109-NLR-NLR-V-39-SADANATHA-KURUKKAL-v.-SUBRAMANIAN-et-al.pdf
Saddanatha KurukkaI v. Subramaniam.
. 387
1937Present: Maartensz and Heame JJ.
SADDANATHA KURUKKAL v. SUBRAMANIAN et. al.
21-22—D. C. Jaffna, 43.
Stamp duty—Appeal from an order made in proceedings under the TrustsOrdinance, No. 9 of 1917, s. 42 (2)—Petition of, appealStamp duty—Stamp Ordinance, No. 22 of 1909, s. 4.
A petition of appeal to the Supreme Court from an order made by theDistrict Court in proceedings under the Trusts Ordinance, No. 9 of 1917,must be duly stamped.
Sathasivam v. Vaithianathan (24 N. L. it. 94) followed.
T
HE petitioner-appellant filed two appeals against two orders madeby the District Judge of Jaffna on an application made under
section 42 of the Trusts Ordinance, No. 9 of 1917, for the authority ofthe Court to sell certain property forming part of the subject-matter of a■trust of which, he alleged, he was the trustee.
A. Rajapakse (with him Soorasangaran), for the respondent—Thereare various objections to the hearing of this appeal, namely, (1) the petition■of appeal has not been stamped, (2) no money has been tendered with-the petition of appeal for the Supreme Court Judgment and certificate,and (3) necessary parties have not been made respondents to the appeal.
388MAARTENSZ J.—Saddanatha Kv.rukk.al v. Subramaniam.
The property which the petitioner wanted to sell is worth overRs.v 10,000. The petition to the District Court was stamped with Rs. 10and tiie affidavit With Re. 1.
The case of Sathasivam v. Vaithianathan ’ is in point.. Since the petitionof appeal has not been stamped the appeal must be dismissed (Goone-sekera v. Silva and another ~).
The following cases were also cited : —The British Ceylon Corporationv. The United States Shipping Board and the Roosevelt Steamship Com-pany 3; Attorney-General v. Karunaratne
J. E. M. Obeyesekere, C.C. (on notice), for the Attorney-GeneralThe matter is concluded by the judgment in Sathasivam v. Vaithianathan(supra). Section 116 (1) of the Trusts Ordinance, No. 9 of 1917, dealswith the procedure. Where the Trusts Ordinance is silent, the rules ofthe Civil Procedure Code applies.
[Maartensz J. referred to section 4 of the Stamp Ordinance, 1909]
The liability arises under that section. Under section .116 of theTrusts Ordinance the application is governed by the Civil Procedure Codewhich together with the Stamp Ordinance require a stamp to be affixedto the petition of appeal calculated according to the value of the subject-matter. The effect of section 116 (3) of the Trusts Ordinance must beconsidered. The petitions mentioned in that sub-section refer to thosementioned in sections 74, 75, 76.
N. E. Weerasooria (with him S. Subramaniam), for the petitioner-appellant.—Sathasivam v. Vaithianathan (supra) is not based on theassumption that section 116 of the Trusts Ordinance brings in the ruleswith regard to stamps. That section merely refers to the procedure.There should not be charges for revenue in these actions.
A petition of appeal may mean a continuation of proceedings initiatedby the petition where a stamp of Rs. 10 had been affixed. There is noprovision in the Stamp Ordinance for the stamping of proceedings underthe Trusts Ordinance. When the Trusts Ordinance came into operationwithout any express provision requiring stamps, the proceedings underthat Ordinance should not be made liable for duty.
[Maartensz J.—In the District Court no stamp other than thatrequired for initiating the proceedings is necessary, but when it comesup in appeal a stamp becomes necessary.]
•The District Judge had made an order that only the petition need bestamped and no other stamps were necessary. It had been the practicein that Court.
Cur. Adv. Vuli.
November 22, 1937. Maartensz J.—
The petitioner-appellant has filed two appeals numbered 21 and 22against two orders made by the District Judge of Jaffna on his appli-cation under section 42 of the Trusts Ordinance for the authority of theCourt to sell certain property forming part sof the subject-matter of atrust of which he alleges he is the trustee.
