J. within that definition, as there is no evidence that the deceased 1922. was at the time of his death domiciled in Ceylon." Moreover, SCHNEIDER the matter in controversy between the parties is not what assets form the property of the deceased, but what deductions are permitted under section 17 (1) of the Ordinance. In short, the whole dispute turns upon the construction of section 17 (1) (b) of the Ordinance., The argument on behalf of the appellant as presented before us on appeal was that "the debts and incumbrances " mentioned in section 17 (1) (b) include all debts and incumbrances, irrespective of the question where they were incurred or payable. This, undoubtedly, is a better argument than those urged in the lower Court. But I am unable to uphold it. The Ordinance is one dealing only with property situated in Ceylon. Whenever its provisions render it necessary to provide for any matters beyond the limits of this Island, there is express mention of such matters, e.g., in the definition of "property" in section 2, and in the deductions provided for in section 17 (2) and (3). That being so the words "debts and incumbrances" must be interpreted to mean such debts and incumbrances as have been" incurred or created" within the Island, as there is no reference to debts incurred elsewhere. It is not a sound argument against this view to say that there are no express words creating such a limitation. Such a limitation can be inferred. from the Ordinance considered as a whole, and from the fact that the Ordinance is primarily intended to deal with matters within the Island, and where matters beyond the limits of the Island should be taken into consideration, express provision is made for that purpose. There is another reason. Our Ordinance is based upon the English Finance Act, 1894 (57 and 58 Vict., c. 30). Section 17 of our Ordinance is closely modelled upon section 7 of that English Act. Section 7 (2) of the English Act is as follows: "An allowance shall not be made in the first instance for debts due from the deceased to persons resident out of the United Kingdom (unless contracted to be paid in the United Kingdom, or charged on property situate within the United Kingdom), except out of the value of any personal property of the deceased situate out of the United Kingdom in respect of which estate duty is paid; and there shall be no repayment of estate duty in respect of any such debts, except to the extent to which it is shown to the satisfaction of the Commissioners, that the personal property of the deceased situate in the foreign country or British Possession in which the person to whom such debts are due resides, is insufficient for their payment." The omission of this provision from our Ordinance is significant, and points to the intention as having been not to recognize debts Murugappa Chetty v. The Commissioner of Stamps 1922. SCHNEIDER due from the deceased to persons resident out of this Island as coming within the sphere of section 17 (1) (b). In section 28 of the Customs and Inland Revenue Act, 1881, c. 12, Murugappa which preceded the Finance Act, 1894, the only debts permitted Chetty v. The to be deducted from the value of the estate were the debts due Commisfrom the deceased to persons resident in the United Kingdom.” sioner of Stamps It would therefore appear that the only debts permitted at first to be deducted in England were those payable to persons resident in the United Kingdom, and that even when the Finance Act in 1894 modified this provision, deduction was only allowed (1) where it was expressly contracted that the debt should be paid in the United Kingdom; or (2) when estate duty is paid in respect of property situated out of the United Kingdom. There is a third reason. It would be recognized as a broad principle that the debts, the amount of which should ordinarily be deducted, are those for the payment of which the property from the value of which they are deducted might eventually be rendered exigible. To deduct from the Ceylon assets the whole of the debts payable to persons in India might result in injustice. By his will the deceased left all his Ceylon property to three devisees. None of that property is charged with the payment of the Indian debts. Why should the devisees under the will have their legacies diminished, while the heirs of the deceased in India succeeded to a free inheritance by reason of the fact that the whole burden of the debts are thrown upon the Ceylon assets. There is nothing to show that the heirs to the estate in India are the same as the devisees under the will. Moreover, it is by no means clear that the deceased was liable to pay all the debts payable in India-for it is stated that these debts were incurred for a partnership business, the representatives of deceased partners may or may not therefore be liable to pay a share of those debts. There is nothing definite on record in the proceedings before the matter reached the Appeal Court to show that the Commissioner of Stamps was of opinion that the debts had" been incurred or created by the deceased bona fide for full consideration in money or money's worth for the deceased own use and benefit." Unless he is of that opinion no deduction on account of any debt is permitted to be made. The argument of Mr. Martin who appeared for the Commissioner of Stamps in the lower Court, on the contrary, was to the effect that he contested that the debts had been incurred by the deceased for the purpose of trading in Ceylon. But so far as we are concerned in appeal, Mr. Crown Counsel Fernando frankly stated that he would not contest that point as the Commissioner of Stamps had for the purpose of his assessment accepted the statement as to the existence of the debts in question, and that the statement in the petition as to the deductions made by the Commissioner was correct. I would, therefore, hold that the order of the learned District Judge is correct, and dismiss the appeal, with costs. In view of the absence in these proceedings of proof or of admission of facts which should have been placed before the Court, and the absence of which proof gave some trouble in appeal, and in view of the statement of the appellant's counsel that an expression of opinion from us in the appeal would be of assistance, as the procedure prescribed in the Ordinance was not well known to our Courts, I would make the following observations. Under the Ordinance no District Court is permitted to issue probate or letters of administration until a certificate is produced that an executor has paid or secured to the satisfaction of the Commissioner of Stamps the payment of all estate duty (section 23). To enable the Commissioner of Stamps to make his assessment, a statement verified on oath setting out the value of the property and the deductions to be made is to be furnished to the Commissioner (section 