Ambalavanar V. Ponnamma Et Al.,

 

1941     Present: Hearne and de Kretser JJ.

 

AMBALAVANAR v. PONNAMMA et al.

 

120-D. C. (Inty.) Colombo, 3,484.

 

Guardianship proceedings-Father's right to custody of child-Thesawalamai- Jaffna Matrimonial Rights and Inheritance Ordinance, s. 40 (Cap. 48) - Stamping of documents-Stamp Ordinance, Schedule A Part II para F (f). (Cap. 184).

 

In guardianship proceedings documents other than those mentioned in paragraph F (f) of Schedule A, Part II. of the Stamp Ordinance are exempt from stamp duty.

 

The father of a child subject to the Thesawalamai is entitled to its custody on the death of the mother.

 

Kanapathipillai v. Sivakolunthu (14 N. L. R. 484), referred to.

 

APPEAL from an order of the District Judge of Colombo.

 

N. Kumarasingham (with him C. Renganathan).-There are two preli­minary objections to the hearing of this appeal, viz.: - (1) The appellant has failed to deliver to the Secretary of the District Court together with his petition of appeal proper stamps for the decree and order of the Supreme Court and the certificate in appeal.

 

(2) The appellant has failed to affix to the petition of appeal the necessary stamps. In fact no stamps have been supplied at all; the appellant taking the view that in guardianship proceedings no stamps are necessary.

 

Chapter 189 of the Legislative Enactments, section 2, states what instruments are chargeable with duty. Every document mentioned in Parts II., III., IV., and V. of the Schedule comes under that provision.

 

Section 5 saves certain instruments and does not affect the require­ments or exemptions created by other Ordinances. In the Civil Procedure Code section 10 makes provision for exemption when a case is trans­ferred from one Court to another, section 449 makes provision for actions by paupers. Section 581 specially exempts Lunacy Proceedings. There is no such exemption for guardianship proceedings under Chapter XL. of the Civil Procedure Code. By implication it follows that Guardianship Proceedings should be stamped unless otherwise exempted.

 

Under the Stamp Ordinance the position is quite clear. Schedule A, Part II., contains the duties on Law Proceedings in the various Courts. In Part II., head F, " Miscellaneous" defines the duties specially fixed in certain cases and the exemptions. Under this head special provision has been made for matrimonial actions, actions under the Small Tenements Ordinance, actions to give effect to public charity partition actions, Claim Proceedings, Actions under that Patents Ordinance, &c. No such provision has been made for guardianship proceedings. The legislature intended that guardianship proceedings should bear the ordinary class stamp.

 

Special

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