015-NLR-NLR-V-10-SILVA-v.-WEERASURIYA.pdf
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[Full Bench.]19°6-
November 24.
Present : Sir Joseph T. Hutchinson, Chief Justice, Mr. JusticeWendt, and Mr. Justice Wood Renton.
SILVA t>. WEERASURIYA.C. i?., Galle, 3,849.
Letters of administration—Omission to include property in the inventory—
Powers of administrator as regards such, property-*-1 ' Duly stamped
Civil Procedure Code, ss. 540 and 547-^Stamp Ordinance (No. 3 of1890), ss. 7 and 24.
An administrator i& not entitled to maintain an action in respectof property which is not mentioned in the inventory, and the valueof which has not been included in the sum on which stamp duty hasbeen paid.
Hunt v. Stevens (3 Taunt 113) followed.
Hutchinson C.J.—In such a case the letters of administrationare not “ duly stamped " within the meaning of section 547 of theCivil Procedure Code.
T
HE plaintiff, as administratrix of the estate of one Odiris Silva.
deceased, sued the defendant on a mortgage bond for Rs. 150
and interest. The defendant admitted the bond and pleadedpayment, and also denied the right of the plaintiff to maintain theaction on the ground that the letters of administration were not“ duly ’stamped “ within the meaning of section 547 of the CivilProcedure Code.
The Commissioner of Requests (G. A. Baumgartner, Esq.), upheldthe objection and dismissed the plaintiff’s action.
The plaintiff appealed.
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Walter Pereira, K.C., S.-G., for plaintiff, appellant.—The questionin this case is whether an administrator’s action on a bond in favourof his intestate must necessarily fail simply because he has omittedto mention the bond in the inventory hied in the administration .proceedings, and stamp duty on that asset has, so far, not been paid.
Section 547 of the Civil Procedure Code enacts that an action cannotbe maintained for the recovery of any property belonging to theestate of,an intestate unless duly stamped letters of administration”have been issued. In the present case can it be said that the letterswere “ duly stamped ”? It is submitted it can. The provision of'thelaw to be considered is section 24 6f the Stamp Ordinance. Thatsection’ provides that letters of administration are not to be issueduntil the applicant has hied an affidavit as to the value of the
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1906.
November 24.
property of the estate to the best of his knowledge, information, andbelief. It further provides that he should pay into Court stampduty in accordance with such valuation, and that, then, the stampduty and letters are to be sent to the Commissioner of Stamps, whoshould cause the letters to be duly stamped. We have the expression" duly stamped ” here, to which reference is made in section 547of the Civil Procedure Code. It is thus clear that when letters arestamped in accordance with the affidavit to be filed by the applicantfor administration they are “ duly stamped,’" and an action by theadministrator in respect of any property of the intestate cannotthereafter fail in terms of the provision of section 547 of the Code.It may be that the particular asset for the recovery of which theaction has been instituted has not been taken into account in the valu-ation in the affidavit. The letters are pro tempore “ duly stamped.There is provision for supplying deficiency on discovery of freshassets in section 26 of the Stamp Ordinance. English authoritiescannot be said to apply unless it is clear that the English Law as tostamping letters of administration is the game as the above. Thereis, moreover, a provision in section 540 of the Code which makes itclear that where no limitation is expressed the power conveyed bythe issue of a grant of administration extends to every portion ofthe deceased person’s property within this Colony. [Wood RentonJ.—That section appears to be intended to contrast the effect ofan unlimited with that of a limited administration.] That, it issubmitted, is too narrow a view to take of the scope of that section.If that was all the meaning of that section, there was no necessityfor the section at all. The Code, in section 399, clearly defines thelimitations in a limited grant, and merely for purposes of contrastsection 540 would have been unnecessary. Section 540 contem-plates the very class of cases within which the present falls. Thereis no such provision in English procedure, and English authoritieswould not for that reason also apply. Besides, in all the Englisheases on the subject it will be seen that the action was in respect ofa sum far in excess of the full value in respect of which administra-tion was granted. That is not so in the present case. The amountsworn to in the affidavit in the administration proceedings is far inexcess of the amount of the bond in question. If the view of theDistrict Judge be upheld, the decision will go a great way towardsunsettling titles to property in the country.#
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A. SU V. Jayewardene, for‘ the defendant, respondent.—Thequestion must be decided according to the English Law. The StampOrdinances of Ceylon, the first of which was enacted in the year1848 (Ordinance No. 2 of 1848), and the one in force at present
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(Ordinance No. 3 of 1890), have been borrowed from the EnglishActs 48 Geo. HI. c. 149 and 55 Geo. JIT, c. 184 (1815), and the sectionsdealing with stamp duty on grants of probate and letters of adminis-tration have been reproduced almost verbatim from the EnglishActs. By these acts no instrument not duly stamped can be givenin evidence [9 & 10 Wm. m. c. 15 § 19 and 55 Geo. m. c. 184 § 8].This prohibition has been reproduced in section 7 of OrdinanceNo. 3 of 1890. Under the English Law it has been held that owingto this prohibition, if an executor or administrator shows that he•sues for a greater value than the amount of the deceased’s effects asshown by the letters of administration, he cannot recover. Thereforehe cannot sue for property not included in the inventory, and forwhich no stamp duty has been paid, Hunt v. Stevens (1). In thecourse of the argument in Attorney-General v. Hope (2), LordBrougham C. said: ” That case (Hunt u.. Stevens) removes my doubtwhether it was not sufficient that the representative character wasonce conferred. That decision goes the length of showing that nothaving the proper stamp the administrator has no means of provinghis representative character at all, and that the instrument has nomore effect than if it had not been stamped at all.” Again, at page553, His Lordship observed:” The result of the case of Hunt v.
