TAMBIAH v. CASIPILLAI

079-NLR-NLR-V-40-TAMBIAH-v.-CASIPILLAI.pdf


298
Tambiah v. Casipillai.
.1938
Present: Hearne J. and Wijeyewardene A.J.TAMBIAH v. CASIPILLAI.
65—D. C. Jaffna, 45.
Stamps—Petition for vesting order under section 112 of the Trusts Ordinance—Ordinance No. 22 of 1909, Schedule B, Part II.
Where the petitioner claiming to be. the hereditary trustee and managerof a Hindu temple petitioned the Court to make a vesting order in his
favour-in terms of section 112 of the Trusts Ordinance, No. 9 of 1917,
' Held, that the proceedings were, chargeable with an ad valorem stampduty as indicated in 'Schedule B of Part II of the Stamp OrdinanceNo. 22 of 1909.
299
Tambiah v. Casipillai.
HIS was a petition to the District Court of Jaffna by the petitioner,
X claiming to be the hereditary manager and trustee, for a vestingorder in his favour in terms of section 112 of the Trusts Ordinance. Thesubject-matter of the petition was valued at Rs. 20,000. The DistrictJudge dismissed the petition and the petitioner appealed. The respond-ent took a-preliminary objection to the appeal on several grounds stated
A. Hayley, K.C. (with him H. W. Thambiah), for respondent, takespreliminary objection.—The appeal should not be entertained for threereasons, viz.:—(1) The petition of appeal and the security bond are bothsigned by a Proctor whose proxy is unstamped and is, therefore, invalid.(2) The value of the action is Rs. 20,000, and stamps tendered for theSupreme Court decree and for the certificate in appeal should have beenfor Rs. 30 and Rs. 15 respectively, whereas stamps only for Rs. 40 in allwere tendered. (3) The petition of appeal should bear a stamp for Rs. 15whereas a stamp for only Rs. 10 has been affixed.
The proxy of the appellant’s Proctor bears no stamp at all. Undersection 36, therefore, of the Stamp Ordinance, No. 22 of 1909, it is invalidand the ratio decidendi in Andam Chetty v. Pana Mohamadu Tamby' isapplicable although that case was decided before 1909.
With reference to th~ second objection, it is important to bear in mindthe nature of the proceedings. The appellant is asking for a vestingorder under section 112 of the Trusts Ordinance, No. 9 of 1917. Thevalue of the. subject-matter is admittedly Rs. 20,000. The documentshave, therefore, to be duly and sufficiently stamped under that class.The District Judge was under the impression that proceedings concerningcharitable trusts needed no stamps except the ten-rupee stamp requiredunder section 116 (3) of the Trusts Ordinance. That mistaken idea waslong ago exposed in Sathasivam v. VaithianathanIt was an actionunder section 102 of Chapter X of the Trusts Ordinance, and it was heldthat actions relating to public trusts under Chapter X were chargeableas of the value of Rs. 1,000. The present case, however, is not broughtunder Chapter X but, admittedly, under section 112, that is underChapter XI. The ruling in Sathasivam v Vaithianathan (supra) has beenfollowed recently in Saddanatha Kurukkal v. Subramaniam et al*.
Schedule B, Part II of the Stamp Ordinance gives the value of stampsnecessary for the Supreme Court decree, certificate in appeal and thepetition of appeal in an action where the subject-matter is valued atRs. 20,000. Failure to supply the necessary stamps is fatal to the wholeappeal—Sathasivam v. Cadiravel Chetty *. and Ramalingam Pillai v.Wimalaratne".
H. V. Perera, K.C. (with him N. Nadarajah, E. B. Wikramanayake andC. J. Ranatunge), for petitioner, appellant.—This is an application for avesting order under section 112 of the Trusts Ordinance. Section 101,which is a part of Chapter X, expressly provides for such procedure. A
> (1884) i; S. C. C. 1st).. 3 (1937) 39 jV. /.. R. 387.
2 (1992) 24 N. L. R. 94.- i (1919) SI N. /.. R. 93.
T
below.
(1934) 3fi N. I.. R. 7,2.
300
Tambiah v. Casipillai.
similar application under section 112 was made in an action brought undersection 101 in Karthigasn Ambalawanar et al. v. Subramaniar Kathiraveluet al.1.
