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Present: Lascelles C.J. and De Sampayo A.J.
THE ATTORNEY-GENERAL v. PEDRU.
87—D. C. Galle, 4,132.
Testamentaryproceedings—Newspapersproduced that order nisi was
advertised need not be stamped—Stamp Ordinance of 1909, schedule.
Newspapers produced in testamentary proceedings to prove thatan order nisi lor the administration of an estate has been dulyadvertised need not be stamped as exhibits.
HE question involved in this case was whether newspapersproduced before the Court, to prove that an order nisi for
administration of a deceased person’s estate was duly advertised interms of section 532 of the Civil Procedure Code, should be stampedas exhibits.
( 389 )
The following is the judgment of the District Judge (F. J. Smith,Esq.): —
The duties in testamentary proceedings fixed by Schedule B III. *to
Ordinance No. 22 of 1909 are more favourable to " estates ” than thoseof OrdinanceNo. 3 of 1890, inthat estatesofunder Bs. 2,500 are made
free of stamps for the various pleadings, Ac., enumerated; and alsoaffidavits and affirmationsattached to inventoriesoraccounts no longer
require stamping. Theschedule,however,includesafresh item:
“ Everyexhibit ofany document on whichnostamp isfixed br
impressed unless the duplicate bears a stamp,"andthe question now
is whether the productionin the ordinaiy courseby aproctor of copies
of Gazette and local newspapers containing the advertisement of testa-mentaryproceedingsrequired by section 532ofthe CivilProcedure
Code to be made makes them " exhibits " of documents within themeaning of the schedule.
Neither“ document " nor'* exhibit "isdefined inthe Stamp
Ordinance or in theCivil procedure Codeor intheInterpretation
In the EvidenceOrdinance,No. 14of 1895,"document " is
defined as any matterexpressedpr described upon anysubstance by
means of letters intendedto be used, or whichmaybe used, for the
purpose of recording that matter.
“ Exhibit "isdefined inWood Benton’s Encyclopediaof Laws
as "a documentorother thingshown to a witness and referred to by
him in thecourse of his evidence," moreparticularly theterm denotes
some document referred to in an affidavit.
" Exhibit " is also defined in Iely’s Wharton's Law Lexicon as adocument orother thing shownto a witnesswhen givingevidence and
referred to by him in his evidence.
Assumingfor the moment that it is necessaryforthe contents of
theadvertisement tobeprovedbythepetitioner, theEvidenceAct,
section 64, saysthey must beproved by primary evidence,i.e., the
document itself produced for the inspection of the Court; and section 62,explanation 2, in the case of print each copy* is primary evidence of thecontents of the rest.
If,then,the petitioner gets into the witnessboxand says:"I
have had the advertisement published in manner prescribed by Court,"'andproduces the bestevidenceofthis,viz., printedcopies ofthe
advertisement in the publications named, I hold these to be exhibits ofdocuments liable to stamp duty.
Butdoes the Code throw this duty onthepetitioner?His
duties are laid downinsection530;thenthe Court, ifit orders order
nisi tobe entered,has to seethattheapplicationand its orderare made
knownas widelyas possibleforthebenefit ofthoseinterested in the
estate and directthepublication.Is this order directed to theapplicant?
I do not consider that the ordinary interpretation of the section warrantssucha construction.Hadthe Codemeantto cast ' the duty onthe
applicant, there isno reasonwhyitshould nothavesaid soin plain
Ihold thedirection isto the officers whocarryout itsorders—in
thiscasetheSecretary of the Court—and do not consider that thefact
Attorney-General v.■ Pedru
( 390 )
thatin ordinarypracticetheapplicant'sproctorgets the advertisement
inserted and pays for it, instead of the Secretary of the Court on paymentof charges to him, affects his liability.
Then, undersection111(illustrationE) ofthe Evidence Act, the
Court may presume that its subordinate officers have carried out itsorders regularly, and asking them to file copies of the advertisement inthe case book (though such not being legally proved, and not such as theCourt may take judicial cognisance of, are not technically on the record)is really an act exabundanti cantela to satisfy its conscience. It
probablyarosewhen Court officials, to save themselves the trouble,
delegatedthesending of the .advertisementto the applicants and
proctor, and it was recognized that it might be unsafe to leave thepublicationaltogether tothem withoutsomede facto (if legally
inadmissible) evidence of publication.,
Section966of theCoderequires Fiscals’sales of propertyvalued
at over Ks. 1,000 to beadvertised in the Gazette.But 1neverheardof
a Court requiring proofof this before confirminga sale.(Thecase,of
course, is hardly parallel, as the party most interested in the. sale wouldat once complain to Court if the necessary step was omitted, whereasthese parties in testamentary cases might fail toreceivenoticeif there
were no advertisement.)In insolvency cases, too, as pointed outby
Mr.Goonewardena, thednepublication intheGazette is generally
I amofopinionthatthe duty ofdulyadvertisingtheCourt
order nisi rests in the Coui't officials, and that no proof of publicationis necessary,and therefore .donot call uponMr.Eanasuriyatosupply
stamps in this case.
