[Full Bench]

Present: Ennis, Shaw, and De Sampayo J J.

DE MEL v. JORONIS APPU et al.

259-D. C. Colombo, 48,381.

Stamp-Cancellation-Date-Ordinance No. 22 of 1909, s. 9.

Where    the   makers    of    a    note    wrote    across    the    stamp    their    names but did not write on it the date-

Held, that the stamp was properly cancelled.

THE facts appear from the judgment.

A. St. V. Jayawardene, for appellants.-Sub-section (1) of section 9 of the Stamp Ordinance, No. 22 of 1909, is imperative as regards the cancelling of the stamp. The words used are " shall . . . . cancel the same so that it cannot be used again." But sub-section (3), which indicates one of the methods of cancelling, is not imperative, but merely directory. It merely indicates one of the many methods of effectually cancelling a stamp. Otherwise an illiterate person can never cancel a stamp if he is required to write his name and put the true date.

The Indian Act is very clear on this point. The English Act, 54 and 55 Viet., c. 39 s. 8, states that a stamp is properly cancelled if the name or initial is put on it with the true date, or otherwise effectively cancelled or proved that the stamp was affixed at the proper time.

In Hettiarachy v. Wilfred 1 an undated stamp was dated by the Commissioner  and  the document  admitted.

Counsel cited Kistnappa Chetty v. Silva; 2 28 Bom. 432.

Zoysa (with him Croos-Dabrera), for respondent.-The wording of the section in the Indian Act is different from ours. The Indian Act has, in addition, the words " or in any other effective manner. "

In the case Ralli v. Caramalli Faza3 it was held that where the mark of cancellation on the stamp was a portion of the first letter of the signature the cancellation was bad, and that the document was unstamped. In the case of Bhawanji Harbhum v. Devji Punja 4 it was held that as the cancellation of a stamp was a merely mecha­nical operation, it will be sufficient if done by the directions, express or implied,  of the person affixing it.    Therefore, no hardship would

1 (1918) 20 N. L. R. 183.                                    3    I. L. R. 14 Bom. 102.
2 (1911) 14 N. L. R. 458.                                    4     19 Bom. 635.

arise in the case of illiterate persons if it is held that the provisions  of the section  are   imperative. Under the Ordinance people are bound to cancel stamps,  but they are not under obligation to follow any particular method.    But sub-section (3) gives one clear method of cancelling a stamp, and a party using this method should do so in its entirety. He should put his   initials and the true date. The omission to put the date makes the cancellation defective, because it falls short of the method provided by the Ordinance.

Cur. adv. vult.

February  12,   1919.    Ennis  J.-

The only question for determination in this appeal is whether a stamp on a promissory note has been duly cancelled. The stamp is an adhesive one for six cents, and has written across it the names of the two makers of the note. Section 9 of the Stamp Ordinance, No. 22 of 1909, prescribes that (sub-section (1)) whoever affixes an adhesive stamp to any instrument chargeable with duty shall, when affixing the stamp, cancel the same so that it cannot be used again; sub-section (2) of that section says that an instrument bearing an adhesive stamp which has not been so cancelled shall be deemed to be unstamped; and sub-section (3) says that a person affixing an adhesive stamp may cancel it by writing in ink, on or across the stamp, his name and the true date, so as effectually to obliterate and cancel the stamp, and so as not to admit it being used again. It has been urged that sub-section (3) is imperative, and that that is the only method by which a stamp can be cancelled. In support of this proposition the case of Ndkuran v. Ranhamy 1 [1 (1917) 20 N. L. R. 135. ]has been cited. That case does n