As regards the value of the stamps necessary for a proceeding undersection 112, the scope of section 116 has to be considered. Sub-section (3)of it will, no doubt, not apply to documents other than bare petitions,but sub-section (1) brings in the rules relating to Civil Procedure. ScheduleB, Part II of the Stamp Ordinance expressly refers to Chapter XLV ofthe Civil Procedure Code, dealing with public trusts. Chapter XLV ofthe Civil Procedure Code is now incorporated in section 101 of the TrustsOrdinance. The provisions of Schedule B, Part II of the Stamp Ordi-nance would apply not only to actions brought under section 101 of theTrusts Ordinance, but to proceedings under the other sections as wellprovided that a public trust is the subject-matter of the proceeding. Theproviso in section 101 definitely catches up other sections which are notin Chapter X of the Trusts Ordinance. Sathasivam v. Vaithianathan (supra)dealt with an action under section 101; the position regarding proceedingsunder the other sections was not considered. The ruling in that case,however, can be made applicable to proceedings relating to public trusts,brought under other sections.
To sum up, sections 112 and 116 (1) of the Trusts Ordinamce have to beread along with section 101. If the class of the present case is acceptedas of Rs. 1,000, the stamps which have been supplied for the petition ofappeal, &c., are sufficient.
The proxy of the appellant’s Proctor has already been acted upon.The fact of authority is not derived from the stamping but from theacting upon it—section 37 of the Stamp Ordinance. The proxy must,no doubt, be stamped, but the absence of the stamp does not make theauthority void. This case cannot be worse than Jayawickreme et al.v.Amarasooriya=, and Tillekeratne v. Wijesinghe 3.
F. A. Hayley, K.C., in reply.—It is conceded now that the value of thestamps would be insufficient unless the proceeding is of the thousand-rupee class. It is suggested that the relevant provisions of the StampOrdinance should be interpreted as meaning that all actions relating tocharitable trusts, whether they are brought under Chapter X of theTrusts Ordinance or not, should be computed as of the thousand-rupeeclass. Sathasivam v. Vaithianathan (supra) is, however, a decision to thecontrary. ' It is section 101 alone of the Trusts Ordinance which takes theplace of section 639, that is, Chapter XLV of the Civil Procedure Code.The proviso in section 101 is only a protecting and explanatory clause.How a proviso should be treated is dealt with in Colombo Stores, Ltd. v.Silva It should not be interpreted so as to alter the operative effect•of the main enactment. The present proceedings can,‘by no means, bedescribed as one brought under Chapter X of the Trusts Ordinance.
A vesting order .under section 112 of the Trusts Ordinance cannot besought for by petition independently and except in the course of a regular
I (1924) 27 N. L. R. 15.
* (1914) 17 N. L. R. 174.
(1908) 11 If. L. R. 270.
(1924) 26 N. L. R. 185.
301
BS&BKB J*—Tambi&h n. OaipHIai-
arfinn hmnght nwte sections Id and 102—iSvthukumaru et. at v.Veztktf et aL1- Karthigasu Ambalawanar et aL v. Subramamar Kathira-vete et eL (supra). .
Cut. otto. mitt.
Sepfcembe- 23, 1938. HeabxeJ.—
The plaintiff rbiming to be the hereditary trustee and manager of aHindu fc»mpln petitioned the Court to make a vesting order in his favourin famm of section 112 of the Trusts Ordinance, No. 9 of 1917. HispefiHnm was dismissed and he has appealed- The subject-matter of theprfiHnn was valued at Bs. 20.000. If it is <m die basis of this valuationthat the petition of appeal requires to be stamped, it is understamped todie extent of Rs. § and similarly the tender of stamps for the S. C. decreeand the certificate in appeal falls short by Rs. 5 of the requirements ofthe Stamp Ordinance. In these circumstances Counsel far the respondent,on a preliminary objection, asked for die appeal to he dismissed.
Schedule S of die Stamp Ordinance (No. 22 of 1909) as resettled in1919, provided that “ actions relating to public charities under ChapterXLY of the Civil Procedure Code shall be charged as of the value ofRs. 1,000”. Chapter XLY of the Code had however been repealed in1917, by the Trusts Ordinance (No. 9 of 1917), and had been re-enactedby certain sections in Chapter X of the Trusts Ordinance. In order togive effect to the intention of die Legislature which had been lost or atleast obscured by this insdrateoce it was held in Sathasivam «. Vmtfua-nathan', that “ actions relating to public charities under Chapter X ofthe Trusts Ordinance are chargeable as of the value of Rs. 1,000Counsel for the appellant sought to extend die application of dial decisionto a petition under section 112 of the Trusts Ordinance.
