1947 Present : Wijeyewardene and Canekeratne JJ.

HASSAN,

Appellant, and MUTHUWAPPA, Respondent.


77 Inty - D.C. Colombo, 15,916.

Administration - Stamps - Probate or letters of administration - Abrogation of statutory provision - Stamping not necessary - Stamp ordinance, No. 22 of 1909, SS. 68 to 73 - Estate Duty ordinance (Cap. 187), s. 52 - Civil procedure code, s.547.

The provision relating to the due stamping of a probate or letters of administration has been rendered unnecessary by the Estate Duty ordinance.

APPEAL from an order of the District Court of Colombo.

S. J. V. Chelvanayagam (with him A.C. Nadarajah) for the defendant, appellant.

C. Thiagalingam (with him C. Chellappah) for the plaintiff, respondent.

H. W. R. Weerasooriya, C.C., for the Attorney-General, on notice.

January 29, 1947 CANEKERATNE J.-

Some years ago the defendant and one Mohamed Sheriff carried on, as partners, the business of a restaurant called the Colombo Buhari Hotel. The plaintiff, as the administrator de bonis non of the estate of Mohamed Sheriff, who is said to have died on April 99, 1941, applied to the Court in this action to wind up the business and affairs of the partnership, for an order on the defendant to render an account and pay the sum found due on the accounting. After sixteen issues had been framed the plaintiff led evidence and closed his case; the defendant then raised an issue relating to the competency of the plaintiff to maintain the action on the ground that the letters of administration had not been duly stamped. This is an appeal from the decision of the trial Judge refusing to proceed with the action until the inventory has been amended by the plaintiff.

It appears that a grant of administration in respect of the estate of the deceased was originally made to one Mohamed Cassim and he included in the inventory a half share of the business called the Colombo Buhari Hotel, the value of which he estimated at Rs.768.12. the contention of the defendant, below and in this Court, as stated by his Counsel, has been that the duty paid by the administrator was in fact insufficient to cover the property claimed in this action, inasmuch as the relief claimed is estimated by the plaintiff at Rs. 40,000 not at RS.768.12, and that the letters of administration were not duly stamped and the plaintiff was therefore debarred by the provisions of section 547 of the Civil procedure code (ch. 86 of the Legislative Enactments of Ceylon) from maintaining this action. Counsel for the appellant contended that the provisions of the section were no bar to the maintenance of the action. As the question in dispute was one of importance to the public the Court expressed a desire to hear the view of the Attorney-General; Crown Counsel appeared

on behalf of the attorney-general at the adjourned hearing and advanced the view that the regulation prescribing due stamping of the instrument cannot now be applied and that it has been replaced. Once who desires to obtain a grant of representation to the estate of a deceased person has a right to make an application to the District Court which has territorial jurisdiction over the place where the intestate died. On the relevant facts being proved-such as the death of the intestate the leaving of property by him, the right of the applicant to make the application, &c. - the Court would, as a general rule, make an order in his favour. The Legislature may quality this general right by imposing conditions: one such condition was imposed by the Stamp ordinance of 1871 for the purpose of obtaining the proper and full duty eligible on the property and estate of the deceased in Ceylon: a court was debarred from making a grant of letters administration until it obtained an affidavit from the applicant or some other competent person that the property and estate o the intestate are of the value of certain sum to be there in specified to