21). Then comes section 22 (3), which gives a right of appeal to the District Court to any person dissatisfied with any assessment or valuation. It requires (1) That the sum in dispute in respect of duty shall exceed Rs. 200. (2) That notice of intention to appeal against the assessment or valuation be given in writing to the Commissioner within twenty-one days of the receipt of notice of the assessment of valuation. (3) That a statement in writing of the grounds of the appeal be furnished to the Commissioner within the period of twentyone days next following the first period of twenty-one days. (4) That the appeal be by petition. It seems to me that the petition should set out in its caption the title of the testamentary action, the name of the petitioner, and the provisions of the law under which it is presented. It should set out in numbered paragraphs the relevant particulars as regards the right of the petitioner to appeal, the amount in dispute, the due giving of the notice of appeal, and the furnishing of the statement of the grounds of appeal, and it should also set out the grounds of the appeal. The prayer should contain the relief asked for. There should be attached to this petition as exhibits, or produced in evidence at the trial, copies of the statements furnished to the Commissioner for the purpose of assessment, and any other documents relating to facts which had taken place before the matter was brought into Court. It is necessary to put a Court in possession of such facts. The language of section 22 (4) gives the District Court powers for a full investigation, so that, if necessary, issues 1922. SCHNEIDER J. Chetty v. The Commis- 1922. SCHNEIDER J. Murugappa Chetty v. The Commissioner of Stamps might be framed and tried. The necessary facts must either be admitted or proved as in all other cases where a Court is called upon to adjudicate upon any matter. Incidentally, I would also mention that the language of section 17 (1) (b) is such that the opinion of the Commissioner appears to conclude the question as what are the" debt "or" incumbrances " which might be deducted. DE SAMPAYO J.-I agree. 1922. Appeal dismissed. Present: De Sampayo and Schneider JJ. HANIFFA v. MOHAMADO. 336-D. C. Matara, 9,432. Alienation in fraud of creditors-Action by purchaser from judgmentdebtor against purchaser at Fiscal's sale-Can purchaser at Fiscal's sale set up the defence that transfer in favour of plaintiff was tainted with fraud ?—Transfer of all debtor's property on three successive days—Did debtor make himself insolvent before the last transfer ?-Bond given by debtor and surety-Alienation by principal debtor-Is creditor defrauded? A as principal debtor and B as surety granted a bond in favour of C. A did not mortgage any property, but B mortgaged some property of his own. On a decree obtained on the bond, a property was seized as the property of A, and was purchased by defendant at the sale in execution. Before the sale, A transferred all his property by three deeds executed on three successive days; the property purchased by defendant at the execution sale was transferred on the second day to the plaintiff. Plaintiff instituted an action for declaration of title to the property against defendant. Held, that it was open to the defendant to show that the deed in favour of plaintiff was executed in fraud of creditors. Plaintiff contended that as the deed in his favour was the second of the series of three deeds, A had not made himself insolvent by executing the deed. Held, that the three deeds must be taken to be one and the same act of alienation "To hold that before the execution of the last of the three deeds A was not insolvent, as he had some property left, would be to give effect to a mere subterfuge." It was contended that A in alienating his property in favour of the plaintiff could be said to have intended to defraud the surety and not the creditor. Held, that as the principal debtor's property was first liable, the creditor was intended to be defrauded by the alienation, especially as it was not shown that the property mortgaged by the surety would have been sufficient to pay the debt in full. THE facts appear from the judgment. Samarawickreme (with him Chas. de Silva), for plaintiff, appellant. Bawa, K.C. (with him E. W. Jayawardene), for defendant, respondent. November 3, 1922. DE SAMPAYO J. The plaintiff brought this action to vindicate title to two lands: (1) Modingewila Mahakuttiya and (2) Modingewila Punchikuttiya and Okanda. The defendant disclaimed title to the second of these lands, and the dispute was therefore confined to the first land. The land admittedly belonged to one Ismail Lebbe. The plaintiff's claim is founded upon a deed No. 15,028 executed by Ismail Lebbe in his favour on January 20, 1919. The defendant impeaches this deed as being fraudulent and collusive, and executed to defraud Ismail Lebbe's creditors. At that time Ismail Lebbe appears, in fact, to have been in pecuniary difficulties, and by three deeds executed about the same time he transferred away all his property in favour of his close relatives. The first deed was executed on January 18, 1919, for some lands, the second was the deed in favour of the plaintiff for this and two other lands, and the third deed dated the next day was for the rest of Ismail Lebbe's property. It is proved that notwithstanding these deeds of transfer Ismail Lebbe continued to be in possession of the lands. In the meantime he had been sued by one of his creditors, and under writ issued in that case the land now in dispute was sold in April, 1919, and purchased by the defendant. The Fiscal granted a transfer to the defendant on July 10, 1919. The learned Judge held that the deeds executed by Ismail Lebbe were intended to defeat his creditors, and dismissed the plaintiff's action. One or two questions of law are raised on behalf of the defendant. It is contended that the defendant, not being a creditor of Ismail Lebbe, but only a purchaser at the execution sale, was not entitled under the Roman-Dutch law to have the plaintiff's deed set aside on the ground that it was an alienation in fraud of creditors. Defendant, however, is not seeking to have that deed set aside-he is on the defensive, and sets up superior title on the ground that the plaintiff's deed is tainted with fraud. The point in any case is covered by judicial authority. Suppiah Naidu v. Meera Saibu,1 where Hutchinson C.J. observed that" if a creditor could claim on that ground to have the deeds declared void as against him, any one claiming, as this plaintiff does, through the creditor, has the same right.' See also Mohamado v. Manupillai.2 Mr. Samarawickreme invited us to review these decisions, but I think that, constituting as we do, a bench of two Judges, we must follow them. 13 Bal. 129. 23 C. W. R. 19. 1922. Mohamado Haniffa v. |