Chanter XLY of the Code made provision for particular proceedings tobe taken for certain specified purposes by or with -the consent of theAttorney-General and 1 am unable to give the benefit of the provision in-Schedule B of the Stamp Ordinance (supra) to a person initiating proceed-ings under the Trusts Ordinance, unless those proceedings are under oneof the sections of the Trusts Ordinance winch reenacted Chapter XLY ofthe Code, and section 112 is not one of those sections.
It was argued that the proviso in spptfm 101 of die Trusts Ordinanceattracted to and in effect incorporated in that wffnn which is «nifcrin«iin Chapter X. section 112 which is not in Chapter X. 1 cannot upholdthis contention. The proviso referred to is merely a saving clause- Itsaves actions elsewhere available under the Ordinance
Counsel for the respondent raised another objection to die constitutionof die appeal on the ground that the petition of appeal and seem tty bondhad best signed by a Proctor by virtue of a power of attorney which hadnot been stamped. It is unnecessary to eammo this objection.
I would dismiss the appeal with costs.
WLfMatyvAraffiSB AJ.—
The preset appeal arises in respect of a petition filed by the appellantin 'die District Court of Jaffna, claiming to be the hereditary managerand trustee of a Hindu famph>_ He avers that die respondent wrongfully
I PS) IS G- irk. W. 9.3 psss) atf.lr.R- St.
302WIJEYEWARDENE A.J.—Tambidh v. Casipillai.
claimed to be the manager of the temple and was preventing him fromexercising “ his rights a,s sole manager and trustee of the temple and itstemporalities In paragraph 10 of the petition he sets out the purposeof his petition as follows : —
“ In order to enable the petitioner more effectually to manage thesaid temple and its temporalities it is necessary that a vesting ordershould be entered in terms of section 112 of Ordinance No. 9 of 1917vesting the temple .referred to above and the temporalities describedin the schedule annexed hereto in the petitioner as sole hereditarymanager and trustee
He values the subject-matter of the petition at Rs. 20,000.
The District Judge held that the dispute between the petitioner andthe respondent as regards the managership and the trusteeship shouldfirst be settled by a regular action before the petitioner asks for a vestingorder under section 112 of the Trusts Ordinance, 1917, and dismissed theapplication of the petitioner.
The petitioner appeals against this order.
The Counsel for-the respondent has raised the following preliminaryobjections against the appeal being entertained by this Court: —
The stamps tendered for the decree of this Court and the certificate
in appeal are insufficient.
The petition of appeal is insufficiently stamped.
The proxy given by the petitioner to his Proctor is not stamped
and therefore the petition of appeal and the security bond bothof which are signed by the Proctor cannot be acted upon.
I shall deal with the first two objections as in view of the decision I havereached with regard to them, it is not necessary for me to consider thethird objection .
“ The Property and Trustees’ Ordinance, 1871 ” (Ordinance No. 7 of1871) provided inter alia for the nomination of trustees by District Courtsand the vesting of property in such trustees. It further provided that allappeals to the Supreme Court from the orders made under the Ordinanceby any District Cotirt “ shall be subject to the same rules, regulationsand practice as exist with respect to interlocutory appeals from DistrictCourts This Ordinance was held to be applicable to public charitabletrusts. (Muttiahpillai v. Sanmugam Chetty'.)
The Civil Procedure, 1899, enacted in Chapter XLV that in case oiany alleged breach of a trust created for public charitable purposes oiwhenever the direction of the Court was deemed necessary for theadministration of any such trust, the Attorney-General or two or morepersons interested in the trust with the written consent of the Attorney-General could institute an action for the purpose of obtaining a decree—
removing any trustee, and if necessary, appointing new trustees,
vesting any property in the trustee,
declaring the proportions in which its objects are entitled,
authorizing the whole or any part of the property to be sold oi
otherwise dealt with,
settling a scheme of management, or
granting any other relief.
1 (1910) 11 N. L. It. 10.
WIJEYEWARDENE A.J.—Tambiah v. Casipillai.
303
Ordinance No. 22 of 1909 provides that instruments and documentsshall be chargeable with duty of the amount indicated in Schedule B ofthe Ordinance. Now Schedule B contains in Part n, “the duties onLaw Proceedings ” and has under the heading “ Miscellaneous ” thefollowing provision:—
“ Actions relating to public charities under Chapter XLV of the Civil
Procedure Code shall be charged as of the value of Rs. 1,000
The position therefore until 1917 (when the Trust Ordinance waspassed) was that while actions under Chapter XLV of the Civil ProcedureCode were chargeable with stamp duty as actions of the value of Rs. 1,000other actions in respect of charitable trusts falling for instance underOrdinance No. 7 of 1871 would have been chargeable with an ad valorem,duty as provided in that portion of Schedule B, Part II of the StampOrdinance, 1909, which contained the “ Duties on Law Proceedings
The Trusts Ordinance, No. 9 of 1917, repealed Ordinance No. 7 of 1871,and Chapter XLV of the Civil Procedure Code, 1889. Sections 99 to > 109constituting Chapter X of'the Trusts Ordinance, 1917, refer to charitabletrusts. The first part of section 101 is a re-enactment with some slightmodifications of the provisions of Chapter XLV of the Civil Procedure Code.
