075-NLR-NLR-V-02-THE-QUEEN-v.-GUNATILLEKE.pdf
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THE QUEEN v. GUNATILLEKE.
D. C. (Criminal), Kandy, 8,191.
Ordinance No. 2 of 1877, s. 26, sub-sections 9, 10, and 13-—Attestingunstamped deed—Sealing necessary to complete attestation—State-ment in attestation as to stamp.
A notary who attests a deed which by law ought to be stamped,but which bears no stamp, is guilty, under sub-section 13 of section26 of Ordinance No. 2 of 1877, of attesting a deed insufficientlystamped.
The attestation of a deed by a notary is not complete when hehas merely signed it, without sealing it.
So, where a notary merely signed the attestation clause in a deedinsufficiently stamped, and stated in the clause that the duplicatebore a stamp of 25 cents, whereas it bore no stamp at all, held,that he had not made himself obnoxious to sub-section 13 ofsection 26 of Ordinance No. 2 of 1877 for attesting a deed insuffi-ciently stamped, nor to sub-section 10 for making a false statementas to the stamp required to be affixed to the duplicate.
npHE accused, a notary public, was charged in one indictment (1)-*■ with having, in breach of sub-section 13 of section 26 ofOrdinance No. 2 of 1877, attested a deed insufficiently stamped ;(2) with having, in breach of sub-section 9, permitted one KaluBanda to sign his name to the duplicate of deed No. 2,991 executedbefore the accused before the whole of such deed had been written ;and (3) with having, in breach of sub-section 10, stated in hisattestation of the said deed that its duplicate bore a stamp of 25cents, whereas no stamp whatever was affixed to it.- The accusedwas found to have merely signed, but not sealed, the attestationof the deed in question; and the deed, in fact, was unstamped.The learned District Judge, being of opinion that the attestationof an unstamped deed could not be said to be the attestation of a
1885.May 21.
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1885. deed insufficiently stamped, acquitted the accused on tile firstMay 21. count; On the second count he held that the incomplete document(marked B 1 in the proceedings) signed by Kalu Banda was notthe duplicate but the protocol copy of the deed in question, andthat sub-section 9 did not apply to such copy, and acquitted theaccused. On the third count, too, he acquitted the accused, beingof opinion that while sub-section 10 gave certain directions tonotaries as to attestation of deeds, it did not make the non-compliance with those directions penal.
On appeal by the Attorney-General.
Ferdinands, S.-G., for the Crown.
21st May, 1885. Lawrie, J.—
I concur in the verdict, though not in the reasons given for it.The first charge is that the accused attested a deed No. 2,991liable to stamp duty, which deed was then insufficiently stamped,in breach of the 13th sub-section of the 26th clause of the Ordi-nance No. 2 of 1877.
I am unable to follow the reasoning of the learned District Judgewith regard to the Ordinance No. 17 of 1852, and as to protocols.
He deals with the case as if B 1 were the documents which theaccused is charged with havirig illegally attested, but B 1 is notattested at all. It was B which the accused handed to the Regis-trar as the duplicate.
It bore no stamp. The learned District Judge holds that a deedwhich by law ought .to be stamped, and which bears no stamp,cannot be said to be insufficiently stamped. I do not agree withthat opinion.
If a five-cents stamp would have been insufficient, no stamp atall would be still more insufficient.
If it be the duplicate of the original deed No. 2,991, the accusedwas by the Ordinance prohibited from attesting it, because it wasinsufficiently stamped.
The essence of the offence is that the accused attested thisinsufficiently stamped deed.
The attestation is signed, but it is not sealed. A notary’s seal isall over the world as important a part of the attestation as thesignature.
Sealing an attestation is required by our Ordinance No. 2 of 1877,section 26, sub-section 10. The duplicate had not been delivered,it remained in the possession of the notary, and until he sealed itand officially transmitted it to the Registrar, he was not too late toput on the requisite stamp.
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The notary was called on to give up the duplicate before theterm allowed by the Ordinance, and he had still time both to affixthe stamp and to attest the deed fully.
The attestation was not complete, therefore he did not committhe offence of attesting an insufficiently stamped deed.
The second charge is that he permitted Kalu Banda, the grantorof the deed No. 2,991, to sign the duplicate before the whole of ithad been written.
The learned District Judge has acquitted the accused becausethe incomplete deed which Kalu Banda signed.is not provedto have been the duplicate but the protocol copy. By the 9thsub-section it is equally criminal to permit a party to a deed tosign a protocol, draft, or minute before the whole shall have beenwritten, as it is to permit him to sign the original or the duplicate.I am of opinion that the protocol copy B 1 is sufficiently completeto fulfil the requirements of the 12th sub-section, which requiresa notary to keep a draft, minute, or copy. Certainly B 1 omits thesentence “ to possess from this day the said portion of land un-“ disturbedly for ever doing whatever they may please. I have“ in witness whereof caused this bill of sale to be written, and“ I have set my signature to two of the same tenor as these presents“ at Panwila on the 24th day of November, 1884,” but the deedof sale was complete without these words. A copy of the wholeof the original deed need not be kept in the protocol book, but“ a draft or minute ” only. I think this copy is a sufficientprotocol, draft, or minute, though it is incomplete.
The third charge is that the accused falsely stated in his attes-tation that the duplicate bore a stamp of 25 cents. The attestationwas not sealed and was not complete, and I cannot assume thatthe accused would not have completed the attestation beforeaffixing the requisite stamp.
For these reasons I am of opinion that the accused was rightlyacquitted.
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1885.
May 21.
Lawmk, J.
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