025-NLR-NLR-V-24-SATHASIVAM-v.-VAITHIANATHEN.pdf
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1988.
Present: Bertram C.J. and Schneider J.
t.
SATHASIVAM v. VAITHIAN ATHEN.
,2>. C, Colombo, 2,002.
Stamp duty—Actions under the Trusts Ordinance, 1917—Interpretation
Ordinance, No. SI of 1901, a. 10i
Actions relating to public trusts under the Trusts Ordinance,1917, are liable to stamp duty as actions of the value of Bs- 1,000.
Sub-section 9 of section 116 of the Trusts Ordinance which enactBthat all petitions shall bear a stamp of Bs..' 10 was designed to.nrovide for proceedings of a special nature' by petitions undersections 35, 74, and 76, and other sections of the Trusts Ordinance.
/p HE facts appear from the judgment.
^t
Arulanodan (with him R'etnam), for defendants, appellants.—Section 116 ' (3). of the Trust Ordinance provides that petitionsunder the Ordinance should bear a stamp of Bs. 10. There is noother provision either in the Trust Ordinance or in the StampOrdinance which requires proceedings -to, be stamped' nor arethey specially exempted. It has been, the ‘practice not to stampsuch proceedings. • But section ll6 (1) ofthe Trust Ordinanceenacts that all proceedings.* under the Ordinance shall be governedby the enactments, and rules relating to civil procedure for thetime being in force which requires ; plaints . and all proceedings,unless-specially exempted to be stamped.
If, therefore, these proceedings should be stamped, they wouldcome uhder-the. miscellaneous class in the schedule to the StampOrdinance. The – latter provides that actions relating ' to publiccharities under chapter 45 of the Civil Procedure Code shall becharged as of the value of Bs. 1,000. That this chapter wasrepealed by the Trust Ordinance was lost sight of . when the scheduleto the Stamp Ordinance was repealed in 1919. This difficulty iscleared by the application of section 10 of the InterpretationrOrdinance.
Keuneman (with him SpencerRajaratnam)ffor plaintiffs,
respondents.
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September 15, 1922. Bertram C.J.—
This case has b,een brought before us by the Registrar, because,on the appeal being presented to this Court, it was found that theproceedings were unstamped, the learned Judge in the Court below
( «s )apparently being of opinion that actions relating to public trustswere not liable to stamp duty. This is said to be the practice, butit is clearly an erroneous''practice. It is said to be based uponsection 116 of the Trusts Ordinance, No. 9 of 1917, which enactsin sub-section 3 that all petitions presented in any Court in anypioceedings under this Ordinance, shall bear a stamp of Bb. 10. Thisspecial provision with regard to petitions under the Trusts Ordi-nance does not affect other documents liable to stamp duty. Theyare governed by the firet- sub-section of section 116 which-says thatthe enactments and rules relating to civil procedure, at the timebeing in force,' shall apply to them. These words bring intooperation the general provisions of. the Stamp Ordinance withregal'd to legal proceedings; Sub-section 3 was-a special enactmentdesigned to provide for proceedings of a special, nature by? petitionsunder sections 35, 74, and 76,..and other sections of the TrustsOrdinance. It was, no doubt, modelled on section 11 of'the Entailand Settlement Ordinance of 1876, which, in sp far as it relates totrusts, was repealed by the Trusts Ordinance. The proceedings,therefore, must be stamped like any other proceedings.
Mr. Arulanandan, however, raises another point, namely, onwhat scale are they to. be stamped, and contends, 1 think rightly,that they. must be stamped -.as . belong, tig to the miscellaneousclass. The law on this -question is as lollpws : Our old StampOrdinance, No. 22 of'1909, provided in the schedule that actionsrelating to public charities under-chapter 45 of the Civil ProcedureCode shall be charged .as of the. value of Rs. 1,000. Chapter 45 ofthe Civil Procedure, Code was repealed and re-enacted in verylarge form by certain sections of chapter 10 of the Trusts Ordinance.There can be. noVquestion that in the year 1918, after the enactmentof .the Trusts Ordinance, section 10 of the Interpretation Ordinance,No. 21 of 1901, came into play, and consequently the referencein the Stamp Ordinance of 1909 to chapter 45 of the Civil ProcedureCode which' had ’been repealed by the Trusts Ordinance was .deemed to ba made to a portion of the Trusts Ordinance, corre-sponding. to" the chapter so repealed. Actions, therefore, relating topublic ^charities under the Trusts Ordinance were in 1918 chargeableas of the value of Rsi 1,000. In 1919, however, the schedule to theStamp' Ordinance was itself repealed and re-enacted with * modi-fications^ The. fact that chapter 45 of the Civil Procedure Code hadbeen repealed was lost sight of, and consequently the amendingStamp Ordinance, No. 10 of 1919, contained a reference to ahenactment which had been already repealed. It cannot, however, •have been the intention of'the Legislature in 'thus re-enacting in thesame words a provision of the Ordinance of 1909, which was inforce at the date of the new .enactment only subject to the inter-pretation above indicated, to change the law as it then stood, orto give that provision any other interpretation.
IMS.
Bertram
OJ.
Salhaetva«. FaHhta-nathm
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The question now arises, Does section. 10 of the Interpretationw—wptyr Ordinance apply? That section, if strictly construed, seems, torequire that the rep.ealing law must be subsequent to the enactmentffathiHriyam hi which the reference occurs. I think, on consideration, that the*'tihm^ana~ w<>r^ ‘'subsequently ’’ eannot be construed as meaning “ subse-quently to its own enactment.” To justify such an interpretation,the Words should run “which has been subsequently repealed.”
We are thus in this' position that in the . Ordinance of 1919there is a reference to a written'law which has . been, repealed, butthe repeal was not subsequent to the. enactment of the Ordinancecontaining the reference, and the case is .not, therefore, within thestrict words of the section. The question arises whether wecannot apply the principle of . the section,, independently of thesection itself, so as to give effect to what must have been theintention of the Legislature. -.
Some of the enactments of the Interpretation Ordinance are ofa mechanical nature, designed to ‘shorten statutory formulee, orto deal with situations which cannot be dealt with except by a positiveenactment. Others are the; expressions of general principles ofinterpretation,' which are valid independently of the enactment,section. 10 is, in my opinion, of this latter description. In. theEnglish Interpretation Act the same principle is thus formulated: —
‘Where this Act or any Act passed after the commencement ofthis Act repeals and re-enacts, with or without modifica-tions any provisions of former ActL references in anyother Act "to the' provisions so repealed shall, unless thecontrary intention appears, be construed as referencesto the provisions so re-enacted.” *
It thus appears that the word “ subsequently ” in our formu-lation of the principle is not essential to the principle itself. Theprinciple is that where an enactment is repealed and re-enacted,with or without modification, references in any other enactmentto the repealed provisions, are, to be construed, as references to thecorresponding provisions so re-enacted. . The fact that our Legis-lature has formulated the principle in this particular manner doesnot. preclude us from applying that principle to a case, whichthough not quite within the formula we have adopted is within theprinciple itself, .
. X would, therefore, rule. that actions relating to public charities•under chapter 10 of the Trusts Ordinance are chargeable as of thevalue of Rs. 1,000.
Schneider J.—I agree.