Now by virtue of section 10 of the Interpretation Ordinance, No. 21 of1901, the reference to Chapter XLV of the Civil Procedure Code in thespecial provision under the heading “ Miscellaneous ” in Schedule B, Part IIof the Stamp Ordinance, 1909, would have been read as a reference tothe first paragraph of section 101 of the Trusts Ordinance, 1917. Theposition then with regard to the duty which actions in respect of publiccharitable trusts attracted was that actions under the first paragraph ofsection 101 of the Trusts Ordinance would be charged as of the value ofRs. 1,000 while all other actions in respect of such trusts would be charge-able with an ad valorem duty as indicated in Schedule B, Part II of theStamp Ordinance.
In 1919 and later the Schedule B of the Stamp Ordinance was repealedand re-enacted with some alterations but by an oversight on the part ofthe draftsman it continued to contain a reference under the heading“ Miscellaneous ” to actions under Chapter XLV of the Civil ProcedureCode, though at that time this Chapter had been repealed by the TrustsOrdinance, 1917.
In this state of the legislation on the subject, this Court decided inSathasivam v. Vaithianathan the question of the stamp duty leviable inrespect of proceedings connected with charitable, trusts. After considering. section 116 of the Trusts Ordinance, Bertram C.J. and Schneider J. heldin that case—
that actions relating to public charities under Chapter X of the
Trusts Ordinance was chargeable as of the value of Rs. 1,000,
that section 116 (3) was a special enactment referring to proceedings
of a special nature by petitions under sections 35, 74 and 76 andother sections of the Trusts Ordinance.
(1923) 24 N. L. R. 94.
304
WUEYEWARDENE A.J.—Tambiah v. Casipillai.
It may become necessary when, the occasion arises to examine moreclosely the view expressed by the learned Judges in Sathasivam v. Vaithia-nathan (supra) that all actions relating to public charities under Chapter Xof the Trusts Ordinance are chargeable as of the value of Rs. 1,000. It isnot unlikely that the view may be taken that this special provisionapplies only to actions under the first paragraph of section 101 which wasenacted in place of Chapter XLV of the Civil Procedure Code. But as I amof opinion that the present proceedings do not fall under Chapter X ofthe Trusts Ordinance it is not necessary to pursue this question further.The learned Counsel for the respondent argued that the present proceed-ings were under Chapter X and referred to the second paragraph ofsection 101 in support of his argument. This paragraph reads
“ Nothing contained in this or the next succeeding section shall bedeemed to preclude the trustee or author of any charitable trust fromapplying to the Court by action or otherwise for such direction or reliefas he may be entitled to obtain under the general provisions of thisOrdinance, or for the purpose of invoking the assistance of the Court forthe better securing of the objects of the trust, or for regulating itsadministration or the succession to the trusteeship, and upon anysuch application the Court may make such order as it may deemequitable ”.
This paragraph, it is clear, does not create a new action. It only savesactions available under other provisions of the Ordinance. Such actionswould therefore be actions under other provisions of the Ordinance andnot under section 101. The present action which contains a specificreference to section 112 and that section alone cannot be regarded asan action under section 101 or any other section of Chapter X but asan action purporting to be under section 112 which falls outsideChapter X.
The present proceedings therefore would be chargeable with ad valoremduty and according to the provisions of the Stamp Ordinance, 1909, asamended by Ordinance No. 19 of 1927, the petition of appeal should beara stamp of Rs. 15 and stamps of the value of Rs. 45 should have beentendered for the judgment of this Court and the certificate in appeal.The petitioner has however affixed only a stamp of Rs. 10 on the petitionof appeal and has tendered stamps of the value of Rs. 40 only for thejudgment of this Court and the certificate in appeal.
I uphold the first two objections raised by the respondent’s Counsel andfollowing the decisions in Sathasivam v. Cadiravel Chetty1 and RamalingamPillai v. Wimalaratne I dismiss the appeal with costs.
Appeal dismissed.
> (1M9) SI N. L. R. 93.
2 (1S'34) 36 N. IS. R. 52.