Commissioner Of Stamps V. Banda

1929. Present : Drieberg and Akbar JJ.

COMMISSIONER OF STAMPS v. BANDA.

64-D. C. (Inty.), Avissawella, 71-

Stamps-Security bond by administrator-Liability to duty-Ordinance No. 22 of 1909, Schedule B, Part I.

A security bond given by an administrator is liable to stamp duty under item 15 (b) of Part I. of Schedule B of the Stamps Ordinance.

APPEAL from an order of the District Judge of Avissawella.

The respondent was on January 21, 1928, ordered by the District Court of Avissawella to give security by bond in Rs. 750 for the due administration of the estate of a deceased person under section 538 of the Civil Procedure Code. The question is whether the bond was liable to be stamped under the Stamps Ordinance, No. 22 of 1909.

The learned District Judge held that bonds executed in testamentary proceedings Were free from stamp duty.

M. W. H. de Silva, CC., for Commissioner of Stamps-- Section 4 of Ordinance No. 22 of 1909 imposes a duty on every instrument in the Schedule B, which not having been previously executed, is executed in Ceylon. A bond by an administrator in form 90 is a bond within the meaning of that word in item 15 of the schedule. It is therefore subject to the duty stated in that item unless especially exempted. Under Ordinance No. 32 of 1919 a bond by an administrator fell under Part I. as well as Part

III. By the amending Ordinance No. 19 of 1927 bond has been removed from Part III. with the result that it now falls under Part I. only. The learned District Judge was wrong in considering the intention of the Legislature, in omitting the word " bond "from Part III. The intention of the Legislature is relevant only when there is an ambiguity. In the present case there is no such ambiguity at all.

The District Judge has treated Part III. as exhaustive of the duties in testamentary proceedings. He has apparently misread the words " not falling under any of the following heads " at the end of the first sentence in the beginning of Schedule B. These words qualify only the words " on other instruments, matters, and things. " Further, the words " not falling under " clearly mean "not appearing in" "or not included under." The words appearing against Part I., Part II., Part III-, &c, are merely words describing the contents of such parts. The description of Part V., as '' miscellaneous '' clearly shows that the words '' falling under cannot be construed as " which should fall under," and shows that the parts are not intended to be exhaustive.

Before the amendment of 1927 the Crown could elect to charge duty under either Part I. or Part III. See the case of In re v. Coomaraswamy, Notary Public. [1 (1927) 27 N. L. R. 62.] The result of the amendment is to confine the Crown to the first part of the schedule.

The fact that in Part II. the words " Bail bond or other bond or recognizance. The same duty as a mortgage bond for the same amount " appear is immaterial. The result would have been the same whether these words had been inserted or not.

An instrument cannot be exempted from duty by implication. It is clear from item 15 (a) that no bond of any kind was intended to be exempted from duty.

H. V. Perera, for respondent.-The District Judge is correct in regarding Part III. as exhaustive of duties in testamentary cases. The practice has been only to charge duty on' the items stated in that part. When an item which had been there is omitted the implication is that it was intended to free it from duty. The intention is therefore relevant as the act of omitting this item made the enactment ambiguous.

It is the duty of the Legislature to speak clearly especially in cases where the tax is to be imposed on the subject.
The contention that the words " not falling under any of the heads " qualify only the words " on other instruments, &c," is based on a mere semicolon. Marks of punctuation are not a part of the statute. Those words must b

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