« EelmineJätka »
Civil Procedure Code. But there are one or two difficulties in the way of the appellants in seeking to come under that section. In the first place there was no assignment, creation, or devolution of any interest in this action by the plaintiff to the appellants. Secondly at the time of the assignment this action was not pending, as the order of abatement had already been made. I do not think that section 404 helps the appellants. I think really they have mistaken their remedy in seeking to intervene in this action. The District Judge, I think, was right in refusing the application, and I would dismiss the appeal with costs.
I agree. I will only add, that had there been any merit in this application, the way in which it was framed made it impossible for the Judge to have granted the application. The appellants asked, in the first place, to have the order of abatement rescinded; and secondly, that they be made parties to the action. They had no status, not being parties to the action, and, therefore, on the application to set aside the order of abatement, they could not be heard, the Judge was right in refusing to grant the application.
Nagalingam v. Chittampalam
Present: Ennis and Porter JJ.
CHELLIAH v. SOOSE.
163-D. C. Mannar, 9,179.
Contract Agreement by tavern-keeper to give Re. 1 per gallon to renter— Contract supply system-Impossible to make profit of Re. 1 if arrack was sold at the price fixed by Government—Is contract illegal?
A tavern-keeper agreed to pay the renter Re. 1 per gallon of arrack sold at the tavern. If the tavern-keeper sold the arrack at the price fixed by the Government, he could not have made a profit of Re. 1 per gallon.
Held, that the agreement was void as against public policy.
HE defendant-respondent was employed by the plaintiffappellant as a paid servant to sell arrack. Among other things it was agreed between the plaintiff and the defendant (a) that the defendant should pay to the plaintiff Re. 1 as profit on every gallon of arrack sold by the defendant; (b) that the defendant should keep regular accounts, and should conform to the rules of the Excise Department.
The defendant having failed to render proper account, the plaintiff brought this action for Rs. 490, of which Rs. 349 10 was the amount of profit at the rate of Re. 1 per gallon.
The defendant denied in his answer that any amount was due to the plaintiff, and specially denied that there was any agreement to give Re. 1 as profit to the plaintiff on every gallon of arrack sold. The District Judge held that it was impossible to make a profit of Re. 1 per gallon without an infringement of the Excise regulations, and dismissed plaintiff's action.
Pereira, K.C. (with him H. V. Perera and S. Rajaratnam), for the plaintiff, appellant.
Arulanandan (with him J. Joseph), for the defendant, respondent.
November 9, 1922. ENNIS J.
The only question on appeal in this case was whether an agreement to pay Re. 1 per gallon of arrack sold in an arrack tavern was legal as between the renter and the tavern-keeper. The learned Judge has found that the tavern-keeper, if he sold the arrack at the price fixed by the Government, could not make Re. 1 per gallon profit, and he, therefore, held that the agreement was void as against public policy, and to that extent dismissed the plaintiff's action.
On appeal it was urged that there was no evidence to show that Re. 1 per gallon profit could not be made legitimately. The plaintiff gave evidence as to the price at which he purchased the arrack, and it appears to have been accepted throughout the case and in the petition of appeal that by selling the arrack at the price fixed by Government, Re. 1 per gallon, profit could not be made. Iam unable, therefore, to say that the learned Judge's finding in this respect is
There remains to be considered whether this is an agreement which would be void as against public policy. The agreement would seem to be one which had for its object the collection of more profit than allowed within the price fixed under the Excise regulations; and in that respect it was one which was likely to defeat the provisions of the Excise Ordinance. I am, therefore, of opinion that the learned Judge was right in holding that the agreement in question was void.
I would accordingly dismiss the appeal, with costs.
PORTER J.-I agree.
Present: Schneider J.
THE COMMISSIONER OF STAMPS v. AHAMADULEVVAI.
222-P. C. Batticaloa, 11,006.
Stamp Ordinance, s. 50-Application to Police Court to recover deficiency of stamp duty-Does an appeal lie?
The Registrar of Lands produced an authority from the Commissioner of Stamps to the Police Magistrate to recover, from the appellant who had executed a certain instrument, the deficiency of stamp duty and a penalty, and made an application under section 50 of the Stamp Ordinance, 1909. The appellant deposited the money under protest, and appealed to the Supreme Court.
Held, that no appeal lay.
In cases coming under chapter IV. of the Stamp Ordinance, 1909, the Police Court is only invoked for the purpose of recovering the amount already determined by the Commissioner. It has no jurisdiction over the question whether that amount is rightly due or not. The mere fact that a Police Court is authorized to recover the sum does not invest the proceeding with the character of a criminal case or matter within the meaning of section 338 (1 of the Criminal Procedure Code.