Stevens and the other case which was mentioned is this:‘The
Courts in such cases say:It is true you are clothed with this
representative character; but it is only to an extent to which youhave paid the duty. You cannot ask for more than the amount.If you doy you are suing in a character which is not conferred on you.’Also see Howard v. Prince (3); Christian v. Devereux (4); Carr v.Roberts (5); and Williams on Executors, vol. p. 538,- 9thedition. Under section 547 of the Civil Procedure Code no actioncan be maintained for the recovery – of property belonging to theestate of a deceased person unless probate or letters of administrationw duly stamped ”<,are first obtained. The term ” duly stamped ” isdefined in section 8 of Ordinance No. 3 of 1890, and includes thepayment of the proper amount of stamp duty. In the present casethe proper amount of stamp duty has not been paid; therefore theplaintiff’s letters are not ” duly stamped,” as required by section 547.If the deficiency is subsequently paid, probate is good by relation,but in this case plaintiff is not entitled to an opportunity to have theletters re^stamped, as it has been held insufficient to sue out newletters on a larger stamp after, judgment has been obtained [Hunt v.Stevens; Christian v. Devereux (ubi supra)]. Section540 of^he Civil
a) (1810) 3- Taunt. 113.(3) (1847) 10 Bear. 313.
(2) 3l Cr. M. d R„ pp. 542, 553.. (4) (1841) 12 Sim. 264.
(5) (1831) 2 Barn d Ad. 907,
1906.
November 24.
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l$0&.Procedure Code merely enacted* the old law, and*only declared
Nwembvr24. the right of'the executor or administrator to- dealwith property
situate not only within the jurisdiction of the Court that grantedadministration, but anywhere in the Island.
0. M. Fernando, C.C., for the Crown.—The word’s“ duly stamp-ed ’* in section 547 of the Civil Procedure Code have alarger meaning
than they have in section 24 of the Stamp Duties Ordinance. Inthe latter it is the duty of the Commissioner of Stamps to affixa stamp of an amount proportionate to the amount declared bythe applicant as the total value of the estate. It is then “ dulystamped ” under section 24, although section 26 shows that it maybe improperly stamped, and prescribes the proceedings "if too littlestamp duty has been paid. The words “ duly stamped in section547 of the Civil Procedure Code have a larger meaning, and includeproperly stamped.** To give it another meaning would beto encourage administrators to defraud the revenue by allowingthem to omit specific items of the intestate's property from theinventory and valuation, and yet to permit them in their capacity as:administrators Jo sue in respect of such property. In this case therevenue has suffered by the exclusion of the mortgage bond, and ittherefore cannot be said that the letters have been “ duly stampedwithin the meaning of section 547 of the Civil Procedure Code.
24th November, 1906. Hutchinson, C.J.—
The plaintiff sues as administratrix of the estate of the late Odirisde Silva to recover for payment of a debt of Bs. 150 principaland Ks. 146 interest due from defendant to the deceased on a bondand mortgage.
The defendant admitted that the plaintiff is the administratrix,and admitted the bond and mortgage, but pleaded* that nothing wasdue thereon, and that the action is not maintainable because theletters of administration are not duly stamped.
The Court of Bequests found—and it seems to be the fact—thatthe inventory filed by the plaintiff, though it has been amendedthree times, does not include this debt, and that the value of thiadebt is not included in the sum on which the stamp on the grant ofadministration was paid. He said that there were indications thatthe administratrix was trying to recover on bonds without includingthem in her inventory, in order to avoid payment of duty. He foundthat the bond had not been discharged, but he dismissed the actionbecause the letters of administration were not duly stamped*.
The plaintiff appeals from that judgment.
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The enactment on which the Commissioner relied is section 547of the Civil Procedure Code, which enacts that “ no action shall bemaintainable for the recovery of any property, movable or immov-able, in Ceylon, belonging to or included in the estate or effects of anyperson dying testate or intestate in or out of Ceylon, where suchestate or effects amount to or exceed in value the sum of Rs. 1,000,unless grant of probate or letters of administration duly stampedshall first have issued to some person or persons as executor oradministrator of such testator or intestate/*
It cannot be denied that the plaintiff's letters -of administrationare not duly stamped, and therefore this action must fail.
