Appuhamy V. Theodoris Et Al.,

1916. Present: De Sampayo J.

APPUHAMY v. THEODORIS et al.

115-C.R. Colombo, 46,721.

Stamp-Cancellation by one of several parties executing an instrument- Regulations as to sale of stamps-Stamps not dated or marked with his initials by stamp vendor.

Where an instrument requiring to be stamped is executed by several persons, it is not necessary that they should all cancel the stamp.

THE facts are set out in the judgment.

A. St. V. Jayewardene, for plaintiff, appellant.

P. G. F. de Soyza, for first defendant, respondent.

Cut. adv. vult.

May 12, 1916. DE SAMPAYO J.-

This is an action on a promissory note for Rs. 150 dated February 10, 1912, and alleged to have been made in favour of the plaintiff by one Barbara Boteju and the fifth and sixth defendants. Barbara Boteju is now dead, and she is represented in the action by the first, second, third, and fourth defendants. The first defendant, who is her husband, alone filed answer. He denied that Barbara Boteju made the promissory note, and pleaded that what purports to be her mark was a forgery. He also charged the fifth and sixth defendants with fraudulent collusion with the plaintiff. The issue stated at the commencement of the trial was whether Barbara Boteju had signed the note, but after the plaintiff had given evidence, the Commissioner added the further issue: '' Was the note duly stamped? " The Commissioner ultimately decided this latter issue against the plaintiff, and dismissed the action.

The ground of the decision is that in the opinion of the Commissioner the stamp which the note originally bore has been removed, and the stamp now appearing on it has been substituted. This opinion is not based on any express evidence, but on an examination

of the document by the Commissioner himself. The stamp on the 1816. note is of the description in vogue before the postage stamps re-placed the old judicial and revenue stamps, and the Commissioner says that, looking through the paper with its back to the light, he finds indications that there was a smaller stamp on the paper before. My own observation does not enable me definitely to , confirm this view. Moreover, no questions appear to have been put to the plaintiff and his witnesses on the point, nor was any evidence given with regard to it on behalf of the defendant. In his judgment the Commissioner says that the defendant's proctor complained that the stamp now on the note was not the stamp that was on it when he first saw it. The proctor's statement appears to have influenced the Commissioner to some extent. If the statement was to be utilized at all, the proctor should have been called as a witness. The matter appears to me to require further investigation.

But before making an order on the appeal, I think it is right to deal with one or two points in the judgment with reference to the stamp. The Commissioner says that the stamp should have borne the o stamp vendor's initials and date of issue, and that it should have been cancelled by all the three makers, and not by Barbara Boteju alone. As regards the first point, the Commissioner is mistaken as to the requirements of the law as it existed at the date of the note. Section 74 and the following sections of the Stamp Ordinance, No. 22 of 1909, provided for stamps being sold by licensed vendors, and section 77 required such a vender to mark the stamps at the bottom thereof with his name or initials and with the date of sale. But section 83 (1) and (2) enables the Governor in Council to discontinue the issue of licenses, and to make rules entrusting the sale of stamps to public officers, and regulating the manner and conditions in and subject to which such sale shall be carried on. By notification dated March 28, 1911, the Governor in Council, in exercise of the above power, directed that the issue of licenses to sell stamps should be discontinued after December 31, 1911, and by notif

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