Samarasinghe V. Secretary District Court Matara

1937   Present: Soertsz J. and Fernando A.J.

SAMARASINGHE v. SECRETARY, DISTRICT COURT,

 MATARA.

1-D. C. Matara, 3,590 (Testy).
 

Estate duty-Application for execution and sale of property-Application must be made by Commissioner of Stamps-Citation to issue to donee of property-Person interested-Mortgage of property-Ordinance No. 8 of 1919, ss. 18 and 32.

An application for execution by sale of property for failure to pay estate duty must be made by the Commissioner of Stamps under section 32 of the Estate Duty Ordinance upon, a citation issued to the person accountable to pay the duty.

Where the duty is payable by a person to whom the deceased has gifted the property notice must be served on such- party.

A mortgagee of the property on which the duty is leviable is a person interested in the application.

Mackie v. Commissioner of Stamps (15 C. L. Rec. 123) and Kagoo v. Commissioner of Stamps (5 C. L. W. 90) referred to.

APPEAL from an order of the District Judge of Matara. The facts are stated in the judgment of Fernando A.J.

H. V. Perera, K.C. (with him N. E. Weerasooria), for appellant.

 A. L. Jayasuriya, for second and third respondents. Elliot, K.C. (with him Jayasuriya), for fourth respondent.

Cur. adv. vult.

June 21, 1937. SOERTSZ J.-

Mr. Elliot in the course of his argument, stated repeatedly that this case would probably go to the Privy Council. I do riot quite understand the purpose of this peristent intimation-but I wish to say that I have given this case as careful a consideration as this Court gives to all cases, including cases in which an appeal to the Privy Council is not adumbrated, and I agree with my brother that the appeal must be allowed. It is clear, and it is not denied that the appellant has very substantial interests in the land that has been sold and he, therefore, had a right to come before the Court and ask that he be allowed to pay the

estate duty due by instalments, and when that application was refused, and an order was made for the sale of the land, he was entitled to appeal. I cannot, therefore, understand the preliminary objection which Mr. Elliot sought to take that no appeal lies from the order of the District Judge.

In regard to the merits of the appeal, Mr. Elliot contended that because this sale was carried out on the orders of a Court which had jurisdiction and his client purchased the land at such a sale, the sale could not be canvassed any further. To my mind, he was there begging the question of jurisdiction by putting upon the word "jurisdiction" the meaning that the sale was the act of a competent Court for testamentary matters and that the sale was ordered by a Court within the limits of which the parties reside, and ignoring the appellant's contention that the Court had no jurisdiction to make the order in the sense that the Court was not authorized by law to make it. The journal entries show that there has been great delay in the payment of estate duty and the administrator on several occasions brought to the notice of the Court the fact that the Commissioner of Stamps was pressing him for payment. He finally moved that he be authorized to lease this land for five years in order to raise a sufficient sum to pay the amount due on account of duty. The Court ordered notice of this application to issue on the heirs and then on June 4, 1935, overlooking the fact that the notice issued on the heirs was one calling upon them to show cause why the land should not be leased for five years, made order in the absence of the heirs that some other property be sold. That sale fell though for want of bidders and then the administrator on December 23, 1935, disregarding his earlier application to be allowed to lease this land for five years, and evidently taking a cue from the order of June 4 asked that writ be issued to sell this land. Now it is perfectly clear from section 32 of Ordinan

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