Kapuruhamy V. Appuhamy Et Al

1914 Present: Lascelles C. J. and De Sampayo A. J.

KAPURUHAMY v. APPUHAMY et al.

199-D. C. Anuradhapura, 619.

Stamp duty-Instrument executed on behalf of the Government of Ceylon- Ordinance No. 9 of 1909, s. 4-Irrigation Ordinance, s. 47- Certificate of sale-Bias-District Judge adjudicating on the regularity of certificate of sale issued by him as Government Agent.

A certificate of sale issued under section 47 of the Irrigation Ordinance, No. 16 of 1906, is liable to stamp duty.

That exemption from stamp duty under section 4 (1) of the Stamp Ordinance, 1809, applies to instruments executed on behalf of the Government only where but for such exemption the Government would be liable to pay the duty.

It is improper for a Judge to try the irregularity of a certificate which he himself has issued in his capacity as Government Agent.

THE facts are set out in the judgment.

D. B. Jayatileke, for defendants, appellants. -The sale was bad because the debt for which the land was sold was not due at the date of seizure. See section 42 of Ordinance No. 16 of 1906. The

seizure and sale were fraudulent. The learned District Judge should have allowed the issue as to whether the seizing officer had the written authority under the hand of the Government Agent, as is required by section 43 of the Irrigation Ordinance. The certificate of sale should have been stamped, in accordance with section 47 of the Irrigation Ordinance, 1906. The omission to do so is a fatal irregularity.

Abdul Cader, for plaintiff, respondent. -The issue whether the debt was due or not at the date of the seizure is raised in appeal for the first time. It is not open to a party to raise a point of law for the first time in appeal, unless it might have been put forward in the Court below under some one or other of the issues framed. See Appuhamy v. Nona. 1 When the learned District Judge refused to frame an issue on the point whether the seizing officer had the authority to seize, the appellant should have appealed at once if he thought that the point raised was one which went to the root of the plaintiff's title. See Punchi Appuhamy v. Mudianse. 2 Fraud is merely alleged, but not proved. A certificate of sale of this nature confers upon the purchaser a title complete against the whole world. A presumption arises under section 114 of the Evidence Ordinance in favour of the person relying on the certificate of sale that the sale was duly made under the Ordinance. The burden of proving fraud is on the defendants. See Gunesekare v. Teberis et al. 3

The omission to stamp the certificate is not a fatal irregularity. The defect can be cured under sections 36 (d) and 37 of Ordinance No. 22 of 1909.

D. B. Jayatileke, in reply, cited Abubakker Lebbe v. Ismail Lebbe et al. 4

July 8, 1914. Lascelles C. J. -

This is an appeal in an action in which the plaintiff has recovered judgment for certain paddy fields at Talawa in virtue of a certificate of sale purporting to have been issued under section 47 of the Irrigation Ordinance, No. 16 of 1906.

The validity of the certificate has been attacked on certain grounds, which I will proceed to consider.

In the course of the trial one Kiri Banda, a clerk to the Irrigation Superintendent, was called to prove the condition of the land when he made the seizure. This witness deposed that he was authorized by a Mr. Misso to sign seizure forms, and that on the occasion when the land in question was sold he signed the seizure form on that authority. He did not produce, and presumably had not, the written authority under the hand of the Government Agent, which

Foot notes:

1(1912) 15 N. L. R. 311.                                                                 3 (1906) 10 N. L. R. 18.

2 (1907) 2 A. C. R. 159.                                                                                    4 (1908) 11 N. L. R. 309.

is required by section 43 of the Irrigation Ordinance. At thi

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