This is an appeal by a person who had executed an instrument in 1915, whereby he assigned certain rights to another. In March, 1922, the Registrar of Lands at Batticaloa produced an authority from the Commissioner of Stamps to the Police Magistrate to recover the sum of Rs. 327.50 as being the amount of the deficiency of the stamp duty and of a penalty of Rs. 25. This was said to be recoverable under section 41 (1) (b) of the Stamp Ordinance, No. 22 of 1909. The application for recovery was stated to be made in terms of section 50 of the Stamp Ordinance. The appellant appeared on summons, and stated that he would deposit the amount by a particular date, but under protest as he desired to appeal to the Supreme Court. This was allowed, and the money was deposited by the date named. The appellant then preferred this appeal. Crown Counsel appearing on behalf of the Commissioner of Stamps, who has been made a party to the appeal, took the preliminary
Stamps v. Ahamadulevvai
objection that no appeal lay. I must uphold this objection. Chapter III. of the Stamp Ordinance provides the procedure for any adjudication as to the stamps fixed or to be fixed to instruments, and that at the end of the chapter makes provision for an appeal missioner of to this Court from the determination of the Commissioner of Stamps. Now it is evident that the appellant's case does not come within any of the cases contemplated in chapter III. He therefore cannot rely upon section 32 as conferring a right of appeal on him. Chapter IV. makes provision for cases of instruments not having been duly stamped, and at the end of the chapter, namely, in section 50, provision is made for application to be made by an officer authorized in this behalf by the written order of the Commissioner of Stamps to recover from any person liable to pay any duty, penalty, or other sum as if it were a fine imposed under the Ordinance by any Police Magistrate having jurisdiction where that person may for the time being be resident. The section also provides that the Magistrate may recover such amount, although it be larger than the amount of the fine he may ordinarily impose. It is evident, therefore, that in cases coming under chapter IV., the Police Court is only invoked for the purpose of recovering the amount already determined by the Commissioner. It has no jurisdiction over the question whether that amount is rightly due or not. The mere fact that a Police Court is authorized to recover a sum does not invest the proceeding with the character of a criminal case or matter within the meaning of section 338 (1) of the Criminal Procedure Code. In my opinion, therefore, there is no right of appeal in this matter. I was invited to deal with the proceedings by way of revision. I do not think I would be justified in doing that because the Magistrate has done no more than the law authorizes him to do, and the order of the Commissioner appears to me to be consistent with the provisions of the Stamp Ordinance.
I therefore dismiss the appeal.
Present: Schneider and Garvin JJ.
SENEVIRATNE v. HALANGODA et al.
228-D. C. Kandy, 27,718.
Kandyan law-Diga marriage-Wife dying issueless-Husband does not acquire any portion of wife's landed property acquired before marriage-Wife dying leaving children-Husband's rights—Binna widower excluded from rights to landed estate of deceased wife. Where a Kandyan wife married in diga dies issueless, the husband does not inherit any portion of the wife's landed property acquired before marriage.
"Inherited property reverts to the source from which it was inherited where there is no issue."
When a woman married in diga dies leaving issue, her husband takes a life interest in her landed property, which on his death will go to her children, or, if they have all died without issue, to their next of kin in their mother's family. In the above case if there be no issue, her husband will take only such landed property as he and his deceased wife acquired during coverture, the rest of the property passing to her parents and next of kin.
A binna widower is completely excluded from any rights to the landed estate of his deceased wife.
HE facts are set out in the judgment. (See also 22 N. L. R. 472 for judgment of the Supreme Court on the first appeal in this case.)
Drieberg, K.C. (with him Hayley and Navaratnam), for appellant.
February 13, 1923. GARVIN J.---
This appeal raises a question of Kandyan law of considerable difficulty. The facts of the case are simple. Tikiri Kumarihamy, by a deed dated August 5, 1899, gifted the land, which is the subject of this action, to Wilmot Illangakoon and Lilawathi Panabokke, in consideration of their marriages which was about to take place. They were married in diga on September 21, 1899. Lilawathi Panabokke died intestate and without issue on July 18, 1901. On July 15, 1919, Illangakoon transferred a half share of this land to the plaintiff, on the footing that he was his deceased wife's heir. The defendant claims this half share, his submission being that Lilawathi's heir was her mother, who by last will bequeathed the share to him.