Panditatilleke V. The Commissioner Of Stamps

[Full Bench. ]

Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,
Mr. Justice Wendt, and Mr. Justice Middleton.

PANDITATILLEKE v. THE COMMISSIONER
OF STAMPS.

(Appeal under section 38 of " The Stamp Ordinance, 1890")

Stamp Ordinance (No. 3 of 1890)-Lease-License-Stamp duty.

If the essential and distinguishing features of a lease are present in any instrument, such instrument is liable to stamp duty as a lease.

APPEAL from an order of the Commissioner of Stamps under section 38 of Ordinance No. 3 of 1890 as to the stamp duty payable on an instrument submitted to him by the appellant. The material parts of the instrument are contained in the judgment of the Chief Justice.

A. St. V. Jayewardane, for the appellant.

Walter Pereira, K. C., S. G., for the Commissioner of Stamps.

Cur. adv. vult.

February 11, 1909. Hutchinson C. J. -

This is an appeal under section 38 of " The Stamp Ordinance, 1890, " against the determination of the Commissioner of Stamps as to the duty payable on an instrument which the appellant submitted to him for his opinion.

The instrument is dated March 13, 1908. It is in Sinhalese, and I take from the translation which is tiled with the petition of appeal the parts which appear to me to be material: " Contract of gemming Lease. " "This contract, of gemming lease made this 13th day of March, 1908, between hereinafter (tailed the lessor of the one part and hereinafter called the lessees of the other part: Witnesseth. That three-fourths of [certain lands described, ] are hereby leased by the lessor to the lessees (as being two-thirds to the first mentioned and one-third to the second mentioned), to dig for gems within five full years from the date hereof, subject to the following conditions, and are requested on lease and taken over by the lessees in terms of the said conditions, viz.: -

" (1) That the lessees shall have power to dig for gems as they choose on the soil of this share of laud within the said period of five years.

" (2) That one-tenth of the gems so dug out, or its equivalent value, shall be given to the lessor for ground share, and receipts obtained.

" (3) That the gems so dug out shall be weighed in the presence of both parties.

" (5) That the lessor shall have power to build a house on the said premises for use for such purposes as watching the gem pits, &c.

" (6) That at the expiration of the said period of five years, in case the lessees require, the lessor shall extend this lease and execute and grant a suitable deed therefor. "

This document was attested by the appellant as a notary. He levied on it a duty of Rs. 2. 50, treating it as an " agreement "; but the Commissioner declared his opinion that it is liable to a duty of Rs. 10 as " a bond not otherwise charged. " If it is a lease, the opinion of the Commissioner is right; and in my opinion it is a lease. The fact that the parties in the document itself call it a lease is, of course, not conclusive; and the appellant contends that it is not a lease, but only a license to dig for gems, and that it is not even a grant of an exclusive license to the grantees, but that the grantor may afterwards grant similar licenses to other persons to work the same land during the same period. I think that is not so. It is a lease of the land for a special purpose. If the purpose had been " to cultivate as a garden, " " to use as a cricket field, " or for any other special purpose, it would have been equally a lease.

The appeal came first before Wood Renton J., who referred it to the Full Court, because there were supposed to be two conflicting decisions on documents more or less similar to this one. The first one is 2, 721, P. C. Galle, 4, 471, 1 in which Burnside C. J. and Dias J. held that the document there in question was not a lease; the document is not set out, but is said to have been a contract by which the grantee, in consideration of the grantor's leav

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