The Attorney-General appealed.
van Langenberg, K.C., Acting S.-G., for the Attorney-General,appellant.—In terms of Part III. of Schedule B to the StampOrdinance (No. 22 of 1909) every exhibit of any document on whichno stamp is affixed or impressed should be stamped unless itsduplicate bears a stamp. Newspapers or cuttings therefrom areexhibits. They are produced to prove advertisements as requiredby section 532 of the Civil Procedure Code. They should, strictlyspeaking, be identified by affidavit or oral evidence, but the merefact that such affidavit or oral evidence is dispensed with by theCourt does not make the documents any the less exhibits. Wills arestamped when produced as an exhibit to an affidavit.
The Court directs the publication of the order nisi. If thedirection is to a subordinate no stamp is necessary; if, however, thedirection is to an applicant, the newspaper becomes an exhibit whenproduced by him in proof of the publication. The test is, Who paysfor the advertisement ? [De Sampayo A.J.—Is not the publicationafter all a mode of service on an unnamed class of persons ? And ifso, is not the production of a newspaper the same thing as theproduction of a Fiscal’s report of service ?] Then the Fiscal will
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have to send the advertisement. [LasceUes C.J.—It is a directionto the Court officers, and for convenience the proctor sends up theadvertisement. ]
No appearance for the respondent.
Cur. adv. vult.
July 15, 1912. Lascelles C.J.—
This is an appeal taken by the Attorney-General for the purposeof obtaining a ruling whether newspapers produced in testamentaryproceedings to prove that an order nisi for the administration ofan estate has been duly advertised under section 532 of the CivilProcedure Code ought to be stamped as exhibits. It is concededthat it has not been the practice to stamp such documents, andthat they were not liable to stamp duty under the repealed “ StampOrdinance, 1890 but it is contended, or perhaps only suggested,that the effect of the words, “ every exhibit of any document onwhich no stamp duty is affixed or impressed unless the duplicatebears a stamp/* which have been added to the schedule of the dutiesin testamentary proceedings in “ The Stamp Ordinance, 1909/*is to render them liable to duly. There can be no doubt that thedocuments in question, if produced by a party in support of his case,would be liable to stamp duty. But it is clear from the terms ofsection 532 of the Civil Procedure Code that the applicant foradministration is not required- either to advertise the order nisi or tofurnish proof of its advertisement. The Code casts this duty uponthe Court. The section provides that the Court “ shall direct the
order to be advertised in the Gazette •/’ and it contains a
proviso that the Court may " in its discretion direct such other modeof advertisement in lieu of such publication as to it seems sufficient/’The section contemplates directions being given by the Court to itsown officers for the advertisement of the order, and it would then bethe duty of these officers to satisfy the Court that they had carriedout'its directions.
The present practice, under which the applicant’s proctdr seesto the advertisement of the order, and produces the newspaper inwhich the order has been advertised, has grown up as a matter ofconvenience. If the requirements of the Code had been strictlyfollowed, and the Court had directed the Secretary to advertise theorder, and the latter had filed a copy of a newspaper in proof ofhis compliance with the Court’s direction, it could not have beencontended that the newspapers ought to be stamped as an exhibit.
The fact that proctors, as a matter of convenience, and in order toexpedite their business, have undertaken duties which are strictlyincumbent on the Court and its officers, cannot alter the characterof these duties. The -advertisement of the order and the proofof the advertisement are duties which are assigned to the Court.
When a prootor relieves the Court of its duties in this respect, andsees to the advertisement of the order, any document -which heproduces in proof of the advertisement must be treated as if it werefurnished by an officer of the Court to whom the Court had entrustedthe duty of carrying out the advertisement. Such a document isclearly not an exhibit, and is not liable to be stamped as such.
I think the decision of the District Court is quite right, and Iwould dismiss the appeal. ■
De Sampayo A.J.—I agree.
THE ATTORNEY-GENERAL v. PEDRU