The Attorney General V. Pedru

Present: Lascelles C.J. and De Sampayo A.J.

THE ATTORNEY-GENERAL v. PEDRU.

87-D. G. Galle, 4,132.

Testamentary proceedings-Newspapers produced that order nisi was advertised need not be stamped-Stamp Ordinance of 1909, schedule.

Newspapers produced in testamentary proceedings to prove that an order nisi for the administration of an estate has been duly advertised need not be stamped as exhibits.

THE question involved in this case was whether newspapers produced before the Court, to prove that an order nisi for administration of a deceased person's estate was duly advertised in terms of section 532 of the Civil Procedure Code, should be stamped as exhibits.

The following is the judgment of the District Judge (F. J. Smith, Esq.):-

1. The duties in testamentary proceedings fixed by Schedule B III. to Ordinance No. 22 of 1909 are more favourable to "estates" than those of Ordinance No. 3 of 1890, in that estates of under Rs. 2,500 are made free of stamps for the various pleadings, &c, enumerated; and also affidavits and affirmations attached to inventories or accounts no longer require stamping. The schedule, however, includes a fresh item: " Every exhibit of any document on which no stamp is fixed or impressed unless the duplicate bears a stamp," and the question now is whether the production in the ordinary course by a proctor of copies of Gazette and local newspapers containing the advertisement of testamentary proceedings required by section 532 of the Civil Procedure Code to be made makes them " exhibits " of documents within the meaning of the schedule.

2. Neither " document " nor " exhibit " is defined in the Stamp Ordinance or in the Civil Procedure Code or in the Interpretation Ordinance.

3. In the Evidence Ordinance, No. 14 of 1895, " document " is defined as any matter expressed or described upon any substance by means of letters intended to be used, or which may be used, for the purpose of recording that matter.

4. " Exhibit " is defined in Wood Renton's Encyclopedia of Laws as "a document or other thing shown to a witness and referred to by him in the course of his evidence," more particularly the term denotes some document referred to in an affidavit.

" Exhibit " is also defined in Iely's Wharton's Law Lexicon as a document or other thing shown to a witness when giving evidence and referred to by him in his evidence.

5. Assuming for the moment that it is necessary for the contents of the advertisement to be proved by the petitioner, the Evidence Act, section 64, says they must be proved 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 the contents of the rest.

6. If, then, the petitioner gets into the witness box and says: " I have had the advertisement published in manner prescribed by Court," and produces the best evidence of this, viz., printed copies of the advertisement in the publications named, I hold these to be exhibits of documents liable to stamp duty.

7. But does the Code throw this duty on the petitioner? His duties are laid down in section 530; then the Court, if it orders order nisi to be entered, has to see that the application and its order are made known as widely as possible for the benefit of those interested in the estate and direct the publication. Is this order directed to the applicant? I do not consider that the ordinary interpretation of the section warrants such a construction. Had the Code meant to cast the duty on the applicant, there is no reason why it should not have said so in plain words.

8. I hold the direction is to the officers who carry out its orders-in this case the Secretary of the Court-and do not consider that the fact

that in ordinary practice the applicant's proctor gets the advertisement inserted and pays for it, instead of the Secretary of the Court on payment of charges to him, a

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