113-NLR-NLR-V-61-SAMARAKONE-et-al-Appellants-and-THE-PUBLIC-TRUSTEE-et-al-Respondent.pdf
462
Samarahone v. Public Trustee
Present: Basnayake, C.J., and Pulle, J.
SAMARAELONE et al., Appellants, and THE PUBLIC TRUSTEE et al.r
Respondents
S. C. 87c—D. G. Colombo, 16808jT
Startups—Testamentary proceedings—Appeal.—Stamps for decree of Supreme Court—Duty of appellant to furnish them—Stamp Ordinance, Schedule A, Part II,Mead 1f (Miscellaneous), Part III.
In an appeal from a decision of the District Court in a testamentary pro-ceeding, the proper stamps for the decree of the Supreme Court must bedelivered together -with the petition of appeal to the Secretary of the DistrictCourt as required by Part H, Head P—Miscellaneous of Schedule A to theStamp Ordinance. Failure to do so is fatal to the reception of the appeal.
BASNATAB3B, C.J.—Samarakone v. Public Trustee
453
A
aa-PPEAXi from a judgment of the District Court, Colombo.
Sir Lolita Bajapakse, Q.C., with B. A. Koattegoda and B. D. B.Jayasekera, for Appellant.
V. Perera, Q.G., with Walter Jayawardene, for 1st Respondent.
S. D. Jay asunder a, with D. B. P. GoonetiUeke, for 3rd nnd 4thRespondents.
M.Tvruchelvam, Solicitor-General, with B. L. de Silva, Crown Counsel,as Amicus Curiae (On notice).
October 21, 1959. Basjha^ake, C.J.—
This matter comes up for decision upon a submission made by theRegistrar of this court that in appeal No. 87c the proper stamps for thedecree of the Supreme Court have not been delivered to the secretary ofthe District Court together with the petition of appeal as required byPart II of Schedule A to the Stamp Ordinance, Head F—Miscellaneous.
Learned counsel for the appellant submits that this is an appeal in atestamentary proceeding and that the Part of Schedule A to the StampOrdinance applicable to such proceedings is Part III which contains theduties in Testamentary Proceedings. That Part he submits does notprescribe the stamp duty for the decree of the Supreme Court. Hefurther submits that in an appeal from the District Court in a testa-mentary proceeding the decree of the Supreme Court is not liable tostamp duty. An examination of the items in Part TTT and the dutiespayable under that Part reveals that even as Part II under head “ Inthe District Courts, A—In Civil Proceedings *’ contains only dutiespayable on proceedings in the District Court, so Part IH contains onlyduties payable on testamentary proceedings in the District Court. Part ITTdoes not purport to nor does it prescribe duties payable on proceedingsin the Supreme Court. On an appeal in a testamentary proceeding thedecree of the Supreme Court is a document that has to be executed andsealed in that court and Part II under the heading “ In the SupremeCourt ” provides the stamp duty payable on all civil proceedings in theSupreme Court. We are of the opinion that even in an appeal from adecision of the District Court in a testamentary proceeding the properstamps for the decree of the Supreme Court must be delivered togetherwith the petition of appeal to the Secretary of the District Court asrequired by Part II P—Miscellaneous of Schedule A to the StampOrdinance. Failure to do so is fatal to the reception of an appeal.{Attorney-General v. Karunaratne 1).
1 (1935) 37 xv- L. R. 57.
464
H. IT. G-. FERNAITDO, J.—Attorney-General v- SUva
Learned counsel for the appellant relied on the case of re Estate ofHarry Douglas Graham 1. We find ourselves unable to agree -with thatdecision. Part III does not contain the duties payable on proceedingsin the Supreme Court. They are in Part II under the head ** In theSupreme Court There is nothing in the tariff prescribed under thathead that excludes appeals in testamentary proceedings therefrom.
The appeal is rejected with costs.
Pulls, J.—.1 agree.
Appeal rejected.