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Petition No. 55 of 1953 for Succession Certificate in respect of certain Securities belonging to Mr. Shamsul Hasan, son of Shafiqul Hasan deceased, decided on 30th September, 1953.
Stamp Act (II of 1899), S. 18 and Article 4 of Schedule 1---Affidavits for immediate use in Court are exempt from stamp duty.
Two of the next-of-kin who were residents of Bharat swore an affidavit on 7th May, 1953, stating that they had no objection to the grant of the Succession Certificate to the petitioner.
The awo affidavits were for immediate use as given in Article 4 Schedule I of the Stamp Act and were exempt from stamp duty.
The word "immediate" refers to purpose and not to time.
A I R 1947 All. 37 rel.
Z. A. Suhrawardy, for Petitioner.
--The question for my determination is whether the two affidavits which had been sworn in India have to be stamped at Karachi as required by section 18 of the Stamp Act II of 1899. The present question arises under the following circumstances.
One Begum Zubeda Khatoon has made an application under section 372 of the Succession Act for an issue of a certi ficate regarding the assets left by her deceased husband Shamsul Hasan. The petitioner mentioned a number of persons as next-of-kin to the deceased. Some of these persons mentioned as next-of-kin are residents of Bharat. Two of the next of kin who are residents of Bharat have sworn an affidavit on 7th May, 1953, stating that they have no objection to the grant of the Succession Certificate to the, petitioner.
The Office has put a note that these two affidavits have not been stamped- in Pakistan as required by section 18 of the Stamp Act. The noting by the Office does not assign any reason but I sent for the serishtedar who has stated that the objection to the receipt in evidence of the two affidavits was that they contravene the provision of section 18 of the Stamp Act.
The relevant clause of section 18 of the Stamp Act reads as under:
"Every instrument chargeable with duty executed only out of the Provinces and the Capital of the Federation, and not being a bill of exchange, or promissory note, may be stamped within three months after it has been first received in the Provinces and the Capital of the Federation."
The question for my determination is whether the two affidavits are chargeable with duty or not. Section 3 of the Stamp Act deals with instruments that are chargeable with duty. The relevant portion of section 3 for the purpose of the present decision is:
"Subject to the provisions of this Act and the exemptions contained in Schedule I, the following instruments shall be chargeable with duty of the amount indicated in that Schedule as the proper duty therefor, respectively, that is to say .."
It is clear from the above provisions of section 3 of the Stamp Act that in order to decide whether the certain instrument is chargeable with duty the exemption contained in Schedule I has to be taken into consideration. In the present case it is not contended that the affidavits as such are exempt from stamp duty. It would be exempt from stamp duty only if any exemption is given in the Schedule of the Stamp Act II of 1899. Article 4 of Schedule I reads as under:
"Affidavit, including an afirmation or declaration in the case of persons by law allowed to affirm or declare instead of swearing,
Exemptions
Affidavit or declaration in writing when made---
(a) as a condition of enrolment under the Indian Army Act, 1911 ; or the India Air Force Act, 1932 ;
(b) for the immediate purpose of being filed or used in any Court or before the officer of any Court ; or
(c) for the sole purpose of enabling any person to receive any pension or charitable allowance".
It has to be seen in view of the above Article whether the present affidavits can be said to be for immediate purpose of being filed or used in any Court or not. In my opinion the affidavits were meant for immediate use in this Court in the petition filed by the present petitioner for Succession Certi ficate. The word immediate in Article 4 had been subject of discussion before a full Bench of the Allahabad High Court. Allsop Ag. C. J. observed (A I R 1947 All. 37)
"In our judgment, the word "immediate" refers to purpose and not to time. We hold that it is unnecessary to stamp B the affidavit.
The above observation was made in affidavit which was sworn in Bombay on 24th April, 1942, for the set purpose of being filed in- a Court in connection with a pending proceeding. The affidavit was not filed till 12th May, 1942. The suggestion was that it was not sworn for immediate use in Court of law.
I hold for the reasons given above that the two affidavits were for immediate use as given in Article 4 Schedule I c of the Stamp Act and were exempt from stamp duty.
The petitioner Begum Zubeda Khatoon, widow of Shamsul Hassan has made the present application before this Court under section 372 of the Succession Act for the grant of a Succession Certificate on the death of her husband. She has filed an affidavit in support of the facts stated in her applica tion. The next-of-kin mentioned in the petition have all been served. They have filed affidavits stating that they have no objection to the grant of the succession certificate to the petitioner. They have also further stated that no security be called for from the petitioner by this Court. In fact the next of-kin who were entitled to the assets mentioned in the present application have all renounced their claim to the said assets in favour of the present petitioner. I am satisfied that the petitioner is entitled to the grant of the Certificate.
Let the Succession Certificate be issued in favour of the petitioner on her executing a personal bond for the amount mentioned in the application.
K. M. A. Certificate granted
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