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Report No. 67

41.8. Article 42-Notarial Acts-Recommendation.-

Article 42 levies duty on certain notarial acts. In doing so, it refers to the "instrument made or signed by a Notary public in the execution of the duties of his office We recommend that in this Article, for the words "made or signed", the word "executed" should be substituted, in order to maintain harmony with the language of the charging section (section 3). The legislature perhaps avoided the word "executed" in the present article for reasons of euphony-thinking that the word "execution" which follows later, would then jar on the ears. If so, that word could be replaced by the word "performance". Incidentally, it may be stated that in India, notaries are appointed under the Notaries Act, 1952.

41.9. Article 43-Note or memorandum by a broker.-

Article 43 levies duty on a note or memorandum by a broker or agent to his principal, intimating the purchase or sale on account of the principal-

(a) of any goods exceeding in value twenty rupees;

(b) of any stock or marketable security exceeding in value twenty rupees.

We recommend that the amount "twenty rupees" should now be increased to one hundred rupees, having regard to the fall in the purchasing power of the rupee.1

1. Compare discussion as to Article 53, Receipt, infra.

41.10. Article 44.-

Article 44 levies duty on a note of protest by the master of a ship. The "protest" made by the master is chargeable separately1-Article 51. Article 44 deals with the note made of such protest. The "note" is usually made by a notary public, or by a consular officer.2

In England, a "protest" is a declaration made by the master when damage has been caused to a ship or her cargo, made before a notary or British Consul at the first port of cal1.3 The object of the protest is to record promptly, in an authentic form, the circumstances in which loss or damage occurred so as to exonerate the master or his crew from blame.

1. See Article 51.

2. Dover Handbook to Marine Insurance, (1957), p. 548.

3. Haisbury's, 3rd Edn., Vol. 35, p. 133.

41.11. Use of protests.-

In England, a protest is not obligatory, but, in many countries abroad, the swearing of protest is a condition precedent to the establishment of legal rights.1 When a claim for marine insurance is made, the practice is to "exhibit" the protest.2

Protests are not receivable in evidence in English Courts, although they may be used in cross-examination.3-4-5

Explaining the importance of protests, Dr. Lushington observed-

"Protests are important for this purpose, and this only to state the damage which has occurred, and that it has taken place, for the sake of supporting a claim against the under-writers; not that the owner of the ship would be debarred from claiming against the under-writers, but, of course, unless it is stated in the protest, suspicion arises that the damage did not occur.6

1. Dover Handbook to Marine Insurance, (1957), p. 548

2. Dover Handbook to Marine Insurance, (1957), p. 567.

3. (a) R. v. Scrivener Co., (1830) 1 B&C; (b) Brown v. Thornton, (1837) 6 Ad&EI 185.

4. Halsbury's, 3rd Edn., Vol. 35, p. 134.

5. Abbot on Shipping, 13th Edn., p. 547, cited in Bouvier Law Dictionary, (1914), p. 2757.

6. The Santa Anna, 32 Li PMA 200 (per Dr. Lushington).

41.12. No change needed.-

The object of requiring the protest to be "noted" by a notary public is that his office is universally recognised not only in the Courts of this country, but also in those of every civilized nation. By the law of nations, he has credit everywhere.1

We have no changes to recommend in this article.

1. Hutcheon v. Warrington, (1802) 6 Ves 823, (per Lord Eldon, L.C.).

41.13. Article 45-Partition.- Article 45 levies duty on an instrument of partition as defined by section 2(15).

41.14. A Bar Council has made a suggestion1 that even an instrument recording the terms of a past transaction should be taxed as a partition. We have given due consideration to the suggestion, but are unable to accept it. Such a provision, if inserted, is bound to cause harassment in a very large number of cases. It may, for example, take in even casual correspondence in which a partition is referred to. An instrument which falls short of the creation of a separate status, ought not to be regarded as a partition, merely because it "records" a partition that took place in the past. To do so is to disregard the distinction between a vestitive fact and a mere piece of evidence. The legal effect-:-and therefore the economic value-of the two differ.

In the result, no change is needed in Article 45.

1. Andhra Pradesh Bar Council.



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