Perhaps it would have been right for the Commissioner of Requeststo adjourn the case so as to give the plaintiff an opportunity ofgetting the grant duly stamped. But the plaintiff made no applica-tion for that purpose, and has not applied to us to send the case backfor that purpose. I think, therefore, that the’appeal should bedismissed with costs.
Wendt, J.—
When this case first came before me I was inclined to doubtwhether, so long as the letters of administration remained unrecalled,the Court dealing with an action by the administrator could enterinto the question whether sufficient stamp duty had been paidon the letters. The question is one of revenue to the Crown,which is entitled to a certain rate of duty on the true value of theestate. Proof that the asset sued for was not included among thoseon which duty was paid does not establish that the true value wasgreater than that stated, inasmuch as assets might have been includedwhich did not belong to that estate. It is prima facie proof no doubt,but would plaintiff in rebuttal be entitled to enter into proof of theinclusion of whaif I may, for shortness' sake, call “ false assets *’?Where would such an inquiry end? I find, however, that in thiscase no such explanation was suggested. In fact, it was .not seriouslycontended that the letters did not bear the amount of duty theyshould have borne.
I agree therefore in thinking that the Court below was right inentertaining the. objection and in holding that for the purpose of thiscase plaintiff was not the administratrix of the obligee. The Courtbelow should, I think, .have given the plaintiff an opportunity ofhaving her letters duly stamped, but I will not dissent from, the con-clusion arrived at by the rest of the Court, viz., to dismiss the appealand leave it to the plaintiff, if so advised, to sue again when, her titlehas been put in order.
1906..
November 24.
Hutchinson
C.J.
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1908. Wood Renton J.—
November 24.
In my opinion the decision of the learned Commissioner of Requests
should be affirmed. The question at issue is whether an administratorcan sue for a chose m action belonging to his intestate', but not includedin the inventory of that intestate's property, or covered by the amountof the stamp duty paid on the letters of administration. It ap-pears to me that the question must be answered in the negative.
Section 547 of the Civil Procedure Code expressly limits the powerof an administrator to maintain an action for the recovery of propertybelonging to the estate to cases in which his letters of administrationhave been “ duly stamped. ” I think the words “ duly stamped ”mean that the grant has been impressed with “ the proper and fullstamp duty " referred to in section 24 of “ The Stamp Ordinance,1890 " (No. 3 of 1890), and see also section 7. This interpretationof section 547 is in accordance with the English Common Law ofExecutors and Administrators which is in force in Ceylon.
As far back as 1810 it was held by the Court of Common Pleas inthe case of Hunt v. Stevens (1), in the construction of the statute 48Geo. III. c. 14, which bears a strong resemblance to the Ordinanceof 1890, that if an administrator shows that he sues for a greatervalue than is covered by the ad valorem stamps of his letters ofadministration, he cannot recover, even if the , claim is doubtful.The decision has been followed in a series of equally clear authorities.In Carr v, Roberts (2) it was held to apply to a contingent claimfor damages for default in payment of an annuity. In Christian v.Dev ereux (3) Sir Lancelot Shadwell V. C. refused to grant' even astop-order as to a fund in Court on insufficiently stamped letter's ofadministration. In Howard v. Prince (4), where the plaintiff suedto recover a large unliquidated sum due to the testatrix, but thestamp on the probate did not' cover the amount claimed, Lord' Langdale M.P. refused a decree even for accounts and inquiriesuntil the probate had been properly stamped. I do not see thatthere is anything in section 547 of the Civil Procedure Code to excludethe application of these decisions in Ceylon. It merely declares theeffect of an unlimited as contrasted with that of a limited adminis-tration, and throws no light on the question as to what power ofadministration is conveyed by the issue " of the grant." In orderto answer that question we must fall back on the Common Jjaw. Itis true that the view of the law which the . English (authoritiesconstrain us to adopt may give rise to hardship in particular cases.But the great balance of convenience is in its favour. 1
(1)(1810) 3 Taunt. 113.(3) (1841) 12 Sim. 264.
(1631) 2 Bam. & Ad. 905.(4) (1847) 10 Beau. 314.
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A contrary interpretation of the law, as the learned Commissionerof Bequests has pointed out, would encourage the practice of omit-ting debts from the inventory on the chance of recovering themprivately without paying any stamp duty on them at all. I do notthink that the appellant should be allowed an opportunity, such aswas given in several of the English cases above referred to, e.g.tHoward v. Prince, of rectifying her mistake in the present action.She has elected to fight the issue of law both in the Court belowand here on appeal, and should be held to her election.
Appe&l dismissed.
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1906.
November 24.
WoodRenton J.