 of 1890, ss. Hi and 07, and Part III.—Value ofj • estate of deceased—Assessment of duty, on gross or nett value of estate.
The deduction of the debts due by the deceased on’ mortgage or othernotarial bonds should be made only on the duty leviable on the probateof the will or the letters of administration, and not on the duty leviableon the documents enumerated in Part HE. of the Schedule B of theOrdinance No. 3 of 1890.
T N this case the Secretary of the District Court of Kandybrought to the notice of the Judge (Mr. J. H. de Saram) thatthe appointment of the proctor made (under section 27 of theCivil Procedure Code) by the petitioner applying for letters ofadministration, with copy of the will annexed, of the deceasedJames Rigby, bore stamps of the aggregate value of Rs. 12, todthat the affidavit sworn to by the applicant also bore stamps of thesame value, notwithstanding the averment in the said affidavitthat the estate of the deceased in Ceylon was worth Rs. 25,175,according to which the stamps should be of the value of Rs. 14 inthe case of each of these documents.
It appeared that the proctor for the applicant affixed stampson the basis of the nett value Of the estate said to be equal toRs. 17,175, deducting from the gross value (Rs. 25,175) the amountdue by the deceased on a mortgage (Rs. 8,000).
After hearing Mr. Proctor Borrett for the petitioner, the Districtrudge (Mr. J. H. de Saram) held as follows, on 26th June, 18§9:—“ Mr. Borrett has acted contrary to the practice prevailing in thisJourt and in the District Court of Colombo.
“ Sections 24 to 30 of ‘ The Stamp Ordinance, 1890, ’ relate only tohe stamp duty payable on probates and letters of administration.Section 24 enacts the mode in which the stamp duty is to beascertained, and when it is paid the amount has to be transmittedby the Judge to the Commissioner of Stamps, together with theprobates or letters of administration, in order that the documentmay be duly stamped. No mention is made there of the documentsreferred to in Part III. Then, – section 30 provides for the returnof stamp duty on probate and letters of administration, and noton any other document, on account of debts paid other than debtsdue on mortgage or notarial bonds, implying thereby that the-deduction to be made under section 24 for debts due on mortgage
15—-J. H. 68216 (4/60)
1899.
September iff.
( II )1899. or notarial bonds relates only to the stamp duty on probate andrSeptember20. iefcter6 gf administration. The deficiency in stamps should besupplied. ”
Mr. Proctor Borrett supplied the deficiency.
On the 18th September, 1899, Mr. Borrett, for the petitioner, moved” that the Court do order that the samp duty on the. pleadings inthis case be calculated on the value of the estate of the deceased,less debts due on mortgage bonds. ” He cited section 24 of Ordi-nance No. 3 of 1890, and contended that the reference made insection 57 to section 24 implied that the deduction to be made ohaccount of mortgage debts referred to the stamp duty on theproceedings generally, as well as on. probates and letters ofadministration; that the object of the whole Ordinance was toascertain the true value of the estate, that is to say,, the value afterdeducting debts; and that’ section 24 should be read together withPart III. as respects duty on probate.
Fernando, C.C., on behalf of the Attorney-General,- was heardcontra.—Section 24 provides for ascertaining of the value of. probate duty by first determining the value of the assets andthen deducting therefrom the debts due on mortgage or op notarialbonds. The under-valuation referred to in section 57 relates tothe first, thing to be done under section 24, viz., the valuation ofthe ■ assets. Section 57, excluding from its operation probatesand letters of administration, implies that the amount of stampduty payable on other documents is calculated on the full valueof the assets, as declared by the applicant under section 24.According to Part ITT., the duty payable is on the full valueof the estate, except on probates and letters of administration, inrespect- of which mortgage debts and debts on notarial- bonds haveto be deducted.Cur. adv. vult.
On the 20th September, 1899, the District Judge (Mr. J. H. deSar’am) held as follows: —
“The question again raised by Mr. Borrett is whether thededuction of the debts due by the intestate on mortgage or onnotarial bonds should be made only in the assessment of stampduty on probates and letters of administration, or whether it shouldbe made also in respect of the duty on the other dutiable docu-ments enumerated in Part .III. of ‘ The Stamp Ordinance, 1890.
“ This question was before me a few months ago in these verytestamentary proceedings, and I then decided that the deductionshould be made only in the assessment of the duty payable onprobates and letters of administration. Mr. Borrett has asked meto reconsider the question, and invited my attention to section 57.
( III )x directed notice of the motion to be given to the Attorney- 1899.General, as it is a matter of stamp duty, which is of concern to the September SO.Crown, and as I desired to have the Attorney-General’s assistancein the argument.
V Section J57 imposes the duty on the Secretary of everyDistrict Court of furnishing to the District Judge quarterlystatements showing the deficiencies of Stamp duty in respect ofevery instrument other than probates or letters of administration,and proceeds to enact that ‘ whenever the District Judge is satisfiedthat too little stamp duty has been paid in respect of any suchinstrument, whether by reason of the property having beenunder-valued when originally valued as required by section 24, oi;otherwise, the District Judge shall require the party who tenderedsuch instrument to make good the deficiency of stamp duty, andshall enforce payment of the same by writ (free of stamp duty) ofexecution against the property and person of such party.
” Mr. Borrett argued that the reference to section 24 in section57 implies that the deduction to be made on account of mortgageor on notarial bonds, relates to the stamp duty on testamentaryproceedings generally, as well as on probates and letters ofadministration. Section 57 is, I think, capable of having theconstruction placed ou it that it nullifies the other provisions ofthe Ordinance, but it is also open to the construction put on it bythe Crown, viz., that the under-valuation of the property in section57 is the valuation of the movable and immovable property for thepurposes of section 24 prior to the deduction of debts due onmortgage or on notarial bonds. That section enacts the • mode inwhich the stamp duty on probates and letters of administrationis to be ascertained, viz., by first determining the value of thedeceased’s property, and then deducting therefrom debts due onmortgage or on notarial bonds. The. valuation of assets is for thepurpose of determining the stamp duty on testamentary proceed-ings generally, viz.,-the duty payable under Classes 1, 2, 3, and 4.of Part III. That valuation being ascertained, the deduction ofdebts on mortgage and notarial bonds is made therefrom, for- thepurpose of ascertaining the duty on probates and letters . ofadministration, in the concluding portion of Part HI. This is theconclusion I come to on reading sections 24 and 57 and Part III.of the Ordinance together. I may add that this is in accordancewith the practice prevailing in this Court, and, as I understand,also in the District Court of Colombo.
“I refuse Mr. Borrett’s motion. The deficiency of stamp dutyon the oath of office should be supplied. ”
The petitioner did not appeal against this, order.