1 (1922) 24 N. L. R. 94.3 (1934) 14 Cey. L. Rec. 31.
* (1918) 6 C. W. R. 135.‘ (1935) 37 N. L. R. 57.
MAARTENSZ J.—Saddanatha Kurukkal v. Subramaniam.
389
A preliminary objection was taken to the appeals" being heard on theground that the petitions of- appeal have not been stamped, and theappellant had not delivered to the Secretary of the District Court togetherwith his petitions of appeal the proper stamps for the decree or order ofthe Supreme Court and certificate in appeal, as required by Part II. ofSchedule B of the Stamp Ordinance which contains the duties on LawProceedings.
The appellant contended that under section 116 (3) of the TrustsOrdinance the proceedings initiated by a petitioner were only liable to astamp duty of Rs. 10.
At the close of the argument at which the Attorney-General wasrepresented, as the question affected the revenue, we -intimated thatwe upheld the objection and that a written judgment would be deliveredlater.
I am of opinion that the appellant’s contention is an untenable one.Sub-section (3) of section 116 of the Trusts Ordinance enacts as follows:“ All petitions presented in any Court in any proceeding under thisOrdinance shall bear a stamp of ten rupees”.
There is nothing in this sub-section from which it could be inferredthat the stamp duty payable on proceedings initiated by a petition islimited to a stamp of Rs. 10.
On the other hand sub-section (1) of that section provides tha't all'actions and all proceedings, which would include proceedings initiated’by a petition, shall be governed by the enactments and rules relating toCivil Procedure for the time being in force. Bertram C.J. in the case ofSathasivam v. Vaithianathan', was of opinion that this sub-section brought“ into operation the general provisions of the Stamp Ordinance withregard to legal proceedings ”. This opinion is, I think, applicable toall proceedings whether initiated by petition or otherwise.
Mr. Obeyesekere, who represented the Attorney-General, arrived atthe same result in a different way. His argument, shortly stated, wasthat by the terms of section 116 (1), a petition of appeal in actions andproceedings under the Trusts Ordinance was an appeal in a civil pro-ceeding which by section 4 of the Stamp Ordinance, No. 22 of 1909, waschargeable with duty. Section 4 provides—I quote" the relevant passage—that every document mentioned in Part II. of the Schedule “shall bechargeable with duty* of the amount indicated in that Schedule as theproper duty ”, and Part II. of the Schedule provides that every petitionof appeal shall be chargeable with duty according to the class of the casein which it is filed.
Whichever way one iooks at the matter there can, I think, be nodoubt that the petitions of appeal filed in this case were chargeablewith stamp duty and the appellant was bound to deliver to the Secretaryof the Court with his petitions of appeal the necessary stamps for thedecree or order of this Court and certificate in appeal.
It is now settled law that where the necessary stamp duty has not beenpaid the appeal should be dismissed. In the case of Hurst &t al. v. TheAttorney-General, ”, the appeal was dismissed as it has not been properlystamped. In the case of The Attorney-General v. Karunaratne ”, a
J (1922) 24 N. L. R. 94.*4 C. IK. R. 265.
» (1935) 37 N. L. R. 57.
390
Don Aslin v. Samarakone Bros.
Divisional Court held that failure to deliver, together with the petition ofappeal, stamps for the decree of the Supreme Court and the certificate inappeal is a fatal irregularity.
Counsel for the appellant brought to our notice that it was the practicein the District Court of Jaffna in proceedings under the Trusts Ordinanceto stamp only the petition. The appellant is not entitled to indulgenceon this ground as the practice which appears to have prevailed in theDistrict Court of Colombo at one time was condemned by Bertram C.J.in the case of Safhasivam v. Vaithianathan (ubi supra).
Z accordingly dismiss the appeal. As the appeals were consideredtogether and the respondents did not incur two sets of costs I am ofopinion that the appellant should pay the respondents one set of costs.
We are indebted to Mr. Obeyesekere, who represented the Attorney-General, for the assistance he gave us at the argument of the preliminaryobjection.
Hearne J.—I agree.
Appeal dismissed.